No. 2--00--0851

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

	Plaintiff-Appellee,

v.

JESUS B. NUNEZ,

	Defendant-Appellant.

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Appeal from the Circuit Court of

McHenry County.

No.  97--CF--1012

Honorable

Thomas A. Schermerhorn, Sr.,

Judge, Presiding.

JUSTICE GROMETER delivered the opinion of the court: 

	Defendant, Jesus B. Nunez, appeals from the judgment of the circuit court

of McHenry County, dismissing his petition for relief under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 1998)).  Defendant argues on appeal that the trial court erred in summarily dismissing his petition, which

alleged the ineffective assistance of trial and appellate counsel in violation

of his federal and state constitutional rights.  U.S. Const., amends. VI, XIV;

Ill. Const. 1970, art. I, §2.  More specifically, defendant claims that he was

denied the effective assistance of trial counsel because his attorney failed to

make a pretrial challenge to the admission of audio and video recordings obtained

pursuant to an order for a consensual overhear.  Defendant further argues that

appellate counsel was ineffective for failing to raise trial counsel's error on

direct appeal.  For the reasons that follow, we reverse the judgment of the

circuit court and remand the cause for an evidentiary hearing.

	BACKGROUND

	On August 28, 1997, defendant was indicted for unlawful possession with

intent to deliver a controlled substance (720 ILCS 570/401(a)(2)(D) (West 1996))

and criminal drug conspiracy (720 ILCS 570/405.1 (West 1996)).  At defendant's

bench trial, the State's principal witness was Steven Schalk.  Prior to

defendant's indictment, Schalk had been arrested with three kilograms of cocaine

in his possession and had been charged with unlawful possession of a controlled

substance with intent to deliver.  Following his arrest, Schalk spoke with agents

of the North Central Narcotics Task Force (Task Force) and agreed to become a

confidential informant working under the name of "Tim Seymour."  The Task Force

devised a "reverse buy" sting operation under which Schalk would "sell" large

amounts of a controlled substance to individuals believed to be trafficking

illegal drugs.  Defendant's son was identified as one of the targets of the

sting.  However, Schalk testified that, upon learning that defendant's son was

in jail, Task Force agents told him to pursue defendant.

	As part of the sting operation, Cindy Schultz, then a Task Force agent,

filed a "Petition for Order Authorizing Use of Eavesdropping Device" (petition)

pursuant to section 108A--3 of the Code of Criminal Procedure of 1963 (Code) (725

ILCS 5/108A–3 (West 1996)).  The petition identified "Tim Seymour" as the party to the expected conversation consenting to the use of the eavesdropping device. 

Attached to the petition was the State's Attorney's authorization for a petition

and order approving the use of an eavesdropping device and an affidavit signed

by Schultz.  Schultz's affidavit indicated that Tim Seymour agreed to participate

in the sting operation.  Also attached to the petition was a document signed by

Tim Seymour consenting to be subject to electronic surveillance.  Based on

Schultz's petition, a judge issued an order (consensual overhear order) authorizing the use of an eavesdropping device for the purpose of overhearing and

recording conversations between Tim Seymour and others.

	Early in August 1997, Schalk and defendant had several conversations

discussing matters related to the sale.  A number of these conversations were

recorded pursuant to the consensual overhear order.  Eventually, defendant and

Schalk agreed to meet at Schalk's apartment, at which time a third party, later

identified as Christopher Adams, would purchase a kilogram of cocaine.  In

reality, the Task Force had rented the apartment and equipped it with hidden

video equipment.  Once inside the apartment, Adams handed Schalk an undisclosed

amount of cash.  Schalk then retrieved the cocaine and handed it to defendant. 

Defendant held the cocaine briefly before placing it on a table.  As Adams

continued to count some other monies, defendant again picked up the package and

held it for a few seconds.  A loud noise then came from somewhere inside the

apartment.  Defendant placed the package on the table and looked for the source

of the noise.  Within seconds, Task Force agents entered the room and arrested

defendant and Adams.

