People v. Allard ( 2018 )

2018 IL App (2d) 160927Nos. 2-16-0927, 2-16-0928, 2-16-0929, 2-16-1050, 2-17-0033 cons.
Opinion filed February 20, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellant, )
) Nos. 14-CF-2567
v. ) 14-CF-2964
)
JAMES ALLARD, ) Honorable
) George D. Strickland,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellant, )
)
v. ) No. 14-CF-2971
)
GARLAND BONE, ) Honorable
) George D. Strickland,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellant, )
)
v. ) No. 14-CF-2973
)
GREGORY HARRIS SR., ) Honorable
) George D. Strickland,
Defendant-Appellee. ) Judge, Presiding.
2018 IL App (2d) 160927______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellant, )
)
v. ) No. 14-CF-2975
)
TYRONE SPRINGS, ) Honorable
) George D. Strickland,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellant, )
)
v. ) No. 14-CF-3191
)
ANTHONY LOVE, ) Honorable
) George D. Strickland,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Hudson and Justice Zenoff concurred in the judgment and opinion.
OPINION
¶1 As part of an investigation into gang activity, the Lake County State’s Attorney’s Office
obtained authorization to intercept private communications involving certain telephone numbers.
The circuit court of Lake County authorized the nonconsensual electronic surveillance, pursuant
to article 108B of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725
ILCS 5/108B (West 2014)), based on applications signed and presented by two assistant state’s
attorneys (ASAs), not by the elected state’s attorney (SA).
¶2 Defendants were charged with various offenses and they learned that the State intended
to introduce at trial certain evidence arising from the wiretaps. Defendants joined in a motion
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2018 IL App (2d) 160927to suppress the evidence, arguing that the SA’s failure to personally apply for the wiretap orders
violated Article 108B as well as the federal wiretap statute set forth in Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2522 (2012)), better known as
“Title III.” The trial court suppressed the evidence, ruling that Title III preempts article 108B
and does not authorize an ASA to apply for a wiretap order.
¶3 On appeal from the suppression orders, the State argues that the SA complied with the
Illinois and federal wiretap statutes in delegating to the ASAs the authority to apply for the
wiretap orders. The State alternatively contends that, even if the orders were not supported by
proper applications, the evidence is admissible because the prosecution acted in good faith.
Further, the State asserts that any new rule regarding who may submit a wiretap application
should apply only prospectively.
¶4 We affirm the trial court’s suppression of the evidence derived from the wiretaps on the
ground that the SA’s office simply failed to comply with article 108B of the Code of Criminal
Procedure. The good-faith exception does not apply, because the error was caused by law
enforcement. Further, any consideration of a retroactive or prospective application of our
holding would be premature. We need not address the remaining issues raised by the parties,
including whether article 108B is impermissibly broader than Title III.
¶5 I. BACKGROUND
¶6 A. The Applications
¶7 Between May 2014 and September 2014, ASA Reginald Mathews, chief of the gang and
narcotics prosecution division of the Lake County State’s Attorney’s Office, and, in one instance,
ASA Ari P. Fisz, chief of the felony trial division of the Lake County State’s Attorney’s Office,
signed and presented applications to the circuit court of Lake County. The applications
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2018 IL App (2d) 160927requested orders and extension orders for nonconsensual telephone interceptions, related to a law
enforcement investigation involving a street gang known to investigators as the Four Corner
Hustler Drug Trafficking Organization (the gang). The investigation was being conducted by
the Federal Bureau of Investigation (FBI); the Lake County Metropolitan Enforcement Group;
and the police departments of Waukegan, North Chicago, and Zion. The goal of the
investigation was to obtain evidence to prosecute individuals who were trafficking cocaine and
heroin in and around Lake County.
¶8 The applications for wiretap orders targeted specific cell phone numbers that, according
to the supporting affidavits, the investigation had linked to defendants. Each application was
supported by an affidavit from an investigator and each stated that it was submitted “on behalf of
Michael G. Nerheim, State’s Attorney of Lake County.” The orders approving the wiretaps
were signed by Judge Victoria Rossetti, presiding judge of the criminal division of the circuit
court of Lake County, except for one extension order that was signed by Judge Daniel Shanes of
the Lake County circuit court.
