Opinion filed June 5, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois. Plaintiff-Appellant, ) ) Appeal No. 3-19-0272 v. ) Circuit No. 18-CF-486 ) LAVAIL D. DAVIS, ) ) Honorable Clark E. Erickson, Defendant-Appellee. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice Holdridge concurred in the judgment and opinion. Presiding Justice Lytton dissented, with opinion.

OPINION

¶1 The State appeals the trial court’s order suppressing the recording of a drug transaction

between defendant, Lavail D. Davis, and a confidential informant (CI). The State also challenges

the suppression of the CI’s in-person testimony regarding the transaction. We reverse and remand.

¶2 I. BACKGROUND

¶3 The State charged defendant with unlawful delivery of a controlled substance. 720 ILCS

570/401(d) (West 2018). The charges stem from a drug transaction that a CI surreptitiously

recorded with an audio and video recording device hidden on his person. ¶4 Defendant filed a motion to suppress evidence. The motion alleged that the audio and video

recording constituted illegal eavesdropping. According to defendant, the police obtained an

overhear authorization to record a specific targeted individual. The authorization did not name

defendant as the target. Therefore, the CI illegally recorded the conversation he had with

defendant. Defendant further argued that the CI’s in-person testimony should also be suppressed

as the fruit of a poisonous tree.

¶5 The parties did not present any evidence at the hearing on defendant’s motion to suppress.

However, the uncontested evidence is as follows. The Kankakee Area Metropolitan Enforcement

Group (KAMEG) received an overhear authorization from the state’s attorney. The authorization

provided for the recording of a controlled drug purchase between the CI and a specific individual

targeted for selling narcotics. The CI previously purchased drugs from the target and arranged for

another purchase. The authorization did not name defendant as the person to be recorded. The CI

wore a hidden device, which recorded both audio and video. When the CI went to the target’s

home to make the purchase, he could not locate the target. The CI left and walked to a different

location nearby. The CI conducted a drug transaction with defendant. The purchase occurred on

the exterior of a house. The State had no evidence that defendant and the target of the investigation

acted in concert.

¶6 The parties agreed that the audio portion of the video recording of the drug transaction

violated the eavesdropping statute because the audio recording of the conversation did not fall

within the scope of the authorized overhear. Specifically, the authorization provided for the

recording of the targeted individual, not defendant. Nevertheless, the State contended that the

video recording and the confidential informant’s testimony were admissible, as they were not

barred under the eavesdropping statute.

-2- ¶7 Ultimately, the trial court found that the recording constituted illegal eavesdropping. The

court suppressed both the audio and video portion of the recording. The court also barred the CI’s

testimony as to personally observing and receiving the drugs from defendant as the fruit of a

poisonous tree.

¶8 The State filed a certificate of impairment pursuant to Illinois Supreme Court Rule 604(a)

(eff. July 1, 2017), and this appeal follows.

¶9 II. ANALYSIS

¶ 10 At the outset, the parties agree that the audio portion of the recording constituted illegal

eavesdropping and should be suppressed since it did not fall within the scope of the overhear

authorization. The State contends the trial court should not have suppressed the video (without

audio) and the CI’s in-person testimony. Specifically, the State contends that neither the video nor

the CI’s personal knowledge derived from the illegal audio recording. Consequently, the State

contends that this evidence is not barred at trial. Resolving this question requires us to interpret

section 14-5 of the Criminal Code of 2012 (720 ILCS 5/14-5 (West 2012)). Section 14-5 bars the

admission of evidence obtained in violation of the eavesdropping statute.

Our review is

de novo. See People v. Luedemann,

(2006).

¶ 11 The primary rule of statutory construction is to give effect to the true intent of the

legislature, which is best determined from the statutory language itself. Illinois Graphics Co. v.

Nickum,

(1994). When statutory language is clear and unambiguous, it must

be given effect without resort to other aids of interpretation. Village of Chatham v. County of

Sangamon,

(2005). Unambiguous statutes must be enforced as enacted, and a

court cannot depart from their plain language by reading into them exceptions, limitations, or

-3- conditions that conflict with the expressed legislative intent. Franz v. Calaco Development Corp.,

(2004).

