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No. 3--03--0950

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

On February 21, 2002, Joliet police officer James Schnurainitiated a traffic stop of the defendant after observing thedefendant's car weave into a lane of oncoming traffic. Duringthe stop, Schnura observed signs of intoxication in thedefendant. Schnura then called Officer Francis Ferro to thescene to videotape the defendant's performance of field sobrietytests.

Ferro testified that he operated the camera from his squadcar and that the video screen inside his squad car led him tobelieve that the recorder was functioning properly. However,once the officers returned to the police station, they discoveredthat dirty VCR heads resulted in the failure of the video portionto record. Hence, the officers were left with only the audioportion of the defendant performing field sobriety tests.

At trial, the State attempted to introduce the videotapeinto evidence, to which the defendant made an oral motion tosuppress the evidence. The defendant argued that the admissionof the videotape without the video portion of the recordingviolated section 14--5 of the Criminal Code of 1961 (720 ILCS5/14--5 (West 2002)), which generally renders audio recordings ofconversations inadmissible at trial. Specifically, the defendantcontended that the videotape, absent the video portion of thedefendant's performance, did not fall within the statutoryexemption for audio recordings "made simultaneously with a videorecording." 720 ILCS 5/14--3(h) (West 2002). The circuit courtagreed with the defendant and suppressed the videotape, and thisappeal followed.

On appeal, the State argues that the videotape qualifies forthe section 14--3(h) exemption (720 ILCS 5/14--3(h) (West 2002)),even though the videotape contains only an audio recording of thetraffic stop.

This case presents an issue of statutory construction. Whenconstruing a statute, we are to determine and give effect to thelegislature's intent. People v. Robinson, 172 Ill. 2d 452, 667N.E.2d 1305 (1996). In doing so, we look to the plain languageof the statute; if the statute's plain meaning is clear andunambiguous, we are to apply the statute without using furthertools of statutory construction. Robinson, 172 Ill. 2d 452, 667N.E.2d 1305. Because statutory construction is a question oflaw, we review the circuit court's order de novo. Robinson, 172Ill. 2d 452, 667 N.E.2d 1305.

Illinois law prohibits the use of eavesdropping devices torecord conversations unless all parties to the conversationconsent to the recording. 720 ILCS 5/14--2 (West 2002). Whileevidence obtained via prohibited recordings is inadmissible attrial (720 ILCS 5/14--5 (West 2002)), there are severalexemptions to this prohibition. Section 14--3(h) provides anexemption for "[r]ecordings made simultaneously with a videorecording of an oral conversation between a peace officer, whohas identified his or her office, and a person stopped for aninvestigation of an offense under the Illinois Vehicle Code." 720 ILCS 5/14--3(h) (West 2002).

The State contends that the police simultaneously recordedaudio and video of the defendant performing field sobriety tests,and that the failure of the police equipment to record the videoof the defendant does not remove the videotape from the section14--3(h) exemption. We disagree. The plain language of section14--3(h) provides an exemption for recordings of audio when madesimultaneously with a video recording. 720 ILCS 5/14--3(h) (West2002). Because there is no video on the tape, it cannot beargued that the police simultaneously recorded the audio andvideo of the defendant performing field sobriety tests, asrequired by the statute. Therefore, the videotape in question isthe equivalent of an audio recording prohibited by Illinois lawand does not qualify for the section 14--3(h) exemption.

The State also argues that, even if the videotape does notqualify for the section 14--3(h) exemption, the videotape isadmissible because it complies with the legislative purposebehind the statutory prohibition on recorded conversations.

Not all violations of the prohibition on recordedconversations mandate the suppression of evidence, even though weare to strictly construe the prohibition. People v. Roake, 334Ill. App. 3d 504, 778 N.E.2d 272 (2002). In Roake, the courtobserved:

"Suppression is required only where there is a failureto satisfy any of the statutory requirements that directlyand substantially implement the legislative intent to limitthe use of eavesdropping devices. [Citation.] Where thereis a failure to comply with statutory requirements,suppression depends on whether (1) the particular safeguardis central to the legislative scheme of preventing abuses;(2) the purpose the particular procedure was designed toaccomplish has been satisfied despite the error; and (3) thestatutory requirement was deliberately ignored and, if so,whether the State gained any tactical advantage thereby.[Citation.]" Roake, 334 Ill. App. 3d 504, 514, 778 N.E.2d272, 280.

The video requirement in section 14--3 acts as a guaranteeof an audio recording's authenticity. Because the legislaturehas decided that the video portion is central to the protectivescheme embodied in section 14--3(h), admitting the videotape inquestion would frustrate the legislative purpose behind theexemption. Therefore, the circuit court's suppression order wasproper.

In support of its position, the State also cites People v.Ledesma, 206 Ill. 2d 571, 795 N.E.2d 253 (2003) for theproposition that an "inadvertent error" in obtaining the evidenceat issue does not operate to remove the evidence from theprotection of the applicable exemption. We do not believeLedesma to stand for this proposition.

In Ledesma, a person using a police scanner overheard acellular phone conversation regarding an imminent drug deal. Ledesma, 206 Ill. 2d 571, 795 N.E.2d 253. That person thenrelayed the information to the police, who used the tip toprevent the drug deal. Ledesma, 206 Ill. 2d 571, 795 N.E.2d 253.

The exemption at issue in Ledesma, section 14--3(d), exempts"[r]ecording or listening with the aid of any device to anyemergency communication made in the normal course of operationsby any federal, state or local law enforcement agency orinstitutions dealing in emergency services." Ledesma, 206 Ill.2d 571, 577, 795 N.E.2d 253, 258, quoting 720 ILCS 5/14--3(d)(West 1998). In holding that the evidence was admissible, thecourt ruled that section 14--3(d) specifically exempts policescanners from the eavesdropping prohibition. The court alsonoted that the evidence was obtained inadvertently, but it didnot set forth a broad "inadvertent error" exception to section14--5. In fact, the court did not find that error was committedat all. We therefore find Ledesma to be inapposite.

The judgment of the circuit court of Will County isaffirmed.

Affirmed.

BARRY and LYTTON, J.J., concurs.