¶9 Consistent with the applications, each order noted that the application was made, under
oath, by either ASA Mathews or, in one instance, ASA Fisz, “on behalf of Michael G. Nerheim,
State’s Attorney of Lake County.” The orders stated that they were entered pursuant to article
108B of the Code of Criminal Procedure.
¶ 10 Section 108B-2(a) governs “request[s] for application for interception.” 725 ILCS
5/108B-2(a) (West 2014). The statute provides that “[a] State’s Attorney may apply for an
order authorizing interception of private communications in accordance with the provisions of
this Article.” (Emphasis added.) 725 ILCS 5/108B-2(a) (West 2014). In turn, section
108B-3(b) provides that “[t]he State’s Attorney or a person designated in writing or by law to
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2018 IL App (2d) 160927act for the State’s Attorney and to perform his or her duties during his or her absence or
disability, may authorize, in writing, an ex parte application to the chief judge of a circuit court
for an order authorizing the interception of a private communication when no party has
consented to the interception and the interception may provide evidence of, or may assist in the
apprehension of a person who has committed, is committing or is about to commit, a violation of
an offense under Article 29D of the Criminal Code of 1961 or the Criminal Code of 2012.”
(Emphasis added.) 725 ILCS 5/108B-3(b) (West 2014).
¶ 11 B. Motions to Suppress
¶ 12 On November 19, 2014, defendants were indicted for racketeering conspiracy,
racketeering, criminal drug conspiracy, street gang criminal drug conspiracy, controlled
substances trafficking, and unlawful possession of a controlled substance with the intent to
deliver. On October 28, 2015, defendants were indicted for additional counts of criminal drug
conspiracy and street gang criminal drug conspiracy.
¶ 13 On February 22, 2016, defendants moved to suppress evidence that had been obtained
pursuant to the wiretap orders. Defendants’ motion argued that, pursuant to Illinois and federal
law, an application for a wiretap order must be personally authorized, in writing, by the elected
SA, in this case SA Nerheim, or a person designated by the SA in writing or authorized by law to
act for him in his absence. Defendants asserted that neither ASA Mathews nor ASA Fisz was
so authorized and that, therefore, the orders entered pursuant to the applications were invalid.
On April 26, 2016, the State responded that ASAs Mathews and Fisz were properly authorized to
act on behalf of SA Nerheim for the purpose of submitting the applications under article 108B.
Specifically, the State submitted a letter, on the SA’s office letterhead, that was dated July 10,
2013, and signed by SA Nerheim. The letter stated that SA Nerheim granted ASA Mathews
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2018 IL App (2d) 160927“my authorization for the interception of private communication pursuant to the requirements as
set forth in [section 108B-3].” 1
¶ 14 The parties argued the suppression motion at a hearing on July 28, 2016. On September
26, 2016, before the trial court ruled on the motion, the State filed affidavits from SA Nerheim
and ASA Mathews that outlined the application process in these cases. The affidavits described
a January 2014 meeting regarding the investigation of drug offenses and violent crimes by the
gang. At the meeting, ASA Mathews and FBI agents informed SA Nerheim of the need for
wiretap orders to further the investigation. Based on this information, SA Nerheim authorized
ASA Mathews to apply for the requested orders under article 108B. The affidavits also stated
that, from January 2014 to October 2014, ASA Mathews kept SA Nerheim apprised of the
progress and developments of the investigation, including each request for additional wiretap
orders. SA Nerheim averred that he was involved in the decision-making process throughout
the investigation.
¶ 15 ASA Mathews also averred that, during the week of August 4, 2014, he was contacted by
an FBI agent who advised him that the investigation had revealed that one of the defendants was
using an additional specified cell phone number to commit the offenses at issue. Because he
was out of town, ASA Mathews asked ASA Fisz to prepare a wiretap application for that cell
phone number and to present the application to the circuit court in ASA Mathews’s absence.
