Docket No. 104386.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

RANDALL COLEMAN, Appellant.

Opinion filed February 7, 2008.

JUSTICE FITZGERALD delivered the judgment of the court,

with opinion.

Chief Justice Thomas and Justices Freeman, Kilbride, Garman,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

Defendant Randall Coleman was arrested during a joint

federal/state narcotics investigation. He was charged in the circuit

court of Du Page County with two counts of unlawful delivery of a

controlled substance, convicted, and sentenced to 22 years’

imprisonment. His convictions and sentence were affirmed on appeal.

No. 2–05–0482 (unpublished order under Supreme Court Rule 23).

The central issue in this case is whether the trial court should have

suppressed audio recordings of conversations between the defendant

and the State’s confidential informant, which were authorized by

federal law, but violated the Illinois proscription against

eavesdropping. For the reasons that follow, we affirm.
-2-

BACKGROUND

In late 2001, the federal Bureau of Alcohol, Tobacco, Firearms

and Explosives (ATF), the Addison police department, the Wheaton

police department, and the Du Page County sheriff’s office began a

multiple jurisdiction narcotics investigation. During this investigation,

the defendant was arrested and indicted on two counts of unlawful

delivery of a controlled substance. Count I alleged that on August 7,

2003, the defendant delivered more than 15, but less than 100, grams

of cocaine, in violation of section 401(a)(2)(A) of the Illinois

Controlled Substances Act (720 ILCS 570/401(a)(2)(A) (West

2000)). Count II alleged that on August 4, 2003, the defendant

delivered more than one, but less than 15, grams of cocaine, in

violation of section 401(c)(2) of that act (720 ILCS 570/401(c)(2)

(West 2000)).

The defendant pleaded not guilty and filed a motion to suppress

audio recordings of conversations between himself and the State’s

confidential informant, Eugene Sanders. The motion alleged that the

recordings were obtained in violation of the eavesdropping statute

(720 ILCS 5/14–1 et seq. (West 2000)), and should be suppressed

under section 108A–9 of the Code of Criminal Procedure of 1963

(725 ILCS 5/108A–9 (West 2000)). The defendant acknowledged that

under federal law the recordings were obtained lawfully. He also

acknowledged that under Illinois case law recordings made during a

joint federal/state investigation are admissible regardless of whether

they comply with the eavesdropping statute, unless there is evidence

of collusion between federal and state agents to avoid the

requirements of that statute. The defendant contended that such

collusion existed because state agents had obtained authorization from

a state court in July and August 2003 with respect to a different

informant in this investigation. The trial court denied the defendant’s

motion.

At trial, Detective Dan Raysby of the Du Page County sheriff’s

office narcotics unit testified the investigation that led to the defendant

began in 2001 around the “open air drug market” at the Bradford

Court apartments in Addison, Illinois, and eventually targeted midlevel drug dealers in other municipalities. In July 2003, Raysby and

ATF Agent Tom Murphy met with Sanders, a dealer and a friend of

another informant used in this investigation, and Sanders agreed to
-3-

participate in a controlled purchase of narcotics from his supplier, the

defendant. Murphy obtained authorization for Sanders to wear a

recording device. When Raysby was asked on cross-examination

whether he sometimes chose the federal process because it was “easier

to obtain the overhear,” he disagreed:

“I wouldn’t do it because it’s easier. It’s because of what our

intentions were as in charging. So [if] this was going to be a

State case that I know the federal government would not be

interested in period, then I wouldn’t even bother with the

whole federal process. Because as much as it might be as you

characterized, easier to get a federal wire, it’s a pain. And I’d

much assume [sic] come in front of a state judge.

Now, with what I understood was that if you’re going to

charge someone federally, you believe you’re going to charge

someone federally, you need to go through the U.S.

Attorney’s Office and that’s what was done.”

Raysby testified that on August 4, 2003, he met Sanders at his

apartment in Glen Ellyn, Illinois. Sanders spoke with the defendant on

the telephone three times; Raysby recorded these conversations. At

4:15 p.m., Raysby searched Sanders, equipped him with a recording

device, and gave him $200 to purchase drugs from the defendant.

