                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Armbrust, 2011 IL App (2d) 100955




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                     JOHN C. ARMBRUST, Defendant-Appellee.



District & No.              Second District
                            Docket No. 2-10-0955


Filed                       August 23, 2011


Held                        In a prosecution for harassment by telephone, the trial court erred in
(Note: This syllabus        granting defendant’s motion to exclude evidence of the content of the
constitutes no part of      phone call defendant made to his estranged wife on the ground that the
the opinion of the court    eavesdropping statute was violated when the speakerphone feature of the
but has been prepared       wife’s cellular telephone was used to allow a friend to hear the
by the Reporter of          conversation, since the use of the speakerphone feature did not transform
Decisions for the           the cellular telephone into an eavesdropping device.
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Kane County, No. 09-CF-873; the Hon.
Review                      T. Jordan Gallagher, Judge, presiding.



Judgment                    Reversed and remanded.
Counsel on                 Joseph H. McMahon, State’s Attorney, of St. Charles (Robert J.
Appeal                     Biderman and Anastacia R. Brooks, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.

                           Larry Wechter, of Law Office of Larry Wechter, of Geneva, for appellee.


Panel                      JUSTICE BOWMAN delivered the judgment of the court, with opinion.
                           Justices Hutchinson and Zenoff concurred in the judgment and opinion.




                                              OPINION

¶1          Defendant, John C. Armbrust, was charged with harassment by telephone (720 ILCS
        135/1-1(2) (West 2008)). Defendant successfully moved to exclude evidence of the content
        of the alleged harassing phone call on the basis that it was obtained in violation of the
        eavesdropping statute (720 ILCS 5/14-2 (West 2008)). The State appeals. For the reasons
        that follow, we reverse and remand.

¶2                                         BACKGROUND
¶3          Defendant was charged with one count of harassment by telephone for calling his
        estranged wife and threatening to kill her. Defendant filed a motion in limine, seeking,
        among other things, to exclude evidence of the phone call’s content. According to
        defendant’s motion, defendant’s wife placed the phone call on her cell phone’s speakerphone
        so that her friend could hear the conversation and thus changed the device from a phone to
        an eavesdropping device. The trial court agreed, finding that a speakerphone is a separate
        device from a cell phone, even if they are contained in the same unit.
¶4          The State filed a certificate of impairment and timely appealed.

¶5                                            ANALYSIS
¶6           On appeal, the State contends that the trial court erred in granting defendant’s motion,
        because defendant failed to demonstrate that a speakerphone is an eavesdropping device
        under the eavesdropping statute. Generally, we review a trial court’s decision on a motion
        in limine for an abuse of discretion; however, where, as in this case, the only issue before the
        court involves a question of law, the standard of review is de novo. People v. Larsen, 323
        Ill. App. 3d 1022, 1026 (2001). The eavesdropping statute provides that a person commits
        eavesdropping when he “[k]nowingly and intentionally uses an eavesdropping device for the
        purpose of hearing or recording all or any part of any conversation or intercepts, retains, or
        transcribes electronic communication.” 720 ILCS 5/14-2(a)(1) (West 2008). An


