People v. O’Dette, 2017 IL App (2d) 150884 (March). Episode 333 (Duration 13:56)

There was an abuse of the grand jury subpoena power in this child porn case, but defendant needs to show prejudice for relief.

Facts

Here we have a sheriff’s detective who was investigbating child pornongrphy.

Someone sent him some illegal pictures. He used a grand jury subpoena to AT&T to discover the internet subscriber’s name and address.

He then used that information for a search warrant.

Issue

Defendant’s main issue is that the sheriff did not return the subpoena to the grand jury. In fact, the sheriff really was not working with a grand jury at all.

Defendant says, however, that the detective’s “pro forma” appointment—one of 488 made simultaneously—was the full extent of his interaction with the grand jury and that, in reality, he used his position to conduct an independent investigation from which the grand jury was excluded.

Grand Jury Subpoena

He had a clerk from the State’s Attorney’s office draft the subpoena and got it signed with the clerk’s help. Then the material was delivered directly to the detective, and it was never presented to the grand jury.

Although, a state’s attorney got involved for the subsequent search warrant no attorney ever looked at or approved of the grand jury subpoena.

It turns out every single detective in Lake county is sworn in as a grand jury investigator, just in case.

The Grand Jury

A grand jury does not need a pending charge against a person or probable cause, as the purpose of the grand jury is to decide whether probable cause exists such that a charge should be brought.

The only requirements for the information sought were “some quantum of relevance” of the information and “some showing of individualized suspicion” against the person whose information was being sought.

Also, the grand jury must remain independent and thus must operate in secrecy. Therefore, with limited exceptions, the State’s Attorney may not disclose grand jury matters and may not use the grand jury as his own compulsory administrative process.

Under 725 ILCS 5/112-6(c)(2), any person to whom grand jury matters are disclosed shall not use them for any purpose other than assisting the State’s Attorney in his duty to enforce state law.

The Appointment Order

The State pointed out that the order not only appointed the detective as an investigator for the grand jury but also authorized him to issue subpoenas for investigative matters to be heard by the Lake County Grand Jury, to receive materials and documents pursuant to those subpoenas, to provide those documents to the State’s Attorney or his Assistants for enforcement of the laws of the State of Illinois, and nothing required him to obtain approval from the grand jury before issuing a subpoena.

Appointments of investigators for a grand jury are covered under 725 ILCS 5/112-5(b).

It says: the trial court may appoint an investigator or investigators “on petition showing good cause for same and signed by the foreman and 8 other grand jurors. The duties and tenure of appointment of such investigator or investigators shall be determined by the court.”

Unsupervised Investigation

Well, it’s true that the detective’s actions as a grand jury investigator did not have very much to do with the grand jury.

No Contact With Grand Jury

He admitted that, he had no contact with the grand jury. From the start, his investigation of defendant proceeded as though the grand jury did not exist. To be sure, he did not need to obtain the grand jury’s explicit authorization to issue the subpoena.

Returnable To Sheriff

However, as the trial court noted, the subpoena was made returnable to the detective personally at the sheriff’s department building or his email address.

Although the subpoena was headed “Grand Jury” and stated that the detective was an investigator for the grand jury, it was not made returnable to the grand jury. Moreover, it stated that the detective had made a complaint before the grand jury—which he had not.

Never Shown To Grand Jury

The inaccuracy was potentially misleading, implying that defendant was already under grand jury investigation. The return and later use of the subpoena also occurred in disregard of the grand jury. After receiving the documents, he did not disclose them to the grand jury.

He did not do so even later on.

Never Even Shown To Prosecutors

He did not even disclose them to the State’s Attorney’s office, although he gave that office the physical address of the suspected offender.

The detective never reported anything to the grand jury.

Agent In Isolation

Thus, the search was made possible by the detective’s actions, all of which he undertook as an agent of the grand jury but in complete isolation from it.

The reviewing court said that all of this raises serious problems.

Tainted Subpoena

There was an abuse of the grand jury subpoena power.

The subpoena itself was defective, and the handling of the confidential information that it produced was tainted by the original defect and by the subsequent disregard of the grand jury, which should have originally received the information.

In substance, the detective used the grand jury’s subpoena power to conduct an independent investigation that did not end until after he had twice obtained information in which defendant had a constitutional privacy interest.

Although the appointment of 488 law-enforcement officers as grand jury investigators circumvented one problem raised by the case law, it did not eliminate the danger of police abuse of the grand jury’s powers.

The mere fact of appointment did not entitle the officers to perform their own investigations without any contact with the grand jury until the last moment, as was done here.

The convenience of the mass appointment cannot be a justification for disregarding the purposes of the grand jury system and the relatively mild restraints on its investigative powers.

No Prejudice Though

In People v. Wilson, 164 Ill. 2d 436 (1994), our supreme court held that the State had abused the grand jury’s subpoena power but the defendant was entitled to no relief without a showing that he was prejudiced

Defendant is still required to show prejudice before he may be given relief.

Since, the state could have gotten their hands on this material had they followed the correct procedures the defendant failed to show prejudice.

The trial court’s ruling denying defendant’s motion to suppress was sustained.

See Also…

See In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 393-94 (1992) for an explanation of what is really going on (the grand jury generally works in concert with the police to investigate criminal behavior, and that the State’s Attorney as the county’s chief law-enforcement officer coordinates the work of both groups thus there is nothing improper when they issue these subpoenas).

See also Episode 144 People v. Boston, 2016 IL 118661 (February).