¶ 16 C. Suppression Orders
1
SA Nerheim’s letter also purported to delegate authority to ASA Stephen Scheller, chief
of the felony review division, whose actions are not at issue in these appeals. The letter did not
mention ASA Fisz.
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2018 IL App (2d) 160927¶ 17 On September 27, 2016, the trial court entered five orders, one for each defendant,
suppressing the evidence derived from the challenged wiretaps. The court observed that each
wiretap application was signed by ASA Mathews or ASA Fisz and stated the following: “I am
authorized by law to investigate, prosecute, and participate in the prosecution of the particular
offenses which are the subject of this application.” The court also acknowledged the evidence
of the January 2014 meeting among SA Nerheim, ASA Mathews, and the FBI agents, during
which wiretaps were discussed. However, none of the applications cited a statute that
authorized the application. SA Nerheim did not sign any of the applications, and they did not
indicate on their face that he authorized them. The court determined that the legislature
intended sections 108B-2 and 108B-3 of the Code of Criminal Procedure to be read together, and
in doing so, the court concluded that the statutes allow an ASA to submit an application only
when that person is designated in writing or by law to act for the SA and to perform his or her
duties during his or her absence or disability. The court found that the applications did not meet
that threshold.
¶ 18 The trial court also restated the well-settled concept that, by enacting Title III to delineate
how states may authorize applications for wiretap orders (18 U.S.C. § 2516), Congress
preempted the regulatory field of electronic surveillance, and therefore Illinois may not enact
standards that are less stringent than the requirements set by the federal statute. People v.
Coleman, 227 Ill. 2d 426, 434 (2008) (“Congress intended to preempt this area, but specifically
permitted concurrent state regulation” in that “states may adopt standards more stringent than
those in Title III”). The court noted that Coleman made clear that section 2516 of Title III sets
the outer limit within which Illinois may permit authorization of requests for wiretap orders and
that “any evidence obtained under a State statute less restrictive than Title III would be
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2018 IL App (2d) 160927inadmissible in State courts.” In the absence of Illinois case law on the matter, the court
adopted from other jurisdictions the position that section 2516(2) of Title III requires that a
wiretap application be authorized in writing by an elected SA, not by an ASA as occurred here.
State v. Daniels, 389 So. 2d 631, 635 (Fla. 1980); State v. Cocuzza, 301 A.2d 204 (N.J. Super.
Ct. Law Div. 1973) (section 2516(2) limits wiretap application authority to “the principal
prosecuting attorney of any (state) political subdivision,” and because such a subdivision exists
at the county level only, only the county prosecutor is so authorized). The court held that the
applications for the wiretap orders did not comply with article 108B, because they were not
personally authorized by SA Nerheim, and that, even if the applications complied with the state
statute, they violated Title III.
¶ 19 On October 26, the State filed certificates of impairment and timely notices of appeal.
This court consolidated the appeals.
¶ 20 II. ANALYSIS
¶ 21 A. Standard of Review
¶ 22 The State appeals the suppression of the evidence derived from the wiretaps of
defendants’ cell phones. “In reviewing a trial court’s ruling on a motion to suppress evidence,
we apply the two-part standard of review adopted by the Supreme Court in Ornelas v. United
States [citation].” People v. Luedemann, 222 Ill. 2d 530, 542 (2006). We defer to the trial
court’s factual findings, and we will reverse those findings only if they are against the manifest
weight of the evidence. A reviewing court, however, remains free to undertake its own
assessment of the facts in relation to the issues and may draw its own conclusions when deciding
what relief should be granted. Accordingly, we review de novo the trial court’s ultimate legal
ruling as to whether suppression is warranted. Luedemann, 222 Ill. 2d at 542. In this case, the
-8­
2018 IL App (2d) 160927facts regarding the wiretap applications are not disputed, so we undertake an independent
assessment of those facts and review the suppression orders de novo. See People v. O’Dette,