	Defendant's bench trial commenced on March 17, 1998.  In addition to

Schalk, a forensic chemist, Schultz, and three other Task Force agents testified

at defendant's trial.  During Schalk's testimony, the State attempted to play the

audio tapes and the videotape obtained pursuant to the consensual overhear order. 

Defense counsel moved to suppress the recordings, arguing that the documents

submitted to obtain the consensual overhear order identified the party consenting

to the use of the eavesdropping device as "Tim Seymour," rather than Schalk. 

Defendant claimed that the Task Force was untruthful by failing to identify the

true party consenting to electronic surveillance.  The motion further alleged

that the petition violated section 108A--3 of the Code by failing to include the identity of the party consenting to the use of an eavesdropping device.  The

State, however, contended that prior to trial it (1) provided defendant with

discovery materials indicating that Schalk was the confidential informant and (2)

defense counsel was given the opportunity to meet with Schalk.  Thus, the State

argued that defendant's motion was untimely.  The trial court denied the motion

to suppress without an evidentiary hearing.  The court noted that defendant was

not surprised by the fact that Schalk was the confidential informant. 

Accordingly, the audio tapes and the videotape were presented at defendant's

trial. 

	The trial court found defendant guilty of unlawful possession of a

controlled substance with intent to deliver.  Defendant was sentenced to 24

years' imprisonment and ordered to pay a fine of $25,000.  Defendant filed a

motion for a new trial, which the trial court denied.  On direct appeal,

defendant was represented by the same law firm.  Among the issues raised by

appellate counsel was that the trial court erred in refusing to address and

decide his motion to suppress the audio and video recordings.  We held that the

trial court did not abuse its discretion in denying defendant's motion to

suppress without an evidentiary hearing.  We explained that defendant's motion

was untimely because defendant was aware of the true identity of the informant

at least two months prior to trial.  Accordingly, we affirmed defendant's

conviction and sentence (People v. Nunez, No. 2--98--0812 (1999) (unpublished order under Supreme Court Rule 23)).  Subsequently, our supreme court denied

defendant's petition for leave to appeal (People v. Nunez, 188 Ill. 2d 577 (2000)).

	Defendant then obtained new counsel, and, on May 2, 2000, he filed his

petition for postconviction relief.  Defendant argued that he was denied the effective assistance of trial counsel because his attorney failed to make a

pretrial challenge to the admission of the audio and video recordings obtained

through the consensual overhear order.  In addition, defendant argued that

appellate counsel was ineffective for failing to raise trial counsel's error on

appeal.  The trial court found that defendant's petition was patently without

merit and dismissed it without an evidentiary hearing.  This appeal ensued.

DISCUSSION

	Defendant claims that he was entitled to an evidentiary hearing to assess

the validity of his claim that he was denied the effective assistance of trial

and appellate counsel.

	As a preliminary matter, we note that postconviction petitions are reserved

for constitutional issues that have not been, and could not have been, previously

adjudicated.  People v. Eddmonds, 143 Ill. 2d 501, 510 (1991).  Thus, as a general rule, all issues that could have been presented on direct appeal, but

were not, are deemed waived for purposes of postconviction review.  People v. Page, 193 Ill. 2d 120, 130 (2000).  The waiver rule is relaxed, however, where (1) fundamental fairness so requires, (2) the alleged waiver stems from the

incompetence of appellate counsel, or (3) the facts relating to the claim do not

appear on the face of the original appellate record.  People v. Hobley, 182 Ill. 2d 404, 428 (1998).  In this case, defendant argues ineffective assistance of

trial and appellate counsel.  Accordingly, any waiver stemmed from the actions

of appellate counsel, and we will address the issues raised by defendant.

	Of course, unless trial counsel’s performance is found to be ineffective,

defendant has suffered no prejudice from appellate counsel’s failure to challenge

trial counsel’s competency.  See People v. Towns, 182 Ill. 2d 491, 523 (1998).  Moreover, in the instant case, the record reveals that the same law firm represented defendant at trial and on direct appeal.  Under these circumstances,

it would be unreasonable to expect appellate counsel to raise and argue his own

incompetency.  People v. Gaines, 105 Ill. 2d 79, 91 (1984).  Accordingly, we need only address whether counsel’s performance at trial was deficient.