From a fence nearby, Raysby watched as a woman drove a sport

utility vehicle into the apartment building’s parking lot, where Sanders

was waiting. The defendant exited the vehicle and walked to an alley

behind the building with Sanders. The defendant soon returned to his

vehicle and left the parking lot. Sanders then gave Raysby a plastic

bag containing one-quarter of an ounce of crack cocaine. Sanders no

longer had the money that Raysby gave him. Raysby testified that he

maintained surveillance throughout this entire transaction.

Raysby further testified that on August 7, 2003, he again met

Sanders at his apartment. Sanders spoke with the defendant on the

telephone four times; Raysby recorded these conversations. At 3:30

p.m., Raysby searched Sanders, equipped him with a recording device,

and gave him $600 to purchase drugs from the defendant. Sanders

waited in the alley next to the apartment building, and the defendant

soon drove into the parking lot. Raysby watched, and videotaped, as

the defendant drove into the parking lot, exited his vehicle, walked to

the alley where Sanders was waiting, and handed him a plastic bag.
-4-

The defendant left the parking lot. Sanders then gave Raysby a plastic

bag containing three-quarters of an ounce of crack cocaine. Sanders

no longer had the money that Raysby gave him. Raysby maintained

surveillance throughout this transaction, and he recalled that Murphy

was present on August 4 and 7. The videotape was shown to the jury.

Next, Sanders testified. He stated that he had three prior felony

convictions: two convictions for possession of a controlled substance

and one for possession of a weapon by a felon. At the time of his

testimony, he was serving a prison sentence. In July 2003, Sanders

agreed to cooperate with Raysby and the ATF in order to avoid

investigation of his own activities, but he did not receive any

inducements to do so. At that time, Sanders had known the defendant

for two years, and had bought and sold drugs with him.

Sanders further testified that on August 4, 2003, he met with

Raysby at an apartment building in Glen Ellyn. Sanders made three

telephone calls to the defendant, all of which Raysby recorded. Raysby

then searched Sanders, equipped him with a recording device, and

gave him money. Sanders waited in the parking lot, and when the

defendant arrived, he exchanged money for crack cocaine. Sanders

gave the drugs to Raysby. On August 7, 2003, Sanders again met with

Raysby. Sanders made four telephone calls to the defendant, all of

which Raysby recorded. Raysby again searched Sanders, equipped him

with a recording device, and gave him money. He waited in the

parking lot, and when the defendant arrived, he exchanged the money

for crack cocaine. Sanders gave the drugs to Raysby.

Claire Donaghey, a forensic scientist for the Du Page County

sheriff’s office, testified there were 6.68 grams of cocaine in the bag

obtained on August 4 and 19.55 grams of cocaine in the bag obtained

on August 7.

William Cooley, a Wheaton police officer, testified that the

defendant was arrested on August 20, 2003. Cooley spoke with the

defendant in a squad car after his arrest. The defendant surmised that

someone had set him up. When Cooley asked the defendant if he

worked, the defendant responded that selling drugs is all he knows,

and all he is good at. The defendant did not admit that he sold drugs

to Sanders on August 4 and 7. The State rested its case. The

defendant presented Sanders’ “source of information” agreement into

evidence and also rested.
-5-

The jury found defendant guilty on both counts. The defendant

filed a posttrial motion, arguing that the trial court erred in denying his

motion to suppress. The court denied the defendant’s posttrial motion

and sentenced the defendant to 22 years’ imprisonment.

The appellate court affirmed, finding “no compelling reason to

abandon established case law that allows the admission of evidence

obtained in violation of the Illinois eavesdropping statute when it has

been obtained, absent collusion, in the course of a joint state and

federal investigation and is in compliance with federal law.” No.

2–05–0482 (unpublished order under Supreme Court Rule 23). The

court noted that for more than 20 years, Illinois courts have upheld

the admissibility of such evidence, and the legislature has remained

silent on this issue. No. 2–05–0482 (unpublished order under Supreme

Court Rule 23). We allowed the defendant’s petition for leave to

appeal. 210 Ill. 2d R. 315(a).

ANALYSIS

The central issue in this case is whether audio recordings of

conversations between the defendant and Sanders, which comply with

federal law, but violate the state eavesdropping statute, should have

been suppressed. The State contends that the defendant has forfeited

our review of this issue. According to the State, the defendant’s

suppression motion argued only that there was collusion between

federal and state authorities to circumvent the eavesdropping statute.

