Public Act 102-0918

HB3893 Enrolled LRB102 14883 KMF 20236 b

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois,

represented in the General Assembly:

Section 5. The Criminal Code of 2012 is amended by

changing Sections 14-3 and 33G-9 as follows:

(720 ILCS 5/14-3)

Sec. 14-3. Exemptions. The following activities shall be

exempt from the provisions of this Article:

(a) Listening to radio, wireless electronic

communications, and television communications of any sort

where the same are publicly made;

(b) Hearing conversation when heard by employees of

any common carrier by wire incidental to the normal course

of their employment in the operation, maintenance or

repair of the equipment of such common carrier by wire so

long as no information obtained thereby is used or

divulged by the hearer;

(c) Any broadcast by radio, television or otherwise

whether it be a broadcast or recorded for the purpose of

later broadcasts of any function where the public is in

attendance and the conversations are overheard incidental

to the main purpose for which such broadcasts are then

being made;

(d) Recording or listening with the aid of any device

to any emergency communication made in the normal course

of operations by any federal, state or local law

enforcement agency or institutions dealing in emergency

services, including, but not limited to, hospitals,

clinics, ambulance services, fire fighting agencies, any

public utility, emergency repair facility, civilian

defense establishment or military installation;

(e) Recording the proceedings of any meeting required

to be open by the Open Meetings Act, as amended;

(f) Recording or listening with the aid of any device

to incoming telephone calls of phone lines publicly listed

or advertised as consumer "hotlines" by manufacturers or

retailers of food and drug products. Such recordings must

be destroyed, erased or turned over to local law

enforcement authorities within 24 hours from the time of

such recording and shall not be otherwise disseminated.

Failure on the part of the individual or business

operating any such recording or listening device to comply

with the requirements of this subsection shall eliminate

any civil or criminal immunity conferred upon that

individual or business by the operation of this Section;

(g) With prior notification to the State's Attorney of

the county in which it is to occur, recording or listening

with the aid of any device to any conversation where a law

enforcement officer, or any person acting at the direction

of law enforcement, is a party to the conversation and has

consented to it being intercepted or recorded under

circumstances where the use of the device is necessary for

the protection of the law enforcement officer or any

person acting at the direction of law enforcement, in the

course of an investigation of a forcible felony, a felony

offense of involuntary servitude, involuntary sexual

servitude of a minor, or trafficking in persons under

Section 10-9 of this Code, an offense involving

prostitution, solicitation of a sexual act, or pandering,

a felony violation of the Illinois Controlled Substances

Act, a felony violation of the Cannabis Control Act, a

felony violation of the Methamphetamine Control and

Community Protection Act, any "streetgang related" or

"gang-related" felony as those terms are defined in the

Illinois Streetgang Terrorism Omnibus Prevention Act, or

any felony offense involving any weapon listed in

paragraphs (1) through (11) of subsection (a) of Section

24-1 of this Code. Any recording or evidence derived as

the result of this exemption shall be inadmissible in any

proceeding, criminal, civil or administrative, except (i)

where a party to the conversation suffers great bodily

injury or is killed during such conversation, or (ii) when

used as direct impeachment of a witness concerning matters

contained in the interception or recording. The Director

of the Illinois State Police shall issue regulations as

are necessary concerning the use of devices, retention of

tape recordings, and reports regarding their use;

(g-5) (Blank);

