Illinois General Assembly - Full Text of HB4081
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Full Text of HB4081  97th General Assembly

HB4081ham001 97TH GENERAL ASSEMBLY

Rep. Jehan A. Gordon

Filed: 3/23/2012

 

 


 

 


 
09700HB4081ham001LRB097 17398 RLC 67638 a

1
AMENDMENT TO HOUSE BILL 4081

2    AMENDMENT NO. ______. Amend House Bill 4081 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Criminal Code of 1961 is amended by
5changing Section 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

 

 

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1it be a broadcast or recorded for the purpose of later
2broadcasts of any function where the public is in attendance
3and the conversations are overheard incidental to the main
4purpose for which such broadcasts are then being made;
5    (d) Recording or listening with the aid of any device to
6any emergency communication made in the normal course of
7operations by any federal, state or local law enforcement
8agency or institutions dealing in emergency services,
9including, but not limited to, hospitals, clinics, ambulance
10services, fire fighting agencies, any public utility,
11emergency repair facility, civilian defense establishment or
12military installation;
13    (e) Recording the proceedings of any meeting required to be
14open by the Open Meetings Act, as amended;
15    (f) Recording or listening with the aid of any device to
16incoming telephone calls of phone lines publicly listed or
17advertised as consumer "hotlines" by manufacturers or
18retailers of food and drug products. Such recordings must be
19destroyed, erased or turned over to local law enforcement
20authorities within 24 hours from the time of such recording and
21shall not be otherwise disseminated. Failure on the part of the
22individual or business operating any such recording or
23listening device to comply with the requirements of this
24subsection shall eliminate any civil or criminal immunity
25conferred upon that individual or business by the operation of
26this Section;

 

 

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

 

 

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1witness concerning matters contained in the interception or
2recording. The Director of the Department of State Police shall
3issue regulations as are necessary concerning the use of
4devices, retention of tape recordings, and reports regarding
5their use;
6    (g-5) With approval of the State's Attorney of the county
7in which it is to occur, recording or listening with the aid of
8any device to any conversation where a law enforcement officer,
9or any person acting at the direction of law enforcement, is a
10party to the conversation and has consented to it being
11intercepted or recorded in the course of an investigation of
12any offense defined in Article 29D of this Code. In all such
13cases, an application for an order approving the previous or
14continuing use of an eavesdropping device must be made within
1548 hours of the commencement of such use. In the absence of
16such an order, or upon its denial, any continuing use shall
17immediately terminate. The Director of State Police shall issue
18rules as are necessary concerning the use of devices, retention
19of tape recordings, and reports regarding their use.
20    Any recording or evidence obtained or derived in the course
21of an investigation of any offense defined in Article 29D of
22this Code shall, upon motion of the State's Attorney or
23Attorney General prosecuting any violation of Article 29D, be
24reviewed in camera with notice to all parties present by the
25court presiding over the criminal case, and, if ruled by the
26court to be relevant and otherwise admissible, it shall be

 

 

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1admissible at the trial of the criminal case.
2    This subsection (g-5) is inoperative on and after January
31, 2005. No conversations recorded or monitored pursuant to
4this subsection (g-5) shall be inadmissible in a court of law
5by virtue of the repeal of this subsection (g-5) on January 1,
62005;
7    (g-6) With approval of the State's Attorney of the county
8in which it is to occur, recording or listening with the aid of
9any device to any conversation where a law enforcement officer,
10or any person acting at the direction of law enforcement, is a
11party to the conversation and has consented to it being
12intercepted or recorded in the course of an investigation of
13involuntary servitude, involuntary sexual servitude of a
14minor, trafficking in persons for forced labor or services,
15child pornography, aggravated child pornography, indecent
16solicitation of a child, child abduction, luring of a minor,
17sexual exploitation of a child, predatory criminal sexual
18assault of a child, aggravated criminal sexual abuse in which
19the victim of the offense was at the time of the commission of
20the offense under 18 years of age, criminal sexual abuse by
21force or threat of force in which the victim of the offense was
22at the time of the commission of the offense under 18 years of
23age, or aggravated criminal sexual assault in which the victim
24of the offense was at the time of the commission of the offense
25under 18 years of age. In all such cases, an application for an
26order approving the previous or continuing use of an

