dissenting:
I would reverse the trial court in toto since I believe the petitioners have failed to make a sufficient showing of violation of the eavesdropping statute to authorize suppression of the tape recordings. This view stems in large part from my disagreement with the construction of the eavesdropping act adopted by a majority of this court in People v. Kurth, No. 38264, decided this term. That opinion held recordings of conversation inadmissible against any party thereto who had not consented to such recording. For the reasons set forth in my dissent filed in that case, I believe such recordings admissible against all parties to the conversation if consented to by any.
Based upon this premise and upon the further premise that “The burden is, of course, on the accused [petitioner seeking suppression] in the first instance to prove to the trial court’s satisfaction that wire-tapping [eavesdropping] was unlawfully employed,” (Nardone v. United States, 308 U.S. 338, 341, 84 L. Ed. 307, 312,) the petitions filed are inadequate to establish a violation of the statute upon which suppression of the tape recordings is predicated. It appears from the trial court proceedings that there are a number of conversations recorded on the tapes and that such conversations involve voices in addition to those assumed to be petitioners. Since I believe consent of any of these parties to recording of the conversations in which they participated would render the recordings of such conversations admissible against all participants therein, it follows that an affirmative showing of the total absence of such consent is necessary before violation of the statute can be said to be established and suppression authorized. At no point in the petitions or trial court proceedings was there any assertion by petitioners that no party to any of the conversations had consented to the recording thereof. In the absence of such affirmative allegation or proof, a violation of the eavesdropping statute is not, in my judgment, established, and the prohibition of section 14 — 5 against use of the recordings does not come into effect. Nor can petitioners claim they are unable to negate consent by other parties because they have “never heard a play-back of the recordings”. Petitioners were invited to come to the State’s Attorney’s office and listen to a play-back. They refused to go, and should not now be permitted to use their voluntary refusal to listen as an excuse for their failure to allege or establish a lack of consent by all parties to the conversations. Obviously, petitioners are the individuals best able to identify the persons whose voices are recorded and to ascertain whether any of such persons consented to such recording.
The petitions are, in my judgment, insufficient for an additional reason — there is no positive, affirmative allegation that petitioner’s voices are among those upon the tapes, and thus no standing is shown entitling petitioners to complain pf use of the recordings. It is usually required of one who seeks to suppress evidence he claims to have been illegally secured that he first establish that it is his personal rights which were violated in securing the evidence and that his rights would be violated by its use. The allegations of the petition here are only that certain newspaper stories state the voices to be those of petitioners; that petitioners have been informed that voices on the tapes have been identified by third persons as those of petitioners; and that “if authentic, and if recording their voices’’ such recordings were unlawfully obtained. Such equivocation scarcely merits consideration as meeting ordinary requirements for establishing standing. Waiver of the usual showing in these cases is justified by the majority on several grounds, among which is the inability of petitioners to make such allegation since they have not heard the tapes played back. This excuse was, I believe, adequately answered earlier by the fact that they were invited to listen to the tapes and refused.
An additional ground upon which the finding of standing rests in the majority opinion is “the admitted identity of the petitioners’ voices on the tapes.” The conclusion that identity was admitted by the State’s Attorney arises from his oral statement during a colloquy at the hearing on the motion to dismiss the petition. The State’s Attorney said: “I would think that it is correct that [for] the purpose of this motion the court would accept as true all matters of fact which are properly stated in the petition excluding conclusions, of course”. This is nothing more nor less than a reiteration by counsel of the usual rule of procedure — that a motion to dismiss admits the well-pleaded factual content of the challenged document. The conclusion that this constituted an admission of identity of voices is - sustainable only if the petition contained a factual allegation that petitioners’ voices are on the tape, and it is precisely this factual allegation which is missing not only from the petition but from the entire proceedings. It is alleged that newspaper stories say some of the voices have been identified as petitioners’; the State’s Attorney admits newspapers have said this, but, clearly, he cannot be said to admit the truth of the newspaper statement for its truth is not alleged. I am not aware that we have ever held a newspaper’s statement of a conclusion to be the equivalent of a positive factual allegation by a pleader. It is also alleged that the State’s Attorney had told petitioners’ counsel that third parties had identified voices on the tapes as those of petitioners. Some dispute exists as to the accuracy of this allegation, but, in any event, even its admission establishes only that third parties identified the voices as petitioners’ — not that they are petitioners’ voices. Petitioners never allege the identification to have been correct, and the State’s Attorney scarcely can be held to have admitted that which petitioners have consistently and carefully avoided claiming — that any of the voices upon the tapes are, in fact, theirs. In short, since there has never been an unequivocal statement by petitioners that their voices appear on the tapes, I cannot agree that the identity of the voices has been admitted. That no such admission was ever intended or made is, I believe, further demonstrated by the State’s argument supporting the motion to dismiss which emphasizes the total absence of allegations or proof that petitioners’ voices appear on the tapes, and the attempt, following denial of the motion to dismiss, to file an answer denying the allegations of the petition to suppress, the legal sufficiency of which had been sustained (erroneously, in my opinion) by the trial judge.
Since the “standing” and consent questions are identical in both cases, I would hold that, absent an affirmative showing that petitioners’ voices are among those recorded and that no party to any of the conversations had consented to the recordings, the State’s motion to dismiss the petition to suppress and impound the tapes in case No. 39526 and the commission’s motion to dismiss the petition to quash the subpoena duces tecum in No. 39710 should have been allowed. Consequently, I would reverse both the July 14 and August 30 orders of the trial court.
Mr. Justice Schaefer joins in this dissent.