No. 2--01--0491

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Du Page County.

		)

	Plaintiff-Appellant,	)

	)	No. 00-CF--2473

v.	)

	)

DANIEL G. ROAKE,	)	Honorable

	)	Ann Brackley Jorgensen,

	Defendant-Appellee.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE O'MALLEY delivered the opinion of the court:

	The State charged defendant, Daniel G. Roake, with two counts

of unlawful delivery of a controlled substance (720 ILCS 570/401(d)

(West 2000)).  Defendant filed a motion to suppress the contents of

certain tape recordings.  The trial court denied the motion in part

and granted it in part.  As to the part it granted, the court

determined that the oral application procedure that the police used

in seeking approval for the use of an eavesdropping device failed

to satisfy any of the procedures mandated by article 108A of the

Code of Criminal Procedure of 1963 (725 ILCS 5/108A--1 et seq. (West 2000)), the statute governing judicial supervision of the use

of eavesdropping devices where there is a consenting party (the

eavesdropping statute).  The State appeals and contends that the

application procedure that the police used was appropriate under

the statute's emergency procedures.  For the reasons that follow,

we agree and reverse the suppression order.

	At a hearing on the motion to suppress, defendant called

Robert Maloney as a witness.  Maloney, a Naperville police

detective assigned to drug investigations, testified that he was

involved in the investigation of a subject named John Groll.  Groll

was suspected of delivering a controlled substance known as

ecstasy.  Pursuant to his investigation of Groll, Maloney generated

three overhear applications and obtained three overhear orders

pursuant to the eavesdropping statute.  The orders authorized

overhears of conversations between Maloney, Groll, and unknown

others.  The orders authorized the overhears for periods from May

30, 2000, through June 9, 2000; from June 9, 2000, through June 19,

2000; and from June 19, 2000, through June 29, 2000.  

	During the course of his investigation of Groll, Maloney made

several undercover purchases of ecstasy from Groll.  One of these

purchases occurred on June 8, 2000.  The June 8 purchase was

overheard and recorded.  While the June 8 transaction was

occurring, defendant drove his car alongside Maloney and Groll and

said something that was overheard and tape-recorded.  Maloney

acknowledged that Groll had told him before the purchase that

associates of Groll would be nearby during the purchase.  Maloney

denied that he had ever heard defendant's name prior to the

conversation overheard on June 8.

	Maloney further testified that on June 22, 2000, pursuant to

a warrant, the police arrested Groll for the unlawful delivery of

91 ecstasy pills.  The arrest occurred at 6:23 p.m.  Groll was

taken to the Naperville police department, where other officers

interviewed him.  Around 7:30 p.m., the officers told Maloney that Groll was willing to cooperate and wear a wire to record

conversations that would occur between Groll and his sources. 

Groll told the police that he was expecting calls on his cell phone

from defendant and an individual named Dan Tierney; that defendant

and Tierney had supplied him with the 91 Eecstasy pills; and that

they would be calling him to make arrangements to get the money he

owed them for the pills.

	Maloney further testified that after the police learned that

Groll would cooperate with them and wear a wire they "tried getting

an emergency or amended order of overhear."  This was done when

another police officer, Sergeant. Guerreri, contacted Joe Ruggiero,

an assistant State's Attorney, Joseph E. Birkett, the State's

Attorney, and Judge Richard A. Lucas, a circuit court judge. 

Maloney was later informed that in a conference call between these

individuals Judge Lucas "approved the emergency amended portion of

the overhear [order]."  Maloney testified that he had begun

preparing a written application for an overhear order "but due to

time constraints when Mr. Roake wanted his money and the time when

Groll was supposed to drop it off, we did not have enough time to

get that done."  The State stipulated that on June 22, 2000, the

police did not submit a written application for authority to

overhear conversations involving defendant.

	Maloney further testified that there were two overhears of

defendant on June 22, 2000.  There was a telephone overhear at 9:04

p.m. and an in-person overhear at 10:33 p.m.   In the telephone

overhear, Groll spoke with defendant on the telephone while a

police officer placed his ear close to the telephone and listened to the conversation.  The in-person overhear involved conversations

between Groll and defendant that occurred after the telephone

overhear when Groll met with defendant and gave defendant the money

for the 91 Eecstasy pills and when defendant returned after

obtaining additional pills and delivered the pills to Groll. 

Defendant was then arrested.