¶ 12 The clear and unambiguous language of section 14-5 provides that “[a]ny evidence

obtained in violation of this Article is not admissible in any civil or criminal trial ***.” 720 ILCS

5/14-5 (West 2018)). The key to inadmissibility under section 14-5 is that the evidence must be

obtained as a result of illegal eavesdropping activity. That is, either the evidence itself is an illegal

recording of a conversation, or the illegal eavesdropping led investigators to inculpatory evidence.

Upon review, we find the trial court erred in suppressing the video recording and the CI’s in-person

testimony since the evidence did not derive from a violation of the eavesdropping statute.

¶ 13 Under the plain language of section 14-5, the trial court correctly found the audio recording

inadmissible on the basis that the audio recording itself constituted illegal eavesdropping.

However, the prohibition does not extend to the video portion of the recording or the CI’s personal

knowledge of the drug transaction. This evidence derived independently from the illegal

eavesdropping. The CI participated in the conversation. He did not eavesdrop. The dissent

speculates that the CI would not have had a conversation with defendant but for the illegal

audiotaping. This is pure fantasy unsupported by the record. In addition, the video recorded

simultaneously with the audio recording. 1 In other words, neither the CI’s personal knowledge nor

the video recording resulted from the illegal eavesdropping. Therefore, section 14-5 does not bar

the admission of the video recording or the CI’s in-person testimony. There is no need to consider

1 We note that defendant only argued that section 14-5 barred the video portion of the recording. Defendant made no argument that the video recording standing alone should be barred under any other basis. In fact, defense counsel conceded that, if the video recording were made without audio, it would have been admissible. -4- the application of the fruit-of-a-poisonous-tree doctrine, as this evidence did not derive from illegal

eavesdropping.

¶ 14 Our conclusion is supported by our supreme court’s decision in People v. Gervasi,

(1982). In Gervasi, the supreme court considered the admissibility of transcripts and in-

person testimony of overheard conversations.

Investigators suspected defendant of bribery.

. Defendant made several telephone calls to the investigators.

. Court reporters

transcribed each telephone conversation while listening on an extension phone that had its

speaking element removed.

Defendant also spoke to investigators several times in person.

. On two of the face-to-face discussions, a court reporter transcribed the conversation without

the aid of an eavesdropping device.

¶ 15 On review, the supreme court first found that the extension phone with the speaking

element removed constituted an eavesdropping device.

. Therefore, the court found

that the court reporters eavesdropped on defendant’s telephone calls.

. The supreme court

found the court reporters’ testimony and transcriptions were inadmissible as to the telephone

conversations.

By contrast, the court held that the investigators that spoke to defendant over

the phone could testify to the contents of the conversation.

. The court found that the

investigators did not eavesdrop but acted as a party to the conversation.

Therefore, the court

held that the officers’ knowledge of the conversation did not derive from illegal eavesdropping.

As to the face-to-face conversations, the supreme court found the officers’ and court reporters’

testimony as well as the transcriptions admissible, as the evidence was obtained without the use of

an eavesdropping device.

.

¶ 16 Like the investigators in Gervasi, the CI in this case did not eavesdrop. Rather, the CI acted

as a party to the conversation. Therefore, the CI’s in-person testimony is admissible under Gervasi.

-5- In addition, the video recording did not derive from eavesdropping activity. In other words, the

audio eavesdropping did not lead the CI or police to the drug transaction. Rather, the CI made the

video recording at the same time as the audio recording. The video is independent of the

eavesdropping and, therefore, admissible.

¶ 17 III. CONCLUSION

¶ 18 For the foregoing reasons, we reverse and remand the judgment of the circuit court of

Kankakee County.

¶ 19 Reversed and remanded.

¶ 20 PRESIDING JUSTICE LYTTON, dissenting:

¶ 21 I dissent. I disagree with the majority’s determination that the video portion of the illegal

recording and the testimony of the CI are independent of the government’s illegal activities. I

would affirm the trial court’s order granting defendant’s motion to suppress.

¶ 22 The eavesdropping statute provides: “Any evidence obtained in violation of this Article is

not admissible in any civil or criminal trial ***.” 720 ILCS 5/14-5 (West 2018). This provision is

“the legislature’s express adoption of the ‘fruit of the poisonous tree’ doctrine.” In re Marriage of

Almquist,

(1998) (citing People v. Maslowsky,

(1966)). “Under the ‘fruit of the poisonous tree’ doctrine, an unlawful search taints not only the

evidence obtained from the search, but also evidence derivative of the search.”

