Illinois General Assembly - Full Text of HB2446
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Full Text of HB2446  98th General Assembly

HB2446 98TH GENERAL ASSEMBLY

  
  

 


 
98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2446

 

Introduced , by Rep. Chad Hays

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/14-3

    Amends the Criminal Code of 2012. Exempts from an eavesdropping violation recordings made simultaneously with the use of an in-car video camera or officer-worn video camera recording of an oral conversation between a uniformed peace officer, who has identified his or her office, and a person in the presence of the peace officer whenever (i) an officer is conducting an enforcement stop; or (ii) patrol vehicle emergency lights are activated or would otherwise be activated if not for the need to conceal the presence of law enforcement.


LRB098 03992 RLC 37965 b

 

 

A BILL FOR

 

HB2446LRB098 03992 RLC 37965 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 2012 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 under Section 10-9 of this Code, an offense involving
6prostitution, solicitation of a sexual act, or pandering, a
7felony violation of the Illinois Controlled Substances Act, a
8felony violation of the Cannabis Control Act, a felony
9violation of the Methamphetamine Control and Community
10Protection Act, any "streetgang related" or "gang-related"
11felony as those terms are defined in the Illinois Streetgang
12Terrorism Omnibus Prevention Act, or any felony offense
13involving any weapon listed in paragraphs (1) through (11) of
14subsection (a) of Section 24-1 of this Code. Any recording or
15evidence derived as the result of this exemption shall be
16inadmissible in any proceeding, criminal, civil or
17administrative, except (i) where a party to the conversation
18suffers great bodily injury or is killed during such
19conversation, 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, child pornography, aggravated
8child pornography, indecent solicitation of a child, child
9abduction, luring of a minor, sexual exploitation of a child,
10predatory criminal sexual assault of a child, aggravated
11criminal sexual abuse in which the victim of the offense was at
12the time of the commission of the offense under 18 years of
13age, criminal sexual abuse by force or threat of force in which
14the victim of the offense was at the time of the commission of
15the offense under 18 years of age, or aggravated criminal
16sexual assault in which the victim of the offense was at the
17time of the commission of the offense under 18 years of age. In
18all such cases, an application for an order approving the
19previous or continuing use of an eavesdropping device must be
20made within 48 hours of the commencement of such use. In the
21absence of such an order, or upon its denial, any continuing
22use shall immediately terminate. The Director of State Police
23shall issue rules as are necessary concerning the use of
24devices, retention of recordings, and reports regarding their
25use. Any recording or evidence obtained or derived in the
26course of an investigation of involuntary servitude,

 

 

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

 

 

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1parties present by the court presiding over the criminal case,
2and, if ruled by the court to be relevant and otherwise
3admissible, it shall be admissible at the trial of the criminal
4case. Absent such a ruling, any such recording or evidence
5shall not be admissible at the trial of the criminal case;
6    (h) Recordings made simultaneously with the use of an
7in-car video camera or officer-worn video camera recording of
8an oral conversation between a uniformed peace officer, who has
9identified his or her office, and a person in the presence of
10the peace officer whenever (i) an officer assigned a patrol
11vehicle is conducting an enforcement stop; or (ii) patrol
12vehicle emergency lights are activated or would otherwise be
13activated if not for the need to conceal the presence of law
14enforcement.
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;
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)(1) With prior request to and verbal approval of the
12State's Attorney of the county in which the conversation is
13anticipated to occur, recording or listening with the aid of an
14eavesdropping device to a conversation in which a law
15enforcement officer, or any person acting at the direction of a
16law enforcement officer, is a party to the conversation and has
17consented to the conversation being intercepted or recorded in
18the course of an investigation of a drug offense. The State's
19Attorney may grant this verbal approval only after determining
20that reasonable cause exists to believe that a drug offense
21will be committed by a specified individual or individuals
22within a designated period of time.
23    (2) Request for approval. To invoke the exception contained
24in this subsection (q), a law enforcement officer shall make a
25written or verbal request for approval to the appropriate
26State's Attorney. This request for approval shall include

 

 