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     eavesdropping device is defined as follows:
               “An eavesdropping device is any device capable of being used to hear or record oral
          conversation or intercept, retain, or transcribe electronic communications whether such
          conversation or electronic communication is conducted in person, by telephone, or by
          any other means; Provided, however, that this definition shall not include devices used
          for the restoration of the deaf or hard-of-hearing to normal or partial hearing.” 720 ILCS
          5/14-1(a) (West 2008).
     Any evidence obtained in violation of this statute is inadmissible in civil or criminal
     proceedings. 720 ILCS 5/14-5 (West 2008).
¶7        Based on existing case law, we conclude that the use of the speakerphone feature on a
     cell phone does not transform the cell phone into an eavesdropping device under the statute.
     It is well recognized that a phone does not constitute an eavesdropping device unless it has
     been altered in such a manner that it can no longer perform its customary functions of
     transmitting and receiving sounds. People v. Gervasi, 89 Ill. 2d 522, 526-27 (1982).
     Accordingly, an unaltered phone is not considered an eavesdropping device, even where the
     receiver is tilted so that another person may listen in or a person listens on an extension.
     People v. Shinkle, 128 Ill. 2d 480, 489 (1989) (where an officer listened on an extension with
     his hand covering the mouthpiece, the phone was not transformed into an eavesdropping
     device because the officer’s hand did nothing to alter the phone’s ability to transmit sound);
     People v. Gaines, 88 Ill. 2d 342, 363 (1981) (a phone was not an eavesdropping device
     where an officer listened on an extension, because the eavesdropping statute is not directed
     at phones that have not been functionally altered); People v. Bennett, 120 Ill. App. 3d 144,
     149 (1983) (a switchboard was not an eavesdropping device because it could transmit
     messages); People v. Petrus, 98 Ill. App. 3d 514, 517 (1981) (a phone was not considered
     an eavesdropping device where the receiver was held so that both the officer and the
     informant could hear what the defendant was saying). The addition of a separate device to
     a phone to allow others to hear, however, does convert the phone into an eavesdropping
     device. See People v. Perez, 92 Ill. App. 2d 366, 372-73 (1968) (apparatus that screwed onto
     the phone receiver to allow others to hear constituted an eavesdropping device).
¶8        The use of the speakerphone feature on defendant’s wife’s cell phone did not transform
     the cell phone into an eavesdropping device under the statute, because the use of the
     speakerphone feature did not functionally alter the cell phone’s ability to transmit and
     receive sounds, nor is the speakerphone a separate device. Rather, the speakerphone is
     simply a feature of the cell phone that increases the volume of the received sounds to such
     a level that it is unnecessary to hold the phone to one’s ear. In this manner, the use of the
     speakerphone feature is analogous to another person listening on an extension or to holding
     the receiver in such a way that another person may listen. All are simply methods of
     amplifying the phone call such that another person can hear. None alter the phone’s ability
     to receive and transmit sounds. Defendant argues that there was no evidence indicating that
     sounds could be transmitted while using the speakerphone. Common knowledge defeats any
     claim that the phone was unable to transmit sounds while the speakerphone feature was in
     use, as speakerphones are commonly understood to be designed specifically to allow the
     continued use of the phone (i.e., sending and receiving sounds), just at a greater volume than

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       usual. Moreover, as the movant, defendant bore the burden of demonstrating that the
       evidence was subject to exclusion under the eavesdropping statute. People v. Smith, 248 Ill.
       App. 3d 351, 359 (1993) (“[T]he burden of going forward on the motion in limine was
       initially on defendant–the proponent or party seeking to bar the evidence–to show why the
       evidence should not be admitted [citations] ***.”). Accordingly, defendant was required to
       demonstrate that the cell phone became an eavesdropping device (i.e., was functionally
       altered such that it could not either transmit or receive sounds) through the use of the
       speakerphone feature. Any lack of evidence regarding the cell phone’s inability to transmit
       sounds while the speakerphone feature was in use, therefore, is attributable to defendant.
¶9          In arguing that the speakerphone feature of a cell phone should be considered an
       eavesdropping device, defendant relies on State v. Christensen, 102 P.3d 789, 794 (Wash.
       2004), in which the Washington Supreme Court held that the base unit of a cordless
       telephone was a device designed to transmit under Washington’s privacy act. That case is
       highly distinguishable from the present case. First, Christensen involved the interpretation
       of Washington’s statute, which targeted the use of devices designed to transmit. Christensen,
       102 P.3d at 791. Here, however, we are concerned with eavesdropping devices, which are,
       as defined by statute, devices used to hear or record. Second, although defendant relies on
       Christensen because the base unit used a speakerphone feature to amplify the sounds it
       received, it was not the speakerphone feature that persuaded the court to hold that the base
       unit was a device designed to transmit under the statute. Rather, the court so held because
       the base unit received inaudible sound waves, converted the inaudible sound waves into
       audible sounds, and transmitted inaudible radio signals to the cordless handset. Christensen,
       102 P.3d at 794. No such thing can be said of the speakerphone feature of defendant’s wife’s
       cell phone in this case. The speakerphone feature did not convert any sound waves, but
       merely amplified the audible sounds the cell phone converted from inaudible sound waves.
¶ 10        The State also contends that the trial court erred in granting defendant’s motion because,
       in any case, defendant consented to the use of the speakerphone. Given the conclusion that
       the trial court erred because a speakerphone is not an eavesdropping device, we need not
       address the contention that defendant consented.

¶ 11                                    CONCLUSION
¶ 12      The judgment of the circuit court of Kane County is reversed, and the cause is remanded.

¶ 13      Reversed and remanded.




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