2017 IL App (2d) 150884, ¶ 26.
¶ 23 B. Authority of Applicants
¶ 24 On appeal, the parties dispute whether ASAs Mathews and Fisz acted in accordance with
article 108B of the Code of Criminal Procedure and section 2516(2) of Title III, as SA Nerheim
did not personally sign or present the wiretap applications. Article 108B, which allows ex parte
wiretap applications, provides that the application may be authorized in writing by “[t]he State’s
Attorney or a person designated in writing or by law to act for the State’s Attorney and to
perform his or her duties during his or her absence or disability.” 725 ILCS 5/108B-2(a),
108B-3(b) (West 2014). The application shall include “[t]he authority of the applicant to make
the application.” 725 ILCS 5/108B-4(1) (West 2014). 2
¶ 25 Title III prohibits the interception and disclosure of wire, oral, and electronic
communications, as well as the manufacture, distribution, and possession of such interception
devices. However, it expressly authorizes federal and state government authorities in certain
criminal investigations to intercept, disclose, and use such communications, which include
emails, facsimile transmissions, pager numbers, and telephone calls. As noted, by enacting
2
Section 108B-4 sets forth the required contents of a valid wiretap application, but
defendants’ challenge to the applications’ validity is limited to the applicants’ authority to submit
them. See 725 ILCS 5/108B-4(1) (West 2014). Defendants have not argued, and the trial court
did not find, that (1) the applications and supporting affidavits did not establish probable cause or
(2) there was an insufficient showing that traditional investigative efforts had been exhausted or
could not be used. See 725 ILCS 5/108B-4(3)(iv), (3)(viii) (West 2014).
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2018 IL App (2d) 160927Title III to delineate how states may authorize applications for wiretap orders (18 U.S.C.
§ 2516), Congress preempted the regulatory field of electronic surveillance, and therefore Illinois
may not enact standards that are less stringent than the requirements set by the federal statute.
Coleman, 227 Ill. 2d at 439. Section 2516(2) provides in relevant part as follows:
“The principal prosecuting attorney of any State, or the principal prosecuting
attorney of any political subdivision thereof, if such attorney is authorized by a statute of
that State to make application to a State court judge of competent jurisdiction for an order
authorizing or approving the interception of wire, oral, or electronic communications,
may apply to such judge for, and such judge may grant in conformity with section 2518
of this chapter and with the applicable State statute an order authorizing, or approving the
interception of wire, oral, or electronic communications by investigative or law
enforcement officers having responsibility for the investigation of the offense as to which
the application is made ***.” (Emphasis added.) 18 U.S.C. § 2516(2) (2012).
¶ 26 The trial court found the wiretap orders to be invalid on the ground that section 2516(2)
requires that a wiretap application be authorized in writing by an elected SA, not by an ASA as
occurred in these cases. See Daniels, 389 So. 2d at 635.
¶ 27 The State argues that the applications for the wiretap orders complied with article 108B
of the Code of Criminal Procedure and section 2516(2) of Title III. The State concludes that
SA Nerheim properly delegated to ASAs Mathews and Fisz his authority to sign and submit the
applications under Illinois law and that article 108B is not impermissibly broader than section
2516 of Title III.
¶ 28 As noted, section 2516 sets the outer limit within which Illinois may permit authorization
of requests for wiretap orders, which raises the issue of whether Article 108B of the Code of
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2018 IL App (2d) 160927Criminal Procedure is impermissibly broader than section 2516(2) of Title III. In the context of
Title III preemption, courts have articulated different standards for determining whether state
wiretapping statutes are “less restrictive legislation” when considering whether the “principal
prosecuting attorney of any political subdivision” of a state may delegate his or her authority to
apply for a wiretap. Villa v. Maricopa County, 865 F.3d 1224, 1230 (9th Cir. 2017); 18 U.S.C.
