101ST GENERAL ASSEMBLY State of Illinois 2019 and 2020 SB1139

Introduced 2/5/2019, by Sen. Antonio Muñoz

SYNOPSIS AS INTRODUCED:

720 ILCS 5/14-3

Amends the Criminal Code of 2012. Extends from January 1, 2020 to January 1, 2025, the date of the inoperability of the eavesdropping exemption that provides with prior request to and written or verbal approval of the State's Attorney of the county in which the conversation is anticipated to occur, recording or listening with the aid of an eavesdropping device to a conversation in which a law enforcement officer, or any person acting at the direction of a law enforcement officer, is a party to the conversation and has consented to the conversation being intercepted or recorded in the course of an investigation of a qualified offense as defined in the exemption. Effective immediately.

LRB101 04922 SLF 49931 b

A BILL FOR

SB1139

LRB101 04922 SLF 49931 b

1 AN ACT concerning criminal law.

2 Be it enacted by the People of the State of Illinois,

3 represented in the General Assembly:

4 Section 5. The Criminal Code of 2012 is amended by changing

5 Section 14-3 as follows:

6 (720 ILCS 5/14-3)

7 Sec. 14-3. Exemptions. The following activities shall be

8 exempt from the provisions of this Article:

9 (a) Listening to radio, wireless electronic

10 communications, and television communications of any sort

11 where the same are publicly made;

12 (b) Hearing conversation when heard by employees of any

13 common carrier by wire incidental to the normal course of their

14 employment in the operation, maintenance or repair of the

15 equipment of such common carrier by wire so long as no

16 information obtained thereby is used or divulged by the hearer;

17 (c) Any broadcast by radio, television or otherwise whether

18 it be a broadcast or recorded for the purpose of later

19 broadcasts of any function where the public is in attendance

20 and the conversations are overheard incidental to the main

21 purpose for which such broadcasts are then being made;

22 (d) Recording or listening with the aid of any device to

23 any emergency communication made in the normal course of

SB1139

- 2 -

LRB101 04922 SLF 49931 b

1 operations by any federal, state or local law enforcement

2 agency or institutions dealing in emergency services,

3 including, but not limited to, hospitals, clinics, ambulance

4 services, fire fighting agencies, any public utility,

5 emergency repair facility, civilian defense establishment or

6 military installation;

7 (e) Recording the proceedings of any meeting required to be

8 open by the Open Meetings Act, as amended;

9 (f) Recording or listening with the aid of any device to

10 incoming telephone calls of phone lines publicly listed or

11 advertised as consumer "hotlines" by manufacturers or

12 retailers of food and drug products. Such recordings must be

13 destroyed, erased or turned over to local law enforcement

14 authorities within 24 hours from the time of such recording and

15 shall not be otherwise disseminated. Failure on the part of the

16 individual or business operating any such recording or

17 listening device to comply with the requirements of this

18 subsection shall eliminate any civil or criminal immunity

19 conferred upon that individual or business by the operation of

20 this Section;

