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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CRIMINAL DIVISION

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. CHRISTOPHER DREW Defendant.

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No. 10 CR 46

MOTION TO DECLARE 720 ILCS 5/14 UNCONSTITUTIONAL NOW COMES the Defendant, CHRISTOPHER DREW, by the undersigned counsel, and moves this Honorable Court to find the Illinois Eavesdropping Statute (Eavesdropping Statute) 720 ILCS 5/14 unconstitutional. In support thereof, Defendant states as follows: 1. The Defendant was arrested for an ordinance violation in the City of Chicago at 1pm on December 2, 2009, concerning art peddling on State Street. 2. At the police station, a search was done of the Defendants belongings, where an Olympus digital audio-recorder was found in his pocket. Officers in the police station listened to the contents of the audio-recorder and determined that the Defendant had a recorder operating during his arrest. The Defendant was then charged with violating the Eavesdropping Statute for secretly recording a conversation between the Officer and himself, a Class 1 felony.

3. The Eavesdropping Statute, 720 ILCS 5/14-2, states: (a) A person commits eavesdropping when he: (1) Knowingly 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 unless he does so (A) with the consent of all parties to such conversation or electronic communication... 4. The Eavesdropping Statute, 720 ILCS 5/14-1(d) defines conversation: For the purposes of this Article, the term conversation means any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation. 5. This Court has previously denied the Defendants motion to dismiss because the Court found that the First Amendment does not allow citizens the right to record police officers in the discharge of their public duties. While Defendant acknowledges that this Honorable Court has fairly ruled to deny the motion on that basis, Defendant now seeks dismissal because the Eavesdropping Statute is unconstitutional (1) on its face because the statute lacks a culpable mental state, and (2) as applied to the Defendant because his mental state was not in contradiction to the purpose of the statute, personal privacy. Both of these bases reveal that the Eavesdropping Statute violates due process. Neither of these bases were raised in the previous motion. (1) THE EAVESDROPPING STATUTE IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT LACKS A CULPABLE MENTAL STATE, ENCOMPASSING WHOLLY INNOCENT CONDUCT, WHICH VIOLATES DUE PROCESS 6. The Eavesdropping Statute fails to require a culpable mental state and, therefore, can be

read to apply conduct that is wholly innocent, which violates substantive due process and makes the statute unconstitutional under the Fourteenth Amendment of the United States Constitution (U.S.Const., amend.XIV) and article 1, section 2 of the Illinois Constitution (Ill. Const. 1970, art.I, Sec.2). 7. In Madrigal, the Illinois Supreme Court noted the legislatures wide discretion to create penalties for criminal offenses, but this discretion is limited by the constitutional guarantee of substantive due process, which provides that a person may not be deprived of liberty without due process of law. The People of the State of Illinois v. Claudia Madrigal, 241 Ill.2d 463, 466 (2011). 8. Notably, because the Eavesdropping Statute impinges on a fundamental constitutional right, a strict scrutiny analysis seems to apply. Schultz v. Lakewood Elec. Corp., 362 Ill.App.3d 716, 721 (1st Dist. 2005) (In a due process challenge, where the right infringed upon is among those rights considered fundamental constitutional rights, the challenged statute is subject to strict scrutiny analysis.). Even if this Honorable court finds that strict scrutiny does not apply, as discussed below, the Eavesdropping Statute does not survive under the more deferential rational basis standard. 9. Under [the rational basis test], a statute will be sustained if it bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable

method of accomplishing the desired objective. Madrigal, 241 Ill.2d at 466, citing Wright, 194 Ill.2d 1, 24 (2000). 10. The Eavesdropping Statute has the state interest to protect individuals from unwarranted invasions of privacy...Illinois citizens are entitled to be safeguarded from unnecessary governmental intrusion into their privacy. See 87 Illinois Bar Journal, p. 363 (July 1999) and Plock v. Board of Education of Freeport School District No. 145, 396 Ill.App.3d 960, 966 (2nd Dist. 2009). Indeed, the Eavesdropping Statute is rationally related to the public interest of privacy. However, the means adopted are not a reasonable method of accomplishing the desired objective, because, as discussed below, it subjects wholly innocent conduct to criminal penalty without requiring a culpable mental state beyond mere knowledge. 11. The Illinois Supreme Court has repeatedly held that a statute violates the due process clauses of both the Illinois and United States Constitutions if it potentially subjects wholly innocent conduct to criminal penalty without requiring a culpable mental state beyond mere knowledge. See, e.g., Wright, 194 Ill.2d at 25 (struck down record-keeping statute because it potentially subjects innocent conduct to a severe penalty); In re K.C., 186 Ill.2d 542, 549, 553 (1999) (invalidated criminal trespass to a vehicle statute that prohibited entering a vehicle whenever it was done knowingly and without authority