(g-6) With approval of the State's Attorney of the

county in which it is to occur, recording or listening

with the aid of any device to any conversation where a law

enforcement officer, or any person acting at the direction

of law enforcement, is a party to the conversation and has

consented to it being intercepted or recorded in the

course of an investigation of child pornography,

aggravated child pornography, indecent solicitation of a

child, luring of a minor, sexual exploitation of a child,

aggravated criminal sexual abuse in which the victim of

the offense was at the time of the commission of the

offense under 18 years of age, or criminal sexual abuse by

force or threat of force in which the victim of the offense

was at the time of the commission of the offense under 18

years of age. 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. The Director of the Illinois State Police shall

issue rules as are necessary concerning the use of

devices, retention of recordings, and reports regarding

their use. Any recording or evidence obtained or derived

in the course of an investigation of child pornography,

aggravated child pornography, indecent solicitation of a

child, luring of a minor, sexual exploitation of a child,

aggravated criminal sexual abuse in which the victim of

the offense was at the time of the commission of the

offense under 18 years of age, or criminal sexual abuse by

force or threat of force in which the victim of the offense

was at the time of the commission of the offense under 18

years of age shall, upon motion of the State's Attorney or

Attorney General prosecuting any case involving child

pornography, aggravated child pornography, indecent

solicitation of a child, luring of a minor, sexual

exploitation of a child, aggravated criminal sexual abuse

in which the victim of the offense was at the time of the

commission of the offense under 18 years of age, or

criminal sexual abuse by force or threat of force in which

the victim of the offense was at the time of the commission

of the offense under 18 years of age be reviewed in camera

with notice to all parties present by the court presiding

over the criminal case, and, if ruled by the court to be

relevant and otherwise admissible, it shall be admissible

at the trial of the criminal case. Absent such a ruling,

any such recording or evidence shall not be admissible at

the trial of the criminal case;

(h) Recordings made simultaneously with the use of an

in-car video camera recording of an oral conversation

between a uniformed peace officer, who has identified his

or her office, and a person in the presence of the peace

officer whenever (i) an officer assigned a patrol vehicle

is conducting an enforcement stop; or (ii) patrol vehicle

emergency lights are activated or would otherwise be

activated if not for the need to conceal the presence of

law enforcement.

For the purposes of this subsection (h), "enforcement

stop" means an action by a law enforcement officer in

relation to enforcement and investigation duties,

including but not limited to, traffic stops, pedestrian

stops, abandoned vehicle contacts, motorist assists,

commercial motor vehicle stops, roadside safety checks,

requests for identification, or responses to requests for

emergency assistance;

(h-5) Recordings of utterances made by a person while

in the presence of a uniformed peace officer and while an

occupant of a police vehicle including, but not limited

to, (i) recordings made simultaneously with the use of an

in-car video camera and (ii) recordings made in the

presence of the peace officer utilizing video or audio

systems, or both, authorized by the law enforcement

agency;

(h-10) Recordings made simultaneously with a video

camera recording during the use of a taser or similar

weapon or device by a peace officer if the weapon or device

is equipped with such camera;

(h-15) Recordings made under subsection (h), (h-5), or

(h-10) shall be retained by the law enforcement agency

that employs the peace officer who made the recordings for

a storage period of 90 days, unless the recordings are

made as a part of an arrest or the recordings are deemed

evidence in any criminal, civil, or administrative

proceeding and then the recordings must only be destroyed

upon a final disposition and an order from the court.

Under no circumstances shall any recording be altered or

erased prior to the expiration of the designated storage

period. Upon completion of the storage period, the

recording medium may be erased and reissued for

operational use;

(i) Recording of a conversation made by or at the

request of a person, not a law enforcement officer or

agent of a law enforcement officer, who is a party to the

conversation, under reasonable suspicion that another

party to the conversation is committing, is about to

commit, or has committed a criminal offense against the

person or a member of his or her immediate household, and

there is reason to believe that evidence of the criminal

offense may be obtained by the recording;

(j) The use of a telephone monitoring device by either

(1) a corporation or other business entity engaged in

marketing or opinion research or (2) a corporation or

other business entity engaged in telephone solicitation,

as defined in this subsection, to record or listen to oral

telephone solicitation conversations or marketing or

opinion research conversations by an employee of the

corporation or other business entity when:

(i) the monitoring is used for the purpose of

service quality control of marketing or opinion

research or telephone solicitation, the education or

training of employees or contractors engaged in

marketing or opinion research or telephone

solicitation, or internal research related to

marketing or opinion research or telephone

solicitation; and

(ii) the monitoring is used with the consent of at

least one person who is an active party to the

marketing or opinion research conversation or

telephone solicitation conversation being monitored.