21 (g) With prior notification to the State's Attorney of the

22 county in which it is to occur, recording or listening with the

23 aid of any device to any conversation where a law enforcement

24 officer, or any person acting at the direction of law

25 enforcement, is a party to the conversation and has consented

26 to it being intercepted or recorded under circumstances where

SB1139

- 3 -

LRB101 04922 SLF 49931 b

1 the use of the device is necessary for the protection of the

2 law enforcement officer or any person acting at the direction

3 of law enforcement, in the course of an investigation of a

4 forcible felony, a felony offense of involuntary servitude,

5 involuntary sexual servitude of a minor, or trafficking in

6 persons under Section 10-9 of this Code, an offense involving

7 prostitution, solicitation of a sexual act, or pandering, a

8 felony violation of the Illinois Controlled Substances Act, a

9 felony violation of the Cannabis Control Act, a felony

10 violation of the Methamphetamine Control and Community

11 Protection Act, any "streetgang related" or "gang-related"

12 felony as those terms are defined in the Illinois Streetgang

13 Terrorism Omnibus Prevention Act, or any felony offense

14 involving any weapon listed in paragraphs (1) through (11) of

15 subsection (a) of Section 24-1 of this Code. Any recording or

16 evidence derived as the result of this exemption shall be

17 inadmissible in any proceeding, criminal, civil or

18 administrative, except (i) where a party to the conversation

19 suffers great bodily injury or is killed during such

20 conversation, or (ii) when used as direct impeachment of a

21 witness concerning matters contained in the interception or

22 recording. The Director of the Department of State Police shall

23 issue regulations as are necessary concerning the use of

24 devices, retention of tape recordings, and reports regarding

25 their use;

26 (g-5) (Blank);

SB1139

- 4 -

LRB101 04922 SLF 49931 b

1 (g-6) With approval of the State's Attorney of the county

2 in which it is to occur, recording or listening with the aid of

3 any device to any conversation where a law enforcement officer,

4 or any person acting at the direction of law enforcement, is a

5 party to the conversation and has consented to it being

6 intercepted or recorded in the course of an investigation of

7 child pornography, aggravated child pornography, indecent

8 solicitation of a child, luring of a minor, sexual exploitation

9 of a child, aggravated criminal sexual abuse in which the

10 victim of the offense was at the time of the commission of the

11 offense under 18 years of age, or criminal sexual abuse by

12 force or threat of force in which the victim of the offense was

13 at the time of the commission of the offense under 18 years of

14 age. In all such cases, an application for an order approving

15 the previous or continuing use of an eavesdropping device must

16 be made within 48 hours of the commencement of such use. In the

17 absence of such an order, or upon its denial, any continuing

18 use shall immediately terminate. The Director of State Police

19 shall issue rules as are necessary concerning the use of

20 devices, retention of recordings, and reports regarding their

21 use. Any recording or evidence obtained or derived in the

22 course of an investigation of child pornography, aggravated

23 child pornography, indecent solicitation of a child, luring of

24 a minor, sexual exploitation of a child, aggravated criminal

25 sexual abuse in which the victim of the offense was at the time

26 of the commission of the offense under 18 years of age, or

SB1139

- 5 -

LRB101 04922 SLF 49931 b

1 criminal sexual abuse by force or threat of force in which the

2 victim of the offense was at the time of the commission of the

3 offense under 18 years of age shall, upon motion of the State's

4 Attorney or Attorney General prosecuting any case involving

5 child pornography, aggravated child pornography, indecent

6 solicitation of a child, luring of a minor, sexual exploitation

7 of a child, aggravated criminal sexual abuse in which the

8 victim of the offense was at the time of the commission of the

9 offense under 18 years of age, or criminal sexual abuse by

10 force or threat of force in which the victim of the offense was

11 at the time of the commission of the offense under 18 years of

12 age be reviewed in camera with notice to all parties present by

13 the court presiding over the criminal case, and, if ruled by

14 the court to be relevant and otherwise admissible, it shall be

15 admissible at the trial of the criminal case. Absent such a

16 ruling, any such recording or evidence shall not be admissible

17 at the trial of the criminal case;

18 (h) Recordings made simultaneously with the use of an

19 in-car video camera recording of an oral conversation between a

20 uniformed peace officer, who has identified his or her office,

21 and a person in the presence of the peace officer whenever (i)

22 an officer assigned a patrol vehicle is conducting an

23 enforcement stop; or (ii) patrol vehicle emergency lights are

24 activated or would otherwise be activated if not for the need

25 to conceal the presence of law enforcement.