	The Act provides a collateral remedy by which criminal defendants may challenge their convictions or sentences for violations of federal or state

constitutional law.  People v. Barrow, 195 Ill. 2d 506, 518-19 (2001).  However, a postconviction petitioner is not entitled to an evidentiary hearing as a matter

of right.  Barrow, 195 Ill. 2d at 519.  Instead, an evidentiary hearing is warranted only when the allegations of the postconviction petition, supported

when necessary by the trial court record or accompanying affidavits, make a

substantial showing that the defendant's constitutional rights have been

violated.  People v. Haynes, 192 Ill. 2d 437, 465 (2000); Towns, 182 Ill. 2d at 503.  In a postconviction proceeding, the defendant bears the burden of proving

that a substantial constitutional violation occurred (People v. Mahaffey, 194 Ill. 2d 154, 170 (2000)), and all well-pleaded facts in the petition are to be

taken as true (People v. Caballero, 126 Ill. 2d 248, 259 (1989)).  The dismissal of a postconviction petition without an evidentiary hearing is subject to de novo review.  People v. Coleman, 183 Ill. 2d 366, 387-88 (1998).

	Defendant asserts that he was denied the effective assistance of trial

counsel because his attorney failed to file a pretrial motion to suppress the

audio tapes and the videotape obtained pursuant to the consensual overhear order. 

As grounds for suppression, defendant claims that the consensual overhear order

was improperly obtained because it failed to name the true identity of the party

to the expected conversation consenting to the use of the eavesdropping device. 

According to defendant, trial counsel was aware well before trial that Schalk worked as a confidential informant for the Task Force under the name of "Tim

Seymour."  Yet, trial counsel did not move to suppress the recordings obtained

pursuant to the consensual overhear order until after Schalk began testifying. 

Defendant notes that section 108A--3 of the Code is to be strictly construed

(People v. Monoson, 75 Ill. App. 3d 1, 6 (1979)) and that the failure to challenge improperly obtained evidence has been found to result in incompetent

representation (see People v. Brinson, 80 Ill. App. 3d 388 (1980)).  Defendant further asserts that there is a reasonable probability that had trial counsel

timely challenged the recordings, they would have been suppressed and the outcome

of the trial would have been different.

	In response, the State argues that defendant is unable to show that he was

prejudiced by trial counsel's failure to timely file the motion to suppress. 

More specifically, the State contends that, even had trial counsel had the opportunity to argue the merits of the motion to suppress, defendant would not

have prevailed.  The State further asserts that, assuming defendant had prevailed

on his motion to suppress the audio and video recordings, the proof against

defendant was so overwhelming that the result of the proceeding would not have

been different.

	To determine whether a defendant was denied the effective assistance of

counsel, we apply the two-prong test developed by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504, 526 (1984).  To prevail on a claim of ineffective assistance of counsel, the defendant must

show both that (1) counsel's performance was deficient and (2) the deficient

performance prejudiced the defendant such that he was deprived of a fair trial. 

Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.  The failure to satisfy either prong of the Strickland test precludes a finding of ineffective assistance of counsel.  People v. Patterson, 192 Ill. 2d 93, 107 (2000).

	To satisfy the deficient-performance prong of Strickland, a defendant must show that his counsel's performance was so inadequate that counsel was not

functioning as the "counsel" guaranteed by the sixth amendment.  People v. Erickson, 183 Ill. 2d 213, 223 (1998).  Counsel's performance is measured by an objective standard of competence under prevailing professional norms.  People v. Smith, 195 Ill. 2d 179, 188 (2000).  There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance

(Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065), and, as a general rule, matters of trial strategy, such as whether to file a motion to

suppress, are immune from claims of the ineffective assistance of counsel (People v. Fernandez, 162 Ill. App. 3d 981, 987 (1987)).  Nevertheless, where such a motion is appropriate, the failure to file a motion to suppress will constitute

ineffective assistance.  See, e.g., Fernandez, 162 Ill. App. 3d at 988-89 (finding ineffective assistance of trial counsel for failure to file motion to

suppress confessions of mentally handicapped defendants); Brinson, 80 Ill. App. 3d at 393-94 (finding ineffective assistance of trial counsel for failure to file motion to suppress (1) suggestive identification evidence and (2) confession

where defendant claimed coercion).