No communication or conversation or any part, portion,

or aspect of the communication or conversation made,

acquired, or obtained, directly or indirectly, under this

exemption (j), may be, directly or indirectly, furnished

to any law enforcement officer, agency, or official for

any purpose or used in any inquiry or investigation, or

used, directly or indirectly, in any administrative,

judicial, or other proceeding, or divulged to any third

party.

When recording or listening authorized by this

subsection (j) on telephone lines used for marketing or

opinion research or telephone solicitation purposes

results in recording or listening to a conversation that

does not relate to marketing or opinion research or

telephone solicitation; the person recording or listening

shall, immediately upon determining that the conversation

does not relate to marketing or opinion research or

telephone solicitation, terminate the recording or

listening and destroy any such recording as soon as is

practicable.

Business entities that use a telephone monitoring or

telephone recording system pursuant to this exemption (j)

shall provide current and prospective employees with

notice that the monitoring or recordings may occur during

the course of their employment. The notice shall include

prominent signage notification within the workplace.

Business entities that use a telephone monitoring or

telephone recording system pursuant to this exemption (j)

shall provide their employees or agents with access to

personal-only telephone lines which may be pay telephones,

that are not subject to telephone monitoring or telephone

recording.

For the purposes of this subsection (j), "telephone

solicitation" means a communication through the use of a

telephone by live operators:

(i) soliciting the sale of goods or services;

(ii) receiving orders for the sale of goods or

services;

(iii) assisting in the use of goods or services;

or

(iv) engaging in the solicitation, administration,

or collection of bank or retail credit accounts.

For the purposes of this subsection (j), "marketing or

opinion research" means a marketing or opinion research

interview conducted by a live telephone interviewer

engaged by a corporation or other business entity whose

principal business is the design, conduct, and analysis of

polls and surveys measuring the opinions, attitudes, and

responses of respondents toward products and services, or

social or political issues, or both;

(k) Electronic recordings, including but not limited

to, a motion picture, videotape, digital, or other visual

or audio recording, made of a custodial interrogation of

an individual at a police station or other place of

detention by a law enforcement officer under Section

5-401.5 of the Juvenile Court Act of 1987 or Section

103-2.1 of the Code of Criminal Procedure of 1963;

(l) Recording the interview or statement of any person

when the person knows that the interview is being

conducted by a law enforcement officer or prosecutor and

the interview takes place at a police station that is

currently participating in the Custodial Interview Pilot

Program established under the Illinois Criminal Justice

Information Act;

(m) An electronic recording, including but not limited

to, a motion picture, videotape, digital, or other visual

or audio recording, made of the interior of a school bus

while the school bus is being used in the transportation

of students to and from school and school-sponsored

activities, when the school board has adopted a policy

authorizing such recording, notice of such recording

policy is included in student handbooks and other

documents including the policies of the school, notice of

the policy regarding recording is provided to parents of

students, and notice of such recording is clearly posted

on the door of and inside the school bus.

Recordings made pursuant to this subsection (m) shall

be confidential records and may only be used by school

officials (or their designees) and law enforcement

personnel for investigations, school disciplinary actions

and hearings, proceedings under the Juvenile Court Act of

1987, and criminal prosecutions, related to incidents

occurring in or around the school bus;

(n) Recording or listening to an audio transmission

from a microphone placed by a person under the authority

of a law enforcement agency inside a bait car surveillance

vehicle while simultaneously capturing a photographic or

video image;

(o) The use of an eavesdropping camera or audio device

during an ongoing hostage or barricade situation by a law

enforcement officer or individual acting on behalf of a

law enforcement officer when the use of such device is

necessary to protect the safety of the general public,

hostages, or law enforcement officers or anyone acting on

their behalf;