He never made the argument that he makes before this court–namely,

that this court should overturn appellate court cases holding that

electronic surveillance evidence gathered pursuant to federal law

during a joint federal/state investigation is admissible in an Illinois

trial. Essentially, the State asks us to reject the defendant’s appeal

simply because he never asked the trial court to depart from the

precedent he now challenges.

Certainly, to preserve an issue for appellate review, a defendant

must both object at trial and present the same issue in a written

posttrial motion. People v. Phelps, 211 Ill. 2d 1, 10-11 (2004). The

defendant did just that here. He argued before and after trial that the

audio recordings should be suppressed. The fact that he did not ask

the trial court to ignore appellate court precedent is unsurprising: the
 

1The defendant raises no federal constitutional issue in this case. Indeed,

there is no constitutional issue here: “[E]avesdrops made with one-party

consents are not in violation of the fourth amendment.” See People v.

O’Dell, 84 Ill. App. 3d 359, 364 (1980); accord People v. Woollums, 93 Ill.

App. 3d 144, 149 (1981).

-6-

decisions of our appellate court are binding on all circuit courts. See

People v. Harris, 123 Ill. 2d 113, 128 (1988). We turn to the merits

of the defendant’s appeal. Because there are no disputed facts, our

review proceeds de novo. People v. Pitman, 211 Ill. 2d 502, 512

(2004).

In 1968, Congress enacted Title III of the Omnibus Crime Control

and Safe Streets Act of 1968 (see 18 U.S.C. §2510 et seq. (2000)) in

response to Berger v. New York, 388 U.S. 41, 18 L. Ed. 2d 1040, 87

S. Ct. 1873 (1967), and Katz v. United States, 389 U.S. 347, 19 L.

Ed. 2d 576, 88 S. Ct. 507 (1967), where the Supreme Court

articulated certain fourth amendment problems inherent in

wiretapping.1 Title III protects the privacy of oral and wire

communications and provides uniform conditions for the interception

of such communications. See Senate Report on the Omnibus Crime

Control and Safe Streets Act of 1968 (Judiciary Committee), S. Rep.

No. 90–1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153.

This statute prohibits recording conversations when neither party

consents, but it provides: “It shall not be unlawful under this chapter

for a person acting under color of law to intercept a wire, oral, or

electronic communication, where such person is a party to the

communication or one of the parties to the communication has given

prior consent to such interception.” 18 U.S.C. §2511(2)(c) (2000).

Title III, thus, does not require federal agents to obtain a court order

before wiring a confidential informant.

Congress intended to preempt this area, but specifically permitted

concurrent state regulation. See 18 U.S.C. §2516(2) (2000). That is,

states may adopt standards more stringent than those in Title III. See

Commonwealth v. Vitello, 367 Mass. 224, 246, 327 N.E.2d 819, 832-

33 (1975). The Illinois General Assembly has enacted a rigorous

eavesdropping statute, which prohibits recording conversations unless

all the parties consent or one party consents and prior judicial
-7-

authorization is obtained. Section 14–2(a) of the Criminal Code of

1961 provides:

“A person commits eavesdropping when he:

(1) Knowingly and intentionally uses an eavesdropping

device for the purpose of hearing or recording all or any

part of any conversation or intercepts, retains, or

transcribes electronic communication unless he does so

(A) with the consent of all of the parties to such

conversation or electronic communication or (B) in

accordance with Article 108A or Article 108B of the

‘Code of Criminal Procedure of 1963’ ***.” 720 ILCS

5/14–2 (West 2004).

Article 108A concerns the judicial supervision of the use of

eavesdropping devices, and article 108B concerns electronic criminal

surveillance. Section 108A–9(a)(1) and section 108B–12(c)(1) both

provide that an aggrieved person may file a motion to suppress any

conversation that was recorded or intercepted in violation of the

eavesdropping statute. See 725 ILCS 5/108A–9(a)(1), 108B–12(c)(1)

(West 2000); see also 720 ILCS 5/14–5 (West 2000). Here, there is

no question that the recordings violate that statute: the defendant did

not consent, and the recording was not authorized by a judge. But

there is also no question that the recordings do not violate federal law.