26 For the purposes of this subsection (h), "enforcement stop"

SB1139

- 6 -

LRB101 04922 SLF 49931 b

1 means an action by a law enforcement officer in relation to

2 enforcement and investigation duties, including but not

3 limited to, traffic stops, pedestrian stops, abandoned vehicle

4 contacts, motorist assists, commercial motor vehicle stops,

5 roadside safety checks, requests for identification, or

6 responses to requests for emergency assistance;

7 (h-5) Recordings of utterances made by a person while in

8 the presence of a uniformed peace officer and while an occupant

9 of a police vehicle including, but not limited to, (i)

10 recordings made simultaneously with the use of an in-car video

11 camera and (ii) recordings made in the presence of the peace

12 officer utilizing video or audio systems, or both, authorized

13 by the law enforcement agency;

14 (h-10) Recordings made simultaneously with a video camera

15 recording during the use of a taser or similar weapon or device

16 by a peace officer if the weapon or device is equipped with

17 such camera;

18 (h-15) Recordings made under subsection (h), (h-5), or

19 (h-10) shall be retained by the law enforcement agency that

20 employs the peace officer who made the recordings for a storage

21 period of 90 days, unless the recordings are made as a part of

22 an arrest or the recordings are deemed evidence in any

23 criminal, civil, or administrative proceeding and then the

24 recordings must only be destroyed upon a final disposition and

25 an order from the court. Under no circumstances shall any

26 recording be altered or erased prior to the expiration of the

SB1139

- 7 -

LRB101 04922 SLF 49931 b

1 designated storage period. Upon completion of the storage

2 period, the recording medium may be erased and reissued for

3 operational use;

4 (i) Recording of a conversation made by or at the request

5 of a person, not a law enforcement officer or agent of a law

6 enforcement officer, who is a party to the conversation, under

7 reasonable suspicion that another party to the conversation is

8 committing, is about to commit, or has committed a criminal

9 offense against the person or a member of his or her immediate

10 household, and there is reason to believe that evidence of the

11 criminal offense may be obtained by the recording;

12 (j) The use of a telephone monitoring device by either (1)

13 a corporation or other business entity engaged in marketing or

14 opinion research or (2) a corporation or other business entity

15 engaged in telephone solicitation, as defined in this

16 subsection, to record or listen to oral telephone solicitation

17 conversations or marketing or opinion research conversations

18 by an employee of the corporation or other business entity

19 when:

20 (i) the monitoring is used for the purpose of service

21 quality control of marketing or opinion research or

22 telephone solicitation, the education or training of

23 employees or contractors engaged in marketing or opinion

24 research or telephone solicitation, or internal research

25 related to marketing or opinion research or telephone

26 solicitation; and

SB1139

- 8 -

LRB101 04922 SLF 49931 b

1 (ii) the monitoring is used with the consent of at

2 least one person who is an active party to the marketing or

3 opinion research conversation or telephone solicitation

4 conversation being monitored.

5 No communication or conversation or any part, portion, or

6 aspect of the communication or conversation made, acquired, or

7 obtained, directly or indirectly, under this exemption (j), may

8 be, directly or indirectly, furnished to any law enforcement

9 officer, agency, or official for any purpose or used in any

10 inquiry or investigation, or used, directly or indirectly, in

11 any administrative, judicial, or other proceeding, or divulged

12 to any third party.

13 When recording or listening authorized by this subsection

14 (j) on telephone lines used for marketing or opinion research

15 or telephone solicitation purposes results in recording or

16 listening to a conversation that does not relate to marketing

17 or opinion research or telephone solicitation; the person

18 recording or listening shall, immediately upon determining

19 that the conversation does not relate to marketing or opinion

20 research or telephone solicitation, terminate the recording or

21 listening and destroy any such recording as soon as is

22 practicable.

23 Business entities that use a telephone monitoring or

24 telephone recording system pursuant to this exemption (j) shall

25 provide current and prospective employees with notice that the

26 monitoring or recordings may occur during the course of their

SB1139

- 9 -

LRB101 04922 SLF 49931 b

1 employment. The notice shall include prominent signage

2 notification within the workplace.

3 Business entities that use a telephone monitoring or

4 telephone recording system pursuant to this exemption (j) shall

5 provide their employees or agents with access to personal-only

6 telephone lines which may be pay telephones, that are not

7 subject to telephone monitoring or telephone recording.