 

 

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1eavesdropping device must be made within 48 hours of the
2commencement of such use. In the absence of such an order, or
3upon its denial, any continuing use shall immediately
4terminate. The Director of State Police shall issue rules as
5are necessary concerning the use of devices, retention of
6recordings, and reports regarding their use. Any recording or
7evidence obtained or derived in the course of an investigation
8of involuntary servitude, involuntary sexual servitude of a
9minor, trafficking in persons for forced labor or services,
10child pornography, aggravated child pornography, indecent
11solicitation of a child, child abduction, luring of a minor,
12sexual exploitation of a child, predatory criminal sexual
13assault of a child, aggravated criminal sexual abuse in which
14the victim of the offense was at the time of the commission of
15the offense under 18 years of age, criminal sexual abuse by
16force or threat of force in which the victim of the offense was
17at the time of the commission of the offense under 18 years of
18age, or aggravated criminal sexual assault in which the victim
19of the offense was at the time of the commission of the offense
20under 18 years of age shall, upon motion of the State's
21Attorney or Attorney General prosecuting any case involving
22involuntary servitude, involuntary sexual servitude of a
23minor, trafficking in persons for forced labor or services,
24child pornography, aggravated child pornography, indecent
25solicitation of a child, child abduction, luring of a minor,
26sexual exploitation of a child, predatory criminal sexual

 

 

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

 

 

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1roadside safety checks, requests for identification, or
2responses to requests for emergency assistance;
3    (h-5) Recordings of utterances made by a person while in
4the presence of a uniformed peace officer and while an occupant
5of a police vehicle including, but not limited to, (i)
6recordings made simultaneously with the use of an in-car video
7camera and (ii) recordings made in the presence of the peace
8officer utilizing video or audio systems, or both, authorized
9by the law enforcement agency;
10    (h-10) Recordings made simultaneously with a video camera
11recording during the use of a taser or similar weapon or device
12by a peace officer if the weapon or device is equipped with
13such camera;
14    (h-15) Recordings made under subsection (h), (h-5), or
15(h-10) shall be retained by the law enforcement agency that
16employs the peace officer who made the recordings for a storage
17period of 90 days, unless the recordings are made as a part of
18an arrest or the recordings are deemed evidence in any
19criminal, civil, or administrative proceeding and then the
20recordings must only be destroyed upon a final disposition and
21an order from the court. Under no circumstances shall any
22recording be altered or erased prior to the expiration of the
23designated storage period. Upon completion of the storage
24period, the recording medium may be erased and reissued for
25operational use;
26    (i) Recording of a conversation made by or at the request

 

 

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1of a person, not a law enforcement officer or agent of a law
2enforcement officer, who is a party to the conversation, under
3reasonable suspicion that another party to the conversation is
4committing, is about to commit, or has committed a criminal
5offense against the person or a member of his or her immediate
6household, and there is reason to believe that evidence of the
7criminal offense may be obtained by the recording;
8    (j) The use of a telephone monitoring device by either (1)
9a corporation or other business entity engaged in marketing or
10opinion research or (2) a corporation or other business entity
11engaged in telephone solicitation, as defined in this
12subsection, to record or listen to oral telephone solicitation
13conversations or marketing or opinion research conversations
14by an employee of the corporation or other business entity
15when:
16        (i) the monitoring is used for the purpose of service
17    quality control of marketing or opinion research or
18    telephone solicitation, the education or training of
19    employees or contractors engaged in marketing or opinion
20    research or telephone solicitation, or internal research
21    related to marketing or opinion research or telephone
22    solicitation; and
23        (ii) the monitoring is used with the consent of at
24    least one person who is an active party to the marketing or
25    opinion research conversation or telephone solicitation
26    conversation being monitored.

