People v. Feldmeier

No. 2--95--1625

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellant, )
)
v. ) No. 95--CF--361
)
THOMAS FELDMEIER, ) Honorable
) Eugene A. Wojcik,
Defendant-Appellee. ) Judge, Presiding.
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PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The defendant, Thomas Feldmeier, was indicted on one count of
theft by deception (720 ILCS 5/16--1(a)(2)(A) (West 1992)), two
counts of theft (720 ILCS 5/16--1(a)(1)(C) (West 1992)), and one
count of violating securities laws (815 ILCS 5/12(I) (West 1992)).
The defendant moved to suppress evidence which he alleged the State
had obtained by misusing the grand jury's subpoena power. The
trial court granted the motion, and the State appeals pursuant to
Supreme Court Rule 604(a) (145 Ill. 2d R. 604(a)). We affirm.
In his motion to suppress, the defendant alleged that the
State obtained his financial and bank records by the misuse of
grand jury subpoenas. The grand jury subpoenas in question were
made returnable to the State's Attorney's office rather than to the
grand jury. The defendant claims that this procedure allowed the
State to circumvent the grand jury and illegally violated his
privacy rights in his records. He relies, in part, on People v.
DeLaire, 240 Ill. App. 3d 1012 (1993), wherein this court upheld
the suppression of evidence which a police officer obtained by
diverting information that a grand jury had subpoenaed and using
that information to procure a search warrant.
In the present case, the trial court found that the subpoenas
were made returnable, not to an agent of the grand jury, but to
Kathryn Cresswell, an assistant State's Attorney. The trial court
concluded that the State had used the subpoenas to bypass the grand
jury and obtain materials in which the defendant had a
constitutional privacy interest; this was the precise problem
identified in DeLaire.
The State does not challenge the trial court's finding that
the defendant had a constitutional expectation of privacy in his
bank and brokerage account records. See Ill. Const. 1970, art. I,
6; DeLaire, 240 Ill. App. 3d at 1019-20 (records of a defendant's
telephone calls were impressed with privacy interest even though
they were kept by the telephone company). Rather, the State
maintains that this case does not involve the same abusive
practices that we condemned in DeLaire. The State maintains that,
in DeLaire, we held that the State's Attorney's office served as
the agent of the grand jury. The State argues that the State's
Attorney's conduct here was nothing more than an exercise of its
prerogative to screen subpoenaed materials before presenting them
to the grand jury.
We reject the State's interpretation of DeLaire and suggest
that the recent supreme court decision in People v. Wilson, 164 Ill. 2d 436 (1994), supports our opinion. In Wilson, the
prosecutor obtained the defendant's medical records via a subpoena
prepared at the direction of the State's Attorney and made
returnable to him rather than to the grand jury. The subpoena
stated that the records were needed for a grand jury investigation.
The defendant moved to suppress the records, but the trial court
denied the motion. Wilson, 164 Ill. 2d at 457.
The supreme court held that the State's Attorney's office
abused its powers, both by usurping the grand jury's authority to
obtain the records and by not requiring that the subpoenas be made
returnable to the grand jury. Wilson, 164 Ill. 2d at 458. The
court observed that, while the State has subpoena powers, its
subpoenas must be returnable to the court, not to the State's
Attorney. In this way, the court may prevent the prosecutor from
having access to documents that are irrelevant, privileged, or the
fruit of an unreasonable demand. Wilson, 164 Ill. 2d at 458.
We find that Wilson applies here. As in Wilson, the State's
Attorney abused the subpoena power by making the grand jury
subpoenas returnable directly to the prosecutor. By this device,
the prosecutor could, without court authorization, obtain materials
impressed with a constitutional privacy interest. Wilson and
DeLaire forbid such tactics.
The subpoenas were returnable directly to Assistant State's
Attorney Cresswell, who was never made an investigator or agent of
the grand jury in this case. The State argues that the entire
State's Attorney's office is considered to be the agent of the
grand jury. The only authority which the State provides to support
this novel assertion is DeLaire. However, our reading of DeLaire,
as well as Wilson, refutes the State's claim. In DeLaire, we
specifically observed that "the law does not recognize the use of
a grand jury subpoena as a compulsory administrative process of the
State's Attorney's office." DeLaire, 240 Ill. App. 3d at 1023. We
emphasized that the grand jury's subpoena power may not be used to
further independent investigations by the police or the prosecutor
(DeLaire, 240 Ill. App. 3d at 1022-23, relying in part on 1 W.
LaFave & J. Israel, Criminal Procedure 8.8, at 665 (1984)), and we
cited with approval a federal decision suppressing evidence which
FBI agents obtained directly via a grand jury subpoena (see
DeLaire, 240 Ill. App. 3d at 1023, citing with approval In re
Nwamu, 421 F. Supp. 1361 (S.D.N.Y. 1976)).
It is true that, in discussing the impropriety of the
officer's diversion and use of the subpoenaed records in DeLaire,
we stressed that the officer was performing the duties of neither
the grand jury nor the prosecutor. DeLaire, 240 Ill. App. 3d at
1024. However, this consideration was crucial in DeLaire because
the grand jury had been the original recipient of the sensitive
documents. Later, these documents somehow ended up with the
officer. Thus, had the officer been acting as an agent of the
State's Attorney, his use of the evidence conceivably could have
been the permissible result of the grand jury's power to disclose
evidence to the prosecutor to aid the latter in the performance of
its duty to enforce the law. DeLaire, 240 Ill. App. 3d at 1024;
725 ILCS 5/112--6(c)(1) (West 1994). In the present case, the
State's Attorney, and not the grand jury, originally received the
subpoenaed material.
In view of the foregoing, we conclude that the trial court
correctly suppressed the documents that the State's Attorney
obtained via the improper subpoenas.
Accordingly, the judgment of the circuit court of Du Page
County is affirmed, and the cause is remanded for further
proceedings.
Affirmed and remanded.
THOMAS and RATHJE, JJ., concur.