People v. Bell

Rule 23 Order filed
January 30, 1998;
Motion to publish granted
March 6, 1998.
                      CONS. NOS. 5-97-0019, 5-97-0020

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the
                                    )  Circuit Court of 
     Plaintiff-Appellant,           )  Jefferson County.
                                    )
v.                                  )  No. 96-CF-103 
                                    )
DEDRICK A. BELL,                    )  Honorable
                                    )  George W. Timberlake,
     Defendant-Appellee.            )  Judge, presiding.
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the 
                                    )  Circuit Court of 
     Plaintiff-Appellant,           )  Jefferson County.
                                    )
v.                                  )  No. 96-CF-115
                                    )
JAMES L. PETERSON,                  )  Honorable
                                    )  George W. Timberlake,
     Defendant-Appellee.            )  Judge, presiding.
_________________________________________________________________

     JUSTICE CHAPMAN delivered the opinion of the court:

     Defendants, Dedrick Bell and James Peterson, were charged with
separate drug offenses after a confidential source using a
concealed tape recorder allegedly purchased drugs from them.  The
trial court granted the defendants' motions to suppress the
recordings based on the lack of State or Federal authorization. 
The State appeals, contending that the trial court erred by (1)
improperly placing the burden of establishing authority on the
State and (2) finding that there was insufficient proof of Federal
authorization because the recordings were made during a joint State
and Federal investigation.  We affirm.
     The State first contends that the burden of proof was
improperly put on the State and that, therefore, the trial court's
ruling is manifestly erroneous.  Because the State did not object
to the order of proof at the hearing, in its notice of appeal, or
in its certificate of impairment, the issue is waived.  See People
v. Reid, 136 Ill. 2d 27, 38, 554 N.E.2d 174, 179 (1990).    
     The State next asserts that the Mt. Vernon officers who made
the recordings were acting under color of Federal law pursuant to
Federal deputizations and that, therefore, the "overhears", though
violative of Illinois law, were nevertheless proper.  "[W]hen
Federal and State agents are engaged in a joint investigatory
enterprise, noncompliance with the Illinois eavesdropping statute
does not require the suppression of electronically obtained
evidence so long as Federal directives are followed and there is
not collusion among the authorities to evade State law."  People v.
Mays, 188 Ill. App. 3d 974, 979-80, 544 N.E.2d 1264, 1268 (1989). 
Therefore, the issue before us is whether the trial court erred in
holding that the Mt. Vernon officers did not receive proper Federal
authorization to conduct the "overhears".
     At the suppression hearing, the State called Special Agent
I.A. Bratcher of the Federal Bureau of Investigation to establish
the Mt. Vernon police officers' Federal authority.  Agent Bratcher
testified that Sergeant Mendenhall and Detective Hawkins of the Mt.
Vernon Police Department had been deputized as "Special Federal
Officers" as part of a task force of Federal and State officers
designed to target street gangs, drug offenders, violent offenders,
and specifically cocaine.  According to Bratcher, the special
deputizations authorized Mendenhall and Hawkins to conduct Federal
investigations, use Federal wire authority, and make Federal
arrests.  Brasher also identified a document entitled "Form FD
759", which he stated shows that the officers followed the proper
channels in obtaining Federal authorization from Special Agent
Robert Shay in the Effingham office of the FBI.  
     Detective Mendenhall testified that he was specially deputized
to participate in a joint State and Federal task force targeting
crack cocaine.  He stated that since he knew this case involved
cocaine, he operated under Federal rules because virtually all
cases involving cocaine are prosecuted in Federal court. 
Mendenhall further testified that he contacted Agent Shay to
request Federal authority to purchase crack cocaine.  Detective
Hawkins' testimony was substantially similar to that of Detective
Mendenhall.  
     The State argues that the trial court abused its discretion in
suppressing the "overhears" in the face of this uncontradicted
evidence.  We disagree.
     The court in this case questioned whether authorization for
the "overhears" had in fact been given.  The court noted that Agent
Bratcher had no contacts with the case and that Agent Shay, who
did, refused to respond to a subpoena to testify as to his
involvement.  The court was also concerned that the United States
Attorney did not appear to verify that Federal authorization was
given.  Finally, the trial court questioned whether there was
collusion on the part of the agents to circumvent Illinois
eavesdrop requirements.
     Determinations of the credibility of witnesses, the weight to
be given their testimony, and reasonable inferences to be drawn
therefrom are the responsibility of the trial court.  People v.
Byron, 164 Ill. 2d 279, 299, 647 N.E.2d 946, 955-56 (1995).  It is
well settled that a reviewing court will not disturb a trial
court's finding on a motion to suppress unless that finding is
manifestly erroneous.  People v. Williams, 147 Ill. 2d 173, 209,
588 N.E.2d 983, 994-95 (1991); People v. Krueger, 175 Ill. 2d 60,
64, 675 N.E.2d 604, 607 (1996).     
     In this case, the testimony did not convince the trial judge
to make the evidentiary leap necessary to establish proper Federal
authorization for an "overhear".  It is clear that the necessary
Federal witnesses--Agent Shay and/or a United State's Attorney--
failed to adequately assist the State prosecution by appearing to
testify at the suppression hearing.  It is entirely possible that 
Detectives Hawkins and Mendenhall believed they would receive the
necessary Federal cooperation and yet were deprived of same when
the Federal witnesses chose not to appear.  On these facts, we
cannot say that the trial court's finding was manifestly erroneous. 
We, therefore, affirm the trial court's suppression of the
recordings.  

     Affirmed.

     WELCH, P.J., and HOPKINS, J., concur.