	The next day, June 23, 2000, pursuant to a written

application, Maloney obtained a written overhear order from Judge

Lucas.  The written application was admitted into evidence as part

of defendant's exhibit "D."  The application is entitled

"APPLICATION FOR ORDER AMENDING AUTHORIZED USE OF EAVESDROPPING

DEVICE."  In the application, Maloney referred to attached copies

of at least two of the previous overhear orders that he had

obtained with respect to his investigation of Groll; outlined his

prior dealings with Groll that culminated in Groll's arrest;

described his prior involvement with defendant; described Groll's

agreement to cooperate with the police with respect to defendant

who was described as one of Groll's sources; and noted the efforts

of the police on June 22, 2000, to obtain an overhear order with

respect to defendant.  The application sought the amendment of an

unspecified overhear order to show Groll as a consenting party and

to show defendant as an additional person to be overheard

	The order that Judge Lucas signed on June 23, 2000, stated

that the Naperville police contacted him on June 22 at about 8:45

p.m., that the police informed him of the facts and circumstances

of the investigation as set out in the application, and that he

approved an amendment to an unspecified previous order to allow Groll as an additional consenting party and defendant as an

additional person to be overheard.  The order also stated that,

upon examination of the application, Judge Lucas found that Groll

and Mahoney consented to the use of an eavesdropping device and

willingly participated in the overheard conversations; that there

was reasonable cause to believe that the other parties

participating in the conversations were committing, had committed,

or were about to commit a felony offense; and that there was

reasonable cause to believe that particular conversations

concerning the felony offense or offenses would be obtained through

the use of an eavesdropping device.

	During arguments following the suppression hearing, the trial

court asked the State if it was arguing that the procedure the

police followed fell under the emergency section of the

eavesdropping statute.  The State responded that it was not arguing

under the emergency section of the statute and added:

	"If we had said this was an emergency and we went -- and it

would have been a lot easier to say this was an emergency, you

could bet everything you have that [defendant's attorney]

would be arguing today that this wasn't an emergency situation

because we could have got judicial approval.  Every time you

get an emergency eavesdrop, that's the defense's argument.  So

what we try to do is to get a judicial approval so that we

don't have to hear that argument.  So we did get judicial

approval.  Now we're here arguing this wasn't an emergency and

that we're conceding the fact because -- and they are using

the fact that we actually went to a judge first as a reason to try to suppress this evidence, which is absolutely backwards. 

Here we are trying to get a judge involved beforehand, and

it's being used against us."

	After taking the matter under advisement, the trial court

denied defendant's motion to suppress with respect to the

conversation of defendant that was overheard on June 8, 2000.  That

part of the trial court's ruling is not before us in this appeal. 

As was later clarified, the trial court granted the motion to

suppress with respect to the conversations of defendant that were

overheard both over the telephone and in person on June 22, 2000.

	The State filed a timely motion to reconsider arguing that the

procedure the police used should be deemed appropriate under the

emergency provisions of the eavesdropping statute.  The trial court

denied the motion to reconsider.  The State's timely notice of

appeal and certificate of impairment followed.  

	On appeal, the State contends that the trial court erred in

suppressing the June 22 overhears.  The State argues, as it did

below, that the procedure the police used should be deemed

appropriate under the emergency provisions of the eavesdropping

statute.  Defendant responds that, for various reasons including

his interpretation of the eavesdropping statute's emergency

provisions, the situation that occurred on June 22 was not an

emergency.  Defendant also argues that, even if the situation could

be deemed an emergency, the trial court's ruling was correct

because the police failed to comply with the requirements of the

emergency provisions of the statute.

	We initially address defendant's argument that the situation

was not an emergency because the police were in possession of

information as early as June 14, 2000, that an overhear order

specifically targeting defendant was necessary.  Defendant bases

this argument on the information in the written application that

Maloney submitted to Judge Lucas on June 23.  After reviewing this

information, we conclude that the information available to the

police prior to June 22 was not sufficient for the police to have

obtained judicial approval for an overhear involving defendant. 

Accordingly, defendant's argument is unavailing.

	We next address the parties' dispute as to whether the June 22

situation was an emergency under the eavesdropping statute.  This

dispute involves a question of statutory construction.

	The primary rule in statutory construction is to ascertain and

give effect to the legislature's intent.  To determine the

legislature's intent, courts should first look to the language of

the statute and accord the language its plain and commonly

understood meaning.  A court must not read into the plain language

exceptions, limitations, or conditions that the legislature did not

intend.  People v. Ellis, 199 Ill. 2d 28, 39, (2002).  Statutory construction is a question of law.  People v. Jurisec, 199 Ill. 2d 108, 1198 (2002).  Consequently, we employ a de novo standard of review with respect to an issue of statutory construction.  People ex rel. Devine v. $30,700.00 United States Currency, 199 Ill. 2d 142, 148-49 (2002).

	The eavesdropping statute that is in question here applies to

situations, such as the situation in this case, where one of the parties to a conversation consents to the monitoring of the

conversation.  725 ILCS 5/108A--1 (West 2000).  The eavesdropping

statute provides that every application for an order authorizing or

subsequently approving the use of an eavesdropping device must be

in writing.  725 ILCS 5/108A--3 (West 2000).

