People v. Siwek

Nos. 2--95--0668, 2--95--1370 cons.


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


THE PEOPLE OF THE STATE ) Appeal from the Circuit
OF ILLINOIS, ) Court of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 92--CF--1104
)
RAYMOND SIWEK, ) Honorable
) Thomas E. Callum,
Defendant-Appellant. ) Judge, Presiding.


JUSTICE INGLIS delivered the opinion of the court:
Defendant, Raymond Siwek, appeals his conviction of two counts
of possession with intent to distribute cocaine in violation of
section 1401 of the Illinois Controlled Substances Act (Ill. Rev.
Stat. 1991, ch. 56«, par. 1401). Defendant also appeals the denial
of his motion for a new trial. We affirm.
FACTS
The following background is taken from the hearing on
defendant's motions to suppress evidence and from his trial.
Defendant joined the Chicago police department in 1968. From 1976
to 1981, defendant worked in the gang crimes unit, involved with
gangs and narcotics. Later, he was transferred to the organized
crime division, where he was involved in investigating and
arresting large-scale drug dealers. In 1984, defendant became a
detective and worked on narcotics-related homicides. Defendant
served two years on a federal homicide drug task force, after which
he was transferred to property crimes in 1989. He was working in
property crimes up to the time the events at issue in this case
occurred.
While employed by the Chicago police department, defendant
also served in the National Guard, where he met Brian Marchese. In
March 1992, Marchese was arrested and charged with driving on a
suspended license. Marchese contacted defendant and asked him for
help on that case. Defendant referred Marchese to another
detective who enlisted Marchese as a drug informant. Marchese,
however, never panned out as an informant for the Chicago police
department.
On April 6, 1992, Marchese contacted Larry Wiess and offered
to get him drugs. Wiess was an undercover agent for the Du Page
Metropolitan Enforcement Group (DUMEG). Wiess and Marchese
attempted to complete several transactions during the next month.
Although the deals were never completed, Marchese alerted Wiess
about the existence of a possible buyer from Chicago who would want
a kilogram every week-and-a-half.
Marchese arranged to purchase cocaine from Wiess on May 6,
1992. Before the meeting, Marchese went to defendant's home and
obtained $12,500 in cash. Marchese testified that defendant said
that $2,500 was his own money, $10,000 was from a friend, for whom
he would be purchasing the cocaine, and that $500 was included as
his commission for the deal. Marchese promised to return to
defendant's home by about 11:30 that morning.
Marchese then called Wiess and told him that he had the money
and wanted to buy a half-kilogram of cocaine. When they met,
Marchese told Wiess that he would take the cocaine to the person
who had provided the money. Marchese handed the money to Wiess.
Wiess handed Marchese the cocaine in exchange. Marchese was then
arrested by DUMEG agents at about 11 a.m. on May 6, 1992.
The agents took Marchese to the Bloomingdale police
department. At about noon, Marchese called defendant and the
conversation was recorded. Near the phone was a sign stating that
every phone call was recorded. Marchese, who does not read well,
testified that he could not and did not read the sign. He stated,
however, that he was aware that the conversation would be taped
because he learned this from a previous arrest at the station.
During the conversation, defendant asked Marchese if he had lost
"that," which Marchese took to mean the money, and whether he had
been "set-up."
Another DUMEG agent, Robert Guerrieri, testified that he could
hear Marchese's end of the conversation. Guerrieri, however, did
not realize at that time that the phone call was being recorded,
nor did he listen to the recording of the call between Marchese and
defendant. Guerrieri apparently did, however, communicate his
observations to Wiess.
On May 6, Marchese was told that he was being charged with a
Super Class X felony which would carry a mandatory minimum prison
sentence of 12 years. He was offered consideration, however, if he
agreed to cooperate. Marchese identified his money source as a
Chicago policeman, but declined to cooperate further. He did not
at that time identify defendant.
Marchese was placed in the Du Page County jail. During the
afternoon of May 7, he met with Wiess and Guerrieri, agreed to
cooperate, and identified defendant as his source of money. After
the agents left, Marchese learned from his wife that defendant had
called Marchese's home and received the impression that defendant
would come and visit him at the jail that night if Marchese did not
get in touch with him. Concerned, Marchese called one of the DUMEG
agents sometime after 5 p.m.
