People v. Harris

2022 IL App (3d) 190504-B, 223 N.E.3d 177

• Court: Appellate Court of Illinois
• Decided: February 16, 2022
• Docket: 3-19-0504
• Status: Published

Opinion

2022 IL App (3d) 190504-B

Opinion filed February 16, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois. Plaintiff-Appellant, ) ) Appeal No. 3-19-0504 v. ) Circuit No. 19-CF-61 ) KENDALL D. HARRIS, ) Honorable ) Clark E. Erickson, Defendant-Appellee. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Holdridge and McDade concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 Defendant Kendall D. Harris was charged with two counts of unlawful delivery of a

controlled substance (720 ILCS 570/401(d)(i), (iii) (West 2018)). He filed a motion to suppress

evidence, arguing that the court should exclude the testimony of a confidential informant and the

audio and video recordings captured by the informant with a hidden camera. The trial court granted

the motion. The State appealed the trial court’s suppression of the video recording and testimony

of the informant. On August 21, 2020, we affirmed. People v. Harris, 2020 IL App (3d) 190504.

Our supreme court overruled that decision in People v. Davis, 2021 IL 126435. Thereafter, our

supreme court directed us to vacate our judgment in Harris and consider the effect of its opinion in Davis “on the issue of whether the trial court erred in suppressing the testimony of the

confidential informant and the video recording without audio.” People v. Harris, No. 126572

(2021) (nonprecedential supervisory order on denial of petition for leave to appeal). In light of our

supreme court’s decision in Davis, we now reverse the trial court’s order denying the State’s

motion to suppress and remand for further proceedings.

¶2 I. BACKGROUND

¶3 Defendant was charged with two counts of unlawful delivery of a controlled substance for

delivering substances containing heroin and fentanyl to a confidential informant. During the

alleged drug transaction, the confidential informant was wearing a buttonhole camera that recorded

both audio and video.

¶4 Prior to the alleged transaction, an assistant state’s attorney approved a law enforcement

officer’s request for the informant to use an eavesdropping device pursuant to an exemption to the

eavesdropping statute. The exemption allows a state’s attorney to grant approval for an

eavesdropping device “after determining that reasonable cause exists to believe that inculpatory

conversations concerning a qualified offense will occur with a specified individual or individuals

within a designated period of time.” 720 ILCS 5/14-3(q)(1) (West 2018).

¶5 Pursuant to section 14-3(q)(2) of the Criminal Code of 2012 (Code) (id. § 14-3(q)(2)), the

assistant state’s attorney provided a “written memorialization” of the officer’s request for an

eavesdropping device in a form titled, “Qualified Offense Eavesdrop Exemption Form.” On the

form, the assistant state’s attorney described the “reasonable cause” as follows: “[Confidential

informant] advised his/her ability to purchase heroin from a black male known to the [confidential

informant] as ‘KG.’ ” The form contained the following description of the suspect: “Unknown

Black Male known to the [confidential informant] as ‘KG.’ ”

2 ¶6 Defendant filed a motion to suppress evidence, arguing that there was lack of reasonable

cause for the authorization of the use of an eavesdropping device. A hearing was held on the motion

to suppress. Over defendant’s objection, the court allowed the State to present the testimony of

Kyle Jensen, a police officer employed by the Kankakee County Sheriff’s Office.

¶7 Jensen testified that he worked with the confidential informant on the date of the incident.

The informant had been working with law enforcement for approximately two years at that time.

Jensen had worked with the informant on approximately 15 to 20 drug investigations, and she

purchased controlled substances approximately 30 to 35 times during these investigations. She

initially worked as an informant to work off a criminal charge. Once she had worked off the charge,

she continued working with the police as a paid informant. The informant had never testified in a

case she had been involved in.

¶8 On the date of the incident, Jensen called Assistant State’s Attorney Marlow Jones on the

phone and requested permission to conduct a consensual overhear. A consensual overhear gave

the police authority to make an audio recording of a drug transaction. Jensen told Jones that he had

a confidential informant who stated that she could buy narcotics from an individual whose

nickname was “KG.” Jensen told Jones that the informant had indicated that KG gave her his

phone number and told her to call if she “needed anything.” Jensen and Jones discussed the

informant’s past work with the police, including how many drug buys she had done and the number

of targets from whom she had purchased narcotics. Jones asked if she had purchased from KG

before, and Jensen told him she had not. At the time of the overhear request, the informant had

conducted at least 20 drug buys. Jones granted Jensen permission to conduct the overhear. The

informant conducted the buy 27 minutes later.