because it potentially punish[ed] wholly innocent conduct without requiring proof of a culpable mental state): People v. Zaremba, 158 Ill.2d 36, 4243 (1994) (theft statute did not bear a reasonable relationship to its purpose because it potentially subject[ed] wholly innocent conduct to punishment and failed to require a culpable mental state other than that the defendant do the prohibited actions knowingly). 12. In Madrigal, the Illinois Supreme Court struck down a portion of the Identity Theft Law because it did not require a culpable mental state or criminal purpose to be convicted of a felony. Madrigal, 241 Ill.2d at 466. The Identity Theft Law required only that a person knowingly use any personal identification information or personal identification document of another for the purpose of gaining access to any record... Id. Because the Identity Theft Law did not require a culpable mental state, only mere knowledge, the Court noted that the Law punishes a significant amount of wholly innocent conduct not related to the statutes purpose... Id. For example, under the Identity Theft Law, as it read, criminalized such innocuous conduct as someone using the internet to look up how their neighbor did in the Chicago Marathon or a husband who called a repair shop for his wife, without her prior express permission, to see if her car is ready, would be seeking information in violation of the statute. Id. at 466. Despite the narrow exemptions, the Court found the Identity Theft Law to violate due process. Id.

13. In Carpenter, the Court considered the facial constitutionality of a statute that banned false or secret compartments in automobiles. People v. Carpenter, 228 Ill.2d 250, 269 (2008). In addition to the statutes mental state of the knowledge of the compartments capacity to conceal, it contained an intent to conceal. Id. Yet, the Court reasoned that people can carry things in a secret compartment without criminal intent. Id. Thus, despite containing two mental states, because the statute lacked a culpable mental state, the Court held that the statute violated due process under the rational basis test since it did not contain a reasonable means of preventing the targeted conduct. Id. 14. Similarly, the Eavesdropping Statute lacks a culpable mental state beyond both knowledge of the recorders ability to record and the intent to record. Notably, knowledge is not a contested issue in this case. Rather, like Carpenters finding of the intent to conceal, the intent to record is not sufficient to define the culpable conduct prohibited by the Eavesdropping Statute. Accordingly, under the rational basis test, the Eavesdropping Statute fails to provide a reasonable method of accomplishing the desired objective as result of lacking a culpable mental state. 15. The Eavesdropping Statute encompasses wholly innocent conduct by not preventing the targeted conduct or evil purpose of the unwarranted intrusion into citizens privacy. For example, a juror using an audio recorder to record directions to the courthouse for jury

duty given by a police officer would be in violation of the Eavesdropping Statute without the consent of the officer. Even a parent recording their childs soccer game and accidentally recording nearby conversations would be in violation of the Eavesdropping Statute. 16. Therefore, on its face, the Eavesdropping Statute fails the highly deferential rational basis analysis, violating substantive due process and making the statute unconstitutional. (2) THE EAVESDROPPING STATUTE IS UNCONSTITUTIONAL AS APPLIED SINCE THE DEFENDANTS INTENT IS NOT IN CONTRADICTION TO THE STATUTES PURPOSE, WHICH SUBJECTS INNOCENT CONDUCT TO CRIMINAL PENALTY AND VIOLATES DUE PROCESS. 17. As applied to the Defendant, the Eavesdropping Statute is also violative of substantive due process. The Defendants intent in operating a recorder during his arrest was not to intrude on the Officers privacy, but to memorialize his experience with the Officers discharge of his public duties. 18. In the recent case of Glik v. Cunniffe, a young man was arrested for filming with his cell phone several police officers on public property while they were arresting another individual. Glik v. Cunniffe, No. 10-1764____F.3d____, 2011 WL 3769092 (1st Cir. Aug. 26, 2011). The U.S. Court of Appeals for the First Circuit held that, under the First Amendment, citizens have a right to film police officers in the performance of their public duties. Id. at 4. The Court reasoned:

In our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) ([T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.)...The same restraint demanded of law enforcement officers in the face of provocative and challenging speech, id. at 461, must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces. Id. In other words, in citizens exercise of their First Amendment rights, police officers right to personal privacy is limited. 19. As stated supra, the purpose of the Eavesdropping Statute is to protect individuals from unwarranted invasions of privacy and to ensure Illinois citizens are safeguarded from unnecessary governmental intrusion into their privacy. In this case, the Defendant [memorialized], without impairing, [the Officers] work in public, which is a challenge to the Officers right to privacy that must be expected. Id. Thus, the Defendants mental state is not in contradiction to the purpose of the Eavesdropping Statute. 20. Under the means of the Eavesdropping Statute, the Defendants intent to memorialize the Officers conduct is not within the method to accomplish the desired objective of protecting against invasions of privacy. Again, the Eavesdropping Statute violates the rational basis test by its ability to subject wholly innocent conduct to criminal penalty. Therefore, as applied to the case at bar, the lack of a culpable mental state that results in encompassing the Defendants conduct is violative of substantive due process and makes

the Eavesdropping Statute unconstitutional. WHEREFORE, Defendant respectfully moves this Honorable Court to dismiss Defendants charges under the Illinois Eavesdropping statute. Respectfully submitted,

________________________ One of Defendants Attorneys

JOSHUA B. KUTNICK 820 W. JACKSON BOULEVARD, SUITE 300 CHICAGO, ILLINOIS 60607 (312) 441-0211 ATTORNEY NO.: 37384

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CRIMINAL DIVISION

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Respondent, -vsCHRISTOPHER DREW, Defendant-Petitioner. 10CR00046

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MAR 0 2 2012
IKOTHY BROW
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Hon. Stanley J. Sacks Judge Presiding

ORDER CHRISTOPHER DREW, by his attorneys by motion seek to have this court find the Illinois Eavesdropping Law, 720 ILCS 5/14 unconstitutional. As grounds for his motion Drew raises two, albeit related, issues: (1) THE EAVESDROPPING STATUTE IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT LACKS A CULPABLE MENTAL STATE ENCOMPASSING WHOLLY INNOCENT CONDUCT, WHICH VIOLATES DUE PROCESS. and/or

(2)

THE EAVESDROPPING STATUTE IS UNCONSTITUTIONAL AS APPLIED SINCE THE DEFENDANT'S INTENT IS NOT IN CONTRADICTION TO THE STATUTE'S PURPOSE, WHICH SUBJECT'S INNOCENT CONDUCT TO CRIMINAL PENALTY AND VIOLATES DUE PROCESS.

BACKGROUND On December 2, 2009 at approximately 1:15 pm Sgt. Mizera of the Chicago Police Department, along with other police officers were in downtown Chicago. At approximately 103 N. State, while conducting a Homeland Security check, the officers observed Drew offering art patches for sale for $1.00 U.S.C. Drew was wearing a red poncho with signs on it (front & back) indicating "art for sale $1.00." Sgt. Mizera approached Drew and informed him that he could not peddle in a restricted area - Drew when asked, indicated that he did not have a peddler's license. Drew indicated that he would not desist from peddling. Mizera told Drew that if he did not stop peddling he would be arrested. Drew responded, in essence, go ahead and arrest me. Mizera then placed Drew under arrest. At the police station Drew's poncho was searched. The poncho contained numerous items that Drew was selling. In one of the pockets the police recovered an Olympus digital voice recorder. The recorder was on and recording at the time. Further investigation (by the police at the station) indicated that Drew had

unbeknownst to the police been recording the conversation with the police while on State Street. Drew was then charged with the Class 1 felony of eavesdropping. Drew has never challenged the legality of his arrest for (a) peddling without a license (M.C.C. 4244-030), and (b) peddling in a prohibited district (M.C.C. 4-244-140 (4), nor has he challenged the police's right to inventory his property, ie. the recorder and the tape within it. By a Motion to Suppress he unsuccessfully challenged the officer's authority to listen to the contents of the tape on the recorder.

