People v. Davis

Digitally signed
by Reporter of
Decisions
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document
Appellate Court Date: 2020.12.07
11:16:12 -06'00'

People v. Davis, 2020 IL App (3d) 190272

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
Caption v. LAVAIL D. DAVIS, Defendant-Appellee.

District & No. Third District
No. 3-19-0272

Filed June 5, 2020
Rehearing denied July 21, 2020

Decision Under Appeal from the Circuit Court of Kankakee County, No. 18-CF-486;
Review the Hon. Clark E. Erickson, Judge, presiding.

Judgment Reversed and remanded.

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

Bart E. Beals, of Beals Law Firm, of Chicago, for appellee.

Panel JUSTICE SCHMIDT delivered the judgment of the court, with
opinion.
Justice Holdridge concurred in the judgment and opinion.
Presiding Justice Lytton dissented, with opinion.
 OPINION

¶1 The State appeals the trial court’s order suppressing the recording of a drug transaction
between defendant, Lavail D. Davis, and a confidential informant (CI). The State also
challenges the suppression of the CI’s in-person testimony regarding the transaction. We
reverse and remand.

¶2 I. BACKGROUND
¶3 The State charged defendant with unlawful delivery of a controlled substance. 720 ILCS
570/401(d) (West 2018). The charges stem from a drug transaction that a CI surreptitiously
recorded with an audio and video recording device hidden on his person.
¶4 Defendant filed a motion to suppress evidence. The motion alleged that the audio and video
recording constituted illegal eavesdropping. According to defendant, the police obtained an
overhear authorization to record a specific targeted individual. The authorization did not name
defendant as the target. Therefore, the CI illegally recorded the conversation he had with
defendant. Defendant further argued that the CI’s in-person testimony should also be
suppressed as the fruit of a poisonous tree.
¶5 The parties did not present any evidence at the hearing on defendant’s motion to suppress.
However, the uncontested evidence is as follows. The Kankakee Area Metropolitan
Enforcement Group (KAMEG) received an overhear authorization from the state’s attorney.
The authorization provided for the recording of a controlled drug purchase between the CI and
a specific individual targeted for selling narcotics. The CI previously purchased drugs from the
target and arranged for another purchase. The authorization did not name defendant as the
person to be recorded. The CI wore a hidden device, which recorded both audio and video.
When the CI went to the target’s home to make the purchase, he could not locate the target.
The CI left and walked to a different location nearby. The CI conducted a drug transaction with
defendant. The purchase occurred on the exterior of a house. The State had no evidence that
defendant and the target of the investigation acted in concert.
¶6 The parties agreed that the audio portion of the video recording of the drug transaction
violated the eavesdropping statute because the audio recording of the conversation did not fall
within the scope of the authorized overhear. Specifically, the authorization provided for the
recording of the targeted individual, not defendant. Nevertheless, the State contended that the
video recording and the confidential informant’s testimony were admissible, as they were not
barred under the eavesdropping statute.
¶7 Ultimately, the trial court found that the recording constituted illegal eavesdropping. The
court suppressed both the audio and video portion of the recording. The court also barred the
CI’s testimony as to personally observing and receiving the drugs from defendant as the fruit
of a poisonous tree.
¶8 The State filed a certificate of impairment pursuant to Illinois Supreme Court Rule 604(a)
(eff. July 1, 2017), and this appeal follows.

¶9 II. ANALYSIS
¶ 10 At the outset, the parties agree that the audio portion of the recording constituted illegal
eavesdropping and should be suppressed since it did not fall within the scope of the overhear