8 For the purposes of this subsection (j), "telephone

9 solicitation" means a communication through the use of a

10 telephone by live operators:

11 (i) soliciting the sale of goods or services;

12 (ii) receiving orders for the sale of goods or

13 services;

14 (iii) assisting in the use of goods or services; or

15 (iv) engaging in the solicitation, administration, or

16 collection of bank or retail credit accounts.

17 For the purposes of this subsection (j), "marketing or

18 opinion research" means a marketing or opinion research

19 interview conducted by a live telephone interviewer engaged by

20 a corporation or other business entity whose principal business

21 is the design, conduct, and analysis of polls and surveys

22 measuring the opinions, attitudes, and responses of

23 respondents toward products and services, or social or

24 political issues, or both;

25 (k) Electronic recordings, including but not limited to, a

26 motion picture, videotape, digital, or other visual or audio

SB1139

- 10 -

LRB101 04922 SLF 49931 b

1 recording, made of a custodial interrogation of an individual

2 at a police station or other place of detention by a law

3 enforcement officer under Section 5-401.5 of the Juvenile Court

4 Act of 1987 or Section 103-2.1 of the Code of Criminal

5 Procedure of 1963;

6 (l) Recording the interview or statement of any person when

7 the person knows that the interview is being conducted by a law

8 enforcement officer or prosecutor and the interview takes place

9 at a police station that is currently participating in the

10 Custodial Interview Pilot Program established under the

11 Illinois Criminal Justice Information Act;

12 (m) An electronic recording, including but not limited to,

13 a motion picture, videotape, digital, or other visual or audio

14 recording, made of the interior of a school bus while the

15 school bus is being used in the transportation of students to

16 and from school and school-sponsored activities, when the

17 school board has adopted a policy authorizing such recording,

18 notice of such recording policy is included in student

19 handbooks and other documents including the policies of the

20 school, notice of the policy regarding recording is provided to

21 parents of students, and notice of such recording is clearly

22 posted on the door of and inside the school bus.

23 Recordings made pursuant to this subsection (m) shall be

24 confidential records and may only be used by school officials

25 (or their designees) and law enforcement personnel for

26 investigations, school disciplinary actions and hearings,

SB1139

- 11 -

LRB101 04922 SLF 49931 b

1 proceedings under the Juvenile Court Act of 1987, and criminal

2 prosecutions, related to incidents occurring in or around the

3 school bus;

4 (n) Recording or listening to an audio transmission from a

5 microphone placed by a person under the authority of a law

6 enforcement agency inside a bait car surveillance vehicle while

7 simultaneously capturing a photographic or video image;

8 (o) The use of an eavesdropping camera or audio device

9 during an ongoing hostage or barricade situation by a law

10 enforcement officer or individual acting on behalf of a law

11 enforcement officer when the use of such device is necessary to

12 protect the safety of the general public, hostages, or law

13 enforcement officers or anyone acting on their behalf;

14 (p) Recording or listening with the aid of any device to

15 incoming telephone calls of phone lines publicly listed or

16 advertised as the "CPS Violence Prevention Hotline", but only

17 where the notice of recording is given at the beginning of each

18 call as required by Section 34-21.8 of the School Code. The

19 recordings may be retained only by the Chicago Police

20 Department or other law enforcement authorities, and shall not

21 be otherwise retained or disseminated;

22 (q)(1) With prior request to and written or verbal approval

23 of the State's Attorney of the county in which the conversation

24 is anticipated to occur, recording or listening with the aid of

25 an eavesdropping device to a conversation in which a law

26 enforcement officer, or any person acting at the direction of a

SB1139

- 12 -

LRB101 04922 SLF 49931 b

1 law enforcement officer, is a party to the conversation and has

2 consented to the conversation being intercepted or recorded in

3 the course of an investigation of a qualified offense. The

4 State's Attorney may grant this approval only after determining

5 that reasonable cause exists to believe that inculpatory

6 conversations concerning a qualified offense will occur with a

7 specified individual or individuals within a designated period

8 of time.