§ 2516(2) (1970). The Supreme Court of Kansas has held that state officials must follow the
federal statute to the letter in obtaining wiretaps. See, e.g., State v. Bruce, 287 P.3d 919, 924-25
(Kan. 2012). The Supreme Court of Rhode Island has characterized Title III as “preempt[ing] the
field in wiretap,” holding that state courts must adhere closely to the limitations articulated in Title
III on the use of intercepted communications. Pulawski v. Blais, 506 A.2d 76, 77 (R.I. 1986).
¶ 29 Taking a less restrictive approach, other state courts have ruled that states may enact
legislation permitting the delegation of authority to apply for wiretaps. Prominently, the Supreme
Judicial Court of Massachusetts has held that a state wiretapping statute is not preempted by Title
III so long as it is “substantially similar in design and effect to the Federal enactment.”
Commonwealth v. Vitello, 327 N.E.2d 819, 835 (Mass. 1975).
¶ 30 Conceding federal preemption, the State here asserts that article 108B is consistent with
Title III and empowered SA Nerheim to delegate his authority to apply for the wiretap orders.
We need not resolve this larger issue of whether Article 108B is impermissibly broader than
Title III, because the wiretap orders in these cases are invalid based simply on the prosecution’s
noncompliance with article 108B. We agree with defendants that the orders were based on
invalid applications, which lacked adequate statements of the authority under which the ASAs
were making the applications. It remains an open question as to whether the July 10, 2013,
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2018 IL App (2d) 160927letter properly designated the ASAs to act for SA Nerheim and to perform his duties during his
absence or disability.
¶ 31 1. ASA Mathews
¶ 32 SA Nerheim’s July 10, 2013, letter granted ASA Mathews “my authorization for the
interception of private communication pursuant to the requirements as set forth in [section
108B-3].” Thus, the letter purported to designate ASA Mathews as an authorized applicant,
and it incorporated section 108B-3 by reference, which purportedly limited ASA Mathews’s
application authority to situations where SA Nerheim was absent or disabled. One could argue
that the reference to the statute constituted sufficient specificity for a proper delegation of the
SA’s application authority. On the other hand, the letter did not mention the gang, the
investigation, any of the defendants, or the circumstances of SA Nerheim’s absence or disability,
which certainly would have bolstered the designation. The letter might have been a valid
authorization upon an averment that SA Nerheim was absent or disabled, but we need not decide
whether the letter contained the required specificity to delegate application authority to ASA
Mathews. We conclude that the applications themselves did not comply with article 108B.
¶ 33 Regardless of whether ASA Mathews was properly designated as an authorized applicant,
the applications were facially deficient. Each application for a wiretap order must include the
applicant’s authority to make the application. 725 ILCS 5/108B-4(a)(1) (West 2014). ASA
Mathews stated only that he was “authorized by law to investigate, prosecute, and participate in
the prosecution of the particular offenses which are the subject of this application.” ASA
Mathews neither identified the source of his authority to make the applications nor attached
documentation of SA Nerheim’s purported delegation of such authority. Further, the
applications failed to affirmatively state that SA Nerheim was absent or disabled.
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2018 IL App (2d) 160927¶ 34 The circumstances surrounding the applications also undermine their validity. At the
January 2014 meeting, SA Nerheim was informed of the need for wiretap orders to further the
investigation into the gang. He and ASA Mathews averred in affidavits that, based on this
information, SA Nerheim authorized ASA Mathews to apply for the orders under article 108B.
The affidavits also stated that, from January 2014 to October 2014, ASA Mathews kept SA
Nerheim apprised of the progress and developments of the investigation, including each request
for additional wiretap orders. SA Nerheim averred that he was involved in the decision-making
process throughout the investigation.
¶ 35 The plain language of section 108B-3 contemplates the designation of an applicant to
perform the SA’s duties during his absence or disability. Here, SA Nerheim and ASA Mathews
averred in their affidavits that SA Nerheim was involved in decision-making during the entire
investigation, including when the applications were made. The implication is that the
applications were effectively authorized by SA Nerheim, even if his subordinates drafted, signed,
and presented them. On the one hand, the State implies a patina of legitimacy by claiming that
SA Nerheim was overseeing the application process, but at the same time it claims that he was
“absent” for purposes of section 108B-3. Even if article 108B did not require ASA Mathews to
be designated as the acting SA to obtain application authority, SA Nerheim’s ongoing
involvement in the investigation meant that he was not absent for purposes of section 108B-3.