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 authorization. The State contends the trial court should not have suppressed the video (without
audio) and the CI’s in-person testimony. Specifically, the State contends that neither the video
nor the CI’s personal knowledge derived from the illegal audio recording. Consequently, the
State contends that this evidence is not barred at trial. Resolving this question requires us to
interpret section 14-5 of the Criminal Code of 2012 (720 ILCS 5/14-5 (West 2012)). Section
14-5 bars the admission of evidence obtained in violation of the eavesdropping statute. Id. Our
review is de novo. See People v. Luedemann, 222 Ill. 2d 530, 542 (2006).
¶ 11 The primary rule of statutory construction is to give effect to the true intent of the
legislature, which is best determined from the statutory language itself. Illinois Graphics Co.
v. Nickum, 159 Ill. 2d 469, 479 (1994). When statutory language is clear and unambiguous, it
must be given effect without resort to other aids of interpretation. Village of Chatham v. County
of Sangamon, 216 Ill. 2d 402, 429 (2005). Unambiguous statutes must be enforced as enacted,
and a court cannot depart from their plain language by reading into them exceptions,
limitations, or conditions that conflict with the expressed legislative intent. Franz v. Calaco
Development Corp., 352 Ill. App. 3d 1129, 1150 (2004).
¶ 12 The clear and unambiguous language of section 14-5 provides that “[a]ny evidence
obtained in violation of this Article is not admissible in any civil or criminal trial.” 720 ILCS
5/14-5 (West 2018). The key to inadmissibility under section 14-5 is that the evidence must be
obtained as a result of illegal eavesdropping activity. That is, either the evidence itself is an
illegal recording of a conversation, or the illegal eavesdropping led investigators to inculpatory
evidence. Upon review, we find the trial court erred in suppressing the video recording and the
CI’s in-person testimony since the evidence did not derive from a violation of the
eavesdropping statute.
¶ 13 Under the plain language of section 14-5, the trial court correctly found the audio recording
inadmissible on the basis that the audio recording itself constituted illegal eavesdropping.
However, the prohibition does not extend to the video portion of the recording or the CI’s
personal knowledge of the drug transaction. This evidence derived independently from the
illegal eavesdropping. The CI participated in the conversation. He did not eavesdrop. The
dissent speculates that the CI would not have had a conversation with defendant but for the
illegal audiotaping. This is pure fantasy unsupported by the record. In addition, the video
recorded simultaneously with the audio recording. 1 In other words, neither the CI’s personal
knowledge nor the video recording resulted from the illegal eavesdropping. Therefore, section
14-5 does not bar the admission of the video recording or the CI’s in-person testimony. There
is no need to consider the application of the fruit-of-a-poisonous-tree doctrine, as this evidence
did not derive from illegal eavesdropping.
¶ 14 Our conclusion is supported by our supreme court’s decision in People v. Gervasi, 89 Ill.
2d 522 (1982). In Gervasi, the supreme court considered the admissibility of transcripts and
in-person testimony of overheard conversations. Id. Investigators suspected defendant of
bribery. Id. at 524. Defendant made several telephone calls to the investigators. Id. at 524-25.
Court reporters transcribed each telephone conversation while listening on an extension phone

1
We note that defendant only argued that section 14-5 barred the video portion of the recording.
Defendant made no argument that the video recording standing alone should be barred under any other
basis. In fact, defense counsel conceded that, if the video recording were made without audio, it would
have been admissible.

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 that had its speaking element removed. Id. Defendant also spoke to investigators several times
in person. Id. at 525. On two of the face-to-face discussions, a court reporter transcribed the
conversation without the aid of an eavesdropping device. Id.
¶ 15 On review, the supreme court first found that the extension phone with the speaking
element removed constituted an eavesdropping device. Id. at 526-27. Therefore, the court
found that the court reporters eavesdropped on defendant’s telephone calls. Id. at 527. The
supreme court found the court reporters’ testimony and transcriptions were inadmissible as to
the telephone conversations. Id. By contrast, the court held that the investigators that spoke to
defendant over the phone could testify to the contents of the conversation. Id. at 531. The court
found that the investigators did not eavesdrop but acted as a party to the conversation. Id.
Therefore, the court held that the officers’ knowledge of the conversation did not derive from
illegal eavesdropping. As to the face-to-face conversations, the supreme court found the
officers’ and court reporters’ testimony as well as the transcriptions admissible, as the evidence
was obtained without the use of an eavesdropping device. Id. at 533-34.
¶ 16 Like the investigators in Gervasi, the CI in this case did not eavesdrop. Rather, the CI acted
as a party to the conversation. Therefore, the CI’s in-person testimony is admissible under
Gervasi. In addition, the video recording did not derive from eavesdropping activity. In other
words, the audio eavesdropping did not lead the CI or police to the drug transaction. Rather,
the CI made the video recording at the same time as the audio recording. The video is
independent of the eavesdropping and, therefore, admissible.

¶ 17 III. CONCLUSION
¶ 18 For the foregoing reasons, we reverse and remand the judgment of the circuit court of
Kankakee County.

¶ 19 Reversed and remanded.

