97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB3943

 

Introduced 1/10/2012, by Rep. Michael J. Zalewski

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/14-3

    Amends the Criminal Code of 1961. Exempts from an eavesdropping violation with prior approval of the State's Attorney of the county in which it is 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 an undercover conversation and has consented to the conversation being intercepted or recorded in the course of an investigation of a felony violation of the Illinois Controlled Substances Act or a felony violation of the Methamphetamine Control and Community Protection Act. Provides that the use of an eavesdropping device under these provisions may be used in an emergency situation. Provides that an emergency situation occurs when, without previous notice to the law enforcement officer sufficient to obtain prior State's Attorney approval, the conversation to be overheard or recorded will occur within a short period of time and the use of the device is necessary for the protection of the law enforcement officer. Provides that the amendatory Act only applies in certain zip code areas and only from January 1, 2013 through January 1, 2015. Provides that by March 1, 2015, the West Suburban Chiefs of Police Association must deliver a report to the General Assembly on the impact of the amendatory Act on drug arrests and convictions from January 1, 2013 through January 1, 2015.


LRB097 13741 RLC 58293 b

 

 

A BILL FOR

 

HB3943LRB097 13741 RLC 58293 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 1961 is amended by changing
5Section 14-3 as follows:
 
6    (720 ILCS 5/14-3)
7    Sec. 14-3. Exemptions. The following activities shall be
8exempt from the provisions of this Article:
9    (a) Listening to radio, wireless and television
10communications of any sort where the same are publicly made;
11    (b) Hearing conversation when heard by employees of any
12common carrier by wire incidental to the normal course of their
13employment in the operation, maintenance or repair of the
14equipment of such common carrier by wire so long as no
15information obtained thereby is used or divulged by the hearer;
16    (c) Any broadcast by radio, television or otherwise whether
17it be a broadcast or recorded for the purpose of later
18broadcasts of any function where the public is in attendance
19and the conversations are overheard incidental to the main
20purpose for which such broadcasts are then being made;
21    (d) Recording or listening with the aid of any device to
22any emergency communication made in the normal course of
23operations by any federal, state or local law enforcement

 

 

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1agency or institutions dealing in emergency services,
2including, but not limited to, hospitals, clinics, ambulance
3services, fire fighting agencies, any public utility,
4emergency repair facility, civilian defense establishment or
5military installation;
6    (e) Recording the proceedings of any meeting required to be
7open by the Open Meetings Act, as amended;
8    (f) Recording or listening with the aid of any device to
9incoming telephone calls of phone lines publicly listed or
10advertised as consumer "hotlines" by manufacturers or
11retailers of food and drug products. Such recordings must be
12destroyed, erased or turned over to local law enforcement
13authorities within 24 hours from the time of such recording and
14shall not be otherwise disseminated. Failure on the part of the
15individual or business operating any such recording or
16listening device to comply with the requirements of this
17subsection shall eliminate any civil or criminal immunity
18conferred upon that individual or business by the operation of
19this Section;
20    (g) With prior notification to the State's Attorney of the
21county in which it is to occur, recording or listening with the
22aid of any device to any conversation where a law enforcement
23officer, or any person acting at the direction of law
24enforcement, is a party to the conversation and has consented
25to it being intercepted or recorded under circumstances where
26the use of the device is necessary for the protection of the

 

 