¶ 36 2. ASA Fisz
¶ 37 SA Nerheim’s July 10, 2013, letter did not mention ASA Fisz. Nevertheless, the State
claims that SA Nerheim empowered ASA Mathews “to both apply himself, and authorize others
to apply for wiretaps.” (Emphasis in original.)
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2018 IL App (2d) 160927¶ 38 As noted, the applications submitted by ASA Mathews did not adequately state his
authority to present them or that SA Nerheim was absent or disabled. The purported authority
of ASA Fisz to submit an application on behalf of SA Nerheim is even more attenuated. ASA
Mathews averred that, while he was out of town, an FBI agent informed him that one of the
defendants was using a cell phone for which there was no electronic surveillance. ASA
Mathews asked ASA Fisz to prepare a wiretap application for that cell phone and to present the
application to the circuit court in his absence.
¶ 39 Because there was no showing that SA Nerheim was absent or disabled, ASA Mathews
was not designated to act in his place. Even if ASA Mathews had the authority to make the
application, nothing in section 108B-2 gave him the power to further delegate that authority,
especially to an ASA who was not identified by SA Nerheim in his purported designation letter.
See 725 ILCS 5/108B-3 (West 2014) (authorized applicant must be “designated in writing or by
law to act for the State’s Attorney and to perform his duties during his absence or disability”).
¶ 40 C. Good-Faith Exception
¶ 41 The State argues that, even if the underlying wiretap applications failed to comply with
article 108B, the ASAs and the investigators who implemented the wiretap orders were acting in
good faith, and therefore the evidence should not be suppressed.
¶ 42 Defendants contend that the State has forfeited its argument regarding good faith by
failing to raise the issue in the trial court. People v. Holloway, 86 Ill. 2d 78, 91 (1981). The
State offers no response to this contention, and our review of the record discloses no sign that the
argument was presented. We agree with defendants that the State has forfeited the issue, and
we need not consider it. See People v. Hall, 2011 IL App (2d) 100262, ¶ 19 (forfeiture doctrine
applies to the State as well as to defendants).
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2018 IL App (2d) 160927¶ 43 Even if the State had timely raised the issue, we would conclude that the argument lacks
merit. Section 108B-12(c) permits “aggrieved person[s],” such as defendants, to file a motion
to suppress the contents of an intercepted private communication, or evidence derived from it, on
the grounds that (1) the communication was unlawfully intercepted, (2) the order of authorization
or approval under which it was intercepted is insufficient on its face, or (3) the interception was
not made in conformity with the order of authorization or approval, or at the time of the
application there was not probable cause to believe that the aggrieved person was committing or
had committed the offense to which the communication relates. 725 ILCS 5/108B-12(c) (West
2014).
¶ 44 The State argues that none of the three grounds for suppression applies. First, the State
contends that all of the communications at issue were intercepted in accordance with the wiretap
orders. Second, the State argues that the wiretap orders are not facially insufficient, because
they were entered by judges of the circuit court of Lake County and consisted of the information
required by statute. Third, the State claims that “there is nothing to suggest that the
interceptions were not in conformity with the orders or made without probable cause.”
¶ 45 The State concludes that section 102B-12(c) does not authorize suppression on the
ground that the underlying applications were facially invalid, because the resulting orders were
entered and executed in good faith. Defendants rely on the first two grounds of section
108B-12(c), arguing that, because the underlying applications were improper, the
communications were unlawfully intercepted and the orders are insufficient on their face. We
agree with defendants.
¶ 46 The purpose of the exclusionary rule is not to provide a constitutional right to an
aggrieved party but, rather, to act as a deterrent against improper conduct by government agents.