PROCEDURAL HISTORY Drew was arrested on December 2. 2009. At a preliminary hearing on December 9, 2009 the court (J. De Boni) entered a 'finding of probable cause.' Subsequently, on December 30, 2009 Drew's case was assigned to this court and Drew was arraigned. On March 26, 2010 Drew filed his initial Motion to Dismiss on the basis that the Eavesdropping Act was 'unduly broad and restrictive' and thusly violated his longstanding 'First Amendment right to monitor and record police activity on the public way through audio recording' and also that defendant's interaction with the police on a public street did not constitute a "conversation" as set forth in the eavesdropping statue. On May 18, 2010 the Motion was denied. On September 22, 2010 Drew filed a Motion to Suppress, seeking to suppress, as mentioned earlier, the contents of the Olympus digital voice recorder. On November 22, 2010 the Motion to Suppress was denied. On May 2, 2011 Drew filed a Motion to Plead Exemption, which Motion was subsequently denied after a hearing. Subsequently, (September 6, 2011) Drew filed am Amended Notice of Intent to Plead Exemption, which Motion apparently is still pending. The current Motion to Declare 720 ILCS 5/14 Unconstitutional was filed October 25, 2011. Arguments were heard on February 14, 2012. ANALYSIS "An evil intention and an unlawful action must concur in order to constitute a crime." Commonwealth v. Mixer, 207 Mass. 141, 93 N.E. 249(1910). Central to Drew's argument that section 5/14 (Illinois Eavesdropping law) is unconstitutional is that section 5/14 does not require a culpable mental state (and

therefore punishes wholly innocent conduct). Accordingly, this court must determine whether section 5/14 requires a culpable mental state. This court's review of the merits of defendant's constitutional challenge is guided by the following principles. Statutes are presumed constitutional, and a party challenging the constitutionality of a statute has the burden of establishing its invalidity. People v. Lantz, 186 I11.2d 243, 254, 238 111. Dec. 592, 712 N.E.2d 314 (1999). Pursuant to its police power; the legislature has wide discretion to establish penalties for criminal offenses, but this discretion is limited by the constitutional guarantee that a person may not be deprived of liberty without due process of law. In re K.C., 186 111.2d 542, 550, 239 111. Dec. 572, 714N.E.2d491 (1999) Scenario (a) "A person commits aggravated arson when he by means of fire or explosive knowingly damages partially or totally, any building or structure, including any adjacent building or structure, and a fireman or policeman who is present at the scene acting in the line of duty is injured as a result of the fire or explosion." (Class X felony) Scenario (b) "A person commits theft when he knowingly: (5) obtains or exerts control over property in the custody of any law enforcement agency which is explicitly represented to him by any law enforcement officer or any individual acting in behalf of a law enforcement agency as being stolen."

Scenario (c) "(a) It is a violation of this Chapter for : (1) a person, without authority to do so. to damage a vehicle or to damage or remove any part of a vehicle; (2) A person, without authority to do so, to tamper with a vehicle or go in it, on it, or work or attempt to work any of its parts, or set or attempt to set it in motion". Scenario (d)

Under the Illinois Vehicle Code (625 111. Comp. Stat. 5-401.2 (a) (West 1996) certain individuals are required to keep records, including the year; make, and model of a part or vehicle; the style and color of a vehicle; the date of acquisition of the part or vehicle; the name and address of the person from whom the part or vehicle was acquired; The failure to record any of the specific information required constitutes a failure to keep records. Scenario (e) "It is unlawful for any person to own or operate any motor vehicle he or she knows to contain a false or secret compartment. It is unlawful for any person to knowingly install, create, build, or fabricate in any motor vehicle a false or secret compartment." Scenario (f) "A person commits the offense of identity theft when he or she knowingly: (7) uses any personal identification information or personal identification document of another for the purpose of gaining access to any record of the actions taken, communications made or received, or other activities or transactions of that person, without the prior express permission

of that person." A criminal statute that does not require an unlawful purpose sweeps too broadly by punishing innocent (as well as culpable) conduct. People v. Wick, 107 111.2d 62, 481 N.E.2d 676; 1985 111. Lexis 244; 89 111. Dec. 833 (1985) As previously stated statutes are presumptively constitutional and the burden of establishing the unconstitutionality of a statute is on the party attempting to establish its invalidity. Lantz, supra. In all of the previously set forth scenarios the Illinois Supreme Court found the statutes unconstitutional.

Scenario (a) The Illinois Supreme Court held that because the aggravated arson statute did not require an unlawful purpose in setting a fire the statute swept too broadly by punishing innocent conduct as well as culpable conduct. The statute violated due process. The court cited as an example of innocent conduct that could subject the defendant to a Class X sentence - the farmer who burns down his deteriorated barn to clear space for a new one. and a fireman standing nearby is injured by the fire. In Wick, a fire occurred at defendant's place of business. A fireman was injured fighting the fire.

Scenario (b) The theft statute held to be unconstitutional since it failed to require a culpable mental state. People v. Zaremba, 158 I11.2d 36; 630 N.E. 2d 797, 1994 111. Lexis 6; 196 111. Dec. 632 (1994). The statute was not reasonably related to the purpose of enabling

police officers to break up fencing operations because, as written, it subjected innocent persons to punishment. Section {16-1 (a) (5) could criminalize the actions of a police evidence technician who took from a police officer for safe keeping the proceeds of a theft that the police officer had received and that the police officer gave to the evidence technician with the representation that the goods were stolen.

Scenario (c) In re K.C., 186 IU.2d 542; 714 N.E.2d 491; 1999 111. Lexis 957; 239 111. Dec. 572 (1999). Illinois Supreme Court held that the statutory provisions swept too broadly and attempted to punish persons with wholly innocent motives. The statute in question

imposed absolute liability. Examples of innocent conduct that could subject a person to criminal prosecution: (1) a person who enters an unlocked car to turn off the headlights violates the statute and is subject to a one year sentence; (2) a person who decorates the bride and groom's car during a wedding ceremony is subject to criminal sanctions. Other examples of innocent conduct that would subject a person to criminal penalties are set forth in the Supreme Court's opinion.

Scenario (d) People v. Wright, 194 I11.2d 1; 740 N.E.2d 755; 2000 111. Lexis 1234; 251 111. Dec. 469 (2000).

The Illinois Vehicle Code provisions requiring certain individuals to keep records (Class 2 felony) are unconstitutional because they potentially punish innocent conduct in violation of due process because they are not reasonably designed to achieve the purposes for which the statute was enacted, i.e. trafficking in stolen vehicles or parts. An

individual who knowingly fails to record the color of a single vehicle could be convicted of failure to keep records, even if that failure was caused by disability, family crisis or incompetence.

Scenario (e) People v. Carpenter, Garibaldi, & Montes-Medina (consolidated) 228 111.2d 250; 888 N.E.2d 105; 2008 111. Lexis 314; 320 111. Dec. 888 (2008). Section 12-612, referred to as the Hidden Compartments Law unconstitutional as violative of substantive due process guarantees, as the statute sweeps too broadly, potentially encompassing innocent conduct. "Assuming that the purpose of the statute is the laudable goal of protecting police and punishing those who hide guns and illegal contraband from officers, we must next consider whether" 'the means adopted are a reasonable method of accomplishing the desired objective.' (citations omitted) We hold it is not." "The statute potentially criminalizes innocent conduct, as it visits the status of a felon upon anyone who owns or operates a vehicle he or she knows to contain a false or secret compartment. defined as one intended and designed to conceal the compartment or its contents from law enforcement officers. The contents of the compartment do not have to be illegal for a conviction to result. In these cases, there was in fact nothing illegal found within the compartments." As the appellate court noted in Carpenter, "an owner or driver who uses his concealed compartment to keep legally possessed items from view of law enforcement

officers has no criminal purpose." People v. Carpenter, 368 111. App.3d 288 856 N.E.2d 551,303 111. Dec. 746(2006)

Scenario (f) People v. Madrigal, 241 I11.2d 463; 948 N.E.2d 591; 2011 111. Lexis 454; 350 111. Dec. 311 (2011) Subparagraph (a) (7) of the Identity Theft Statute does not require criminal intent, criminal knowledge, or a criminal purpose in order to subject someone to a felony conviction and punishment. "The problem with section 16 (f) 15 (a) (7), then is that it lacks a culpable mental state, as it does not require a criminal purpose for a person to be convicted of a felony. Because the statute potentially punishes a significant amount of wholly innocent conduct not related to the statute's purpose, we simply do not believe that this is a rational way of addressing the problem of identity theft." (Examples of innocent conduct prohibited by the statute and possible criminal sanctions are set forth in the Supreme Court opinion).

One of the General Purposes of the "Criminal Code of 1961,..(effective January 1, 1962) is set forth in 720 ILCS 5/1-2 (b) "Define adequately the act and mental state which constitute each offense, and limit the condemnation of conduct as criminal when it is without fault."

Subsection (b) addresses the concern that the Code must clearly explain acts and related mental state's fall within the gambit of the criminal law, while simultaneously avoiding the inclusion of behavior that does not merit or allow for criminalization. A criminal law violates due process if it fails to extend notice to the general populace about

(a) who falls within the reach of the law or (b) what conduct is prohibited. Also, if a criminal statute intrudes into behavior (conduct) that is innocent it may be rendered invalid due to its overbreath. 720 ILCS 5/14-2 (a) a person commits eavesdropping when he: (1) knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversations... unless he does so (A) with the consent of all of the parties to such conversations..

Eavesdropping of a police officer's "conversation" is a Class 1 felony authorizing a sentence of probation up to fifteen years in the penitentiary. While the eavesdropping statute sets forth two requirements concerning the acts of the person recording: he act knowingly and intentionally in performing the physical acts of turning on the recording device and recording the conversation (unbeknownst to the other party); the Eavesdropping Act does not set out any evil intent (mens rea) that must accompany the acts (actus reus). In Carpenter, supra. The Hidden Compartments Law prohibited a person from owning or operating a motor vehicle that he knew contained a secret compartment or from knowingly installing a secret compartment. The statute as indicated earlier, was declared unconstitutional because it contained no mens rea (mental state) and thusly potentially prohibited innocent conduct, as not everything placed the secret compartment would constitute contraband or be illegal to possess or own.

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In the Eavesdropping Statute, the statute clearly sets forth the prohibited physical acts. The fault of the statute is that it does not require an accompanying culpable mental state, or criminal purpose for a person to be convicted of a felony. The Illinois Eavesdropping Statute potentially punishes as a felony a wide array of wholly innocent conduct. For example, a juror using an audio recorder to record directions to the courthouse for jury duty given by a police officer would be in violation of the statute if he recorded the conversation without the consent of the officer. Recording of a police officer's instructions on where to pay a speeding ticket or where a towed vehicle could be picked up would violate the statute if done without the consent of the officer. A parent making an audio recording of their child's soccer game, but in doing so happens to record nearby conversations would be in violation of the Eavesdropping Statute. Although it is extremely unlikely that this doting parent would be charged with a felony offense - the fact remains that she could - thusly punishing innocent conduct. "The Eavesdropping Statute has the state interest" to protect individuals from unwanted invasions of privacy...Illinois citizens are entitled to be safeguarded from unnecessary governmental intrusion into their privacy. The Eavesdropping Statute is rationally related to the public interest of privacy. However, the means adopted are not a reasonable method of accomplishing the desired objective, because...it subjects wholly innocent conduct to criminal penalty without requiring a culpable mental state beyond mere knowledge" (para 10 DREW'S MOTION TO DECLARE 720 ILCS 5/14 UNCONSTITUTIONAL).

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Wherefore, the court grants the motion to dismiss finding that the Illinois Eavesdropping Statute lacks a culpable mental state and subjects wholly innocent conduct to prosecution. Under Illinois Supreme Court Rule 18, the court finds the Illinois Eavesdropping Statute is unconstitutional on its face and as applied to defendant as the statute is violative of substantive due process. The court finds that the statute violates substantive due process under the Fourteenth Amendment to the Unites States Constitution (U.S. Const. Amend. XIV) and Article I, Section 2 of the Illinois Constitution (111. Const. 1970, Art. I, Sec.2). The court further finds that the statute cannot be constructed in a manner that would preserve its validity and judgment cannot rest upon an alternative ground. Notice under Illinois Supreme Court Rule 19 was given.

ENTERED:

Judge Stanley J. Sacks Circuit Court of Cook County Criminal Division

DATED:

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