9 (2) Request for approval. To invoke the exception contained

10 in this subsection (q), a law enforcement officer shall make a

11 request for approval to the appropriate State's Attorney. The

12 request may be written or verbal; however, a written

13 memorialization of the request must be made by the State's

14 Attorney. This request for approval shall include whatever

15 information is deemed necessary by the State's Attorney but

16 shall include, at a minimum, the following information about

17 each specified individual whom the law enforcement officer

18 believes will commit a qualified offense:

19 (A) his or her full or partial name, nickname or alias;

20 (B) a physical description; or

21 (C) failing either (A) or (B) of this paragraph (2),

22 any other supporting information known to the law

23 enforcement officer at the time of the request that gives

24 rise to reasonable cause to believe that the specified

25 individual will participate in an inculpatory conversation

26 concerning a qualified offense.

SB1139

- 13 -

LRB101 04922 SLF 49931 b

1 (3) Limitations on approval. Each written approval by the

2 State's Attorney under this subsection (q) shall be limited to:

3 (A) a recording or interception conducted by a

4 specified law enforcement officer or person acting at the

5 direction of a law enforcement officer;

6 (B) recording or intercepting conversations with the

7 individuals specified in the request for approval,

8 provided that the verbal approval shall be deemed to

9 include the recording or intercepting of conversations

10 with other individuals, unknown to the law enforcement

11 officer at the time of the request for approval, who are

12 acting in conjunction with or as co-conspirators with the

13 individuals specified in the request for approval in the

14 commission of a qualified offense;

15 (C) a reasonable period of time but in no event longer

16 than 24 consecutive hours;

17 (D) the written request for approval, if applicable, or

18 the written memorialization must be filed, along with the

19 written approval, with the circuit clerk of the

20 jurisdiction on the next business day following the

21 expiration of the authorized period of time, and shall be

22 subject to review by the Chief Judge or his or her designee

23 as deemed appropriate by the court.

24 (3.5) The written memorialization of the request for

25 approval and the written approval by the State's Attorney may

26 be in any format, including via facsimile, email, or otherwise,

SB1139

- 14 -

LRB101 04922 SLF 49931 b

1 so long as it is capable of being filed with the circuit clerk.

2 (3.10) Beginning March 1, 2015, each State's Attorney shall

3 annually submit a report to the General Assembly disclosing:

4 (A) the number of requests for each qualified offense

5 for approval under this subsection; and

6 (B) the number of approvals for each qualified offense

7 given by the State's Attorney.

8 (4) Admissibility of evidence. No part of the contents of

9 any wire, electronic, or oral communication that has been

10 recorded or intercepted as a result of this exception may be

11 received in evidence in any trial, hearing, or other proceeding

12 in or before any court, grand jury, department, officer,

13 agency, regulatory body, legislative committee, or other

14 authority of this State, or a political subdivision of the

15 State, other than in a prosecution of:

16 (A) the qualified offense for which approval was given

17 to record or intercept a conversation under this subsection

18 (q);

19 (B) a forcible felony committed directly in the course

20 of the investigation of the qualified offense for which

21 approval was given to record or intercept a conversation

22 under this subsection (q); or

23 (C) any other forcible felony committed while the

24 recording or interception was approved in accordance with

25 this subsection (q), but for this specific category of

26 prosecutions, only if the law enforcement officer or person

SB1139

- 15 -

LRB101 04922 SLF 49931 b

1 acting at the direction of a law enforcement officer who

2 has consented to the conversation being intercepted or

3 recorded suffers great bodily injury or is killed during

4 the commission of the charged forcible felony.