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2018 IL App (2d) 160927United States v. Leon, 468 U.S. 897, 906 (1984). The Supreme Court thus created the
“good-faith exception” to the exclusionary rule, which allows the use of evidence where an
officer is “acting as a reasonable officer would and should act in similar circumstances,” albeit
on a subsequently invalidated search warrant. Leon, 468 U.S. at 919-20.
¶ 47 Illinois has codified the good-faith exception in section 114-12(b)(1) of the Code of
Criminal Procedure, which provides that, “[i]f a defendant seeks to suppress evidence because of
the conduct of a peace officer in obtaining the evidence, the State may urge that the peace
officer’s conduct was taken in a reasonable and objective good faith belief that the conduct was
proper and that the evidence discovered should not be suppressed if otherwise admissible.” 725
ILCS 5/114-12(b)(1) (West 2014). Section 114-12(b)(4) specifically provides, however, that
the good-faith exception “does not apply to unlawful electronic eavesdropping or wiretapping.”
725 ILCS 5/114-12(b)(4) (West 2014). The plain and ordinary meaning of the statute prohibits
the State from relying on law enforcement’s purported good-faith conduct to excuse unlawful
wiretapping.
¶ 48 The legislature’s exclusion of unlawful wiretapping from the good-faith exception
reflects the intent to specifically regulate this intrusive investigative technique. In United States
v. Lomeli, 676 F.3d 734 (8th Cir. 2012), the Eighth Circuit Court of Appeals explained why
special regulation of law enforcement in this area is necessary. The Lomeli court addressed the
validity of an interception order entered by a district court where the application was missing the
order of special designation and the memorandum of authorization approving the application.
The Lomeli court concluded that good-faith execution of the order did not excuse the omission
where the application itself failed to properly identify either the person making the application or
his or her authority to do so. Lomeli, 676 F.3d at 739-42.
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2018 IL App (2d) 160927¶ 49 The Lomeli court observed that, even though the good-faith doctrine adopted in Leon had
been applied in the context of suppression motions filed under Title III (18 U.S.C.
§ 2518(10)(a)), it does not apply where the law enforcement officials are responsible for the
error. Lomeli, 676 F.3d at 739-42. In factual contrast, in United States v. Moore, 41 F.3d 370,
376 (8th Cir. 1994), an officer left the trial judge’s chambers believing, as did the judge, that the
judge had approved the wiretap application and that the order had been entered, but the order
was never signed. In Moore, the law enforcement officials “complied with the core statutory
requirements of federal wiretap law in applying for and executing the wiretap orders” and it “was
the judge, not the police officers, who made the critical mistake.” Lomeli, 676 F.3d at 742
(citing Moore, 41 F.3d at 376-77). The Lomeli court concluded that the exclusionary rule may
not be relaxed under the doctrine of good faith where law enforcement has failed to adhere to the
application authorization statute:
“We have already determined that the government failed to comply with the core
statutory requirements of federal wiretap law and that the omission here was not merely a
technical defect. Stated in juxtaposition with Leon jurisprudence, we hold that no
wiretap applicant can, in good faith, rely upon a court order authorizing the wiretap when
the applicant failed to comply with the edicts of the federal wiretap statute in procuring
the order. The failure here thwarts the core purpose of the statutory scheme in place to
regulate such extraordinary investigative techniques. To hold otherwise on these facts
would prompt bad practices and reward those who routinely include mere boilerplate
language in wiretap applications, which runs upstream from the carefully laid out
statutory scheme. Without including the name of the authorizing DOJ official on
wiretap applications, there can be no ‘good faith’ reliance under the statutory scheme
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2018 IL App (2d) 160927carefully crafted by Congress to limit the use of these electronic interceptions. We will
take no part in detracting from Congress’s intent ‘to make doubly sure that the statutory
authority be used with restraint and only where the circumstances warrant the
surreptitious interception of wire and oral communications.’ United States v. Giordano,
416 U.S. 505, 515 (1974).” Lomeli, 676 F.3d at 743.
¶ 50 Lomeli is directly on point. The prosecution may not rely on the good-faith doctrine to
avoid the exclusionary rule when it procured the orders in violation of article 108B. See People
v. Edwards, 337 Ill. App. 3d 912, 930 (2003) (the requirements of article 108B are intended to
“provide for adequate judicial supervision and sufficiently protect a suspect’s constitutional right
to be free from unreasonable, nonconsensual eavesdropping”).