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1law enforcement officer or any person acting at the direction
2of law enforcement, in the course of an investigation of a
3forcible felony, a felony offense of involuntary servitude,
4involuntary sexual servitude of a minor, or trafficking in
5persons for forced labor or services under Section 10-9 of this
6Code, an offense involving prostitution, solicitation of a
7sexual act, or pandering, a felony violation of the Illinois
8Controlled Substances Act, a felony violation of the Cannabis
9Control Act, a felony violation of the Methamphetamine Control
10and Community Protection Act, any "streetgang related" or
11"gang-related" felony as those terms are defined in the
12Illinois Streetgang Terrorism Omnibus Prevention Act, or any
13felony offense involving any weapon listed in paragraphs (1)
14through (11) of subsection (a) of Section 24-1 of this Code.
15Any recording or evidence derived as the result of this
16exemption shall be inadmissible in any proceeding, criminal,
17civil or administrative, except (i) where a party to the
18conversation suffers great bodily injury or is killed during
19such conversation, or (ii) when used as direct impeachment of a
20witness concerning matters contained in the interception or
21recording. The Director of the Department of State Police shall
22issue regulations as are necessary concerning the use of
23devices, retention of tape recordings, and reports regarding
24their use;
25    (g-5) With approval of the State's Attorney of the county
26in which it is to occur, recording or listening with the aid of

 

 

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1any device to any conversation where a law enforcement officer,
2or any person acting at the direction of law enforcement, is a
3party to the conversation and has consented to it being
4intercepted or recorded in the course of an investigation of
5any offense defined in Article 29D of this Code. In all such
6cases, an application for an order approving the previous or
7continuing use of an eavesdropping device must be made within
848 hours of the commencement of such use. In the absence of
9such an order, or upon its denial, any continuing use shall
10immediately terminate. The Director of State Police shall issue
11rules as are necessary concerning the use of devices, retention
12of tape recordings, and reports regarding their use.
13    Any recording or evidence obtained or derived in the course
14of an investigation of any offense defined in Article 29D of
15this Code shall, upon motion of the State's Attorney or
16Attorney General prosecuting any violation of Article 29D, be
17reviewed in camera with notice to all parties present by the
18court presiding over the criminal case, and, if ruled by the
19court to be relevant and otherwise admissible, it shall be
20admissible at the trial of the criminal case.
21    This subsection (g-5) is inoperative on and after January
221, 2005. No conversations recorded or monitored pursuant to
23this subsection (g-5) shall be inadmissible in a court of law
24by virtue of the repeal of this subsection (g-5) on January 1,
252005;
26    (g-6) With approval of the State's Attorney of the county

 

 

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1in which it is to occur, recording or listening with the aid of
2any device to any conversation where a law enforcement officer,
3or any person acting at the direction of law enforcement, is a
4party to the conversation and has consented to it being
5intercepted or recorded in the course of an investigation of
6involuntary servitude, involuntary sexual servitude of a
7minor, trafficking in persons for forced labor or services,
8child pornography, aggravated child pornography, indecent
9solicitation of a child, child abduction, luring of a minor,
10sexual exploitation of a child, predatory criminal sexual
11assault of a child, aggravated criminal sexual abuse in which
12the victim of the offense was at the time of the commission of
13the offense under 18 years of age, criminal sexual abuse by
14force or threat of force in which the victim of the offense was
15at the time of the commission of the offense under 18 years of
16age, or aggravated criminal sexual assault in which the victim
17of the offense was at the time of the commission of the offense
18under 18 years of age. In all such cases, an application for an
19order approving the previous or continuing use of an
20eavesdropping device must be made within 48 hours of the
21commencement of such use. In the absence of such an order, or
22upon its denial, any continuing use shall immediately
23terminate. The Director of State Police shall issue rules as
24are necessary concerning the use of devices, retention of
25recordings, and reports regarding their use. Any recording or
26evidence obtained or derived in the course of an investigation

 

 

