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No. 2--03--0397

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

The State appeals the trial court's order suppressing evidence against defendant, PrudyCalgaro, that was obtained through judicially authorized eavesdropping. The State contends that thetrial court erred in holding that the application to use an eavesdropping device did not establishreasonable cause to believe that the recorded conversations would produce evidence that a felony wasbeing committed. We reverse and remand.

The eavesdropping in question occurred as part of an ongoing investigation of allegedprostitution at the C'est la Vie massage parlor. Members of the State Line Area Narcotics Team(SLANT) wanted to have an informant, identified as Tammy Strawberry, call the C'est la Vie posingas a prospective employee. Inspector Robert Czech of SLANT obtained the State's Attorney'sapproval and submitted to the trial court an application for a wiretap authorization.

The application stated that the parties whose conversations were to be recorded were TammyStrawberry, defendant, "and any other persons that may involve themselves in pandering violations." In an affidavit accompanying the application, Czech related interviews with witnesses who describedacts of prostitution that occurred at the C'est la Vie. Czech averred that Strawberry was theconsenting party and that Strawberry and defendant were the parties whose conversations would beoverheard. The final paragraph of the affidavit stated as follows:

"The nature of this investigation is such that any authorization granted pursuant to thispetition should not terminate automatically; it is anticipated that conversation with TammyStrawberry and Prudy I. Calgaro will result in more than one conversation which will consistof negotiations for Tammy Strawberrys participation in and performance of acts ofprostitution while being employed by Prudy I. Calgaro at Calgaro's place of business (TheC'est la Vie) and obtaining corroborative evidence of Calgaro's involvement in and associationwith others involved in violations of the Pandering statute."

Judge Gerald F. Grubb issued an order authorizing the monitoring of conversations betweenStrawberry and defendant "and possible unknown persons."

Apparently such conversations did occur. Defendant moved to suppress the evidenceobtained during those conversations. The trial court, through Judge J. Todd Kennedy, granted themotion. Although the motion did not specifically raise this ground, the court held that the wiretapapplication documents did not link defendant to any pandering violations at the C'est la Vie. Thecourt observed that Czech's affidavit stated only that defendant was the registered agent of thebusiness; it did not state that she played any role in the business's hiring or other day-to-dayoperations. The State filed a certificate of impairment and a timely notice of appeal.

The State contends that the trial court should not have suppressed the evidence, because aliberal reading of the application documents permits the inference that defendant was involved in theillicit activities at the C'est la Vie. We agree with the State that the evidence should not have beensuppressed, albeit for slightly different reasons. Generally, when a motion to suppress evidence involves factual determinations, a reviewingcourt will not reverse a trial court's ruling unless it was manifestly erroneous. People v. Buss, 187Ill. 2d 144, 204 (1999). However, where the facts are not in dispute, our review is de novo. Peoplev. Anthony, 198 Ill. 2d 194, 201 (2001). Here, no facts were disputed and the court's ruling turnedsolely on legal issues.

Defendant contends, as the trial court held, that the application documents did not link herto the illegal activities at the C'est la Vie. The expected conversations were to consist of Strawberrycalling the business to ask about employment there, which would presumably involve a descriptionof her job duties. However, the application listed defendant only as the registered agent, which doesnot necessarily support a conclusion that she was involved in the business's day-to-day operations orwas responsible for its hiring. Thus, according to defendant, the application did not demonstrate thatthe eavesdropping was likely to record conversations about the described criminal activity.

The problem with this argument is that neither the application nor the authorization orderspecifically limited the recorded conversations to those involving defendant. The applicationrequested permission to monitor conversations between Strawberry and "Prudy I. Calgaro and anyother persons that may involve themselves in pandering violations." The order similarly allowedrecording conversations with "Prudy I. Calgaro, and possible unknown persons." Moreover, a carefulreview of the statute governing judicially approved wiretapping reveals that this was permissible. Thespecific identity of the person whose conversations are to be recorded is not necessarily critical inobtaining judicial approval for eavesdropping.

Section 108A--3(a) of the Code of Criminal Procedure of 1963 (the Code) governs theprocess of applying for judicial approval of the use of an eavesdropping device where one party tothe anticipated conversation consents to its use. 725 ILCS 5/108A--3(a) (West 2002). The statuterequires a statement of facts to justify a reasonable belief that a felony has been, is being, or is aboutto be committed; a description of the type of communication to be monitored; the identity of theconsenting party; and "the identity of the person, if known, whose conversations are to be overheardby the eavesdropping device." 725 ILCS 5/108A--3(a)(2) (West 2002).

Section 108A--4 of the Code provides that a judge may authorize the use of an eavesdroppingdevice if he or she finds that one party to the conversation has or will have consented to the use ofthe device; there is reasonable cause for believing that an individual is committing, has committed,or is about to commit a felony; and there is reasonable cause for believing that particularconversations concerning that felony will be obtained. 725 ILCS 5/108A--4 (West 2002).

The restrictions on the use of an eavesdropping device in such situations are purely statutory;the fourth amendment to the United States Constitution (U.S. Const., amend. IV) is not implicated.People v. Sylvester, 86 Ill. App. 3d 186, 190 (1980). However, because Illinois citizens are entitledto be safeguarded from unnecessary governmental surveillance and other unreasonable intrusions intotheir privacy, the statutory restraints on eavesdropping must be strictly construed with respect to allrequests and consents for the authority to use an eavesdropping device. People v. Bockman, 328 Ill.App. 3d 384, 388 (2002); People v. Monoson, 75 Ill. App. 3d 1, 5 (1979).