Wiess contacted one of the Du Page County assistant State's
Attorneys for instructions. Shortly after, the assistant informed
Wiess that the first assistant State's Attorney had approved an
emergency tape recording of the impending call between defendant
and Marchese.
Around 7 p.m., Guerrieri, Wiess, and their supervisor, William
Simmons, arrived at the Du Page County jail and set up equipment in
order to record a call between Marchese and defendant. At about
7:30, Wiess paged defendant and defendant returned the call. The
ensuing conversation was recorded. Defendant and Marchese
discussed the circumstances of Marchese's arrest, his bond
situation, his need for a lawyer, and the need for him to keep
quiet. Defendant assured Marchese that he had "calmed down" his
"people" by paying them $5,000 from his own pocket.
On May 8, the agents sought a warrant to record any further
conversations between defendant and Marchese. The warrant was
granted, and the court determined that an emergency existed to
excuse the warrantless recording made during the evening of May 7.
The warrant allowed calls to be recorded until 6 p.m. on May 17.
Marchese remained in the county jail until May 11, when he was
able to make bond. Marchese continued to cooperate with DUMEG,
speaking to defendant every day from May 11 to May 13. Each of
these conversations was recorded. During the conversations,
Marchese and defendant planned to recover the money Marchese had
lost due to his arrest by purchasing cocaine from Marchese's
supplier. They planned to complete this transaction on May 14, at
Marchese's home.
Defendant arrived at Marchese's house on the morning of May
14. Wiess was present, acting as Marchese's supplier. Wiess
delivered 458 grams of cocaine to defendant. This transaction was
recorded on videotape. Defendant left Marchese's house with a bag
containing nine ounces of cocaine. He was arrested as he drove
away, and the cocaine was recovered from under the seat of
defendant's jeep. At the time of his arrest, defendant said he was
working for Chicago, meaning the police. Defendant's jeep was
taken to the police department and searched. A briefcase and three
bottles labeled "cocaine test set" were recovered.
A search warrant was then executed on defendant's house. In
the house, police found a few hundred dollars and another briefcase
in defendant's basement. The briefcase contained a sifter/grinder,
a tackle box, baggies, Manitol and other cutting agents, and other
drug paraphernalia containing cocaine residue. No other narcotics
were found in the house. Defendant's work locker was also
searched, but no money or drugs were found. Police also executed
a search warrant on defendant's safe-deposit box with the result
that no narcotics or money were found.
Defendant testified on his own behalf and disputed the State's
version of the facts. According to defendant, he was involved in
narcotics arrests and seizures as part of his responsibilities in
the property crimes unit. In February 1992, defendant was involved
in a cocaine and stolen property investigation. He used the
cocaine testing kit which was found in his jeep on May 14 to test
some cocaine he found while executing a search warrant during that
investigation. The kit had been issued to him by the Chicago
police department.
Early in 1992, Marchese approached defendant for help on a DUI
case in Du Page County. Marchese offered his services as a
narcotics informant in exchange for the DUI charges being dropped.
Defendant passed Marchese on to a Chicago detective who enlisted
Marchese as an informant. During March and April, Marchese called
defendant a number of times to find out what the detective was
doing on his DUI case, but never informed defendant about his drug
transactions.
During the course of their relationship, defendant had loaned
Marchese money a number of times. As of May 1992, Marchese owed
defendant approximately $4,700. At the beginning of May, Marchese
asked to borrow $5,000 from defendant to purchase a vehicle and
equipment. Defendant agreed to loan Marchese $2,500, which he
picked up on May 6, 1992. Defendant had no idea that Marchese was
planning to buy cocaine with the money, nor did defendant tell
Marchese to buy cocaine for him.
Later that day, Marchese called defendant and told him that he
had been arrested. On May 7, at about 6:30 a.m., Marchese again
called defendant. During that call, Marchese told defendant that
he had been arrested for possessing a large amount of cocaine and
that he had lost $10,000 of someone else's money. He asked
defendant for a loan to repay the lost money, but would not tell
defendant to whom the money belonged or from whom he had purchased
the drugs. Marchese asked defendant for help in working out a deal
on the drug case. Defendant told Marchese that he would pretend to
be the money source so that Marchese could prove his worth and
reliability as an informant to the Du Page County authorities.