	With respect to emergency situations, section 108A--6 of the

eavesdropping statute provides:

		"Emergency Exception to Procedures.  (a) Notwithstanding

any other provisions of this Article, any investigative or law

enforcement officer, upon approval of a State's Attorney, or

without it if a reasonable effort has been made to contact the

appropriate State's Attorney, may use an eavesdropping device

in an emergency situation as defined in this Section.  Such

use must be in accordance with the provisions of this Section

and may be allowed only where the officer reasonably believes

that an order permitting the use of the device would issue

were there a prior hearing.

		An emergency situation exists when, without previous

notice to the law enforcement officer sufficient to obtain

prior judicial approval, the conversation to be overheard or

recorded will occur within a short period of time, the use of

the device is necessary for the protection of the law

enforcement officer or it will occur in a situation involving

a clear and present danger of imminent death or great bodily

harm to persons resulting from:  (1) a kidnapping or the

holding of a hostage by force or the threat of the imminent

use of force; or (2) the occupation by force or the threat of the imminent use of force of any premises, place, vehicle,

vessel or aircraft.

		(b) In all such cases, an application for an order

approving the previous or continuing use of an eavesdropping

device must be made within 48 hours of the commencement of

such use.  In the absence of such an order, or upon its

denial, any continuing use shall immediately terminate.

		In order to approve such emergency use, the judge must

make a determination (1) that he would have granted an order

had the information been before the court prior to the use of

the device and (2) that there was an emergency situation as

defined in this Section."  725 ILCS 5/108A--6 (West 2000).

	In this case, the parties disagree as to the proper

construction of the definition of an emergency situation in section

108A--6.  The State argues that the phrases in the definition that

involve (1) time constraints, (2) officer protection, and (3)

danger of death or great bodily harm should be read disjunctively.

Thus, under the State's construction, a situation that satisfies

any one of the phrases should be regarded as an emergency

situation.  Defendant takes the position that, in light of the

commonly understood meaning of the term "emergency," the phrases

should be interpreted to define an emergency situation as one that

involves the time constraints of the first phrase and also involves

either of the other phrases.

	The plain language of the statute supports the State's

argument.  A series of words or phrases with the last member of the

series separated by the word "or" implies that all the members of the series should be read in the disjunctive.  2A N. Singer,

Sutherland on Statutory Construction §47:38, at 402 (6th ed. 2000). 

That is the case with the series of phrases in question here.

	Interestingly, another example of the use of this principle

occurs within the very text in question.  The last part of the last

phrase in question, which states "the threat of the imminent use of

force of any premises, place, vehicle, vessel or aircraft," lists

a series of words with the last member of the series separated by

the word "or."  It is readily apparent that the members of this

list should be construed disjunctively.

	Further support for construing the phrases in question

disjunctively is found in a former version of section 108A--6. 

Effective September 1, 1989, the legislature amended the definition

of "emergency situation" in section 108A--6 by adding the final

phrase in the series of phrases that is in question here, i.e., the series of phrases in the current statute.  Before the amendment,

the definition contained only the first and second phrases and

these phrases were separated by the word "or" and were clearly

intended to be read disjunctively.  Public Act 86--763, eff.

September 1, 1989 (amending Ill. Rev. Stat. 1987, ch. 38, par.

108A--6).  Defendant does not contend that these phrases should not

have been read disjunctively prior to the amendment and offers no

explanation as to why the amendment would have changed such a

disjunctive reading.

	For these reasons, we conclude that the legislature intended

the three phrases in question within the definition of "emergency

situation" in section 108A--6 to be construed disjunctively.  We therefore agree with the State's argument that circumstances that

satisfy any one of the phrases are sufficient to constitute an

emergency situation within the meaning of section 108A--6.  

	The phrase at issue in this case is the time constraint phrase

in section 108A--6.  This phrase defines an emergency situation as

one where "the conversation to be overheard or recorded will occur

within a short period of time."  725 ILCS 5/108A--6 (West 2000). 

The parties disagree as to whether the June 22 situation satisfied

the time constraint phrase.  In the State’s view, the time from

when Maloney learned that Groll was willing to cooperate and that

Groll was expecting calls from defendant and Tierney, i.e., about 7:30 p.m. on June 22, until the time of the overhears in question, i.e., about 9:04 p.m. and about 10:30 p.m. on June 22, was too short for the police to obtain written approval for the overhears. 

In defendant's view, the time was sufficient for the police to

obtain written approval for the overhears.

