New Law Allows Officers to More Easily Eavesdrop on People

August 19, 2012

In the climactic scenes of crime thrillers, the "good guys," often portrayed by the police or someone within a criminal syndicate, wear a wire (a recording device) to catch the "bad guy" admitting to his crimes. In the movies, the bad guy often slips up and is recorded stating what the plan or crime is/was, and then the recording is used by prosecutors to convict the bad guy of various criminal charges.

Until recently, a scene like this would not play out in Illinois, unless the police went before a judge, presented evidence and received authorization. Requiring police officers to receive authorization before recording conversation between undercover agents and suspects was a way to protect the Fourth Amendment rights -- protections against unreasonable search and seizure -- of suspected wrongdoers.

Under Illinois law, it is illegal to record a conversation unless all parties consent to being recorded -- excepting in the circumstances described above, when law enforcement authorities protected a suspect's rights by getting authorization beforehand.

However, a new law recently signed by the governor -- the Illinois Eavesdropping Act -- makes it even easier for law enforcement officers to preserve conversations electronically. Under the Illinois Eavesdropping Act, police officers may bypass obtaining authorization before recording conversations between suspected wrongdoers and undercover agents. Now, officers only need to confer with prosecutors before secretly recording these conversations.

The new law will most often apply to situations where undercover narcotics officers are making drug buys.

Prior Eavesdropping Law

Prior to the signing of the law, unless authorization was obtained, the general rule was that police could only secretly record these types on conversations when they were in the line of sight of the officers doing the recording. So, if an undercover agent went into a home or other structure, out of the line of sight of other officers, the conversation could not be recorded without a judge's consent. But, there is an exception.

Illinois law allows police to use eavesdropping devices in emergency situations. Emergency situations include protecting officers and protecting people when there is a "clear and present danger of imminent death or great bodily harm" in situations of kidnapping, hostage taking or terrorism. The emergency situation exception is broad enough that the use of eavesdropping devices without prior authorization is fairly common in the state.

The new law will allows officers to record suspects without presenting evidence (probable cause) of wrongdoing to a judge. If you've been secretly recorded by the police, speak with an experienced criminal defense attorney about protecting your Fourth Amendment rights.

Article provided by Polinske & Associates, P.C.
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