Marchese next called defendant on May 11 and told him that his
drug supplier still wanted to make a deal. Later that night
Marchese paged defendant. They had set up a code at some
unspecified time before the May 11 call where, if Marchese paged
defendant, it meant that Marchese's drug source was present and
might be able to overhear the conversation. This was supposed to
help defendant set up Marchese's drug supplier. The two also had
conversations on May 12 and 13 concerning the details of the
impending deal.
On May 14, 1992, defendant went to Marchese's house, taking
his badge, gun, and briefcase. Defendant did not notify any of his
superiors that he was going to Bloomingdale to make an undercover
buy because he did not intend to make an arrest at that time.
Rather, he intended to continue the investigation from the
information he and Marchese would be collecting about the drug
supplier.
When defendant arrived at Marchese's house, he assumed the
role of Marchese's money source. He eventually accepted a package
from Wiess, intending to take it and notify his supervisor of his
undercover activity. He also intended to tell the detective for
whom Marchese was informing that Marchese had made a case.
Defendant left Marchese's house with a package of cocaine and
placed it under the front seat of his jeep. As he pulled away from
the house, he was surrounded by squad cars and arrested. He
informed the arresting officers that he was a Chicago police
officer conducting a narcotics investigation.
Defendant explained that the drug-paraphernalia-containing
briefcase found in his home was the equipment he received when he
worked in the gang and narcotics divisions. The paraphernalia it
contained had been seized during various raids, and the officers
used it to further subsequent investigations.
The jury found defendant guilty of both counts of possession
with intent to deliver cocaine. On May 2, 1995, defendant was
sentenced to concurrent 15-year terms on both counts. Defendant
appealed his convictions.
On May 22, 1995, defendant filed a motion for a new trial
based on newly discovered evidence. On September 29, 1995, the
trial court denied defendant's motion and defendant timely
appealed. We granted defendant's subsequent motion to consolidate
both appeals.
DISCUSSION
Defendant raises seven issues on appeal: (1) whether the
video of defendant's May 14, 1992, drug transaction should have
been suppressed because of lack of statutory authorization to make
secret video recordings; (2) whether the May 6, 1992, telephone
call from the Bloomingdale police station between Marchese and
defendant should have been suppressed for lack of compliance with
the requirements of the various Illinois eavesdropping statutes;
(3) whether the warrantless recording and transcript of the May 7,
1992, conversation between Marchese and defendant should have been
suppressed due to lack of a true emergency; (4) whether the trial
court erred in applying the good-faith exception to the search
warrant used to search defendant's home; (5) whether the civil
forfeiture case against defendant's vehicle and money bars his
prosecution under the double jeopardy clauses of the Illinois and
United States Constitutions; (6) whether defendant is entitled to
a new trial on the grounds of newly discovered evidence; and (7)
whether Marchese exercised sufficient dominion and control to
possess narcotics in order to hold defendant accountable for his
conduct.
I
Defendant's initial issue on appeal is whether the trial court
erred by denying defendant's motion to suppress the videotape
recording of the May 14, 1992, meeting. Defendant argues that
Illinois law does not authorize electronic video surveillance
because the eavesdropping statutes (Ill. Rev. Stat. 1991, ch. 38,
pars. 14--1 et seq., 108A--1 et seq., 108B--1 et seq.) concern only
the interception of oral communications and are silent as to the
matter of interception of visual images. Defendant asserts that,
because there is no statutory authorization for intercepting visual
images, the State is not allowed to intercept the images.
Defendant contends that the video surveillance constituted a search
and seizure, requiring the application of state and federal
constitutional safeguards, particularly the warrant requirement.
Therefore, because the State failed to procure a warrant before the
videotaping of the May 14 transaction, defendant argues that the
video is the fruit of an illegal search and must be suppressed.
As an initial matter, we note that the eavesdropping statute
(Ill. Rev. Stat. 1991, ch. 38, pars. 14--1 et seq. (now codified,
as amended, at 720 ILCS 5/14--1 et seq. (West 1992))) was amended
during the pendency of defendant's appeal. The amendment extended
the coverage of the eavesdropping statute to all conversations,
regardless of whether they were intended to be private. The
previous version of the eavesdropping statute, cited above,
excluded conversations which a party did not intend to be private.