(citing Wong

Sun v. United States,

(1963)).

¶ 23 The statute’s exclusionary rule applies to information derived from a process initiated by

an unlawful act but does not extend to evidence obtained from an independent source. People v.

Seehausen,

(1990). If knowledge of facts is gained from an independent

source, those facts may be proven like any other evidence, but knowledge gained by the

-6- government’s wrongdoing is inadmissible. Wong Sun,

. The “proper test to be

applied” is “ ‘ “[w]hether, granting establishment of the primary illegality, the evidence to which

instant objection is made has been come at by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.” ’ ” United States v. Wade,

(1967) (quoting Wong Sun,

).

¶ 24 The independent source doctrine applies to “evidence acquired in a fashion untainted by

the illegal evidence-gathering activity.” Murray v. United States,

(1988).

Where an illegal government activity “has given investigators knowledge of facts x and y, but fact

z has been learned by other means, fact z can be said to be admissible because derived from an

‘independent source.’ ”

. The doctrine applies where a lawful seizure is genuinely

independent of a tainted one.

.

¶ 25 The independent source doctrine allows admission of evidence that has been discovered by

means wholly independent of unlawful activity. Nix v. Williams,

(1984); see

also United States v. San Martin,

(2d Cir. 1972) (independent source must be entirely

separate from illegal eavesdropping); Simmons v. United States,

, app. C 1394

(N.D.N.Y. 1973) (evidence obtained from an “independent source” cannot be obtained from or as

a consequence of lawless official acts). There must not be any connection between the

government’s illegal conduct and the State’s proof. See Nardone v. United States,

(1939); People v. Porcelli,

(1974).

¶ 26 Evidence should be suppressed where “the initial illegality ‘led directly to any of the

evidence actually used against the defendant at trial.’ ” (Emphasis in original.) United States v.

Smith,

(9th Cir. 1998) (quoting United States v. Carsello,

(7th Cir. 1978)). Independent, untainted sources of evidence include testimony from witnesses

-7- who acted voluntarily, free from coercion and not part of the illegal government activity. See

United States ex rel. Conroy v. Bombard,

(S.D.N.Y. 1976); see also State v.

Pierson,

(S.D. 1976) (evidence of drugs found from individuals cleaning motel

room with no relation to illegal wiretap); People v. Mendez,

(N.Y. 1971)

(surveillance leading to a witness was source of information independent of illegal wiretap).

¶ 27 “The fundamental purpose of *** eavesdropping statutes is to prohibit unauthorized

eavesdropping and the use of evidence gained by such eavesdropping.” In re Cook County Grand

Jury,

(1983). “The spirit and purpose of the [Illinois] eavesdropping

statute are not only to ensure that all eavesdropping is subject to judicial supervision but to prevent

unwarranted intrusions into an individual’s privacy.” People v. Monoson,

(1979). Suppression of illegally recorded evidence is required “where there is a failure to satisfy

any of the statutory requirements that directly and substantially implement the legislative intent to

limit the use of overhears.” People v. Cunningham,

.

¶ 28 Courts in several states have ruled that video and/or testimonial evidence must be

suppressed where, as here, it is connected to an illegal recording. See Commonwealth v.

Dunnavant,

(Pa. 2014) (per curiam); State v. Lo,

(Haw. 1983);

State v. Williams,

(Wash. 1980) (en banc); State v. Mullens,

(W. Va. 2007); People v. Dezek,

(Mich. Ct. App. 1981) (per curiam).

In State v. Williams,

, the Washington Supreme Court held that, where a police

officer and civilian informant knowingly took part in the illegal recording of a conversation with

the defendant, the State was prohibited from admitting into evidence the recordings of the

conversation as well as the testimony of the officer and informant who participated in the

conversation. The court found that suppression of the testimony of the officer and informant was

-8- necessary to accomplish the purpose of the state’s privacy act, which was “ ‘protection of the

privacy of individuals from public dissemination, even in the course of a public trial, of illegally

obtained information.’ ” (Emphasis omitted.)

(quoting State v. Wanrow,

(Wash. 1977) (en banc)).