¶ 20 PRESIDING JUSTICE LYTTON, dissenting:
¶ 21 I dissent. I disagree with the majority’s determination that the video portion of the illegal
recording and the testimony of the CI are independent of the government’s illegal activities. I
would affirm the trial court’s order granting defendant’s motion to suppress.
¶ 22 The eavesdropping statute provides: “Any evidence obtained in violation of this Article is
not admissible in any civil or criminal trial ***.” 720 ILCS 5/14-5 (West 2018). 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, 737 (1998) (citing People v. Maslowsky, 34 Ill. 2d
456, 464-65 (1966)). “Under the ‘fruit of the poisonous tree’ doctrine, an unlawful search taints
not only the evidence obtained from the search, but also evidence derivative of the search.” Id.
(citing Wong Sun v. United States, 371 U.S. 471 (1963)).
¶ 23 The statute’s exclusionary rule applies to information derived from a process initiated by
an unlawful act but does not extend to evidence obtained from an independent source. People
v. Seehausen, 193 Ill. App. 3d 754, 761 (1990). If knowledge of facts is gained from an
independent source, those facts may be proven like any other evidence, but knowledge gained
by the government’s wrongdoing is inadmissible. Wong Sun, 371 U.S. at 485. The “proper test
to be applied” is “ ‘ “[w]hether, granting establishment of the primary illegality, the evidence

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 to which instant objection is made has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary taint.” ’ ” United States v.
Wade, 388 U.S. 218, 241 (1967) (quoting Wong Sun, 371 U.S. at 488).
¶ 24 The independent source doctrine applies to “evidence acquired in a fashion untainted by
the illegal evidence-gathering activity.” Murray v. United States, 487 U.S. 533, 537-38 (1988).
Where an illegal government activity “has given investigators knowledge of facts x and y, but
fact z has been learned by other means, fact z can be said to be admissible because derived
from an ‘independent source.’ ” Id. at 538. The doctrine applies where a lawful seizure is
genuinely independent of a tainted one. Id. at 542.
¶ 25 The independent source doctrine allows admission of evidence that has been discovered by
means wholly independent of unlawful activity. Nix v. Williams, 467 U.S. 431, 443 (1984); see
also United States v. San Martin, 469 F.2d 5, 8 (2d Cir. 1972) (independent source must be
entirely separate from illegal eavesdropping); Simmons v. United States, 354 F. Supp. 1383,
app. C 1394 (N.D.N.Y. 1973) (evidence obtained from an “independent source” cannot be
obtained from or as a consequence of lawless official acts). There must not be any connection
between the government’s illegal conduct and the State’s proof. See Nardone v. United States,
308 U.S. 338, 341 (1939); People v. Porcelli, 25 Ill. App. 3d 145, 150 (1974).
¶ 26 Evidence should be suppressed where “the initial illegality ‘led directly to any of the
evidence actually used against the defendant at trial.’ ” (Emphasis in original.) United States
v. Smith, 155 F.3d 1051, 1061 (9th Cir. 1998) (quoting United States v. Carsello, 578 F.2d 199,
203 (7th Cir. 1978)). Independent, untainted sources of evidence include testimony from
witnesses who acted voluntarily, free from coercion and not part of the illegal government
activity. See United States ex rel. Conroy v. Bombard, 426 F. Supp. 97, 106 (S.D.N.Y. 1976);
see also State v. Pierson, 248 N.W.2d 48, 53 (S.D. 1976) (evidence of drugs found from
individuals cleaning motel room with no relation to illegal wiretap); People v. Mendez, 268
N.E.2d 778, 782 (N.Y. 1971) (surveillance leading to a witness was source of information
independent of illegal wiretap).
¶ 27 “The fundamental purpose of *** eavesdropping statutes is to prohibit unauthorized
eavesdropping and the use of evidence gained by such eavesdropping.” In re Cook County
Grand Jury, 113 Ill. App. 3d 639, 646 (1983). “The spirit and purpose of the [Illinois]
eavesdropping statute are not only to ensure that all eavesdropping is subject to judicial
supervision but to prevent unwarranted intrusions into an individual’s privacy.” People v.
Monoson, 75 Ill. App. 3d 1, 8 (1979). Suppression of illegally recorded evidence is required
“where there is a failure to satisfy any of the statutory requirements that directly and
substantially implement the legislative intent to limit the use of overhears.” People v.
Cunningham, 2012 IL App (3d) 100013, ¶ 22.
¶ 28 Courts in several states have ruled that video and/or testimonial evidence must be
suppressed where, as here, it is connected to an illegal recording. See Commonwealth v.
Dunnavant, 107 A.3d 29, 31 (Pa. 2014) (per curiam); State v. Lo, 675 P.2d 754, 760 (Haw.
1983); State v. Williams, 617 P.2d 1012, 1019 (Wash. 1980) (en banc); State v. Mullens, 650
S.E.2d 169, 190 (W. Va. 2007); People v. Dezek, 308 N.W.2d 652, 657 (Mich. Ct. App. 1981)
(per curiam). In State v. Williams, 617 P.2d at 1019, the Washington Supreme Court held that,
where a police officer and civilian informant knowingly took part in the illegal recording of a
conversation with the defendant, the State was prohibited from admitting into evidence the
recordings of the conversation as well as the testimony of the officer and informant who