3 ¶9 Jensen testified that the police did not know defendant’s identity at the time of the buy.

They only knew his nickname. A couple days prior to the buy, officers had driven around with the

informant looking for defendant. They were unable to find him. Defense counsel asked Jensen if

“everything flowed from [the] eavesdropping petition,” since the police did not know the name of

the target prior to the transaction. Jensen replied, “Correct.” Jensen acknowledged that he utilized

the 24-hour overhear procedure from section 14-3(q) of the Code rather than seeking a judicially

authorized eavesdropping petition. Jensen stated that he did not seek a judicially authorized

eavesdropping petition because the type of investigation he was conducting was “fluid” and

conducted quickly. Jensen stated that he believed that the judicially authorized petitions were for

longer investigations, and this investigation only involved one drug purchase.

¶ 10 During arguments on the motion, the State explained that police used confidential

informants, like the one in this case, by “put[ting] a camera on this person” so that she “will

successfully go and buy drugs.” The confidential informant in this case “had successfully done

exactly what it is they were planning on doing, which is put on a mic, put on a camera, and go and

complete a drug transaction.” This informant had purchased drugs for the police in this way more

than 20 times before her encounter with defendant. The State explained: “You put a camera on this

person because they are going to do what they have successfully done in the past, which is purchase

cocaine, heroin, what have you.”

¶ 11 After hearing arguments, the court granted defendant’s motion to suppress. The court found

that the exemption form’s description of the suspect as a black male did not include a particularized

description of an individual. The court also found that the form did not include a sufficient

statement of reasonable cause and did not describe a designated period of time. The court ruled

that the audio and video recordings were suppressed because they were obtained in violation of

4 the eavesdropping statute. The court further ruled that the confidential informant would be barred

from testifying.

¶ 12 The State filed a motion to reconsider, arguing that the court should not have suppressed

the confidential informant’s testimony or the video portion of the recording. The court denied the

motion, finding that the informant’s testimony and the video recording were fruit of the poisonous

tree. The State filed a certificate of impairment, and this appeal followed.

¶ 13 On August 21, 2020, we issued our initial decision in this matter. Harris, 2020 IL App (3d)

190504. We held that the trial court properly granted the defendant’s motion to suppress the

testimony of the confidential informant and the video recording of the drug transaction because

the State’s illegal recording led directly to that evidence. Id. ¶ 27. We determined that it would

violate the purpose of the eavesdropping statute not to suppress that evidence. Id. ¶¶ 31-32.

¶ 14 On October 21, 2021, our supreme court issued its decision in Davis, 2021 IL 126435. In

that case, our supreme court held that where a drug transaction between a confidential informant

and a defendant is illegally recorded in violation of the eavesdropping statute, testimony from the

confidential informant regarding the transaction and the video portion of the recording is still

admissible. Id. ¶ 41. Our supreme court reasoned that suppression was not warranted because

“neither the confidential informant’s testimony nor the video recording was obtained as a result of

the illegal audio recording.” Id. Because we reached a contrary result in Harris, our supreme court

overruled that decision. Id.

On November 24, 2021, our supreme court denied the State’s petition for leave to appeal

in this matter but directed this court to vacate our judgment and to consider the effect of its opinion

in Davis “on the issue of whether the trial court erred in suppressing the testimony of the

5 confidential informant and the video recording without audio.” Harris, No. 126572 (2021)

(nonprecedential supervisory order on denial of petition for leave to appeal).

¶ 15 II. ANALYSIS

¶ 16 On appeal, the State concedes that the circuit court properly suppressed the audio recording

of the transaction because the requirements of section 14-3(q) of the Code (720 ILCS 5/14-3(q)

(West 2018)) were not met. However, the State contends that the court erred in suppressing the

testimony of the confidential informant and the video recording without audio. The State contends

that the video recording and informant’s testimony were not barred by the eavesdropping statute

and were not fruit of the poisonous tree.