"Reasonable cause" as used in the eavesdropping statute is synonymous with "probable cause"and is established when the totality of the circumstances is sufficient to warrant the belief by areasonable person that an offense has been, is being, or will be committed. People v. White, 209 Ill.App. 3d 844, 876 (1991). An application to use an eavesdropping device should be viewed in acommonsense manner and the issuing judge's conclusions that reasonable cause exists should be givengreat deference when reviewed by subsequent judges. White, 209 Ill. App. 3d at 877. Nevertheless,an application must establish reasonable cause to believe that the eavesdropping will obtain particularconversations about the described felony. People v. Ellis, 122 Ill. App. 3d 900, 902 (1984). Although this requirement is found in section 108A--4, governing judicial authorizations, rather thanin section 108A--3, it is properly considered a requirement to be included in an application. Bockman, 328 Ill. App. 3d at 389.

Having set out in some detail the statutory requirements for an application to use aneavesdropping device, it is important to note what the statute does not require. It does not requirethat the nonconsenting party be suspected of committing the felony or even that the nonconsentingparty be specifically identified. The statute requires only the "identity of the person, if known," whoseconversations are to be monitored. 725 ILCS 5/108A--3(a)(2) (West 2002).

Although the cases addressing this issue are not numerous, they suggest that these omissionsfrom the statutory requirements were intentional. The legislature intended the statute to coversituations, like this one, where it is clear that felonies are being committed at a particular business butthe identity of the particular people responsible for them is unclear. In People v. Childs, 67 Ill. App.3d 473, 476 (1979), the court observed that, by its very nature, a "storefront" operation is uncertain. There, the application stated that several people were using a business to sell stolen property, but theofficers could not determine beforehand with whom they would speak on a given occasion. However, this uncertainty did not invalidate the eavesdropping order so as to require suppression ofthe resulting evidence. Childs, 67 Ill. App. 3d at 476.

Likewise, in People v. Moss, 133 Ill. App. 3d 728 (1985), the court refused to suppresswiretap evidence even though the defendant was not specifically named in the application. Apparently, the defendant's brother was the target of the investigation and the defendant was onlyfortuitously in his brother's company when the recorded incident took place. Moss, 133 Ill. App. 3dat 730-31.

Most recently, in People v. O'Toole, 226 Ill. App. 3d 974 (1992), John O'Toole and hisgirlfriend, Brenda Haney, were looking for a hit man to murder her ex-husband. O'Toole contactedan acquaintance, Ron Johnson, who notified police. Johnson agreed to meet with O'Toole and havethe conversation recorded. The application named O'Toole as a party to the expected conversation,but did not name Haney, who also participated. Haney then sought to suppress the evidence on theground that she was not named in the application. The appellate court found it insignificant that theapplication did not list all of the expected parties to the conversation and refused to disturb the trialcourt's order allowing the evidence. O'Toole, 226 Ill. App. 3d at 982.

Here, although the application could have been more artfully drafted, viewing it in acommonsense fashion, it is clear that Strawberry was going to phone the C'est la Vie to inquire aboutworking there. Thus, she presumably would have been directed at some point to the person in chargeof hiring. The police expected that this would have been defendant, but it could have been someoneelse. The authorization allowed the recording of Strawberry's conversations with any such "unknownpersons." As a result, the application did demonstrate reasonable cause to believe that Strawberry'sconversations would concern the ongoing pandering violations. As in the fencing operation in Childs,it was not critical that the police be able to identify the specific individual responsible for thepandering violations.

In light of this conclusion, it is clear that the application complied with the statute. Itidentified an ongoing felony, pandering, being committed at the C'est la Vie. Defendant complainsthat the application showed only that prostitution, a misdemeanor, was being committed, while thewiretapping statute applies only to felonies. However, we agree with the State that a reasonableinference from the repeated and quite organized nature of the prostitution inside the business was thatsomeone was responsible for "arrang[ing] a situation in which a person may practice prostitution,"which is the definition of pandering. See 720 ILCS 5/11--16(a)(2) (West 2002). Pandering is a Class4 felony. 720 ILCS 5/11--16(b) (West 2002).

The application met the rest of the statutory requirements. It listed the type of conversationsto be recorded and the identity of the consenting party. Defendant does not challenge the applicationor authorization order on any other grounds. She argued in the trial court that the order was invalidbecause the name of the consenting party was an alias. See People v. Manuel, 294 Ill. App. 3d 113,122 (1997). However, she does not renew this argument on appeal.

Finally, because of our resolution of the primary issue, we need not consider the State'salternative request to decide whether the informant could testify to the content of the conversationseven if the recordings were suppressed. We note, however, that the supreme court recently decidedthat when reviewing an order suppressing evidence, the appellate court has no jurisdiction to considerthe propriety of evidence that was not suppressed. People v. Johnson, 208 Ill. 2d 118, 138 (2003).

The judgment of the circuit court of Boone County is reversed, and the cause is remanded forfurther proceedings.

Reversed and remanded.

HUTCHINSON and GILLERAN JOHNSON, JJ., concur.