	Two of this court's prior opinions are instructive on this

issue.  In one of the cases, this court determined that a 50-minute

period between the time that the police learned a supposed murder

for hire was to occur and the time the hit man was to meet the

person who solicited him was "the type of 'short period of time'

provided for in [section 108A--6]." People v. Schnurr, 206 Ill. App. 3d 522, 532 (1990).  In another case involving a hired murderer who went to the police, this court determined that the 21⁄2-

hour period between the time that the police learned that the hit

was going to occur that day and the time the hit man joined the

solicitor was sufficient to satisfy the time constraint phrase of section 108A--6.  People v. Seehausen, 245 Ill. App. 3d 506, 512 (1993).

	In this case, at 7:30 p.m. on June 22, the police learned that

Groll was willing to cooperate with them.  The police then began to

prepare a written application for judicial approval of an overhear

involving Groll and defendant.  However, the call between Groll and

defendant that the police overheard occurred at 9:04 p.m. on June

22.  This call then set in motion the in-person overhear that

occurred between Groll and defendant at about 10:30 p.m. on June

22.  We recognize that defendant also argues that there was no

emergency because nothing in the record shows why the meeting

between Groll and defendant had to be set up immediately.  However,

we believe the police could have reasonably inferred that unless

they acted immediately they might lose either Groll's willingness

to cooperate or the opportunity to arrange a meeting between Groll

and defendant, Groll's purported supplier.  Under these

circumstances, and with Schnurr and Seehausen in mind, we conclude that the time period that occurred between the police learning that

Groll was willing to cooperate and the times of the June 22

overhears was sufficiently short to satisfy section 108A--6.  Thus,

the circumstances that gave rise to the June 22 overhears

constituted an emergency situation that justified the emergency use

of the overhear devices.

	Defendant next contends that, even assuming, arguendo, that the circumstances did constitute an emergency situation under

section 108A--6, the trial court did not err in suppressing the

June 22 tapes because the State failed to follow the procedures mandated by section 108A--6.  The primary procedural defects that

the trial court relied on in making its ruling were the failure of

the police in the written application that they submitted to Judge

Lucas on June 23 to indicate that they sought approval for the use

of an overhear device on the basis of an emergency and the failure

of the judge to state in the order that he had determined that

there was an emergency situation.

	The record clearly shows that these procedural defects

occurred.  The application was defective because it indicated that

it sought to amend some unspecified prior overhear order.  But, as

the trial court correctly noted, the only provisions in the

eavesdropping statute that could reasonably be deemed to apply to

an oral application for approval of an overhear order are the

provisions in section 108A--6 that govern emergency situations.  By

failing to identify their application as one involving an

emergency, the police failed to comply with the statute.  The order

itself was likewise defective because it did not state that the

judge had determined that there was an emergency situation.  See

725 ILCS 5/108A--6(b) (West 2000).

	Thus the question before us is whether these technical defects

were sufficient to warrant the suppression of the recordings. 

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 with respect to all

requests and consents to the use of an eavesdropping device. 

People v. Bockman, 328 Ill. App. 3d 384, 388 (2002).  However, although the eavesdropping statute is to be strictly construed, not

all statutory violations require suppression.  People v. Ellis, 122 Ill. App. 3d 900, 904 (1984).

	Suppression is required only where there is a failure to

satisfy any of the statutory requirements that directly and

substantially implement the legislative intent to limit the use of

eavesdropping devices.  People v. Nieves, 92 Ill. 2d 452, 458 (1982).  Where there is a failure to comply with statutory

requirements, suppression depends on whether (1) the particular

safeguard is central to the legislative scheme of preventing

abuses; (2) the purpose the particular procedure was designed to

accomplish has been satisfied despite the error; and (3) the

statutory requirement was deliberately ignored and, if so, whether

the State gained any tactical advantage thereby.  People v. Rogers, 141 Ill. App. 3d 374, 379 (1986).

	In this case, the police were faced with an emergency

situation and sought and received approval from the State's

Attorney to use an eavesdropping device.  Under section 108A--6,

the police at that point had proper authority to use the device as

long as, within 48 hours of their use of the device, they submitted

a written application seeking judicial approval.  Here, the police

actually sought and received oral approval from a judge for the use

of the device before they used it.  The next day, the police then

submitted a written application for approval of the use of the

device.  Based on this written application, the judge then issued

an overhear order.

	Although these procedures were technically deficient as noted

above, we fail to see how the procedures abrogated any safeguard

that is central to the legislative scheme of preventing abuses, or

that statutory requirements were deliberately ignored, or, if so,

that the State gained any tactical advantage thereby.  Moreover,

the purpose the procedures were designed to accomplish, judicial

supervision of the use of eavesdropping devices, has been satisfied

despite the technical errors.  Therefore, while we certainly do not

condone the failure of the police to follow proper procedures, we

conclude that the technical errors in the procedures used in this

case did not require suppression.

	Accordingly, the part of the order of the circuit court of Du

Page County that granted defendant's motion to suppress the

recordings of the June 22, 2000, conversations is reversed.

	Reversed.

	BYRNE and GROMETER, JJ., concur.