(p) Recording or listening with the aid of any device

to incoming telephone calls of phone lines publicly listed

or advertised as the "CPS Violence Prevention Hotline",

but only where the notice of recording is given at the

beginning of each call as required by Section 34-21.8 of

the School Code. The recordings may be retained only by

the Chicago Police Department or other law enforcement

authorities, and shall not be otherwise retained or

disseminated;

(q)(1) With prior request to and written or verbal

approval of the State's Attorney of the county in which

the conversation is anticipated to occur, recording or

listening with the aid of an eavesdropping device to a

conversation in which a law enforcement officer, or any

person acting at the direction of a law enforcement

officer, is a party to the conversation and has consented

to the conversation being intercepted or recorded in the

course of an investigation of a qualified offense. The

State's Attorney may grant this approval only after

determining that reasonable cause exists to believe that

inculpatory conversations concerning a qualified offense

will occur with a specified individual or individuals

within a designated period of time.

(2) Request for approval. To invoke the exception

contained in this subsection (q), a law enforcement

officer shall make a request for approval to the

appropriate State's Attorney. The request may be written

or verbal; however, a written memorialization of the

request must be made by the State's Attorney. This request

for approval shall include whatever information is deemed

necessary by the State's Attorney but shall include, at a

minimum, the following information about each specified

individual whom the law enforcement officer believes will

commit a qualified offense:

(A) his or her full or partial name, nickname or

alias;

(B) a physical description; or

(C) failing either (A) or (B) of this paragraph

(2), any other supporting information known to the law

enforcement officer at the time of the request that

gives rise to reasonable cause to believe that the

specified individual will participate in an

inculpatory conversation concerning a qualified

offense.

(3) Limitations on approval. Each written approval by

the State's Attorney under this subsection (q) shall be

limited to:

(A) a recording or interception conducted by a

specified law enforcement officer or person acting at

the direction of a law enforcement officer;

(B) recording or intercepting conversations with

the individuals specified in the request for approval,

provided that the verbal approval shall be deemed to

include the recording or intercepting of conversations

with other individuals, unknown to the law enforcement

officer at the time of the request for approval, who

are acting in conjunction with or as co-conspirators

with the individuals specified in the request for

approval in the commission of a qualified offense;

(C) a reasonable period of time but in no event

longer than 24 consecutive hours;

(D) the written request for approval, if

applicable, or the written memorialization must be

filed, along with the written approval, with the

circuit clerk of the jurisdiction on the next business

day following the expiration of the authorized period

of time, and shall be subject to review by the Chief

Judge or his or her designee as deemed appropriate by

the court.

(3.5) The written memorialization of the request for

approval and the written approval by the State's Attorney

may be in any format, including via facsimile, email, or

otherwise, so long as it is capable of being filed with the

circuit clerk.

(3.10) Beginning March 1, 2015, each State's Attorney

shall annually submit a report to the General Assembly

disclosing:

(A) the number of requests for each qualified

offense for approval under this subsection; and

(B) the number of approvals for each qualified

offense given by the State's Attorney.

(4) Admissibility of evidence. No part of the contents

of any wire, electronic, or oral communication that has

been recorded or intercepted as a result of this exception

may be received in evidence in any trial, hearing, or

other proceeding in or before any court, grand jury,

department, officer, agency, regulatory body, legislative

committee, or other authority of this State, or a

political subdivision of the State, other than in a

prosecution of:

(A) the qualified offense for which approval was

given to record or intercept a conversation under this

subsection (q);

(B) a forcible felony committed directly in the

course of the investigation of the qualified offense

for which approval was given to record or intercept a

conversation under this subsection (q); or

(C) any other forcible felony committed while the

recording or interception was approved in accordance

with this subsection (q), but for this specific

category of prosecutions, only if the law enforcement

officer or person acting at the direction of a law

enforcement officer who has consented to the

conversation being intercepted or recorded suffers

great bodily injury or is killed during the commission

of the charged forcible felony.