¶ 29 In this state, courts have uniformly held that testimony about an illegally recorded

conversation is admissible only if the presence of the illegal recording did not lead to the

conversation about which the testimony is sought to be introduced. See Gervasi,

(testimony of officers admissible where it was not “induced or influenced by the eavesdropping”);

People v. Babolcsay,

(2006) (officer’s testimony admissible because

“videotaping activity did not lead to the officer’s conversation”); People v. Mosley,

(1978) (officer’s testimony about conversations with defendant admissible because

conversations “would have occurred even if [the officer] had not received approval to carry a

recorder on his person”); Porcelli,

(officer could testify about conversation

with defendant because officer “did not telephone [defendant] just so that a recording could be

made”).

¶ 30 Here, the majority found that the video portion of the illegally intercepted message and

testimony from the CI were “independent sources” of evidence. This conclusion is not supported

by the law or the record. In this case, the video portion of the recording was part of, not separate

from, the illegal recording. Additionally, testimony from the CI is not separate from the illegal

recording because the informant was responsible for the illegal recording and would not have

engaged in any conversation with defendant but for the presence of the recording equipment. Both

the video portion of the recording and the CI’s testimony are tainted by the illegal activity and,

thus, inadmissible.

-9- ¶ 31 The majority’s decision is contrary to the statute’s purposes of protecting the privacy of

individuals. The unwarranted intrusion of an individual’s privacy can only be remedied by

suppression of all evidence connected to an unlawful eavesdropping recording, including all

portions of the recording and testimony regarding the contents of the recording. See Williams,

; see also Wong Sun,

(“[T]estimony as to matters observed during an

unlawful invasion has been excluded in order to enforce the basic constitutional policies.”). By

allowing admission of the video portion of the recording and testimony from the CI, the majority

is not protecting the privacy of individuals or discouraging illegal government activity.

¶ 32 The majority relies on Gervasi to support its decision. However, Gervasi is distinguishable.

In Gervasi, our supreme court ruled that, where court reporters used illegal recording devices to

listen to and transcribe telephone calls between the defendant and police officers, the testimony of

the officers who took part in the conversations was admissible. See

. The court

stated:

“The officers’ knowledge of and [their] testimony concerning the contents of the phone

conversations in our case were completely independent of the illegal eavesdropping.

Therefore, there is no indication that the testimony of these officers was in any way induced

or influenced by the eavesdropping. Here the officers were the actual participants in the

conversations. Their knowledge of what was said was not derived from any illegal action.

They spoke directly with the defendants, and most of the conversations were initiated by

the defendants and none of them were the result of illegal eavesdropping. The officers were

the participants in the conversations and were not the eavesdroppers.”

.

¶ 33 The court ruled that the officers’ testimony as to the telephone conversations should not be

suppressed because “[t]he officers did not surreptitiously obtain information from the defendants.”

- 10 -

. Because the officers’ knowledge was not derived from the court reporters’ illegal

eavesdropping activities, the officers’ testimony did not violate the eavesdropping statute.

.

¶ 34 Unlike the officers in Gervasi, the CI in this case “surreptitiously recorded” defendant. See

supra ¶ 3. Therefore, Gervasi does not apply. Here, the conversation between the CI and defendant

was a direct result of illegal recording. If the CI had not been equipped with the recording

equipment, he would not have attempted to engage in a drug transaction with defendant. Unlike

the conversations the police officers testified to in Gervasi, which were motivated independently

of and with no connection to the eavesdropping, the CI’s contact with defendant was motivated

entirely by the illegal recording equipment. Thus, any and all evidence obtained therefrom,

including video of the transaction and the CI’s testimony about his transaction with defendant,

should be suppressed.

¶ 35 The majority’s decision in this case is contrary to the statute, as well as the spirit and

purpose of the statute. I would affirm the trial court’s order suppressing all portions of the illegal

recording as well as the CI’s testimony regarding his conversation with defendant.

- 11 - No. 3-19-0272

Cite as: People v. Davis,

Decision Under Review: Appeal from the Circuit Court of Kankakee County, No. 18-CF- 486; the Hon. Clark E. Erickson, Judge, presiding.

Attorneys Jim Rowe, State’s Attorney, of Kankakee (Patrick Delfino, for Thomas D. Arado, and Mark A. Austill, of State’s Attorneys Appellant: Appellate Prosecutor’s Office, of counsel), for the People.

Attorneys for Bart E. Beals, of Beals Law Firm, of Chicago, for appellee. Appellee:

- 12 -