	To establish the prejudice prong of Strickland in the context of a motion to suppress, a defendant must show that a reasonable probability exists both that

the motion would have been granted and that the outcome of the trial would have

been different had the evidence been suppressed.  People v. Orange, 168 Ill. 2d 138, 153 (1995); People v. Myers, 246 Ill. App. 3d 542, 545 (1993). " ' A reasonable probability is a probability sufficient to undermine confidence in the

outcome.' "  Erickson, 183 Ill. 2d at 224, quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

	We find that defendant’s petition for postconviction relief makes a

substantial showing of both the deficient-performance and prejudice prongs of the

Strickland test.

	We begin our analysis with the deficient-performance prong.  A motion to

suppress evidence obtained from electronic surveillance should be made before

trial unless the opportunity did not exist or the defendant was not aware of the

grounds for the motion.  725 ILCS 5/108A–9(b) (West 1996).  In the instant case, there was no evidence that the opportunity did not exist to present a motion to

suppress prior to trial. Indeed, defense counsel filed other pretrial motions,

including a motion to dismiss based upon a speedy trial violation.

	Upon presenting the motion to suppress, however, defense counsel asserted

that it was not until the first day of trial that he learned that the true

identity of the Task Force's confidential informant was Schalk.  However, as

defendant notes, the record discloses otherwise.  On October 16, 1997, defense

counsel first received a copy of the petition.  The petition identified the

confidential informant as "Tim Seymour."  At a hearing on October 30, 1997,

defense counsel acknowledged that there was "an issue whether or not [the

confidential informant] is the actual individual who is identified by name." 

Further, at a pretrial hearing on January 26, 1998, defense counsel called Schalk

to testify.  During the direct examination, the following colloquy ensued between

defense counsel and Schalk:

		"Q.  State your name and spell your last name for the reporter.

		A.  Steven Allen Schalk.  S-c-h-a-l-k.

		Q.  And did you at one point in time begin to work with North

Central Narcotics Task Force and identify yourself as Tim Seymour?

		A.  Yes.

		Q.  You were in fact a confidential informant in the case of People

v. Jesus Nunez, Sr.?

		A.  Yes."

	This evidence clearly demonstrates that, at least two months prior to

trial, defense counsel was aware that Schalk was the confidential informant

working under the name of Tim Seymour.  We can conceive of no sound trial

strategy under which trial counsel would delay filing the motion to suppress

until after defendant's trial commenced.  Obviously, defense counsel did not

believe that filing a motion to suppress was contrary to his trial strategy or

that it would have been futile, or he would not have bothered to raise the issue

during the course of defendant's trial.  See People v. Robinson, 299 Ill. App. 3d 426, 435 (1998) ("trial counsel's failure to file a motion to suppress does

not establish incompetent representation, especially when that motion would be

futile").  Under these circumstances, we conclude that defendant has pleaded sufficient facts to support a finding that counsel's failure to timely present

the motion fell below an objective standard of reasonableness.

	We now turn to Strickland’s prejudice prong.  Section 108A--3 of the Code (725 ILCS 5/108A--3 (West 1996)) outlines the procedure for obtaining judicial

approval of the use of an eavesdropping device.  Relevant here is section 108A--

3(a)(2)(c) (725 ILCS 5/108A--3(a)(2)(c) (West 1996)), which provides:

		"§ 108A--3.  Procedure for Obtaining Judicial Approval of Use of

Eavesdropping Device.  (a) Where any one party to a conversation to occur

in the future has consented to the use of an eavesdropping device to overhear or record the conversation, a judge may grant approval to an

application to use an eavesdropping device pursuant to the provisions of

this section.