In People v. Fidler, 72 Ill. App. 3d 924 (1979), federal agents

recorded conversations between a confidential informant and the

defendant. Armed with these conversations, the agents obtained a

warrant to search the defendant’s home for stolen postal money

orders, but found drugs instead. The agents gave the drugs to the

State, which prosecuted the defendant for unlawful possession of a

controlled substance and unlawful possession of cannabis. The trial

court suppressed the drugs.

The appellate court reversed, holding that the purpose of the

exclusionary rule–“to deter law enforcement officers from violating

the constitutional rights of citizens by removing the incentive for

disregarding such rights”–would not be served by barring this

evidence. Fidler, 72 Ill. App. 3d at 926. The court stated, “the

eavesdropping was conducted entirely by Federal officers who

complied with the applicable Federal statute, and acted pursuant to an
-8-

investigation of a violation of Federal law.” Fidler, 72 Ill. App. 3d at

926. The federal agents’ actions were entirely lawful, and the record

contained no evidence that the federal and state agents colluded to

avoid the requirements of the Illinois eavesdropping statute. Fidler,

72 Ill. App. 3d at 926. Accordingly, concluded the court, “[t]he only

result of the entry of the suppression order in this case is that it

prevents highly probative evidence from being available to the finder

of fact in a criminal trial.” Fidler, 72 Ill. App. 3d at 926.

People v. Manna, 96 Ill. App. 3d 506 (1981), extended the rule in

Fidler. In Manna, federal agents recorded conversations between a

confidential informant and the defendant, while state agents protected

them. The court held that, in the absence of “a collusive attempt to

evade the Illinois eavesdropping statute,” the defendant’s motion to

suppress the recordings was properly denied. Manna, 96 Ill. App. 3d

at 516. Finally, in People v. Winchell, 140 Ill. App. 3d 244, 246-47

(1986), the appellate court held in a joint federal/state investigation,

where state agents have an active role, audio recordings are not

inadmissible where there is federal authorization for the use of an

eavesdropping device. The court noted:

“The eavesdropping in the instant case was carried out by

both State and Federal agents, who complied with Federal law

but ignored Illinois directives. This fact arguably sets apart the

present circumstances from those in [Manna and Fidler].

However, because the record is devoid of any collusion to

avoid the Illinois requirements, and none has been suggested,

we believe that the analysis of the court in Manna and Fidler

requires us to conclude that the tape recording of defendant’s

conversation with the undercover agents was properly

admitted into evidence.” Winchell, 140 Ill. App. 3d at 246-47.

Subsequent Illinois cases are all in accord. See People v. Burnom, 338

Ill. App. 3d 495, 509 (2003); People v. Laliberte, 246 Ill. App. 3d

159, 175 (1993); People v. Barnes, 230 Ill. App. 3d 272, 274-75

(1992); People v. Hodge, 220 Ill. App. 3d 886, 889 (1991); People v.

Mays, 188 Ill. App. 3d 974, 979-80 (1989).

The defendant argues that these Illinois cases were wrongly

decided. According to the defendant, because the federal statute did

not explicitly preempt the eavesdropping statute, the audio recordings

here are inadmissible in state court unless they comport with state law.
-9-

And state law, asserts the defendant, is clear: the eavesdropping

statute’s plain language indicates that unless there is prior judicial

approval, all parties must agree to have their conversation recorded.

See 720 ILCS 5/14–2(a) (West 2000); see also People v. Bockman,

328 Ill. App. 3d 384, 388 (2002) (“Because Illinois citizens are

entitled to be safeguarded from unnecessary governmental surveillance

and other unreasonable intrusions into their privacy, the statutory

restraints on eavesdropping must be strictly construed”); People v.

Nunez, 325 Ill. App. 3d 35, 45 (2001).

The defendant asserts that numerous cases, both federal and state,

have held that whenever a state chooses to enact a wiretapping statute

that is more restrictive than the federal wiretapping statute, the state

and its law enforcement officers must adhere to the minimum

procedural requirements of both statutes. The defendant chiefly relies

upon People v. Jones, 30 Cal. App. 3d 852, 106 Cal. Rptr. 749

(1973), and State v. Williams, 94 Wash. 2d 531, 617 P.2d 1012

(1980). In Jones, the California appellate court held that Title III did

not preempt state legislation on electronic evidence: “The purpose of

the federal law is twofold: to protect the privacy of wire and oral

communications; and to establish uniform standards for judicial

authorization of an invasion of that privacy [citation]. The California

law requiring exclusion of evidence does not conflict with these

provisions of the federal law.” Jones, 30 Cal. App. 3d at 855, 106 Cal.