 

 

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1    No communication or conversation or any part, portion, or
2aspect of the communication or conversation made, acquired, or
3obtained, directly or indirectly, under this exemption (j), may
4be, directly or indirectly, furnished to any law enforcement
5officer, agency, or official for any purpose or used in any
6inquiry or investigation, or used, directly or indirectly, in
7any administrative, judicial, or other proceeding, or divulged
8to any third party.
9    When recording or listening authorized by this subsection
10(j) on telephone lines used for marketing or opinion research
11or telephone solicitation purposes results in recording or
12listening to a conversation that does not relate to marketing
13or opinion research or telephone solicitation; the person
14recording or listening shall, immediately upon determining
15that the conversation does not relate to marketing or opinion
16research or telephone solicitation, terminate the recording or
17listening and destroy any such recording as soon as is
18practicable.
19    Business entities that use a telephone monitoring or
20telephone recording system pursuant to this exemption (j) shall
21provide current and prospective employees with notice that the
22monitoring or recordings may occur during the course of their
23employment. The notice shall include prominent signage
24notification within the workplace.
25    Business entities that use a telephone monitoring or
26telephone recording system pursuant to this exemption (j) shall

 

 

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1provide their employees or agents with access to personal-only
2telephone lines which may be pay telephones, that are not
3subject to telephone monitoring or telephone recording.
4    For the purposes of this subsection (j), "telephone
5solicitation" means a communication through the use of a
6telephone by live operators:
7        (i) soliciting the sale of goods or services;
8        (ii) receiving orders for the sale of goods or
9    services;
10        (iii) assisting in the use of goods or services; or
11        (iv) engaging in the solicitation, administration, or
12    collection of bank or retail credit accounts.
13    For the purposes of this subsection (j), "marketing or
14opinion research" means a marketing or opinion research
15interview conducted by a live telephone interviewer engaged by
16a corporation or other business entity whose principal business
17is the design, conduct, and analysis of polls and surveys
18measuring the opinions, attitudes, and responses of
19respondents toward products and services, or social or
20political issues, or both;
21    (k) Electronic recordings, including but not limited to, a
22motion picture, videotape, digital, or other visual or audio
23recording, made of a custodial interrogation of an individual
24at a police station or other place of detention by a law
25enforcement officer under Section 5-401.5 of the Juvenile Court
26Act of 1987 or Section 103-2.1 of the Code of Criminal

 

 

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1Procedure of 1963;
2    (l) Recording the interview or statement of any person when
3the person knows that the interview is being conducted by a law
4enforcement officer or prosecutor and the interview takes place
5at a police station that is currently participating in the
6Custodial Interview Pilot Program established under the
7Illinois Criminal Justice Information Act;
8    (m) An electronic recording, including but not limited to,
9a motion picture, videotape, digital, or other visual or audio
10recording, made of the interior of a school bus while the
11school bus is being used in the transportation of students to
12and from school and school-sponsored activities, when the
13school board has adopted a policy authorizing such recording,
14notice of such recording policy is included in student
15handbooks and other documents including the policies of the
16school, notice of the policy regarding recording is provided to
17parents of students, and notice of such recording is clearly
18posted on the door of and inside the school bus.
19    Recordings made pursuant to this subsection (m) shall be
20confidential records and may only be used by school officials
21(or their designees) and law enforcement personnel for
22investigations, school disciplinary actions and hearings,
23proceedings under the Juvenile Court Act of 1987, and criminal
24prosecutions, related to incidents occurring in or around the
25school bus;
26    (n) Recording or listening to an audio transmission from a

 

 