(5) Compliance with the provisions of this subsection

is a prerequisite to the admissibility in evidence of any

part of the contents of any wire, electronic or oral

communication that has been intercepted as a result of

this exception, but nothing in this subsection shall be

deemed to prevent a court from otherwise excluding the

evidence on any other ground recognized by State or

federal law, nor shall anything in this subsection be

deemed to prevent a court from independently reviewing the

admissibility of the evidence for compliance with the

Fourth Amendment to the U.S. Constitution or with Article

I, Section 6 of the Illinois Constitution.

(6) Use of recordings or intercepts unrelated to

qualified offenses. Whenever any private conversation or

private electronic communication has been recorded or

intercepted as a result of this exception that is not

related to an offense for which the recording or intercept

is admissible under paragraph (4) of this subsection (q),

no part of the contents of the communication and evidence

derived from the communication may be received in evidence

in any trial, hearing, or other proceeding in or before

any court, grand jury, department, officer, agency,

regulatory body, legislative committee, or other authority

of this State, or a political subdivision of the State,

nor may it be publicly disclosed in any way.

(6.5) The Illinois State Police shall adopt rules as

are necessary concerning the use of devices, retention of

recordings, and reports regarding their use under this

subsection (q).

(7) Definitions. For the purposes of this subsection

(q) only:

"Forcible felony" includes and is limited to those

offenses contained in Section 2-8 of the Criminal Code

of 1961 as of the effective date of this amendatory Act

of the 97th General Assembly, and only as those

offenses have been defined by law or judicial

interpretation as of that date.

"Qualified offense" means and is limited to:

(A) a felony violation of the Cannabis Control

Act, the Illinois Controlled Substances Act, or

the Methamphetamine Control and Community

Protection Act, except for violations of:

(i) Section 4 of the Cannabis Control Act;

(ii) Section 402 of the Illinois

Controlled Substances Act; and

(iii) Section 60 of the Methamphetamine

Control and Community Protection Act; and

(B) first degree murder, solicitation of

murder for hire, predatory criminal sexual assault

of a child, criminal sexual assault, aggravated

criminal sexual assault, aggravated arson,

kidnapping, aggravated kidnapping, child

abduction, trafficking in persons, involuntary

servitude, involuntary sexual servitude of a

minor, or gunrunning.

"State's Attorney" includes and is limited to the

State's Attorney or an assistant State's Attorney

designated by the State's Attorney to provide verbal

approval to record or intercept conversations under

this subsection (q).

(8) Sunset. This subsection (q) is inoperative on and

after January 1, 2027 2023. No conversations intercepted

pursuant to this subsection (q), while operative, shall be

inadmissible in a court of law by virtue of the

inoperability of this subsection (q) on January 1, 2027

2023.

(9) Recordings, records, and custody. Any private

conversation or private electronic communication

intercepted by a law enforcement officer or a person

acting at the direction of law enforcement shall, if

practicable, be recorded in such a way as will protect the

recording from editing or other alteration. Any and all

original recordings made under this subsection (q) shall

be inventoried without unnecessary delay pursuant to the

law enforcement agency's policies for inventorying

evidence. The original recordings shall not be destroyed

except upon an order of a court of competent jurisdiction;

and

(r) Electronic recordings, including but not limited

to, motion picture, videotape, digital, or other visual or

audio recording, made of a lineup under Section 107A-2 of

the Code of Criminal Procedure of 1963.

(Source: P.A. 101-80, eff. 7-12-19; 102-538, eff. 8-20-21.)

(720 ILCS 5/33G-9)

(Section scheduled to be repealed on June 11, 2022)

Sec. 33G-9. Repeal. This Article is repealed on June 11,

2023 2022.

(Source: P.A. 100-1, eff. 6-9-17.)