Illinois General Assembly - Full Text of HB3893
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Full Text of HB3893  102nd General Assembly

HB3893sam001 102ND GENERAL ASSEMBLY

Sen. Patrick J. Joyce

Filed: 4/4/2022

 

 


 

 


 
10200HB3893sam001LRB102 14883 RLC 38565 a

1
AMENDMENT TO HOUSE BILL 3893

2    AMENDMENT NO. ______. Amend House Bill 3893 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Criminal Code of 2012 is amended by
5changing Sections 14-3 and 33G-9 as follows:
 
6    (720 ILCS 5/14-3)
7    Sec. 14-3. Exemptions. The following activities shall be
8exempt from the provisions of this Article:
9        (a) Listening to radio, wireless electronic
10    communications, and television communications of any sort
11    where the same are publicly made;
12        (b) Hearing conversation when heard by employees of
13    any common carrier by wire incidental to the normal course
14    of their employment in the operation, maintenance or
15    repair of the equipment of such common carrier by wire so
16    long as no information obtained thereby is used or

 

 

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1    divulged by the hearer;
2        (c) Any broadcast by radio, television or otherwise
3    whether it be a broadcast or recorded for the purpose of
4    later broadcasts of any function where the public is in
5    attendance and the conversations are overheard incidental
6    to the main purpose for which such broadcasts are then
7    being made;
8        (d) Recording or listening with the aid of any device
9    to any emergency communication made in the normal course
10    of operations by any federal, state or local law
11    enforcement agency or institutions dealing in emergency
12    services, including, but not limited to, hospitals,
13    clinics, ambulance services, fire fighting agencies, any
14    public utility, emergency repair facility, civilian
15    defense establishment or military installation;
16        (e) Recording the proceedings of any meeting required
17    to be open by the Open Meetings Act, as amended;
18        (f) Recording or listening with the aid of any device
19    to incoming telephone calls of phone lines publicly listed
20    or advertised as consumer "hotlines" by manufacturers or
21    retailers of food and drug products. Such recordings must
22    be destroyed, erased or turned over to local law
23    enforcement authorities within 24 hours from the time of
24    such recording and shall not be otherwise disseminated.
25    Failure on the part of the individual or business
26    operating any such recording or listening device to comply

 

 

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1    with the requirements of this subsection shall eliminate
2    any civil or criminal immunity conferred upon that
3    individual or business by the operation of this Section;
4        (g) With prior notification to the State's Attorney of
5    the county in which it is to occur, recording or listening
6    with the aid of any device to any conversation where a law
7    enforcement officer, or any person acting at the direction
8    of law enforcement, is a party to the conversation and has
9    consented to it being intercepted or recorded under
10    circumstances where the use of the device is necessary for
11    the protection of the law enforcement officer or any
12    person acting at the direction of law enforcement, in the
13    course of an investigation of a forcible felony, a felony
14    offense of involuntary servitude, involuntary sexual
15    servitude of a minor, or trafficking in persons under
16    Section 10-9 of this Code, an offense involving
17    prostitution, solicitation of a sexual act, or pandering,
18    a felony violation of the Illinois Controlled Substances
19    Act, a felony violation of the Cannabis Control Act, a
20    felony violation of the Methamphetamine Control and
21    Community Protection Act, any "streetgang related" or
22    "gang-related" felony as those terms are defined in the
23    Illinois Streetgang Terrorism Omnibus Prevention Act, or
24    any felony offense involving any weapon listed in
25    paragraphs (1) through (11) of subsection (a) of Section
26    24-1 of this Code. Any recording or evidence derived as

 

 

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1    the result of this exemption shall be inadmissible in any
2    proceeding, criminal, civil or administrative, except (i)
3    where a party to the conversation suffers great bodily
4    injury or is killed during such conversation, or (ii) when
5    used as direct impeachment of a witness concerning matters
6    contained in the interception or recording. The Director
7    of the Illinois State Police shall issue regulations as
8    are necessary concerning the use of devices, retention of
9    tape recordings, and reports regarding their use;
10        (g-5) (Blank);
11        (g-6) With approval of the State's Attorney of the
12    county in which it is to occur, recording or listening
13    with the aid of any device to any conversation where a law
14    enforcement officer, or any person acting at the direction
15    of law enforcement, is a party to the conversation and has
16    consented to it being intercepted or recorded in the
17    course of an investigation of child pornography,
18    aggravated child pornography, indecent solicitation of a
19    child, luring of a minor, sexual exploitation of a child,
20    aggravated criminal sexual abuse in which the victim of
21    the offense was at the time of the commission of the
22    offense under 18 years of age, or criminal sexual abuse by
23    force or threat of force in which the victim of the offense
24    was at the time of the commission of the offense under 18
25    years of age. In all such cases, an application for an
26    order approving the previous or continuing use of an

 

 

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1    eavesdropping device must be made within 48 hours of the
2    commencement of such use. In the absence of such an order,
3    or upon its denial, any continuing use shall immediately
4    terminate. The Director of the Illinois State Police shall
5    issue rules as are necessary concerning the use of
6    devices, retention of recordings, and reports regarding
7    their use. Any recording or evidence obtained or derived
8    in the course of an investigation of child pornography,
9    aggravated child pornography, indecent solicitation of a
10    child, luring of a minor, sexual exploitation of a child,
11    aggravated criminal sexual abuse in which the victim of
12    the offense was at the time of the commission of the
13    offense under 18 years of age, or criminal sexual abuse by
14    force or threat of force in which the victim of the offense
15    was at the time of the commission of the offense under 18
16    years of age shall, upon motion of the State's Attorney or
17    Attorney General prosecuting any case involving child
18    pornography, aggravated child pornography, indecent
19    solicitation of a child, luring of a minor, sexual
20    exploitation of a child, aggravated criminal sexual abuse
21    in which the victim of the offense was at the time of the
22    commission of the offense under 18 years of age, or
23    criminal sexual abuse by force or threat of force in which
24    the victim of the offense was at the time of the commission
25    of the offense under 18 years of age be reviewed in camera
26    with notice to all parties present by the court presiding

 

 

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1    over the criminal case, and, if ruled by the court to be
2    relevant and otherwise admissible, it shall be admissible
3    at the trial of the criminal case. Absent such a ruling,
4    any such recording or evidence shall not be admissible at
5    the trial of the criminal case;
6        (h) Recordings made simultaneously with the use of an
7    in-car video camera recording of an oral conversation
8    between a uniformed peace officer, who has identified his
9    or her office, and a person in the presence of the peace
10    officer whenever (i) an officer assigned a patrol vehicle
11    is conducting an enforcement stop; or (ii) patrol vehicle
12    emergency lights are activated or would otherwise be
13    activated if not for the need to conceal the presence of
14    law enforcement.
15        For the purposes of this subsection (h), "enforcement
16    stop" means an action by a law enforcement officer in
17    relation to enforcement and investigation duties,
18    including but not limited to, traffic stops, pedestrian
19    stops, abandoned vehicle contacts, motorist assists,
20    commercial motor vehicle stops, roadside safety checks,
21    requests for identification, or responses to requests for
22    emergency assistance;
23        (h-5) Recordings of utterances made by a person while
24    in the presence of a uniformed peace officer and while an
25    occupant of a police vehicle including, but not limited
26    to, (i) recordings made simultaneously with the use of an

 

 

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1    in-car video camera and (ii) recordings made in the
2    presence of the peace officer utilizing video or audio
3    systems, or both, authorized by the law enforcement
4    agency;
5        (h-10) Recordings made simultaneously with a video
6    camera recording during the use of a taser or similar
7    weapon or device by a peace officer if the weapon or device
8    is equipped with such camera;
9        (h-15) Recordings made under subsection (h), (h-5), or
10    (h-10) shall be retained by the law enforcement agency
11    that employs the peace officer who made the recordings for
12    a storage period of 90 days, unless the recordings are
13    made as a part of an arrest or the recordings are deemed
14    evidence in any criminal, civil, or administrative
15    proceeding and then the recordings must only be destroyed
16    upon a final disposition and an order from the court.
17    Under no circumstances shall any recording be altered or
18    erased prior to the expiration of the designated storage
19    period. Upon completion of the storage period, the
20    recording medium may be erased and reissued for
21    operational use;
22        (i) Recording of a conversation made by or at the
23    request of a person, not a law enforcement officer or
24    agent of a law enforcement officer, who is a party to the
25    conversation, under reasonable suspicion that another
26    party to the conversation is committing, is about to

 

 

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1    commit, or has committed a criminal offense against the
2    person or a member of his or her immediate household, and
3    there is reason to believe that evidence of the criminal
4    offense may be obtained by the recording;
5        (j) The use of a telephone monitoring device by either
6    (1) a corporation or other business entity engaged in
7    marketing or opinion research or (2) a corporation or
8    other business entity engaged in telephone solicitation,
9    as defined in this subsection, to record or listen to oral
10    telephone solicitation conversations or marketing or
11    opinion research conversations by an employee of the
12    corporation or other business entity when:
13            (i) the monitoring is used for the purpose of
14        service quality control of marketing or opinion
15        research or telephone solicitation, the education or
16        training of employees or contractors engaged in
17        marketing or opinion research or telephone
18        solicitation, or internal research related to
19        marketing or opinion research or telephone
20        solicitation; and
21            (ii) the monitoring is used with the consent of at
22        least one person who is an active party to the
23        marketing or opinion research conversation or
24        telephone solicitation conversation being monitored.
25        No communication or conversation or any part, portion,
26    or aspect of the communication or conversation made,

 

 

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1    acquired, or obtained, directly or indirectly, under this
2    exemption (j), may be, directly or indirectly, furnished
3    to any law enforcement officer, agency, or official for
4    any purpose or used in any inquiry or investigation, or
5    used, directly or indirectly, in any administrative,
6    judicial, or other proceeding, or divulged to any third
7    party.
8        When recording or listening authorized by this
9    subsection (j) on telephone lines used for marketing or
10    opinion research or telephone solicitation purposes
11    results in recording or listening to a conversation that
12    does not relate to marketing or opinion research or
13    telephone solicitation; the person recording or listening
14    shall, immediately upon determining that the conversation
15    does not relate to marketing or opinion research or
16    telephone solicitation, terminate the recording or
17    listening and destroy any such recording as soon as is
18    practicable.
19        Business entities that use a telephone monitoring or
20    telephone recording system pursuant to this exemption (j)
21    shall provide current and prospective employees with
22    notice that the monitoring or recordings may occur during
23    the course of their employment. The notice shall include
24    prominent signage notification within the workplace.
25        Business entities that use a telephone monitoring or
26    telephone recording system pursuant to this exemption (j)

 

 

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1    shall provide their employees or agents with access to
2    personal-only telephone lines which may be pay telephones,
3    that are not subject to telephone monitoring or telephone
4    recording.
5        For the purposes of this subsection (j), "telephone
6    solicitation" means a communication through the use of a
7    telephone by live operators:
8            (i) soliciting the sale of goods or services;
9            (ii) receiving orders for the sale of goods or
10        services;
11            (iii) assisting in the use of goods or services;
12        or
13            (iv) engaging in the solicitation, administration,
14        or collection of bank or retail credit accounts.
15        For the purposes of this subsection (j), "marketing or
16    opinion research" means a marketing or opinion research
17    interview conducted by a live telephone interviewer
18    engaged by a corporation or other business entity whose
19    principal business is the design, conduct, and analysis of
20    polls and surveys measuring the opinions, attitudes, and
21    responses of respondents toward products and services, or
22    social or political issues, or both;
23        (k) Electronic recordings, including but not limited
24    to, a motion picture, videotape, digital, or other visual
25    or audio recording, made of a custodial interrogation of
26    an individual at a police station or other place of

 

 

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1    detention by a law enforcement officer under Section
2    5-401.5 of the Juvenile Court Act of 1987 or Section
3    103-2.1 of the Code of Criminal Procedure of 1963;
4        (l) Recording the interview or statement of any person
5    when the person knows that the interview is being
6    conducted by a law enforcement officer or prosecutor and
7    the interview takes place at a police station that is
8    currently participating in the Custodial Interview Pilot
9    Program established under the Illinois Criminal Justice
10    Information Act;
11        (m) An electronic recording, including but not limited
12    to, a motion picture, videotape, digital, or other visual
13    or audio recording, made of the interior of a school bus
14    while the school bus is being used in the transportation
15    of students to and from school and school-sponsored
16    activities, when the school board has adopted a policy
17    authorizing such recording, notice of such recording
18    policy is included in student handbooks and other
19    documents including the policies of the school, notice of
20    the policy regarding recording is provided to parents of
21    students, and notice of such recording is clearly posted
22    on the door of and inside the school bus.
23        Recordings made pursuant to this subsection (m) shall
24    be confidential records and may only be used by school
25    officials (or their designees) and law enforcement
26    personnel for investigations, school disciplinary actions

 

 

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1    and hearings, proceedings under the Juvenile Court Act of
2    1987, and criminal prosecutions, related to incidents
3    occurring in or around the school bus;
4        (n) Recording or listening to an audio transmission
5    from a microphone placed by a person under the authority
6    of a law enforcement agency inside a bait car surveillance
7    vehicle while simultaneously capturing a photographic or
8    video image;
9        (o) The use of an eavesdropping camera or audio device
10    during an ongoing hostage or barricade situation by a law
11    enforcement officer or individual acting on behalf of a
12    law enforcement officer when the use of such device is
13    necessary to protect the safety of the general public,
14    hostages, or law enforcement officers or anyone acting on
15    their behalf;
16        (p) Recording or listening with the aid of any device
17    to incoming telephone calls of phone lines publicly listed
18    or advertised as the "CPS Violence Prevention Hotline",
19    but only where the notice of recording is given at the
20    beginning of each call as required by Section 34-21.8 of
21    the School Code. The recordings may be retained only by
22    the Chicago Police Department or other law enforcement
23    authorities, and shall not be otherwise retained or
24    disseminated;
25        (q)(1) With prior request to and written or verbal
26    approval of the State's Attorney of the county in which

 

 

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1    the conversation is anticipated to occur, recording or
2    listening with the aid of an eavesdropping device to a
3    conversation in which a law enforcement officer, or any
4    person acting at the direction of a law enforcement
5    officer, is a party to the conversation and has consented
6    to the conversation being intercepted or recorded in the
7    course of an investigation of a qualified offense. The
8    State's Attorney may grant this approval only after
9    determining that reasonable cause exists to believe that
10    inculpatory conversations concerning a qualified offense
11    will occur with a specified individual or individuals
12    within a designated period of time.
13        (2) Request for approval. To invoke the exception
14    contained in this subsection (q), a law enforcement
15    officer shall make a request for approval to the
16    appropriate State's Attorney. The request may be written
17    or verbal; however, a written memorialization of the
18    request must be made by the State's Attorney. This request
19    for approval shall include whatever information is deemed
20    necessary by the State's Attorney but shall include, at a
21    minimum, the following information about each specified
22    individual whom the law enforcement officer believes will
23    commit a qualified offense:
24            (A) his or her full or partial name, nickname or
25        alias;
26            (B) a physical description; or

 

 

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1            (C) failing either (A) or (B) of this paragraph
2        (2), any other supporting information known to the law
3        enforcement officer at the time of the request that
4        gives rise to reasonable cause to believe that the
5        specified individual will participate in an
6        inculpatory conversation concerning a qualified
7        offense.
8        (3) Limitations on approval. Each written approval by
9    the State's Attorney under this subsection (q) shall be
10    limited to:
11            (A) a recording or interception conducted by a
12        specified law enforcement officer or person acting at
13        the direction of a law enforcement officer;
14            (B) recording or intercepting conversations with
15        the individuals specified in the request for approval,
16        provided that the verbal approval shall be deemed to
17        include the recording or intercepting of conversations
18        with other individuals, unknown to the law enforcement
19        officer at the time of the request for approval, who
20        are acting in conjunction with or as co-conspirators
21        with the individuals specified in the request for
22        approval in the commission of a qualified offense;
23            (C) a reasonable period of time but in no event
24        longer than 24 consecutive hours;
25            (D) the written request for approval, if
26        applicable, or the written memorialization must be

 

 

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1        filed, along with the written approval, with the
2        circuit clerk of the jurisdiction on the next business
3        day following the expiration of the authorized period
4        of time, and shall be subject to review by the Chief
5        Judge or his or her designee as deemed appropriate by
6        the court.
7        (3.5) The written memorialization of the request for
8    approval and the written approval by the State's Attorney
9    may be in any format, including via facsimile, email, or
10    otherwise, so long as it is capable of being filed with the
11    circuit clerk.
12        (3.10) Beginning March 1, 2015, each State's Attorney
13    shall annually submit a report to the General Assembly
14    disclosing:
15            (A) the number of requests for each qualified
16        offense for approval under this subsection; and
17            (B) the number of approvals for each qualified
18        offense given by the State's Attorney.
19        (4) Admissibility of evidence. No part of the contents
20    of any wire, electronic, or oral communication that has
21    been recorded or intercepted as a result of this exception
22    may be received in evidence in any trial, hearing, or
23    other proceeding in or before any court, grand jury,
24    department, officer, agency, regulatory body, legislative
25    committee, or other authority of this State, or a
26    political subdivision of the State, other than in a

 

 

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1    prosecution of:
2            (A) the qualified offense for which approval was
3        given to record or intercept a conversation under this
4        subsection (q);
5            (B) a forcible felony committed directly in the
6        course of the investigation of the qualified offense
7        for which approval was given to record or intercept a
8        conversation under this subsection (q); or
9            (C) any other forcible felony committed while the
10        recording or interception was approved in accordance
11        with this subsection (q), but for this specific
12        category of prosecutions, only if the law enforcement
13        officer or person acting at the direction of a law
14        enforcement officer who has consented to the
15        conversation being intercepted or recorded suffers
16        great bodily injury or is killed during the commission
17        of the charged forcible felony.
18        (5) Compliance with the provisions of this subsection
19    is a prerequisite to the admissibility in evidence of any
20    part of the contents of any wire, electronic or oral
21    communication that has been intercepted as a result of
22    this exception, but nothing in this subsection shall be
23    deemed to prevent a court from otherwise excluding the
24    evidence on any other ground recognized by State or
25    federal law, nor shall anything in this subsection be
26    deemed to prevent a court from independently reviewing the

 

 

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1    admissibility of the evidence for compliance with the
2    Fourth Amendment to the U.S. Constitution or with Article
3    I, Section 6 of the Illinois Constitution.
4        (6) Use of recordings or intercepts unrelated to
5    qualified offenses. Whenever any private conversation or
6    private electronic communication has been recorded or
7    intercepted as a result of this exception that is not
8    related to an offense for which the recording or intercept
9    is admissible under paragraph (4) of this subsection (q),
10    no part of the contents of the communication and evidence
11    derived from the communication may be received in evidence
12    in any trial, hearing, or other proceeding in or before
13    any court, grand jury, department, officer, agency,
14    regulatory body, legislative committee, or other authority
15    of this State, or a political subdivision of the State,
16    nor may it be publicly disclosed in any way.
17        (6.5) The Illinois State Police shall adopt rules as
18    are necessary concerning the use of devices, retention of
19    recordings, and reports regarding their use under this
20    subsection (q).
21        (7) Definitions. For the purposes of this subsection
22    (q) only:
23            "Forcible felony" includes and is limited to those
24        offenses contained in Section 2-8 of the Criminal Code
25        of 1961 as of the effective date of this amendatory Act
26        of the 97th General Assembly, and only as those

 

 

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1        offenses have been defined by law or judicial
2        interpretation as of that date.
3            "Qualified offense" means and is limited to:
4                (A) a felony violation of the Cannabis Control
5            Act, the Illinois Controlled Substances Act, or
6            the Methamphetamine Control and Community
7            Protection Act, except for violations of:
8                    (i) Section 4 of the Cannabis Control Act;
9                    (ii) Section 402 of the Illinois
10                Controlled Substances Act; and
11                    (iii) Section 60 of the Methamphetamine
12                Control and Community Protection Act; and
13                (B) first degree murder, solicitation of
14            murder for hire, predatory criminal sexual assault
15            of a child, criminal sexual assault, aggravated
16            criminal sexual assault, aggravated arson,
17            kidnapping, aggravated kidnapping, child
18            abduction, trafficking in persons, involuntary
19            servitude, involuntary sexual servitude of a
20            minor, or gunrunning.
21            "State's Attorney" includes and is limited to the
22        State's Attorney or an assistant State's Attorney
23        designated by the State's Attorney to provide verbal
24        approval to record or intercept conversations under
25        this subsection (q).
26        (8) Sunset. This subsection (q) is inoperative on and

 

 

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1    after January 1, 2027 2023. No conversations intercepted
2    pursuant to this subsection (q), while operative, shall be
3    inadmissible in a court of law by virtue of the
4    inoperability of this subsection (q) on January 1, 2027
5    2023.
6        (9) Recordings, records, and custody. Any private
7    conversation or private electronic communication
8    intercepted by a law enforcement officer or a person
9    acting at the direction of law enforcement shall, if
10    practicable, be recorded in such a way as will protect the
11    recording from editing or other alteration. Any and all
12    original recordings made under this subsection (q) shall
13    be inventoried without unnecessary delay pursuant to the
14    law enforcement agency's policies for inventorying
15    evidence. The original recordings shall not be destroyed
16    except upon an order of a court of competent jurisdiction;
17    and
18        (r) Electronic recordings, including but not limited
19    to, motion picture, videotape, digital, or other visual or
20    audio recording, made of a lineup under Section 107A-2 of
21    the Code of Criminal Procedure of 1963.
22(Source: P.A. 101-80, eff. 7-12-19; 102-538, eff. 8-20-21.)
 
23    (720 ILCS 5/33G-9)
24    (Section scheduled to be repealed on June 11, 2022)
25    Sec. 33G-9. Repeal. This Article is repealed on June 11,

 

 

10200HB3893sam001- 20 -LRB102 14883 RLC 38565 a

12023 2022.
2(Source: P.A. 100-1, eff. 6-9-17.)
 
3    Section 99. Effective date. This Act takes effect upon
4becoming law.".