People v. Herrington, 163 Ill. 2d 507, 510 (1994); People v.
Beardsley, 115 Ill. 2d 47, 54-55 (1986). We conclude that the
version of the eavesdropping statute cited above was in effect
during May 1992 and is applicable to this case. See People v.
Miller, 255 Ill. App. 3d 577, 583-84 (1994).
Defendant's argument fails from the outset, because the
videotaping did not constitute a search under the federal or state
constitutions. "A 'search,' as contemplated by the fourth
amendment to the United States Constitution, occurs when an
expectation of privacy considered reasonable by society is
infringed." People v. Mannozzi, 260 Ill. App. 3d 199, 203 (1994).
"If an inspection by police does not intrude upon a legitimate
expectation of privacy, there is no 'search' subject to the warrant
clause of the fourth amendment." Mannozzi, 260 Ill. App. 3d at
203.
In this case, defendant alleges that the videotaping of the
drug transaction constituted an illegal search and seizure and
violated the eavesdropping statute. Where consent is given by one
party, the other party does not have a legitimate expectation of
privacy, and eavesdropping cannot occur. Herrington, 163 Ill. 2d
at 510; Beardsley, 115 Ill. 2d at 53. We find the reasoning in
these cases compelling. Here, defendant did not have an
expectation of privacy with Marchese. Marchese had consented to
allow the videotaping to occur. The police did not obtain a
videotape of a transaction that they could not otherwise have
observed. See Herrington, 163 Ill. 2d at 511 (consenting party to
conversation "did not listen to or record a conversation she could
not otherwise have heard"). Because defendant, as to his
transaction with Marchese, did not have a legitimate expectation of
privacy in Marchese's house, and the police did not intrude, there
was no search under the fourth amendment. See Mannozzi, 260 Ill.
App. 3d at 203 (police officer "did not intrude on any expectation
of privacy" by securing the defendant's car for removal to the
police station, and, "[t]hus, he did not search defendant's car").
Because there was no search, there was no requirement that the
police obtain a warrant to videotape. Therefore, there was no
constitutional violation associated with the videotape.
Our conclusion is fortified by consideration of People v.
O'Toole, 226 Ill. App. 3d 974 (1992). There, the police videotaped
a conversation between the defendant and a consenting police agent.
O'Toole, 226 Ill. App. 3d at 979-80. The defendant attempted to
suppress the videotape, and the trial court denied his motion.
O'Toole, 226 Ill. App. 3d at 981. As an alternate ground for
affirmance, the court held that, in view of Beardsley, the
videotape did not need the support of an eavesdropping order to be
admissible. O'Toole, 226 Ill. App. 3d at 983. Likewise, here,
Marchese was a consenting police agent, and, because there was no
intrusion into defendant's privacy, the eavesdropping statute did
not apply. Thus, the trial court did not err by denying
defendant's motion to suppress the videotape.
In light of our resolution of the issue, we need not consider
whether videotaping need be judicially authorized, where, as here,
there is no search or seizure under the fourth amendment. We also
note that in this case the intrusiveness of the electronic visual
surveillance is truly minimal. A single transaction was captured
on videotape between the State's agents and defendant. The video
camera was emplaced within the home of Marchese, a State agent.
The defendant visited Marchese's home and had no reasonable
expectation of privacy with regard to Wiess or Marchese. Both
could, and did, testify about what transpired at Marchese's home on
May 14, 1992. The interception of the video images, therefore,
represents only a minimally greater intrusion into defendant's
privacy than would the duly authorized interception of the oral
conversation. Given the minimal nature of the intrusion in this
case and that the interception was accomplished without a search,
we find that there was no violation of defendant's rights
sufficient to warrant the suppression of the videotape of the May
14, 1992, conversation. Accordingly, we hold that the trial court
correctly denied defendant's motion to suppress the videotape.
[Material omitted as nonpublishable under Supreme Court Rule
23].
CONCLUSION
We affirm defendant's convictions of possession with intent to
distribute cocaine.
Affirmed.
BOWMAN and DOYLE, JJ., concur.