5 (5) Compliance with the provisions of this subsection is a

6 prerequisite to the admissibility in evidence of any part of

7 the contents of any wire, electronic or oral communication that

8 has been intercepted as a result of this exception, but nothing

9 in this subsection shall be deemed to prevent a court from

10 otherwise excluding the evidence on any other ground recognized

11 by State or federal law, nor shall anything in this subsection

12 be deemed to prevent a court from independently reviewing the

13 admissibility of the evidence for compliance with the Fourth

14 Amendment to the U.S. Constitution or with Article I, Section 6

15 of the Illinois Constitution.

16 (6) Use of recordings or intercepts unrelated to qualified

17 offenses. Whenever any private conversation or private

18 electronic communication has been recorded or intercepted as a

19 result of this exception that is not related to an offense for

20 which the recording or intercept is admissible under paragraph

21 (4) of this subsection (q), no part of the contents of the

22 communication and evidence derived from the communication may

23 be received in evidence in any trial, hearing, or other

24 proceeding in or before any court, grand jury, department,

25 officer, agency, regulatory body, legislative committee, or

26 other authority of this State, or a political subdivision of

SB1139

- 16 -

LRB101 04922 SLF 49931 b

1 the State, nor may it be publicly disclosed in any way.

2 (6.5) The Department of State Police shall adopt rules as

3 are necessary concerning the use of devices, retention of

4 recordings, and reports regarding their use under this

5 subsection (q).

6 (7) Definitions. For the purposes of this subsection (q)

7 only:

8 "Forcible felony" includes and is limited to those

9 offenses contained in Section 2-8 of the Criminal Code of

10 1961 as of the effective date of this amendatory Act of the

11 97th General Assembly, and only as those offenses have been

12 defined by law or judicial interpretation as of that date.

13 "Qualified offense" means and is limited to:

14 (A) a felony violation of the Cannabis Control Act,

15 the Illinois Controlled Substances Act, or the

16 Methamphetamine Control and Community Protection Act,

17 except for violations of:

18 (i) Section 4 of the Cannabis Control Act;

19 (ii) Section 402 of the Illinois Controlled

20 Substances Act; and

21 (iii) Section 60 of the Methamphetamine

22 Control and Community Protection Act; and

23 (B) first degree murder, solicitation of murder

24 for hire, predatory criminal sexual assault of a child,

25 criminal sexual assault, aggravated criminal sexual

26 assault, aggravated arson, kidnapping, aggravated

SB1139

- 17 -

LRB101 04922 SLF 49931 b

1 kidnapping, child abduction, trafficking in persons,

2 involuntary servitude, involuntary sexual servitude of

3 a minor, or gunrunning.

4 "State's Attorney" includes and is limited to the

5 State's Attorney or an assistant State's Attorney

6 designated by the State's Attorney to provide verbal

7 approval to record or intercept conversations under this

8 subsection (q).

9 (8) Sunset. This subsection (q) is inoperative on and after

10 January 1, 2025 ~~2020~~. No conversations intercepted pursuant to

11 this subsection (q), while operative, shall be inadmissible in

12 a court of law by virtue of the inoperability of this

13 subsection (q) on January 1, 2025 ~~2020~~.

14 (9) Recordings, records, and custody. Any private

15 conversation or private electronic communication intercepted

16 by a law enforcement officer or a person acting at the

17 direction of law enforcement shall, if practicable, be recorded

18 in such a way as will protect the recording from editing or

19 other alteration. Any and all original recordings made under

20 this subsection (q) shall be inventoried without unnecessary

21 delay pursuant to the law enforcement agency's policies for

22 inventorying evidence. The original recordings shall not be

23 destroyed except upon an order of a court of competent

24 jurisdiction; and

25 (r) Electronic recordings, including but not limited to,

26 motion picture, videotape, digital, or other visual or audio

SB1139

- 18 -

LRB101 04922 SLF 49931 b

1 recording, made of a lineup under Section 107A-2 of the Code of

2 Criminal Procedure of 1963.

3 (Source: P.A. 100-572, eff. 12-29-17.)

4 Section 99. Effective date. This Act takes effect upon

5 becoming law.