People v. Feldmeier ( 1997 )

                        No. 2--95--1625

_________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE        )  Appeal from the Circuit Court

OF ILLINOIS,                   )  of Du Page County.

                              )

    Plaintiff-Appellant,      )

                              )

v.                             )  No. 95--CF--361

                              )

THOMAS FELDMEIER,              )  Honorable

                              )  Eugene A. Wojcik,

    Defendant-Appellee.       )  Judge, Presiding.

_________________________________________________________________

    PRESIDING JUSTICE GEIGER delivered the opinion of the court:

    The defendant, Thomas Feldmeier, was indicted on one count of

theft by deception (720 ILCS 5/16--1(a)(2)(A) (West 1992)), two

counts of theft (720 ILCS 5/16--1(a)(1)(C) (West 1992)), and one

count of violating securities laws (815 ILCS 5/12(I) (West 1992)).

The defendant moved to suppress evidence which he alleged the State

had obtained by misusing the grand jury's subpoena power.  The

trial court granted the motion, and the State appeals pursuant to

Supreme Court Rule 604(a) (145 Ill. 2d R. 604(a)).  We affirm.

    In his motion to suppress, the defendant alleged that the

State obtained his financial and bank records by the misuse of

grand jury subpoenas.  The grand jury subpoenas in question were

made returnable to the State's Attorney's office rather than to the

grand jury.  The defendant claims that this procedure allowed the

State to circumvent the grand jury and illegally violated his

privacy rights in his records.  He relies, in part, on People v.

DeLaire, 240 Ill. App. 3d 1012 (1993), wherein this court upheld

the suppression of evidence which a police officer obtained by

diverting information that a grand jury had subpoenaed and using

that information to procure a search warrant.

    In the present case, the trial court found that the subpoenas

were made returnable, not to an agent of the grand jury,  but to

Kathryn Cresswell, an assistant State's Attorney.  The trial court

concluded that the State had used the subpoenas to bypass the grand

jury and obtain materials in which the defendant had a

constitutional privacy interest; this was the precise problem

identified in DeLaire.

    The State does not challenge the trial court's finding that

the defendant had a constitutional expectation of privacy in his

bank and brokerage account records.  See Ill. Const. 1970, art. I,

§6; DeLaire, 240 Ill. App. 3d at 1019-20 (records of a defendant's

telephone calls were impressed with privacy interest even though

they were kept by the telephone company). Rather, the State

maintains that this case does not involve the same abusive

practices that we condemned in DeLaire.  The State maintains that,

in DeLaire, we held that the State's Attorney's office served as

the agent of the grand jury.  The State argues that the State's

Attorney's conduct here was nothing more than an exercise of its

prerogative to screen subpoenaed materials before presenting them

to the grand jury.

    We reject the State's interpretation of DeLaire and suggest

that the recent supreme court decision in People v. Wilson, 164

Ill. 2d 436 (1994), supports our opinion.  In Wilson, the

prosecutor obtained the defendant's medical records via a subpoena

prepared at the direction of the State's Attorney and made

returnable to him rather than to the grand jury.  The subpoena

stated that the records were needed for a grand jury investigation.

The defendant moved to suppress the records, but the trial court

denied the motion.  Wilson, 164 Ill. 2d at 457.

    The supreme court held that the State's Attorney's office

abused its powers, both by usurping the grand jury's authority to

obtain the records and by not requiring that the subpoenas be made

returnable to the grand jury.  Wilson, 164 Ill. 2d at 458.  The

court observed that, while the State has subpoena powers, its

subpoenas must be returnable to the court, not to the State's

Attorney.  In this way, the court may prevent the prosecutor from

having access to documents that are irrelevant, privileged, or the

fruit of an unreasonable demand.  Wilson, 164 Ill. 2d at 458.

    We find that Wilson applies here.  As in Wilson, the State's

Attorney abused the subpoena power by making the grand jury

subpoenas returnable directly to the prosecutor.  By this device,

the prosecutor could, without court authorization, obtain materials

impressed with a constitutional privacy interest.  Wilson and

DeLaire forbid such tactics.

    The subpoenas were returnable directly to Assistant State's

Attorney Cresswell, who was never made an investigator or agent of

the grand jury in this case.  The State argues that the entire

State's Attorney's office is considered to be the agent of the

grand jury.  The only authority which the State provides to support

this novel assertion is DeLaire.  However, our reading of DeLaire,

as well as Wilson, refutes the State's claim.  In DeLaire, we

specifically observed that "the law does not recognize the use of

a grand jury subpoena as a compulsory administrative process of the

State's Attorney's office."  DeLaire, 240 Ill. App. 3d at 1023.  We

emphasized that the grand jury's subpoena power may not be used to

further independent investigations by the police or the prosecutor

(DeLaire, 240 Ill. App. 3d at 1022-23, relying in part on 1 W.

LaFave & J. Israel, Criminal Procedure §8.8, at 665 (1984)), and we

cited with approval a federal decision suppressing evidence which

FBI agents obtained directly via a grand jury subpoena (see

DeLaire, 240 Ill. App. 3d at 1023, citing with approval In re

Nwamu, 421 F. Supp. 1361 (S.D.N.Y. 1976)).  

    It is true that, in discussing the impropriety of the

officer's diversion and use of the subpoenaed records in DeLaire,

we stressed that the officer was performing the duties of neither

the grand jury nor the prosecutor.  DeLaire, 240 Ill. App. 3d at

1024.  However, this consideration was crucial in DeLaire because

the grand jury had been the original recipient of the sensitive

documents.  Later, these documents somehow ended up with the

officer.  Thus, had the officer been acting as an agent of the

State's Attorney, his use of the evidence conceivably could have

been the permissible result of the grand jury's power to disclose

evidence to the prosecutor to aid the latter in the performance of

its duty to enforce the law.  DeLaire, 240 Ill. App. 3d at 1024;

725 ILCS 5/112--6(c)(1) (West 1994).  In the present case, the

State's Attorney, and not the grand jury, originally received the

subpoenaed material.

    In view of the foregoing, we conclude that the trial court

correctly suppressed the documents that the State's Attorney

obtained via the improper subpoenas.

    Accordingly, the judgment of the circuit court of Du Page

County is affirmed, and the cause is remanded for further

proceedings.

    Affirmed and remanded.

    THOMAS and RATHJE, JJ., concur.