Illinois General Assembly - Full Text of HB3893
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Full Text of HB3893  102nd General Assembly

HB3893enr 102ND GENERAL ASSEMBLY

  
  
  

 


 
HB3893 EnrolledLRB102 14883 KMF 20236 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
5changing Sections 14-3 and 33G-9 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 electronic
10    communications, and television communications of any sort
11    where the same are publicly made;
12        (b) Hearing conversation when heard by employees of
13    any common carrier by wire incidental to the normal course
14    of their employment in the operation, maintenance or
15    repair of the equipment of such common carrier by wire so
16    long as no information obtained thereby is used or
17    divulged by the hearer;
18        (c) Any broadcast by radio, television or otherwise
19    whether it be a broadcast or recorded for the purpose of
20    later broadcasts of any function where the public is in
21    attendance and the conversations are overheard incidental
22    to the main purpose for which such broadcasts are then
23    being made;

 

 

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

 

 

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

 

 

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

 

 

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1    in the course of an investigation of child pornography,
2    aggravated child pornography, indecent solicitation of a
3    child, luring of a minor, sexual exploitation of a child,
4    aggravated criminal sexual abuse in which the victim of
5    the offense was at the time of the commission of the
6    offense under 18 years of age, or criminal sexual abuse by
7    force or threat of force in which the victim of the offense
8    was at the time of the commission of the offense under 18
9    years of age shall, upon motion of the State's Attorney or
10    Attorney General prosecuting any case involving child
11    pornography, aggravated child pornography, indecent
12    solicitation of a child, luring of a minor, sexual
13    exploitation of a child, aggravated criminal sexual abuse
14    in which the victim of the offense was at the time of the
15    commission of the offense under 18 years of age, or
16    criminal sexual abuse by force or threat of force in which
17    the victim of the offense was at the time of the commission
18    of the offense under 18 years of age be reviewed in camera
19    with notice to all parties present by the court presiding
20    over the criminal case, and, if ruled by the court to be
21    relevant and otherwise admissible, it shall be admissible
22    at the trial of the criminal case. Absent such a ruling,
23    any such recording or evidence shall not be admissible at
24    the trial of the criminal case;
25        (h) Recordings made simultaneously with the use of an
26    in-car video camera recording of an oral conversation

 

 

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1    between a uniformed peace officer, who has identified his
2    or her office, and a person in the presence of the peace
3    officer whenever (i) an officer assigned a patrol vehicle
4    is conducting an enforcement stop; or (ii) patrol vehicle
5    emergency lights are activated or would otherwise be
6    activated if not for the need to conceal the presence of
7    law enforcement.
8        For the purposes of this subsection (h), "enforcement
9    stop" means an action by a law enforcement officer in
10    relation to enforcement and investigation duties,
11    including but not limited to, traffic stops, pedestrian
12    stops, abandoned vehicle contacts, motorist assists,
13    commercial motor vehicle stops, roadside safety checks,
14    requests for identification, or responses to requests for
15    emergency assistance;
16        (h-5) Recordings of utterances made by a person while
17    in the presence of a uniformed peace officer and while an
18    occupant of a police vehicle including, but not limited
19    to, (i) recordings made simultaneously with the use of an
20    in-car video camera and (ii) recordings made in the
21    presence of the peace officer utilizing video or audio
22    systems, or both, authorized by the law enforcement
23    agency;
24        (h-10) Recordings made simultaneously with a video
25    camera recording during the use of a taser or similar
26    weapon or device by a peace officer if the weapon or device

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1    State's Attorney may grant this approval only after
2    determining that reasonable cause exists to believe that
3    inculpatory conversations concerning a qualified offense
4    will occur with a specified individual or individuals
5    within a designated period of time.
6        (2) Request for approval. To invoke the exception
7    contained in this subsection (q), a law enforcement
8    officer shall make a request for approval to the
9    appropriate State's Attorney. The request may be written
10    or verbal; however, a written memorialization of the
11    request must be made by the State's Attorney. This request
12    for approval shall include whatever information is deemed
13    necessary by the State's Attorney but shall include, at a
14    minimum, the following information about each specified
15    individual whom the law enforcement officer believes will
16    commit a qualified offense:
17            (A) his or her full or partial name, nickname or
18        alias;
19            (B) a physical description; or
20            (C) failing either (A) or (B) of this paragraph
21        (2), any other supporting information known to the law
22        enforcement officer at the time of the request that
23        gives rise to reasonable cause to believe that the
24        specified individual will participate in an
25        inculpatory conversation concerning a qualified
26        offense.

 

 

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1        (3) Limitations on approval. Each written approval by
2    the State's Attorney under this subsection (q) shall be
3    limited to:
4            (A) a recording or interception conducted by a
5        specified law enforcement officer or person acting at
6        the direction of a law enforcement officer;
7            (B) recording or intercepting conversations with
8        the individuals specified in the request for approval,
9        provided that the verbal approval shall be deemed to
10        include the recording or intercepting of conversations
11        with other individuals, unknown to the law enforcement
12        officer at the time of the request for approval, who
13        are acting in conjunction with or as co-conspirators
14        with the individuals specified in the request for
15        approval in the commission of a qualified offense;
16            (C) a reasonable period of time but in no event
17        longer than 24 consecutive hours;
18            (D) the written request for approval, if
19        applicable, or the written memorialization must be
20        filed, along with the written approval, with the
21        circuit clerk of the jurisdiction on the next business
22        day following the expiration of the authorized period
23        of time, and shall be subject to review by the Chief
24        Judge or his or her designee as deemed appropriate by
25        the court.
26        (3.5) The written memorialization of the request for

 

 