		Each application for an order authorizing or subsequently approving

the use of an eavesdropping device shall be made in writing ***.  Each

application shall include the following:

		***

		(2) a statement of the facts and circumstances relied upon by the

applicant to justify his belief that an order should be issued including:

*** (c) the identity of the party to the expected conversation consenting

to the use of an eavesdropping device ***." 725 ILCS 5/108A--3(a)(2)(c)

(West 1996).

	Section 108A--3 of the Code must be strictly construed.  Monoson, 75 Ill. App. 3d at 6.  It is undisputed that the party applying for a consensual overhear

order is not statutorily required to reveal the true identity of the party

consenting to the overhear.  For instance, in People v. Manuel, 294 Ill. App. 3d 113 (1997), the State's application for consensual overhear named its

confidential informant as "Larry Wayne (alias)."  The trial court denied the defendant's motion to suppress the recordings obtained pursuant to the consensual

overhear order.  On appeal, the defendant argued that the State's use of an alias

to identify the party consenting to the overhear was improper.  The appellate

court disagreed.  The court pointed out that section 108A--3(a)(2) does not

require the consenting party to be identified in any particular way.  Manuel, 294 Ill. App. 3d at 122.  The court further stated that the use of an alias is

acceptable "where the issuing judge is told the name is fictitious."  Manuel, 294 Ill. App. 3d at 122.  Finally, the court explained that, since the State gained no tactical advantage by using an alias, any technical defect in the State's

compliance with the statutory requirements of section 108A--3 did not require

suppression.  Manuel, 294 Ill. App. 3d at 123.

	Similarly, in People v. Gonzalez, 313 Ill. App. 3d 607 (2000), police procured a consensual overhear order.  The application identified the consenting

party as "Mike Martinez (not his real name)."  At trial, the defendant filed a

motion to suppress the recordings obtained pursuant to the consensual overhear

order, challenging the propriety of the order on the basis that the alleged

consenting party was identified by an alias.  The trial court rejected the

defendant's argument, and this court affirmed.  Relying on Manuel, we noted that the trial court was aware that a fictitious name was being used, and there was

no indication that the police were trying to mislead the court.  Gonzalez, 313 Ill. App. 3d at 614.

	We note that the Manuel decision was decided before defendant's trial commenced.  As discussed above, under Manuel, the use of an alias is acceptable "where the issuing judge is told the name is fictitious."  Manuel, 294 Ill. App. 3d at 122.  In this case, there was no evidence that the judge issuing the order for consensual overhear was aware that the confidential informant listed on the

petition was using an assumed name.  Unlike Manuel and Gonzalez, the application for the use of an eavesdropping device in this case did not indicate that the

party consenting to the consensual overhear was using a fictitious name. 

	Moreover, although contradicted at trial by Task Force agents, Schalk

testified at trial that he never signed the consent form using the alias "Tim

Seymour."  The purpose of the eavesdropping statute is to ensure that all

eavesdropping is subject to judicial supervision and to prevent unwarranted

intrusions into an individual’s privacy.  Monoson, 75 Ill. App. 3d at 8.  We are unable to see how a judge can render proper supervision when the judge does not

know the true identity of the individual consenting to be subject to

eavesdropping or at least that the individual was operating under an assumed

name.  In light of these factors, and the fact that section 108A--3 is to be

strictly construed, we find that there is a reasonable probability that the motion to suppress would have been granted.

	Without the recordings, especially the videotape, it is evident that there

is a reasonable probability that the result of the trial would be different.  In

denying defendant's motion for a directed finding on the possession-with-intent-

to-deliver charge, the trial court referenced the videotape, stating:

	"In our case we have the tapes which have all been admitted, the

audiovisual tape, and in looking at the audiovisual tape, [defendant] and

Mr. Schalk and [a] third unknown person are in the apartment.  It's at

that time Mr. Schalk is at the table with this unknown third person.