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 participated in the conversation. The court found that suppression of the testimony of the
officer and informant was necessary to accomplish the purpose of the state’s privacy act, which
was “ ‘protection of the privacy of individuals from public dissemination, even in the course
of a public trial, of illegally obtained information.’ ” (Emphasis omitted.) Id. (quoting State v.
Wanrow, 559 P.2d 548, 555 (Wash. 1977) (en banc)).
¶ 29 In this state, courts have uniformly held that testimony about an illegally recorded
conversation is admissible only if the presence of the illegal recording did not lead to the
conversation about which the testimony is sought to be introduced. See Gervasi, 89 Ill. 2d at
530 (testimony of officers admissible where it was not “induced or influenced by the
eavesdropping”); People v. Babolcsay, 368 Ill. App. 3d 712, 716 (2006) (officer’s testimony
admissible because “videotaping activity did not lead to the officer’s conversation”); People
v. Mosley, 63 Ill. App. 3d 437, 444 (1978) (officer’s testimony about conversations with
defendant admissible because conversations “would have occurred even if [the officer] had not
received approval to carry a recorder on his person”); Porcelli, 25 Ill. App. 3d at 150 (officer
could testify about conversation with defendant because officer “did not telephone [defendant]
just so that a recording could be made”).
¶ 30 Here, the majority found that the video portion of the illegally intercepted message and
testimony from the CI were “independent sources” of evidence. This conclusion is not
supported by the law or the record. In this case, the video portion of the recording was part of,
not separate from, the illegal recording. Additionally, testimony from the CI is not separate
from the illegal recording because the informant was responsible for the illegal recording and
would not have engaged in any conversation with defendant but for the presence of the
recording equipment. Both the video portion of the recording and the CI’s testimony are tainted
by the illegal activity and, thus, inadmissible.
¶ 31 The majority’s decision is contrary to the statute’s purposes of protecting the privacy of
individuals. The unwarranted intrusion of an individual’s privacy can only be remedied by
suppression of all evidence connected to an unlawful eavesdropping recording, including all
portions of the recording and testimony regarding the contents of the recording. See Williams,
617 P.2d at 1019; see also Wong Sun, 371 U.S. at 485 (“[T]estimony as to matters observed
during an unlawful invasion has been excluded in order to enforce the basic constitutional
policies.”). By allowing admission of the video portion of the recording and testimony from
the CI, the majority is not protecting the privacy of individuals or discouraging illegal
government activity.
¶ 32 The majority relies on Gervasi to support its decision. However, Gervasi is distinguishable.
In Gervasi, our supreme court ruled that, where court reporters used illegal recording devices
to listen to and transcribe telephone calls between the defendant and police officers, the
testimony of the officers who took part in the conversations was admissible. See Gervasi, 89
Ill. 2d at 528-31. The court stated:
“The officers’ knowledge of and [their] testimony concerning the contents of the phone
conversations in our case were completely independent of the illegal eavesdropping.
Therefore, there is no indication that the testimony of these officers was in any way
induced or influenced by the eavesdropping. Here the officers were the actual
participants in the conversations. Their knowledge of what was said was not derived
from any illegal action. They spoke directly with the defendants, and most of the
conversations were initiated by the defendants and none of them were the result of

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 illegal eavesdropping. The officers were the participants in the conversations and were
not the eavesdroppers.” Id. at 530.
¶ 33 The court ruled that the officers’ testimony as to the telephone conversations should not be
suppressed because “[t]he officers did not surreptitiously obtain information from the
defendants.” Id. at 531. Because the officers’ knowledge was not derived from the court
reporters’ illegal eavesdropping activities, the officers’ testimony did not violate the
eavesdropping statute. Id. at 529.
¶ 34 Unlike the officers in Gervasi, the CI in this case “surreptitiously recorded” defendant. See
supra ¶ 3. Therefore, Gervasi does not apply. Here, the conversation between the CI and
defendant was a direct result of illegal recording. If the CI had not been equipped with the
recording equipment, he would not have attempted to engage in a drug transaction with
defendant. Unlike the conversations the police officers testified to in Gervasi, which were
motivated independently of and with no connection to the eavesdropping, the CI’s contact with
defendant was motivated entirely by the illegal recording equipment. Thus, any and all
evidence obtained therefrom, including video of the transaction and the CI’s testimony about
his transaction with defendant, should be suppressed.
¶ 35 The majority’s decision in this case is contrary to the statute, as well as the spirit and
purpose of the statute. I would affirm the trial court’s order suppressing all portions of the
illegal recording as well as the CI’s testimony regarding his conversation with defendant.

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