¶ 51 D. Prospective or Retroactive Application
¶ 52 Anticipating our affirmance of the suppression orders in these cases and expressing
concern at oral argument that our holding could have widespread ramifications on unrelated
convictions under collateral review, the State argues that our decision would constitute a new
rule of law that should not be applied retroactively. Defendants again argue that the State has
forfeited the argument by raising it for the first time on appeal. The State responds that the
rules of forfeiture are a limitation on the parties, not on this court, and that the State would have
had no reason to raise the issue of retroactivity below, because “there was no new precedential
law established” by the suppression orders in the trial court.
¶ 53 Indeed, there was no reason to consider retroactivity in the trial court or even now on
appeal. The analysis set forth by the Supreme Court in Teague v. Lane, 489 U.S. 288 (1989),
adopted by the Illinois Supreme Court in People v. Flowers, 138 Ill. 2d 218, 237 (1990), and
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2018 IL App (2d) 160927restated in People v. Morris, 236 Ill. 2d 345 (2010), shows why any determination regarding the
retroactive application of our holding would be premature.
¶ 54 Under Teague, a judicial decision that establishes a new rule applies to all criminal cases
pending on direct review. People v. Smith, 2015 IL 116572, ¶ 24. However, with two
exceptions, the new rule will not apply retroactively to convictions that are already final when
the new rule is announced. Smith, 2015 IL 116572, ¶ 24. The purpose of the Teague
framework is to promote the government’s interest in the finality of criminal convictions and to
validate reasonable, good-faith interpretations of existing precedents, even though they are
contradicted by later decisions. Smith, 2015 IL 116572, ¶ 24.
¶ 55 The Teague doctrine is tailored to the situation where a new rule is established in a
previous case and a defendant in a collateral proceeding seeks to have the new rule applied to
him. People v. Price, 2016 IL 118613, ¶ 21 (underlying the application of the Teague analysis
is the notion that the new rule, had it been in effect at the time of trial, could have made a
difference in the outcome); see, e.g., Teague, 489 U.S. at 294 (petitioner for a writ of habeas
corpus, who was convicted by an all-white jury, sought to benefit from the Supreme Court’s
decision in Batson v. Kentucky, 476 U.S. 79 (1986), which was decided after his conviction
became final); Flowers, 138 Ill. 2d at 234-35 (postconviction petitioner relied on People v.
Reddick, 123 Ill. 2d 184 (1988), which held that conflicting jury instructions that failed to state
the appropriate burdens of proof were unconstitutional, as the jury could not possibly convict the
defendant of the lesser included offense); Morris, 236 Ill. 2d at 348-49, 355 (two postconviction
petitioners who entered negotiated guilty pleas asserted that they were not properly admonished
about mandatory supervised release and relied on People v. Whitfield, 217 Ill. 2d 177, 203
(2005), which was decided after the postconviction petitions were dismissed); Smith, 2015 IL
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2018 IL App (2d) 160927116572 (postconviction petitioner sought to apply holding of People v. White, 2011 IL 109616,
which had been decided before petition was filed). Thus, whether our holding is suited to
retroactive application is a question to be answered in a future collateral proceeding.
¶ 56 Further, it appears that the State is concerned with the effect of an affirmance of the trial
court’s ruling that an SA’s ability to delegate wiretap-application authority is preempted by Title
III. As explained, we need not decide that issue. Even if we were in a position to address
retroactivity, our holding that the applications in these cases did not comply with article 108B
and that suppression was appropriate under that statute (see 725 ILCS 5/108B-12(c) (West
2014)) does not constitute a new rule of law that would raise retroactivity concerns.
¶ 57 III. CONCLUSION
¶ 58 The suppression orders entered in the circuit court of Lake County are affirmed.
¶ 59 Affirmed.
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