	The unknown third person gives Mr. Schalk some money.  Mr. Schalk

looked at the money, put it on the table.  The unknown third person

counted out the other parcel of the money that he retained.  At that point

Schalk left the view of the camera, came back with the package [of

cocaine], which is in evidence as 6C, was wrapped in duct tape [sic].  He gave that package to [defendant].

	[Defendant] had it physically in his hand, took it over to the

table, put it on the table, kept his hands on the package.  The only time

he took his hands off the package is when he heard some noises.  At that

moment the officers moved in on the arrest of the unknown third person,

[defendant] and Mr. Schalk.

	There is no question in my viewing that tape, which I have viewed

several times [sic,],]] that [defendant] in fact had possession of State's

Exhibit 6C ***.  There was no condition to this sale.  The sale had been

consummated, the money had changed hands.  He had it in his hand.  The

agents move in."

	Similarly, in pronouncing defendant guilty of possession of a controlled

substance with intent to deliver, the trial court made the following comments:

		"[I]n reviewing the audio videotape there is no question that Mr.

Schalk handed to [defendant] State's Exhibit 6 C.  This was handed to him

after the unidentified person in this case had given some money to Mr.

Schalk, counted some other monies, and left them on the table ***.

[Defendant] took possession of 6 C, brought it to the table, had his hands

on it.  He removed his hands from 6 C when he heard some noises which

immediately precipitated the entry into the apartment by [Task Force]

personnel.

		Based on my review of the tape and the evidence beyond a reasonable

doubt there was a knowing intent by [defendant] for the possession with

the intent to deliver the controlled substance, the possession being

unlawful.  There will be a finding of guilty on that count."

	It is clear from the trial court's comments that it heavily relied on the

videotape in finding defendant guilty.  Without the aid of the recordings

obtained pursuant to the consensual overhear order, most of Schalk’s testimony

was of dubious value, since his testimony essentially consisted of listening to

the audio tapes, viewing the videotape, and confirming the events recorded

thereon.

	In addition, we point out that section 401 of the Illinois Controlled

Substances Act makes it "unlawful for any person knowingly to *** possess with

intent to *** deliver, a controlled *** substance."  720 ILCS 570/401 (West

1998).  Thus, in order to prove unlawful possession of a controlled substance

with intent to deliver, the State must prove beyond a reasonable doubt that (1)

the defendant had knowledge of a controlled substance, (2) the controlled

substance was in the immediate control and possession of the defendant, and (3)

the amount of the controlled substance exceeded that which could be viewed as

merely for personal use.  People v. Hodogbey, 306 Ill. App. 3d 555, 559 (1999).  Possession may be actual or constructive.  People v. Melgoza, 231 Ill. App. 3d 510, 529 (1992).  To support a finding of constructive possession, the State must

prove that the contraband was in the defendant's immediate and exclusive control

and the defendant knew the contraband was present.  People v. Beverly, 278 Ill. App. 3d 794, 798 (1996).   In this case, aside from Schalk's testimony, none of the remaining witnesses ever testified that defendant was in actual or

constructive possession of the cocaine. 

	Under these circumstances, we find that there is a reasonable probability

that a different result would obtain had the motion to suppress been timely filed

and granted. 

	In reaching this conclusion, we emphasize that we are determining only that

defendant has pleaded sufficient facts to enable him to obtain an evidentiary

hearing.  We do not decide whether trial counsel’s representation was truly

ineffective.  It is the task of the trial court, after the evidentiary hearing,

to resolve this issue. 

