specially concurring:
The legislative intent is clear in both the language of the statute and the history of its amendment: it is unlawful to record a conversation using an “eavesdropping device” without the “consent of all of the parties to such conversation.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 14— 2(a)(1).) The majority’s construction ignores the amendatory language which replaced the word “any” with the word “all”) it also renders meaningless two other portions of the statute, while at the same time it fails to enforce the plain intent of the law.
In People v. Kurth (1966), 34 Ill. 2d 387, the court, having decided that the defendants were entitled to a new trial for inadequate voir dire in the original proceeding, considered the admissibility of tape-recorded conversations upon retrial. That evidence consisted of secret recordings made by the State’s witness, Robert Smith, of conversations he had with the defendants. Those defendants claimed that Smith’s recordings were made in violation of the eavesdropping statute. Recordings made in violation of that law are inadmissible. (See Ill. Rev. Stat. 1983, ch. 38, par. 14—5.) At the time Kurth was decided, however, the statute provided that eavesdropping was committed by the act of recording a conversation “without the consent of any party thereto.” (Emphasis added.) (Ill. Rev. Stat. 1965, ch. 38, par. 14—2(a).) The court ruled that: “As to ‘any party’ who has consented the recorded conversations are admissible, but as to the one party who has not consented, the recording is inadmissible. This construction carries out the legislative intent and follows the language used by the legislature without the necessity of construing the word ‘any’ to mean ‘all.’ ” 34 Ill. 2d 387, 395.
The court in Kurth therefore ruled that the recordings were inadmissible in defendants’ new trial, but of more interest in this case are the concurring opinions of Justices Schaefer and Underwood. Justice Schaefer concurred in the court’s conclusion that a new trial was required but would have admitted the recordings in the new trial. As framed by Justice Schaefer, the question was whether Smith had recorded the conversations with the consent of “any party thereto” by reason of Smith having been a party to the conversations and having obviously consented. Justice Schaefer answered the question affirmatively, saying that the eavesdropping statute would have been violated only if the statute which “makes it a crime to record a conversation without the consent of any party thereto is to be read to make it a crime to record a conversation without the consent of all parties thereto.” (Emphasis in original.) (34 Ill. 2d 387, 396-97 (Schaefer, J., concurring).) Justice Underwood agreed, writing in concurrence: “I believe the drafting choice must be viewed as deliberately and intentionally made. So viewed, ‘without the consent of any party’, to me, leads only to one conclusion, and that is that recorded conversations are admissible against all parties thereto if consented to by any party.” 34 Ill. 2d 387, 400 (Underwood, J., concurring).
According to the majority in this case, “our eavesdropping statute should not prohibit the recording of a conversation by a party to that conversation” (115 Ill. 2d at 56), an interpretation consistent with those of Justices Schaefer and Underwood regarding a statute that required the consent of “any” party to the conversation. Thus, the majority has adopted the concurring opinions of Justices Schaefer and Underwood, but the General Assembly has not been persuaded. Since this court’s decision in Kurth, the legislature has amended the statute to the exclusion of the legal ride proposed by Justices Schaefer and Underwood. The defendant’s conduct was culpable under current law unless he had the “consent of all of the parties,” not just “any” one of them. (Emphasis added.) During the General Assembly debate on this amendment, Senator Harris argued in favor of the new language being considered for adoption:
“Well, I think a lot of us are familiar with the circumstance of the past year [the congressional Watergate hearings] that has come to light where electronic eavesdropping occurred which one party, of course, consented to it, but the others did not, and I think that is a truly reprehensible circumstance. *** [T]he acquiescence or permission of all parties involved[ ] ought to be the public policy of this State.” (79th Ill. Gen. Assem., Senate Proceedings, June 25, 1975, at 211.)
Kurth made the distinction between “any” and “all” abundantly clear, and “the drafting choice must be viewed as deliberately and intentionally made.” People v. Kurth (1966), 34 Ill. 2d 387, 400 (Underwood, J., concurring).