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1microphone placed by a person under the authority of a law
2enforcement agency inside a bait car surveillance vehicle while
3simultaneously capturing a photographic or video image;
4    (o) The use of an eavesdropping camera or audio device
5during an ongoing hostage or barricade situation by a law
6enforcement officer or individual acting on behalf of a law
7enforcement officer when the use of such device is necessary to
8protect the safety of the general public, hostages, or law
9enforcement officers or anyone acting on their behalf; and
10    (p) Recording or listening with the aid of any device to
11incoming telephone calls of phone lines publicly listed or
12advertised as the "CPS Violence Prevention Hotline", but only
13where the notice of recording is given at the beginning of each
14call as required by Section 34-21.8 of the School Code. The
15recordings may be retained only by the Chicago Police
16Department or other law enforcement authorities, and shall not
17be otherwise retained or disseminated; and .
18    (q)(1) With prior request to and verbal approval of the
19State's Attorney of the county in which the conversation is
20anticipated to occur, recording or listening with the aid of an
21eavesdropping device to a conversation in which a law
22enforcement officer, or any person acting at the direction of a
23law enforcement officer, is a party to the conversation and has
24consented to the conversation being intercepted or recorded in
25the course of an investigation of a drug offense. The State's
26Attorney may grant this verbal approval only after determining

 

 

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

 

 

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

 

 

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1    acting at the direction of a law enforcement officer who
2    has consented to the conversation being intercepted or
3    recorded suffers great bodily injury or is killed during
4    the commission of the charged forcible felony.
5    (5) Compliance with the provisions of this subsection is a
6prerequisite to the admissibility in evidence of any part of
7the contents of any wire, electronic or oral communication that
8has been intercepted as a result of this exception, but nothing
9in this subsection shall be deemed to prevent a court from
10otherwise excluding the evidence on any other ground, nor shall
11anything in this subsection be deemed to prevent a court from
12independently reviewing the admissibility of the evidence for
13compliance with the Fourth Amendment to the U.S. Constitution
14or with Article I, Section 6 of the Illinois Constitution.
15    (6) Use of recordings or intercepts unrelated to drug
16offenses. Whenever any wire, electronic, or oral communication
17has been recorded or intercepted as a result of this exception
18that is not related to a drug offense or a forcible felony
19committed in the course of a drug offense, no part of the
20contents of the communication and evidence derived from the
21communication may be received in evidence in any trial,
22hearing, or other proceeding in or before any court, grand
23jury, department, officer, agency, regulatory body,
24legislative committee, or other authority of this State, or a
25political subdivision of the State, nor may it be publicly
26disclosed in any way.

 

 

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1    (7) Definitions. For the purposes of this subsection (q)
2only:
3        "Drug offense" includes and is limited to a felony
4    violation of one of the following: (A) the Illinois
5    Controlled Substances Act, (B) the Cannabis Control Act,
6    and (C) the Methamphetamine Control and Community
7    Protection Act.
8        "Forcible felony" includes and is limited to those
9    offenses contained in Section 2-8 of the Criminal Code of
10    1961 as of the effective date of this amendatory Act of the
11    97th General Assembly, and only as those offenses have been
12    defined by law or judicial interpretation as of that date.
13        "State's Attorney" includes and is limited to the
14    State's Attorney or an assistant State's Attorney
15    designated by the State's Attorney to provide verbal
16    approval to record or intercept conversations under this
17    subsection (q).
18    (8) Sunset. This subsection (q) is inoperative on and after
19January 1, 2015. No conversations intercepted pursuant to this
20subsection (q), while operative, shall be inadmissible in a
21court of law by virtue of the inoperability of this subsection
22(q) on January 1, 2015.
23(Source: P.A. 96-425, eff. 8-13-09; 96-547, eff. 1-1-10;
2496-643, eff. 1-1-10; 96-670, eff. 8-25-09; 96-1000, eff.
257-2-10; 96-1425, eff. 1-1-11; 96-1464, eff. 8-20-10; 97-333,
26eff. 8-12-11.)".