	Before concluding, we acknowledge a recent case from our supreme court that neither party cited.  In People v. Edwards, 195 Ill. 2d 142 (2001), the defendant argued that trial counsel was ineffective for failing to seek the suppression of

tape recordings of telephone calls he made to the victim's wife.  The defendant

claimed that the calls were recorded in violation of section 108A--1 of the Code

(Ill. Rev. Stat. 1985, ch. 38, par. 108A--1 (now amended at 725 ILCS 5/108A–1 (West 1998))).  On direct appeal, the supreme court found that the defendant's

failure to raise the issue  in the trial court resulted in waiver.  People v. Edwards, 144 Ill. 2d 108, 163-64 (1991).  In his postconviction petition, the defendant alleged that counsel was ineffective for failing to preserve the issue

for review.  Citing to People v. Beardsley, 115 Ill. 2d 47 (1986), and People v. Herrington, 163 Ill. 2d 507 (1994), the supreme court dismissed the defendant's argument in one short paragraph.  It determined that judicial authorization was

not required under the statute because the recordings were made with the consent

of one of the persons taking part in the conversation.  Edwards, 195 Ill. 2d at 165.

	We question the applicability of Edwards to the instant case.  Edwards does not explain the reasoning underlying its conclusion.  True, the court cites to Beardsley and Herrington.  However, those cases did not deal with that portion of the Code outlining the procedure for judicial supervision of eavesdropping

devices.  See 725 ILCS 5/108A--1 et seq. (West 1996).  Instead, those two cases interpreted a prior version of section 14--2 of the eavesdropping statute (720

ILCS 5/14–--2 (West 1996)), which defines the elements of the offense of eavesdropping.

	To the extent that section 14--2 of the eavesdropping statute can be said

to be applicable here, we note that we are required to apply the version of the

statute in effect at the time the recording was made.  People v. Rodriguez, 313 Ill. App. 3d 877, 886-87 (2000), appeal denied, 191 Ill. 2d 553 (2000).  The version of the eavesdropping statute in effect at the time the recordings in this

case were made differs substantially from the version in effect at the time the

recordings in Edwards, Beardsley, and Herrington were made.  As the Beardsley court noted, the primary factor in determining whether eavesdropping occurred is

whether the nonconsenting declarants "intended their conversation to be of a

private nature under circumstances justifying such expectation."  Beardsley, 115 Ill. 2d at 54.  In other words, at that time, the statute did not reach conversations that a party did not intend to be private.  People v. Siwek, 284 Ill. App. 3d 7, 14 (1996), appeal denied,  171 Ill. 2d 581 (1996).

	At the time that the recordings involved in this case were made, the

eavesdropping statute provided that a person commits eavesdropping when he "(a)

[u]ses an eavesdropping device to hear or record all or any part of any

conversation unless he does so (1) with the consent of all of the parties to such

conversation or (2) in accordance with Article 108A *** of the [Code]."  720 ILCS

5/14–--2 (West 1996).  However, since Beardsley, the legislature amended the eavesdropping statute to define a "conversation" as "any oral communication

between 2 or more persons regardless of whether one or more of the parties

intended their communication to be of a private nature under circumstances

justifying that expectation."  See Pub. Act 88--677 §20, eff. December 15, 1994

(now codified, as amended, at 720 ILCS 5/14--1(d) (West 1996)).  This amendment

has been interpreted to "prohibit[] the recording of any conversation without the

consent of all parties regardless of any party's expectation of privacy."  In re Marriage of Almquist, 299 Ill. App. 3d 732, 736 (1998), appeal denied, 182 Ill. 2d 547 (1999); see also People v. Nestrock, 316 Ill. App. 3d 1, 7 (2000), appeal denied, 192 Ill. 2d 701 (2000); Rodriguez, 313 Ill. App. 3d at 883; Siwek, 284 Ill. App. 3d at 14.  Accordingly, the eavesdropping statute in effect at the time the tapes were made in the instant case would have prohibited the recordings

unless made in accordance with Article 108A of the Code (725 ILCS 5/108A--1 et seq. (West 1996)).  720 ILCS 5/14--2(a)(2) (West 1996).

CONCLUSION

	For the aforementioned reasons, we reverse the judgment of the circuit

court of McHenry County and remand this cause for an evidentiary hearing.

	Reversed and remanded.

	GEIGER and O'MALLEY, JJ., concur.