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1    approval and the written approval by the State's Attorney
2    may be in any format, including via facsimile, email, or
3    otherwise, so long as it is capable of being filed with the
4    circuit clerk.
5        (3.10) Beginning March 1, 2015, each State's Attorney
6    shall annually submit a report to the General Assembly
7    disclosing:
8            (A) the number of requests for each qualified
9        offense for approval under this subsection; and
10            (B) the number of approvals for each qualified
11        offense given by the State's Attorney.
12        (4) Admissibility of evidence. No part of the contents
13    of any wire, electronic, or oral communication that has
14    been recorded or intercepted as a result of this exception
15    may be received in evidence in any trial, hearing, or
16    other proceeding in or before any court, grand jury,
17    department, officer, agency, regulatory body, legislative
18    committee, or other authority of this State, or a
19    political subdivision of the State, other than in a
20    prosecution of:
21            (A) the qualified offense for which approval was
22        given to record or intercept a conversation under this
23        subsection (q);
24            (B) a forcible felony committed directly in the
25        course of the investigation of the qualified offense
26        for which approval was given to record or intercept a

 

 

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1        conversation under this subsection (q); or
2            (C) any other forcible felony committed while the
3        recording or interception was approved in accordance
4        with this subsection (q), but for this specific
5        category of prosecutions, only if the law enforcement
6        officer or person acting at the direction of a law
7        enforcement officer who has consented to the
8        conversation being intercepted or recorded suffers
9        great bodily injury or is killed during the commission
10        of the charged forcible felony.
11        (5) Compliance with the provisions of this subsection
12    is a prerequisite to the admissibility in evidence of any
13    part of the contents of any wire, electronic or oral
14    communication that has been intercepted as a result of
15    this exception, but nothing in this subsection shall be
16    deemed to prevent a court from otherwise excluding the
17    evidence on any other ground recognized by State or
18    federal law, nor shall anything in this subsection be
19    deemed to prevent a court from independently reviewing the
20    admissibility of the evidence for compliance with the
21    Fourth Amendment to the U.S. Constitution or with Article
22    I, Section 6 of the Illinois Constitution.
23        (6) Use of recordings or intercepts unrelated to
24    qualified offenses. Whenever any private conversation or
25    private electronic communication has been recorded or
26    intercepted as a result of this exception that is not

 

 

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1    related to an offense for which the recording or intercept
2    is admissible under paragraph (4) of this subsection (q),
3    no part of the contents of the communication and evidence
4    derived from the communication may be received in evidence
5    in any trial, hearing, or other proceeding in or before
6    any court, grand jury, department, officer, agency,
7    regulatory body, legislative committee, or other authority
8    of this State, or a political subdivision of the State,
9    nor may it be publicly disclosed in any way.
10        (6.5) The Illinois State Police shall adopt rules as
11    are necessary concerning the use of devices, retention of
12    recordings, and reports regarding their use under this
13    subsection (q).
14        (7) Definitions. For the purposes of this subsection
15    (q) only:
16            "Forcible felony" includes and is limited to those
17        offenses contained in Section 2-8 of the Criminal Code
18        of 1961 as of the effective date of this amendatory Act
19        of the 97th General Assembly, and only as those
20        offenses have been defined by law or judicial
21        interpretation as of that date.
22            "Qualified offense" means and is limited to:
23                (A) a felony violation of the Cannabis Control
24            Act, the Illinois Controlled Substances Act, or
25            the Methamphetamine Control and Community
26            Protection Act, except for violations of:

 

 

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1                    (i) Section 4 of the Cannabis Control Act;
2                    (ii) Section 402 of the Illinois
3                Controlled Substances Act; and
4                    (iii) Section 60 of the Methamphetamine
5                Control and Community Protection Act; and
6                (B) first degree murder, solicitation of
7            murder for hire, predatory criminal sexual assault
8            of a child, criminal sexual assault, aggravated
9            criminal sexual assault, aggravated arson,
10            kidnapping, aggravated kidnapping, child
11            abduction, trafficking in persons, involuntary
12            servitude, involuntary sexual servitude of a
13            minor, or gunrunning.
14            "State's Attorney" includes and is limited to the
15        State's Attorney or an assistant State's Attorney
16        designated by the State's Attorney to provide verbal
17        approval to record or intercept conversations under
18        this subsection (q).
19        (8) Sunset. This subsection (q) is inoperative on and
20    after January 1, 2027 2023. No conversations intercepted
21    pursuant to this subsection (q), while operative, shall be
22    inadmissible in a court of law by virtue of the
23    inoperability of this subsection (q) on January 1, 2027
24    2023.
25        (9) Recordings, records, and custody. Any private
26    conversation or private electronic communication

 

 

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1    intercepted by a law enforcement officer or a person
2    acting at the direction of law enforcement shall, if
3    practicable, be recorded in such a way as will protect the
4    recording from editing or other alteration. Any and all
5    original recordings made under this subsection (q) shall
6    be inventoried without unnecessary delay pursuant to the
7    law enforcement agency's policies for inventorying
8    evidence. The original recordings shall not be destroyed
9    except upon an order of a court of competent jurisdiction;
10    and
11        (r) Electronic recordings, including but not limited
12    to, motion picture, videotape, digital, or other visual or
13    audio recording, made of a lineup under Section 107A-2 of
14    the Code of Criminal Procedure of 1963.
15(Source: P.A. 101-80, eff. 7-12-19; 102-538, eff. 8-20-21.)
 
16    (720 ILCS 5/33G-9)
17    (Section scheduled to be repealed on June 11, 2022)
18    Sec. 33G-9. Repeal. This Article is repealed on June 11,
192023 2022.
20(Source: P.A. 100-1, eff. 6-9-17.)
 
21    Section 99. Effective date. This Act takes effect upon
22becoming law.