§ 108B-12 — Approval, notice, suppression

(a) If an electronic criminal surveillance officer, while intercepting a private communication in accordance with the provision of this Article, intercepts a private communication that relates to an offense other than an offense enumerated in Section 108B-3 of the Act, or relates to an offense enumerated in Section 108B-3 but not specified in the order of authorization, the State's Attorney, or a person designated in writing or by law to act for him, may, in order to permit the disclosure or use of the information under Section 108B-2a of this Act, make a motion for an order approving the interception. The chief judge of a court of competent jurisdiction shall enter an order approving the interception if he finds that at the time of the application, there existed probable cause to believe that a person whose private communication was intercepted was committing or had committed an offense and the content of the communication relates to that offense, and that the communication was otherwise intercepted in accordance with the provisions of this Article. (b) An intercepted private communication, or evidence derived from it, may not be received in evidence or otherwise disclosed in an official proceeding unless each aggrieved person who is a party in the official proceeding, including any proceeding before a legislative, judicial, administrative or other governmental agency or official authorized to hear evidence under oath or other person taking testimony or depositions in any such proceeding, other than a grand jury, has, not less than 10 days before the official proceeding, been furnished with a copy of the court order, and the accompanying application, under which the interception was authorized or approved. The 10 day period may be waived by the presiding official if he finds that it was not practicable to furnish the person with the information 10 days before the proceeding, and that the person will not be or has not been prejudiced by delay in receiving the information. (c) An aggrieved person in an official proceeding may make a motion under this Section 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 content of the private communication relates. (d) If a motion under this Section duly alleges that the evidence sought to be suppressed in an official proceeding, including a grand jury, has been derived from an unlawfully intercepted private communication, and if the aggrieved person who is a party has not been served with notice of the interception under this Section, the opponent of the allegation shall, after conducting a thorough search of its files, affirm or deny the occurrence of the alleged unlawful interception, but no motion shall be considered if the alleged unlawful interception took place more than 5 years before the event to which the evidence relates. (e) Where a motion is duly made under this Section prior to the appearance of a witness before a grand jury, the opponent of the motion may make such applications and orders as it has available to the chief judge of a court of competent jurisdiction in camera, and if the judge determines that there is no defect in them sufficient on its face to render them invalid, the judge shall inform the witness that he has not been the subject of an unlawful interception. If the judge determines that there is a defect in them sufficient on its face to render them invalid, he shall enter an order prohibiting any question being put to the witness based on the unlawful interception. (f) Motions under this Section shall be made prior to the official proceeding unless there was no opportunity to make the motion or unless the aggrieved person who is a party was not aware of the grounds for the motion. Motions by co-indictees shall, on motion of the People, be heard in a single consolidated hearing. (g) A chief judge of a court of competent jurisdiction, upon the filing of a motion by an aggrieved person who is a party under this Section, except before a grand jury, may make available for inspection by the aggrieved person or his attorney such portions of the intercepted private communications, applications and orders or the evidence derived from them as the judge determines to be in the interest of justice. (h) If a motion under this Section is granted, the intercepted private communication, and evidence derived from it, may not be received in evidence in an official proceeding, including a grand jury. (i) In addition to any other right of appeal, the People shall have the right to appeal from an order granting a motion to suppress if the official to whom the order authorizing the interception was granted certifies to the court that the appeal is not taken for purposes of delay. The appeal shall otherwise be taken in accordance with the law.

Legislative History

(Source: P.A. 92-854, eff. 12-5-02.)