People v. Allard, 2018 IL App (2d) 160927 (February). Episode 486 (Duration 9:35)
Lake County State Attorney didn’t sign the applications for the recorded phone calls so they are invalid.
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.
It was investigation involving the Four Corner Hustlers.
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), based on applications signed and presented by two assistant state’s attorneys (ASAs), not by the elected state’s attorney (SA).
Defendants joined in a motion to 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.”
They 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.
The chief of the gang and narcotics prosecution division of the Lake County State’s Attorney’s Office the chief of the felony trial division were signing these warrants. 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 applications included orders and extension orders for nonconsensual telephone interceptions of 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.
Turns out SA Nerheim did not personally sign or present the wiretap applications.
The Illinois Overhear Statute
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.” 725 ILCS 5/108B-2(a).
In turn, section 108B-3(b) provides that
“[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, 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.”
Additionally, the application shall include “[t]he authority of the applicant to make the application.” 725 ILCS 5/108B-4(1).
The Federal Overhear Statute
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 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.
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 ***.”
But They Had A Letter
State says the complied with the law because they had a letter, on the SA’s office letterhead, signed by the SA.
The letter stated that SA Nerheim granted ASA Mathews
“my authorization for the interception of private communication pursuant to the requirements as set forth in [section 108B-3].”
Letter Didn’t Cut It
To begin with, 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 Criminal Procedure is impermissibly broader than section 2516(2) of Title III.
Still, the wiretap orders in these cases were invalid based simply on the prosecution’s noncompliance with article 108B.
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…but 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.
Real problems here was that the applications themselves did not comply with article 108B.
All The Applications Were Wrong
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. See 725 ILCS 5/108B-4(a)(1).
In the applications 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. SA Nerheim averred that he was involved in the decision-making process throughout the investigation.
No Mention Of The Absence or Disability
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.
Because there was no showing that SA Nerheim was absent or disabled, ASA Mathews was not designated to act in his place.
The purported authority of ASA Fisz to submit an application on behalf of SA Nerheim is even more attenuated. Fisz signed one when Mathews was out of town. Bothing in section 108B-2 gave him the power to further delegate that authority.
No Good Faith Exception
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).
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. The good-faith doctrine does not apply where the law enforcement officials are responsible for the error.