¶ 17 The question before this court is solely a legal question; therefore, the standard of review

is de novo. People v. Babolcsay, 368 Ill. App. 3d 712, 714 (2006).

¶ 18 The eavesdropping statute provides that a person commits the offense of eavesdropping

when he or she knowingly and intentionally

“[u]ses an eavesdropping device, in a surreptitious manner, for the purpose of ***

transmitting, or recording all or any part of any private conversation to which he or she is

not a party unless he or she does so with the consent of all of the parties to the private

conversation.” 720 ILCS 5/14-2(a)(2) (West 2018).

The eavesdropping statute also prohibits using or disclosing “any information which [the person]

knows or reasonably should know was obtained from a private conversation or private electronic

communication in violation of this Article, unless he or she does so with the consent of all of the

parties.” Id. § 14-2(a)(5).

¶ 19 An “eavesdropping device” is defined as “any device capable of being used to hear or

record oral conversation or intercept, or transcribe electronic communications whether such

6 conversation or electronic communication is conducted in person, by telephone, or by any other

means.” Id. § 14-1(a). “Private conversation” is defined as “any oral communication between 2 or

more persons, whether in person or transmitted between the parties by wire or other means, when

one or more of the parties intended the communication to be of a private nature under

circumstances reasonably justifying that expectation.” Id. § 14-1(d).

¶ 20 Section 14-5 of the statute provides: “Any evidence obtained in violation of this Article is

not admissible in any civil or criminal trial ***.” Id. § 14-5. This provision is “the legislature’s

express adoption of the ‘fruit of the poisonous tree’ doctrine.” In re Marriage of Almquist, 299 Ill.

App. 3d 732 (1998) (citing People v. Maslowsky, 34 Ill. 2d 456 (1966)). It requires “the

suppression of evidence obtained as the result of a violation of the eavesdropping statute.” People

v. Seehausen, 193 Ill. App. 3d 754, 761 (1990). This exclusionary rule applies only to information

derived from the unlawful act, not to evidence obtained from an independent source. Id.

¶ 21 A confidential informant’s testimony concerning a conversation in which he was a

participant “d[oes] not constitute eavesdropping as that offense is defined in the statute” and,

therefore, is “not evidence obtained in violation of the plain language of the eavesdropping

statute.” Davis, 2021 IL 126435, ¶ 19. Additionally, a video recording, without audio, is not

obtained through an “eavesdropping device” as that term is defined in the statute. Id. ¶ 20. Thus,

a silent video recording is also “not evidence obtained in violation of the plain language of the

eavesdropping statute.” Id.

¶ 22 Furthermore, section 14-5 of the statute does not require suppression of a confidential

informant’s testimony about a drug transaction because the informant’s knowledge is derived from

his participation in the conversation with the defendant, not from the illegal recording. Id. ¶ 41.

Likewise, section 14-5 does not render inadmissible a video recording made simultaneously with

7 an illegal audio recording because the video recording is not “derived from the *** audio

recording.” Id. Thus, when a drug transaction between a defendant and a confidential informant is

illegally recorded, testimony from the confidential informant and the video recording of the

transaction are admissible and should not be suppressed. See id.

¶ 23 Here, the trial court granted defendant’s motion to suppress, finding that the informant’s

testimony and the video portion of the recording were inadmissible. Because that evidence was

admissible, pursuant to Davis, 2021 IL 126435, we reverse the circuit court’s order granting

defendant’s motion to suppress.

¶ 24 III. CONCLUSION

¶ 25 The judgment of the circuit court of Kankakee County is reversed, and the cause is

remanded for further proceedings.

¶ 26 Reversed and remanded.

8 No. 3-19-0504

Decision Under Review: Appeal from the Circuit Court of Kankakee County, No. 19-CF- 61; the Hon. Clark E. Erickson, Judge, presiding.

Attorneys Jim Rowe, State’s Attorney, of Kankakee (Patrick Delfino, for Thomas D. Arado, and Mark A. Austill, of State’s Attorneys Appellant: Appellate Prosecutor’s Office, of counsel), for the People.

Attorneys James E. Chadd, Peter A. Carusona, and Sean Conley, of State for Appellate Defender’s Office, of Ottawa, for appellee. Appellee: