HB3202eng 98TH GENERAL ASSEMBLY

HB3202 Engrossed LRB098 09259 MLW 39398 b

AN ACT concerning transportation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Vehicle Code is amended by adding Section 11-501.9 as follows:

(625 ILCS 5/11-501.9 new)

Sec. 11-501.9. Audio and video recording.

(a) Definitions. As used in this Section:

"Audio recording" means the recorded conversation between an officer and a second party.

"Emergency lights" means oscillating, rotating, or flashing lights on patrol vehicles.

"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.

"In-car video camera" means a video camera located in a law enforcement patrol vehicle.

"In-car video camera recording equipment" means a video camera recording system located in a law enforcement patrol vehicle consisting of a camera assembly, recording mechanism, and an in-car video recording medium.

"Recording" means the process of capturing data or information stored on a recording medium to include both audio and video as required under this Section.

"Recording medium" means any recording medium authorized by a law enforcement agency for the retention and playback of recorded audio and video including, but not limited to, VHS, DVD, hard drive, solid state, digital, or flash memory technology.

"Wireless microphone" means a devise worn by the officer or any other equipment used to record conversations between the officer and a second party and transmitted to the recording equipment.

(b) By July 1, 2014, all law enforcement agencies shall install in-car video camera recording equipment in all patrol vehicles. All patrol vehicles shall be equipped with in-car video camera recording equipment with a recording medium capable of recording for a period of 10 hours or more. In-car video camera recording equipment shall be capable of making audio recordings with the assistance of a wireless microphone.

(c) In-car video camera recording equipment with a recording medium shall record activities outside a patrol vehicle in the following circumstances:

(1) Recording for an enforcement stop shall begin when the officer determines an enforcement stop is necessary and shall continue until the enforcement action has been completed, provided that, in the event the enforcement stop involves an investigation for a violation of 625 ILCS 5/11-501 or a similar provision of a local ordinance, the recording shall include any field sobriety tests administered, including the administration of a portable breath test pursuant to 625 ILCS 5/11-501.5.

(2) Recording shall begin when patrol vehicle emergency lights are activated or when they would otherwise be activated if not for the need to conceal the presence of law enforcement, and shall continue until the reason for the activation ceases to exist, regardless of whether the emergency lights are no longer activated and, in the event of an arrest may not conclude before the subject is transported and leaves the vehicle.

(3) An officer may also begin recording if the officer reasonably believes recording may assist with prosecution, enhance safety, or for any other lawful purpose; and shall continue until the reason for recording ceases to exist.

In-car video camera recording equipment with a recording medium shall record activities inside the vehicle when transporting an arrestee or when an officer reasonably believes recording may assist with prosecution, enhance safety, or for any other lawful purpose.

(d) In-car video camera recording equipment with a recording medium capable of recording for a period of 10 hours or more shall record activities whenever a patrol vehicle is assigned to patrol duty.

(e) Any enforcement stop resulting from a suspected violation of the Illinois Vehicle Code shall be video and audio recorded. Audio recording shall terminate upon release of the violator.

(f) In the event the subject of the enforcement stop is charged with a violation of 625 ILCS 5/11-501 or a similar provision of a local ordinance, the law enforcement agency shall video and audio record the administration of the warning to the motorist pursuant to 625 ILCS 5/11-501.1, the 20-minute observation period before the administration of any breath test and the administration of a breath test pursuant to 625 ILCS 5/11-501.2 or the person's refusal to submit to testing.

(g) Recordings shall be retained by the law enforcement agency for a storage period of at least 90 days. 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 unless otherwise ordered by the supervisor or his or her designee or by a court, or if designated for evidentiary or training purposes. Provided that, in the event that the enforcement stop results in an arrest for violation of 625 ILCS 5/11-501 or a similar provision of a local ordinance, all recordings required hereunder shall be retained until such time as the criminal proceedings have terminated or as otherwise required by court order, whichever is longer.

(h) Audio or video recordings made pursuant to this Section shall be available under the applicable provisions of the Freedom of Information Act. Only recorded portions of the audio recording or video recording medium applicable to the request will be available for inspection or copying. Such recordings shall also be subject to subpoena where the law enforcement stop has resulted in the filing of a criminal complaint.

The law enforcement agency shall ensure proper care and maintenance of in-car video camera recording equipment and recording medium and breath site video recording equipment and recording medium as provided in paragraph (f) above. An officer operating a patrol vehicle must immediately document and notify a supervisor or his or her designee of any technical difficulties, failures, or problems with the in-car video camera recording equipment or recording medium or breath site video recording equipment and recording medium. Upon receiving notice, the supervisor or his or her designee shall make every reasonable effort to correct and repair any of the in-car video camera recording equipment or recording medium or breath site video recording equipment or recording medium and further, determine if it is in the public interest to permit the use of the patrol vehicle or breath test equipment.

(i) The law enforcement agency may assess the person requesting any recording made hereunder a fee not to exceed $25.00 to recover the reasonable costs associated with complying with the costs associated with complying with this Section. Such fee may be waived where the requesting party is found to be indigent by the Court.

(j) The Department of State Police may promulgate rules to implement this Act.

Section 10. The Criminal Code of 2012 is amended by changing Section 14-3 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 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 Department of State Police shall issue regulations as are necessary concerning the use of devices, retention of tape recordings, and reports regarding their use;

(g-5) 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 any offense defined in Article 29D of this Code. 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 State Police shall issue rules as are necessary concerning the use of devices, retention of tape recordings, and reports regarding their use.

Any recording or evidence obtained or derived in the course of an investigation of any offense defined in Article 29D of this Code shall, upon motion of the State's Attorney or Attorney General prosecuting any violation of Article 29D, 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.

This subsection (g-5) is inoperative on and after January 1, 2005. No conversations recorded or monitored pursuant to this subsection (g-5) shall be inadmissible in a court of law by virtue of the repeal of this subsection (g-5) on January 1, 2005;

(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 involuntary servitude, involuntary sexual servitude of a minor, trafficking in persons, child pornography, aggravated child pornography, indecent solicitation of a child, child abduction, luring of a minor, sexual exploitation of a child, predatory criminal sexual assault 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, 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, or aggravated criminal sexual assault 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 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 involuntary servitude, involuntary sexual servitude of a minor, trafficking in persons, child pornography, aggravated child pornography, indecent solicitation of a child, child abduction, luring of a minor, sexual exploitation of a child, predatory criminal sexual assault 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, 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, or aggravated criminal sexual assault 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 involuntary servitude, involuntary sexual servitude of a minor, trafficking in persons, child pornography, aggravated child pornography, indecent solicitation of a child, child abduction, luring of a minor, sexual exploitation of a child, predatory criminal sexual assault 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, 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, or aggravated criminal sexual assault 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), or (h-20) 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;

(h-20) Recordings of activities at an evidentiary breath alcohol test site made under Section 11-501.9 of the Illinois Vehicle Code;

(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; and

(q)(1) With prior request to and 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 drug offense. The State's Attorney may grant this verbal approval only after determining that reasonable cause exists to believe that a drug offense will be committed by 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 written or verbal request for approval to the appropriate 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 drug 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 the individual will commit a drug offense.

(3) Limitations on verbal approval. Each verbal 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 drug offense;

(C) a reasonable period of time but in no event longer than 24 consecutive hours.

(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) a drug offense;

(B) a forcible felony committed directly in the course of the investigation of a drug offense for which verbal 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 Section (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, 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 drug offenses. Whenever any wire, electronic, or oral communication has been recorded or intercepted as a result of this exception that is not related to a drug offense or a forcible felony committed in the course of a drug offense, 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.

(7) Definitions. For the purposes of this subsection (q) only:

"Drug offense" includes and is limited to a felony violation of one of the following: (A) the Illinois Controlled Substances Act, (B) the Cannabis Control Act, and (C) the Methamphetamine Control and Community Protection Act.

"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.

"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, 2015. 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, 2015.

(Source: P.A. 96-425, eff. 8-13-09; 96-547, eff. 1-1-10; 96-643, eff. 1-1-10; 96-670, eff. 8-25-09; 96-1000, eff. 7-2-10; 96-1425, eff. 1-1-11; 96-1464, eff. 8-20-10; 97-333, eff. 8-12-11; 97-846, eff. 1-1-13; 97-897, eff. 1-1-13; revised 8-23-12.)

Section 99. Effective date. This Act takes effect July 1, 2014.