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1of involuntary servitude, involuntary sexual servitude of a
2minor, trafficking in persons for forced labor or services,
3child pornography, aggravated child pornography, indecent
4solicitation of a child, child abduction, luring of a minor,
5sexual exploitation of a child, predatory criminal sexual
6assault of a child, aggravated criminal sexual abuse in which
7the victim of the offense was at the time of the commission of
8the offense under 18 years of age, criminal sexual abuse by
9force or threat of force in which the victim of the offense was
10at the time of the commission of the offense under 18 years of
11age, or aggravated criminal sexual assault in which the victim
12of the offense was at the time of the commission of the offense
13under 18 years of age shall, upon motion of the State's
14Attorney or Attorney General prosecuting any case involving
15involuntary servitude, involuntary sexual servitude of a
16minor, trafficking in persons for forced labor or services,
17child pornography, aggravated child pornography, indecent
18solicitation of a child, child abduction, luring of a minor,
19sexual exploitation of a child, predatory criminal sexual
20assault of a child, aggravated criminal sexual abuse in which
21the victim of the offense was at the time of the commission of
22the offense under 18 years of age, criminal sexual abuse by
23force or threat of force in which the victim of the offense was
24at the time of the commission of the offense under 18 years of
25age, or aggravated criminal sexual assault in which the victim
26of the offense was at the time of the commission of the offense

 

 

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1under 18 years of age, be reviewed in camera with notice to all
2parties present by the court presiding over the criminal case,
3and, if ruled by the court to be relevant and otherwise
4admissible, it shall be admissible at the trial of the criminal
5case. Absent such a ruling, any such recording or evidence
6shall not be admissible at the trial of the criminal case;
7    (h) Recordings made simultaneously with the use of an
8in-car video camera recording of an oral conversation between a
9uniformed peace officer, who has identified his or her office,
10and a person in the presence of the peace officer whenever (i)
11an officer assigned a patrol vehicle is conducting an
12enforcement stop; or (ii) patrol vehicle emergency lights are
13activated or would otherwise be activated if not for the need
14to conceal the presence of law enforcement.
15    For the purposes of this subsection (h), "enforcement stop"
16means an action by a law enforcement officer in relation to
17enforcement and investigation duties, including but not
18limited to, traffic stops, pedestrian stops, abandoned vehicle
19contacts, motorist assists, commercial motor vehicle stops,
20roadside safety checks, requests for identification, or
21responses to requests for emergency assistance;
22    (h-5) Recordings of utterances made by a person while in
23the presence of a uniformed peace officer and while an occupant
24of a police vehicle including, but not limited to, (i)
25recordings made simultaneously with the use of an in-car video
26camera and (ii) recordings made in the presence of the peace

 

 

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1officer utilizing video or audio systems, or both, authorized
2by the law enforcement agency;
3    (h-10) Recordings made simultaneously with a video camera
4recording during the use of a taser or similar weapon or device
5by a peace officer if the weapon or device is equipped with
6such camera;
7    (h-15) Recordings made under subsection (h), (h-5), or
8(h-10) shall be retained by the law enforcement agency that
9employs the peace officer who made the recordings for a storage
10period of 90 days, unless the recordings are made as a part of
11an arrest or the recordings are deemed evidence in any
12criminal, civil, or administrative proceeding and then the
13recordings must only be destroyed upon a final disposition and
14an order from the court. Under no circumstances shall any
15recording be altered or erased prior to the expiration of the
16designated storage period. Upon completion of the storage
17period, the recording medium may be erased and reissued for
18operational use;
19    (i) Recording of a conversation made by or at the request
20of a person, not a law enforcement officer or agent of a law
21enforcement officer, who is a party to the conversation, under
22reasonable suspicion that another party to the conversation is
23committing, is about to commit, or has committed a criminal
24offense against the person or a member of his or her immediate
25household, and there is reason to believe that evidence of the
26criminal offense may be obtained by the recording;

 

 

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1    (j) The use of a telephone monitoring device by either (1)
2a corporation or other business entity engaged in marketing or
3opinion research or (2) a corporation or other business entity
4engaged in telephone solicitation, as defined in this
5subsection, to record or listen to oral telephone solicitation
6conversations or marketing or opinion research conversations
7by an employee of the corporation or other business entity
8when:
9        (i) the monitoring is used for the purpose of service
10    quality control of marketing or opinion research or
11    telephone solicitation, the education or training of
12    employees or contractors engaged in marketing or opinion
13    research or telephone solicitation, or internal research
14    related to marketing or opinion research or telephone
15    solicitation; and
16        (ii) the monitoring is used with the consent of at
17    least one person who is an active party to the marketing or
18    opinion research conversation or telephone solicitation
19    conversation being monitored.
20    No communication or conversation or any part, portion, or
21aspect of the communication or conversation made, acquired, or
22obtained, directly or indirectly, under this exemption (j), may
23be, directly or indirectly, furnished to any law enforcement
24officer, agency, or official for any purpose or used in any
25inquiry or investigation, or used, directly or indirectly, in
26any administrative, judicial, or other proceeding, or divulged