Rptr. at 751. In Williams, the Washington Supreme Court agreed that

the federal wiretap statute did not preempt the more rigorous state

privacy act. Williams, 94 Wash. 2d at 539, 617 P.2d at 1017.

Contrary to the defendant’s argument, neither Jones nor Williams

creates a broad rule that a joint federal/state investigation must

comply with both federal and state law on wiretaps. Instead, Jones

and Williams stand for the unremarkable proposition that Title III

does not preempt state legislation on eavesdropping. Though the

recordings here violate the eavesdropping statute, they are not

inadmissible pursuant to case law interpreting that statute. As the

State correctly notes, when a court interprets a statute and the

legislature does not amend it to supersede that judicial gloss, we

presume that the legislature has acquiesced in the court’s

understanding of legislative intent. See People v. Hairston, 46 Ill. 2d

348, 353 (1970). Here, the General Assembly has remained silent
-10-

following a line of cases spanning nearly 30 years. Its inaction

indicates that these appellate court cases are not contrary to its intent.

Further, Jones and Williams, unlikeFidler and its progeny, do not

discuss the purpose of the exclusionary rule. We have held that the

eavesdropping statute will exclude evidence only if it was gathered in

a criminal manner. See People v. Barrow, 133 Ill. 2d 226, 257 (1989);

People v. Gaines, 88 Ill. 2d 342, 364 (1981). Here, the authorization

to wire Sanders was obtained pursuant to federal law by an ATF agent

based on Sander’s consent. Under the supremacy clause (U.S. Const.,

art. IV, cl. 2), the eavesdropping statute could not outlaw the

activities of the federal agents. See United States v. Hall, 543 F.2d

1229, 1232 (9th Cir. 1976). If the primary purpose of the exclusionary

rule is to deter future police misconduct (see People v. Wright, 183

Ill. 2d 16, 25 (1998)), then it does not serve the interests of justice to

suppress electronic surveillance evidence gathered pursuant to federal

law during a joint investigation. See Fidler, 72 Ill. App. 3d at 926;

Basham v. Commonwealth, 675 S.W.2d 376, 379 (Ky. 1984) (“if the

federal wiretap conformed to the requirements of the Federal Wiretap

Statute, the evidence was not obtained illegally and the ‘exclusionary

rule’ for suppression of evidence illegally obtained by police officers

or prosecutors by means constitutionally impermissible is not

involved”);Commonwealth v. Bennett, 245 Pa. Super. 457, 462, 369

A.2d 493, 495 (1976) (“No useful purpose whatsoever would be

served by denying the Commonwealth the use of this information”).

We reaffirm the rule from our appellate court that electronic

surveillance evidence gathered pursuant to federal law, but in violation

of the eavesdropping statute, is not inadmissible absent evidence of

collusion between federal and state agents to avoid the requirements

of state law. Collusion has been defined as a “ ‘ “secret agreement;

secret cooperation for a fraudulent or deceitful purpose.” ’ ” See

Burnom, 338 Ill. App. 3d at 509, quoting Hodge, 220 Ill. App. 3d at

889, quoting Webster’s Third New International Dictionary 446

(1986); see also Basham, 675 S.W.2d at 381-82 (stating that the

cloud of collusion would arise if there were no federal investigation or

no federal offense in progress); State v. Minter, 116 N.J. 269, 284,

561 A.2d 570, 578 (1989) (listing questions probative of collusion).

Here, at the hearing on the defendant’s motion to dismiss, defense

counsel conceded that he could not present any evidence of collusion.
-11-

Indeed, we find no such evidence in the record. As Raysby explained,

the investigation was intended to result in a federal prosecution.

Federal agents and state agents were working together to target

dealers who would hopefully then turn on their suppliers. Such

cooperation does not constitute collusion (Barnes, 230 Ill. App. 3d at

276), and it should be encouraged, “not deterred under the guise of a

conspiracy or plot to evade the State criminal code” (Hodge, 220 Ill.

App. 3d at 889).

CONCLUSION

For the reasons that we have discussed, we affirm the judgment of

the appellate court.

Affirmed.