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Univ. of South Carolina School of Law

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Sunday, February 10, 2008

The Wire: Supreme Court of Illinois Finds Joint Federal/State Investigations Don't Need To Comply With State Eavesdropping Law

In People v. Coleman, the Supreme Court of Illinois determined that Illinois police do not have to follow a state eavesdropping law when working as part of a federal ivestigation.  In Coleman, "the federal Bureau of Alcohol, Tobacco, Firearmes, and Explosives (ATF), the Addison police department, the Wheaton police department, and the Du Page County sheriff's office began a multiple jurisdiction narcotics investigation."  During this investigation, Randall Coleman was arrested and indicted on two counts of unlawful delivery of a controlled substance based in large part upon audio recordings of conversations between himself and the State's confidential informant, Eugene Sanders, who was wearing a wire.  The trial court refused Coleman's motion to suppress this evidence, leading to him being convicted, and the appellate court affirmed, prompting Sanders' appeal to the Supreme Court of Illinois.

The Court framed the issue as follows:  Under 720 ILCS 5/14-1 et seq., passed by the Illinois legislature in 1961, both parties must consent to the recording or the person doing the recording must get a judge's permission.  Because the local police did not comply with this statute, if they were acting alone, the audio recordings would have been inadmissible under 725 ILCS 5/108A-9.

On the other hand, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 governs wiretaps by federal agents and provides:  "It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception."  Title III thus does not require federal agents to obtain a court order before wiring a confidential informant. 

The Supreme Court of Illinois noted that Title III was an act of preemption but that Congress specifically permitted concurrent state regulation.  In other words, states may adopt standards more stringent than those in Title III.  The Court noted, however, that while 720 ILCS 5/14-1 et seq. is more stringent than Title III, Illinois courts have consitsently found that it doesn't apply during joint federal/state investigations.  Coleman contended that these cases were wrongfully decided, but the Supreme Court of Illinois noted that 720 ILCS 5/14-1 et seq. was passed in 1961, prior to the passage of Title III of the Omnibus Crime Control and Safe Streets Act, and the Illinois legislature did not subsequently amend 720 ILCS 5/14-1 et seq. to state that its more stringent standard applied in joint federal/state investigations.  This decision seems correct to me, with the Supreme Court of Illinois sending a clear message to the legislature that if it wants its more stringent wiretap standards to apply to joint federal/state investigations, it must pass new legislation.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/02/in-people-v-col.html

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