 

 

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1to any third party.
2    When recording or listening authorized by this subsection
3(j) on telephone lines used for marketing or opinion research
4or telephone solicitation purposes results in recording or
5listening to a conversation that does not relate to marketing
6or opinion research or telephone solicitation; the person
7recording or listening shall, immediately upon determining
8that the conversation does not relate to marketing or opinion
9research or telephone solicitation, terminate the recording or
10listening and destroy any such recording as soon as is
11practicable.
12    Business entities that use a telephone monitoring or
13telephone recording system pursuant to this exemption (j) shall
14provide current and prospective employees with notice that the
15monitoring or recordings may occur during the course of their
16employment. The notice shall include prominent signage
17notification within the workplace.
18    Business entities that use a telephone monitoring or
19telephone recording system pursuant to this exemption (j) shall
20provide their employees or agents with access to personal-only
21telephone lines which may be pay telephones, that are not
22subject to telephone monitoring or telephone recording.
23    For the purposes of this subsection (j), "telephone
24solicitation" means a communication through the use of a
25telephone by live operators:
26        (i) soliciting the sale of goods or services;

 

 

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1        (ii) receiving orders for the sale of goods or
2    services;
3        (iii) assisting in the use of goods or services; or
4        (iv) engaging in the solicitation, administration, or
5    collection of bank or retail credit accounts.
6    For the purposes of this subsection (j), "marketing or
7opinion research" means a marketing or opinion research
8interview conducted by a live telephone interviewer engaged by
9a corporation or other business entity whose principal business
10is the design, conduct, and analysis of polls and surveys
11measuring the opinions, attitudes, and responses of
12respondents toward products and services, or social or
13political issues, or both;
14    (k) Electronic recordings, including but not limited to, a
15motion picture, videotape, digital, or other visual or audio
16recording, made of a custodial interrogation of an individual
17at a police station or other place of detention by a law
18enforcement officer under Section 5-401.5 of the Juvenile Court
19Act of 1987 or Section 103-2.1 of the Code of Criminal
20Procedure of 1963;
21    (l) Recording the interview or statement of any person when
22the person knows that the interview is being conducted by a law
23enforcement officer or prosecutor and the interview takes place
24at a police station that is currently participating in the
25Custodial Interview Pilot Program established under the
26Illinois Criminal Justice Information Act;

 

 

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1    (m) An electronic recording, including but not limited to,
2a motion picture, videotape, digital, or other visual or audio
3recording, made of the interior of a school bus while the
4school bus is being used in the transportation of students to
5and from school and school-sponsored activities, when the
6school board has adopted a policy authorizing such recording,
7notice of such recording policy is included in student
8handbooks and other documents including the policies of the
9school, notice of the policy regarding recording is provided to
10parents of students, and notice of such recording is clearly
11posted on the door of and inside the school bus.
12    Recordings made pursuant to this subsection (m) shall be
13confidential records and may only be used by school officials
14(or their designees) and law enforcement personnel for
15investigations, school disciplinary actions and hearings,
16proceedings under the Juvenile Court Act of 1987, and criminal
17prosecutions, related to incidents occurring in or around the
18school bus;
19    (n) Recording or listening to an audio transmission from a
20microphone placed by a person under the authority of a law
21enforcement agency inside a bait car surveillance vehicle while
22simultaneously capturing a photographic or video image;
23    (o) The use of an eavesdropping camera or audio device
24during an ongoing hostage or barricade situation by a law
25enforcement officer or individual acting on behalf of a law
26enforcement officer when the use of such device is necessary to

