Eavesdropping Law Has Serious Implications for Those Accused of Illinois Drug Crimes

Starting January 1, 2013, narcotics officers in Illinois will no longer need a warrant to use remote monitoring to record drug transactions. The intent of the new law is to protect undercover officers, however, it has negative implications for those accused of drug crimes in Illinois.

The Illinois Eavesdropping Act Exemption

In July, Governor Pat Quinn signed House Bill 4801, known as the Eavesdropping Exemption for Undercover Officers, into law. The law allows narcotics officers to remotely monitor and record drug transactions without needing a judge to authorize a warrant first. Instead, officers simply need the approval of a prosecutor.

The state's Association of Chiefs of Police has worked for 14 years to pass the law. Police officials believe that the law will protect undercover officers who witness drug transactions. Under current law, undercover officers must rely on line-of-sight to survey drug transactions, meaning that when suspects move indoors or to a more intimate place to make a transaction, undercover officers lose contact with the rest of their team members who are monitoring the situation.

When the new law takes effect in a few short months, undercover cops will be able to wear a wire so their team members can monitor their safety and hear the drug transaction - without first obtaining a warrant. While this makes it easier for police to catch suspects in the act, it may infringe on the rights of the accused.

Use of Recordings in Prosecutions

Recordings are purportedly for improving officer safety, but they also provided another perk to police-audio evidence to support a drug charge, obtained without the need for a warrant. The new law does limit how the audio recording may be used against the accused in court.

The prosecution can only use the evidence in drug cases or felonies (i.e., murder, assault, robbery and kidnapping) that occur in the course of a drug crime investigation. The recordings must pass judicial review before the prosecution can use the audio recording as evidence. Recording are also subject to discovery, meaning the prosecution must turn over the audio to the defense.

Despite these accommodations, many believe the new exemption for undercover cops leads criminal law down a slippery slope. Eliminating the warrant requirement may allow officers to misuse their recording privileges.

One positive is that audio evidence can work both ways. While the recordings may document a drug crime, they could also show misconduct against the defendant or failure to comply with procedural requirements.

The changes to Illinois' eavesdropping laws may have negative implications for those accused of drug crimes. An experienced criminal defense lawyer can review an individual situation for possible defenses and ensure individual rights are protected.