specially concurring:
I concur with the result reached by the majority. I adhere to the statements made in my dissent in People v. Gaines (1981), 88 Ill. 2d 342, that when an extension telephone is used to surreptitiously overhear the conversation of two people, then it becomes an eavesdropping device although one party may have consented. It is the use to which the extension telephone is put that makes it illegal. I believe that to hold otherwise ignores the plain meaning of the statutory language that an “eavesdropping device” as defined by section 14—1(a) of the Criminal Code of 1961 is “*** any device capable of being used to hear or record oral conversation whether such conversation is conducted in person, by telephone, or by any other means ***.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 14-1 (a).
The majority, in my opinion, correctly concludes that the “functionally altered” extension telephone is an eavesdropping device as defined in section 14—1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 14—1(a)), and evidence obtained through its use is properly suppressed.
I also agree with the majority that the appellate court erred in determining that the testimony and transcripts of the in-person conversations between the defendant and Officer Furay should have been suppressed, since the State adequately demonstrated that the evidence came from “an independent source.” I do, however, disagree with the majority insofar as the court addresses the defendant’s burden of demonstrating a connection between the illegal eavesdropping and the subsequent in-person conversations. It is true that the defendant must show a connection between the illegality and the alleged fruits of that illegality. (Cf. Harrison v. United States (1968), 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008.) But the defendant does not shoulder a “burden” of establishing that connection by clear and convincing evidence. It is the State that, following the showing of the primary illegality and the connection to the evidence in question, must carry the burden of demonstrating by clear and convincing evidence that the source of the information is an independent one. People v. Wilson (1975), 60 Ill. 2d 235, 238; Harrison v. United States (1968), 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008.
The majority notes that in determining whether evidence is admissible the inquiry properly focuses on whether the “taint” of the original illegality has been removed. “ ‘*** Thus most cases begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.’ ” (89 Ill. 2d at 529, quoting United States v. Crews (1980), 445 U.S. 463, 471, 63 L. Ed. 2d 537, 545, 100 S. Ct. 1244, 1249-50.) However, the State met its burden of showing that, since Officer Furay was a participant in the phone conversations, he did not have to rely on the transcripts gained through the illegal eavesdropping. As such the State established independent grounds that removed the “taint” from the in-person conversations and the transcripts of those conversations. That evidence should not have been suppressed.