 

 

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1protect the safety of the general public, hostages, or law
2enforcement officers or anyone acting on their behalf; and
3    (p) Recording or listening with the aid of any device to
4incoming telephone calls of phone lines publicly listed or
5advertised as the "CPS Violence Prevention Hotline", but only
6where the notice of recording is given at the beginning of each
7call as required by Section 34-21.8 of the School Code. The
8recordings may be retained only by the Chicago Police
9Department or other law enforcement authorities, and shall not
10be otherwise retained or disseminated; and .
11    (q) With prior approval of the State's Attorney of the
12county in which it is to occur, recording or listening with the
13aid of an eavesdropping device to a conversation in which a law
14enforcement officer, or any person acting at the direction of a
15law enforcement officer, is a party to an undercover
16conversation and has consented to the conversation being
17intercepted or recorded in the course of an investigation of a
18felony violation of the Illinois Controlled Substances Act or a
19felony violation of the Methamphetamine Control and Community
20Protection Act. The use of an eavesdropping device may be used
21in an emergency situation as defined in this subsection (q).
22The use must be in accordance with the provisions of this
23subsection (q) and may be allowed only where the officer
24reasonably believes that an order permitting the use of the
25device would issue were there a prior hearing. An emergency
26situation exists when, without previous notice to the law

 

 

HB3943- 14 -LRB097 13741 RLC 58293 b

1enforcement officer sufficient to obtain prior State's
2Attorney approval, the conversation to be overheard or recorded
3will occur within a short period of time and the use of the
4device is necessary for the protection of the law enforcement
5officer. In all such cases, an application for an order
6approving the previous or continuing use of an eavesdropping
7device must be made within 48 hours of the commencement of such
8use. In the absence of such an order, or upon its denial, any
9continuing use shall immediately terminate. In order to approve
10such emergency use, the State's Attorney must make a
11determination that: (1) he or she would have granted approval
12had the information been before him or her prior to the use of
13the device and (2) that there was an emergency situation as
14defined in this subsection (q). In the event that an
15application for approval under this subsection (q) is denied
16the contents of the conversations overheard or recorded shall
17be treated as having been obtained in violation of this
18Article. Whenever any wire, electronic, or oral communication
19has been intercepted as a result of this exception that is not
20related to felony violations of the Illinois Controlled
21Substances Act, felony violations of the Methamphetamine
22Control and Community Protection Act, and conspiracies related
23thereto, no part of the contents of the communication and no
24evidence derived therefrom may be received in evidence in any
25trial, hearing, or other proceeding in or before any court,
26grand jury, department, officer, agency, regulatory body,

 

 

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1legislative committee, or other authority of this State, or a
2political subdivision thereof if the disclosure of that
3information would be in violation of this Article unless the
4violation involves a forcible felony. The Director of State
5Police shall issue rules as are necessary concerning the use of
6devices, retention of recording media, and reports regarding
7their use.
8    This subsection (q) is operative only from January 1, 2013
9through January 1, 2015 and only in zip code areas: 60104,
1060126, 60130, 60131, 60153, 60154, 60155, 60162, 60163, 60164,
1160165, 60171, 60176, 60181, 60302, 60305, 60402, 60480, 60513,
1260521, 60525, 60527, 60534, 60546, 60558, 60707, and 60804. By
13March 1, 2015, the West Suburban Chiefs of Police Association
14must deliver a report to the General Assembly on the impact of
15this amendatory Act of the 97th General Assembly on drug
16arrests and convictions from January 1, 2013 through January 1,
172015.
18(Source: P.A. 96-425, eff. 8-13-09; 96-547, eff. 1-1-10;
1996-643, eff. 1-1-10; 96-670, eff. 8-25-09; 96-1000, eff.
207-2-10; 96-1425, eff. 1-1-11; 96-1464, eff. 8-20-10; 97-333,
21eff. 8-12-11.)