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1whatever information is deemed necessary by the State's
2Attorney but shall include, at a minimum, the following
3information about each specified individual whom the law
4enforcement officer believes will commit a drug offense:
5        (A) his or her full or partial name, nickname or alias;
6        (B) a physical description; or
7        (C) failing either (A) or (B) of this paragraph (2),
8    any other supporting information known to the law
9    enforcement officer at the time of the request that gives
10    rise to reasonable cause to believe the individual will
11    commit a drug offense.
12    (3) Limitations on verbal approval. Each verbal approval by
13the State's Attorney under this subsection (q) shall be limited
14to:
15        (A) a recording or interception conducted by a
16    specified law enforcement officer or person acting at the
17    direction of a law enforcement officer;
18        (B) recording or intercepting conversations with the
19    individuals specified in the request for approval,
20    provided that the verbal approval shall be deemed to
21    include the recording or intercepting of conversations
22    with other individuals, unknown to the law enforcement
23    officer at the time of the request for approval, who are
24    acting in conjunction with or as co-conspirators with the
25    individuals specified in the request for approval in the
26    commission of a drug offense;

 

 

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1        (C) a reasonable period of time but in no event longer
2    than 24 consecutive hours.
3    (4) Admissibility of evidence. No part of the contents of
4any wire, electronic, or oral communication that has been
5recorded or intercepted as a result of this exception may be
6received in evidence in any trial, hearing, or other proceeding
7in or before any court, grand jury, department, officer,
8agency, regulatory body, legislative committee, or other
9authority of this State, or a political subdivision of the
10State, other than in a prosecution of:
11        (A) a drug offense;
12        (B) a forcible felony committed directly in the course
13    of the investigation of a drug offense for which verbal
14    approval was given to record or intercept a conversation
15    under this subsection (q); or
16        (C) any other forcible felony committed while the
17    recording or interception was approved in accordance with
18    this Section (q), but for this specific category of
19    prosecutions, only if the law enforcement officer or person
20    acting at the direction of a law enforcement officer who
21    has consented to the conversation being intercepted or
22    recorded suffers great bodily injury or is killed during
23    the commission of the charged forcible felony.
24    (5) Compliance with the provisions of this subsection is a
25prerequisite to the admissibility in evidence of any part of
26the contents of any wire, electronic or oral communication that

 

 

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1has been intercepted as a result of this exception, but nothing
2in this subsection shall be deemed to prevent a court from
3otherwise excluding the evidence on any other ground, nor shall
4anything in this subsection be deemed to prevent a court from
5independently reviewing the admissibility of the evidence for
6compliance with the Fourth Amendment to the U.S. Constitution
7or with Article I, Section 6 of the Illinois Constitution.
8    (6) Use of recordings or intercepts unrelated to drug
9offenses. Whenever any wire, electronic, or oral communication
10has been recorded or intercepted as a result of this exception
11that is not related to a drug offense or a forcible felony
12committed in the course of a drug offense, no part of the
13contents of the communication and evidence derived from the
14communication may be received in evidence in any trial,
15hearing, or other proceeding in or before any court, grand
16jury, department, officer, agency, regulatory body,
17legislative committee, or other authority of this State, or a
18political subdivision of the State, nor may it be publicly
19disclosed in any way.
20    (7) Definitions. For the purposes of this subsection (q)
21only:
22        "Drug offense" includes and is limited to a felony
23    violation of one of the following: (A) the Illinois
24    Controlled Substances Act, (B) the Cannabis Control Act,
25    and (C) the Methamphetamine Control and Community
26    Protection Act.

 

 

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1        "Forcible felony" includes and is limited to those
2    offenses contained in Section 2-8 of the Criminal Code of
3    1961 as of the effective date of this amendatory Act of the
4    97th General Assembly, and only as those offenses have been
5    defined by law or judicial interpretation as of that date.
6        "State's Attorney" includes and is limited to the
7    State's Attorney or an assistant State's Attorney
8    designated by the State's Attorney to provide verbal
9    approval to record or intercept conversations under this
10    subsection (q).
11    (8) Sunset. This subsection (q) is inoperative on and after
12January 1, 2015. No conversations intercepted pursuant to this
13subsection (q), while operative, shall be inadmissible in a
14court of law by virtue of the inoperability of this subsection
15(q) on January 1, 2015.
16(Source: P.A. 96-425, eff. 8-13-09; 96-547, eff. 1-1-10;
1796-643, eff. 1-1-10; 96-670, eff. 8-25-09; 96-1000, eff.
187-2-10; 96-1425, eff. 1-1-11; 96-1464, eff. 8-20-10; 97-333,
19eff. 8-12-11; 97-846, eff. 1-1-13; 97-897, eff. 1-1-13; revised
208-23-12.)