Chicago Defense Attorneys Discuss Eavesdropping in Connection with Policing & Criminal Cases
In this new age of smart phones, laptops, tablets, and other portable devices capable of not only recording sights and sounds, but simultaneously transmitting them to “the cloud” for permanent storage and the infinite possibilities of dissemination, it is a good idea to familiarize one’s self with just what is allowed, and what is not allowed. In Illinois, the laws against Eavesdropping are found under Article 14 of the Illinois Criminal Code.
What is Eavesdropping?
Basically, it is unlawful to listen in on or record/videotape a private conversation or to intercept an electronic communication, whether or not you are a party to the conversation or communication, without the express knowledge and consent of the other parties to said conversation or communication. An eavesdropping device is any device capable of being used for that unlawful purpose, with the one exception of devices used to restore deaf or hard of hearing persons to normal or partial hearing. An eavesdropper is anyone, including police officers, and any one party to a private conversation, who uses an eavesdropping device in violation of the law. A private conversation or electronic communication is obviously that which under the circumstances carries a reasonable expectation of privacy.
Police Allowed to Eavesdrop
Although the statutes do include police officers and investigators as among those capable of being found guilty of eavesdropping, the Illinois statutes are also largely dedicated to carving out specific exemptions from the law to allow police to engage in eavesdropping in their investigative duties. For example, police may with the aid of a State’s Attorney, obtain a “Judicial Overhear,” where a Judge enters an order specifically authorizing police to listen in on conversations or to intercept electronic transmissions, based upon reliable information that the resulting conversations or communications will contain evidence of a crime, such as narcotics trafficking. Those types of authorized actions come with a whole set of rules, including the rule that once the officer becomes aware that a conversation is not “related” to the subject of the investigation, that the officer cease the overhear activity. Even if an officer fails to do so, it would be an affirmative defense to a violation that he was acting under the authority of the Judicial Overhear, that he was unaware the communication was “privileged”, that he stopped the overhear within a “reasonable time,” and that he did not disclose the contents to another individual.
Another tactic used by police that we are aware of is the practice of recording individuals that are under arrest, while either being held in or transported in a police vehicle. Most police vehicles these days are equipped with cameras that also record sound as well as video. When officers are conducting a traffic stop, there is a dash mounted camera linked to a microphone on their person and everything from the initial stop to the ultimate arrest is recorded. Another camera is mounted inside the vehicle, recording the arrestee visually and audibly.
This tactic has been upheld on the basis that the officer needs it for the integrity of the investigation and arrest, to protect against false claims of abuse, and due to the possibility that incriminating evidence will be obtained in the form of statements and admissions by the arrestee, in case the individual feels like talking during the ride to the station. The officer or officers are present in the vehicle so the suspect has no reasonable expectation of privacy in anything he or she may say. Of course, questioning by the police to elicit statements before a suspect has been provided his or her Miranda rights (the right to remain silent, that anything you say will be used against you in court, the right to have a lawyer during questioning, etc.) raises other issues of admissibility for any damning statements, admissions or confessions that may have been elicited due to the improper questioning.
Even though police are given wide latitude in the use of their cameras and sound recording equipment out in the field, there are limitations thanks to the eavesdropping statute. In one case, police officers left two men alone in a police van, commonly known in the past as a “Paddy Wagon.” They then turned on the sound recording equipment, so that they could secretly record their conversation as they sat, alone together in the back of the van. This was held to be in violation of our eavesdropping statute because with no one else in their immediate presence, the two had a reasonable expectation that no one was listening to them and that they could speak freely between themselves. The incriminating statements that were obtained were properly suppressed from the use of evidence at trial. To our knowledge, the officers involved were never prosecuted for their violation of the law. It would likely have been futile to do so as the officers would claim a good faith basis to believe that further evidence of crime would be obtained and that their conduct was thus exempted by law.
It is odd that, in as much as the eavesdropping statute concerns itself with regulating police use of such tactics in the course of investigations, very little of the statute actually addresses what we as private individuals may or may not do. Some things we may do are obvious: we can listen to any radio, TV, or internet broadcast being done publicly without violating the law; we can overhear people’s conversations that occur during the broadcast of an event where it is incidental to said broadcast (e.g. the guy at the ball park loudly discussing his health issues during the game); and we can listen in on any conversation or record any conversation under circumstances where they are not “private”, in that there was no reasonable expectation that the conversation would be kept “private.” An example of this would be a situation where you are in a public place where you have a right to be and you happen to overhear other people having a heated discussion, perhaps two lawyers in the court house hallway. Even if the discussion was meant to be “private,” the law cannot punish a person for hearing something said with just their normal hearing, unaided by microphones that enhance the sound to pick up that which the normal human ear could not detect. Keep in mind that when you are out in public, people can and do listen to your conversations and if you say something that you shouldn’t, any set of ears connected to a mouth can re-broadcast what you just said to the rest of the world.
Your Right to Record the Police
Anyone that is not in law enforcement may record an officer in the performance of his duties, in a public place or where there is no reasonable expectation of privacy. However, an officer is empowered to take reasonable action to maintain safety and control of a situation, to secure a crime or accident scene, to protect the integrity and confidentiality of investigations, and to protect public safety and order. This means that you cannot be ordered to cease recording an officer and they cannot take away your equipment or arrest you for the act of recording them. But it also means that your right to do so is limited to the extent that you cannot interfere or intervene in the police activity and you must comply with the officer’s lawful or reasonable commands to step back and not obstruct them in their efforts.
Anyone can listen to or record emergency communications made in the normal course of operations of any law enforcement agency (Federal, State or Local), or other emergency service provider such as a hospital, clinic, ambulance service, fire dept., public utility, civilian defense or military installation. So, if you like to listen to the police scanner, go ahead, it is legal.
Anyone can record any public meeting required to be “open” under the Open Meetings Act. This would include open City Council sessions, Village Board meetings, and any meeting where members of the public are permitted to speak, but it would not include the meetings of private organizations or any public agency in a “closed” meeting.
Secret Recording or Videotaping
So, we know that we may only record or overhear conversations or intercept communications with the express consent of all parties to said conversations/communications. But what about a situation where one needs to make a secret/surreptitious recording or interception of a private conversation or communication, because to request consent or to inform the others of the recording would be counter-productive to the purpose for recording? What about a situation where someone is committing a crime, is about to commit a crime, or has committed a crime against you, or someone in your immediate household? What if, by secretly recording that person, you could obtain evidence of the crime? Section 14-3(i) of the Eavesdropping statutes specifically exempts such behavior from being in violation of the law. So long as you are a party to the conversation, either you or your agent can record it so long as your belief that evidence of a crime would be obtained was reasonable under the circumstances.
A classic example of this situation may go like this: a couple is in a divorce proceeding and one spouse decides to fabricate stories of domestic abuse in order to obtain an order of protection, get possession of the marital dwelling, or otherwise use the court system to obtain an advantage in the divorce litigation. If one were to record a conversation with the complaining spouse, with the expectation that the spouse would readily admit to lying to the police and prosecution (and hopefully get them to say “what’re you gonna do about it?”), that would be deemed perfectly legal as long as the expectation that evidence would be obtained was “reasonable.” Of course, if the result was a damning admission, not only would the spouse that did the recording not be charged criminally, the recording could become the basis of a prosecution of the lying spouse, for filing false reports, or obstructing justice, etc.
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