Furthermore, the majority’s interpretation of the statute has rendered portions of the statute superfluous and has frustrated the intention of our General Assembly as expressed in the language of the statute. Section 14—2(a) of the Criminal Code of 1961 makes it a crime to use an eavesdropping device to hear or record a conversation unless the person using the device “does so (1) with the consent of all of the parties to such conversation or (2) with the consent of any one party to such conversation and in accordance with Article 108A of the ‘Code of Criminal Procedure of 1963’ [regarding authorizing court orders issued upon reasonable grounds].” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 14—2(a); cf. People v. Wright (1974), 56 Ill. 2d 523, 528-29 (“reasonable grounds” as contemplated by the Code of Criminal Procedure of 1963 has the same substantive meaning as “probable cause” as used in State and Federal constitutional law).) According to its sponsor, Representative Jaffe, the amended law “permits eavesdropping with one party consent and a court order.” (Emphasis added.) (79th Ill. Gen. Assem., House Proceedings, April 18, 1975, at 24.) This understanding of the proposed legislation was expressed several times in the debates, and it is amply supported by the language of the amended statute which creates greater protections against eavesdropping by law-enforcement officers than those accorded by the fourth amendment to the United States Constitution as interpreted in Lopez v. United States (1963), 373 U.S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381.
The General Assembly having enacted greater protections against recordings by a single party to a conversation than those recognized in Lopez, it is more than a little anomalous that the majority has here declared that “[u]nder the rationale of Lopez, clearly our eavesdropping statute should not prohibit the recording of a conversation by a party to that conversation.” (115 Ill. 2d at 56.) Pursuant to section 14—2(a)(1), as now interpreted by a majority of this court, a law-enforcement officer can secretly record any conversation to which he is a party without first obtaining an order upon a showing of probable cause. Contrary to the expressed purpose for which the amended law was proposed, such recordings will be admissible in criminal trials as not having been obtained in violation of the eavesdropping statute even though a court order has not been procured. Ill. Rev. Stat. 1983, ch. 38, par. 14—5.
To reach the conclusions it does, the majority reasons that “the eavesdropping statute was intended to protect individuals from the surreptitious monitoring of their conversations” by individuals not party to those conversations. (Emphasis in original.) (115 Ill. 2d at 53.) Analysis of the statutory language does not support that observation. In defining an “eavesdropping device,” the statute includes “any device capable of being used to hear or record oral conversation *** [provided, however, that this definition shall not include devices used for the restoration of the deaf or hard-of-hearing to normal or partial hearing.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 14—1(a).) Since there is nothing surreptitious about the use of hearing aids to restore aural sensation, the proviso would be superfluous to a statute outlawing only eavesdropping in its traditional, surreptitious sense. Inclusion of the proviso is indicative of the legislative intent to criminalize activity not commonly considered “eavesdropping,” as defined in Webster’s New International Dictionary 811 (2d ed. 1934). (115 Ill. 2d at 58.) Thus, I submit that in disposing of this appeal in the way it does, the majority misconstrues the current statute by interpreting it to allow any party to a conversation to make a secret recording of it.
Had the defendant made his recording without the officers’ knowledge or consent I would say his conviction should be affirmed, but because the facts indicate that the officers gave their consent, I believe that the defendant has not violated the statute in this case. Both officers knew that the defendant had a tape recorder and that he intended to record any conversations within the limited range of his recording equipment. With knowledge of defendant’s intent and ability, the officers placed the defendant, handcuffed, in the back of Deputy Page’s patrol car and left his recorder on the seat next to him. The officers then proceeded to have their conversation in the front seat of Deputy Page’s car, knowing or at least suspecting that their conversation was being recorded. Considering those facts, the defendant’s captive state, and the officers’ freedom to hold their conversation outside the car, their conduct indicates at least implied consent to the recording of their conversation.
The history of this statute, the requirement for a court order authorizing the recording of conversations with the consent of fewer than all parties, and the hearing-aid proviso all indicate beyond a doubt that the statute is aimed at more than just eavesdropping by persons not party to the conversation. For the reasons I have stated, I agree that the defendant’s eavesdropping conviction must be reversed, but because the court’s opinion ignores the manifest legislative intent and does damage to the statutory probable-cause requirement, I do not join it.
CHIEF JUSTICE CLARK joins in this special concurrence.