THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID GARIANO, Defendant-Appellant, 366 Ill. App. 3d 379

JUSTICE O’BRIEN delivered the opinion of the court: Defendant, David Gariano, appeals his bench trial conviction on five counts of indecent solicitation of a child to commit aggravated criminal sexual abuse and his sentence of two years of felony probation, sex offender counseling, DNA testing, HIV testing, and sex offender registration. Defendant contends the trial court erred in denying his motion to suppress instant messages intercepted and transcribed by the police without his consent or a court order and admitting them into evidence with a statement made to an assistant State’s Attorney. We affirm.

At the hearing on the motion to suppress, Investigator Daniel K. Everett of the Chicago police department testified that in September 2001 he was assigned to the special investigations unit of the youth division (Unit) where he investigated crimes against children committed over the Internet. He created a “profile,” a personal history associated with an AOL screen name that includes information such as gender, marital status, hobbies, and location, and used the “screen name” BrianNllS. Nothing in Everett’s “profile” indicated BrianNllS’s age.

Everett testified that he was posing as an underage teenage boy under the screen name BrianNllS. Everett testified he monitored AOL chat rooms daily, entered the chat room to see who else was in the chat room, and waited to see if he was contacted by anyone using AOL’s instant messaging. The Unit supplied Everett with Power Tools, a computer software program that enabled him to record, save, and print verbatim the words transmitted by defendant to Everett while using AOL’s instant messaging. Everett testified that Power Tools transcribed instant messages on an immediate basis, similar to a court reporter.

AOL instant messaging is a private, one-on-one, in-time, electronic conversation between the sender and receiver, like a telephone call. Only the sender and receiver have access to instant messages. On September 5, 2001, and September 6, 11, 17, 18, 19 and 21, 2001, Everett corresponded with defendant using instant messages. Everett activated the Power Tools program to automatically transcribe all of their messages. Defendant’s AOL screen names were “Clncutexec” and “Ddgariano.” Everett testified that he did not obtain defendant’s consent to transcribe the instant messages.

Everett used Power Tools to transcribe 23 pages of instant message conversations he had with defendant during these seven days. On cross-examination, Everett testified that he never intended that his instant message communications with defendant would be private. Defendant next called Jerry Saperstein, an expert in computer forensics and AOL protocols, as his witness. Saperstein testified, inter alia, to the four different methods of communication on AOL and testified that only a third party, like a hacker, deliberately attempting to intercept an instant message would be privy to the text in instant messages.

Saperstein concluded his testimony by testifying that instant messaging is one-on-one, real-time, private communication across a network. Instant messaging is a specific protocol that can only involve two people. The trial court denied defendant’s motion to suppress. At the bench trial, the State called two witnesses. The first witness, Assistant State’s Attorney Carol Rogala (ASA Rogala), testified that on September 24, 2001, prior to interviewing defendant, she discussed the case with Everett and reviewed the instant message transcripts. ASA Rogala then read defendant his Miranda rights, which defendant waived.

Defendant told ASA Rogala his age and home address. Defendant also told ASA Rogala that he had been communicating online with BrianNllS, whom he believed to be a 15-year-old boy, since September 5, 2001. Defendant told ASA Rogala that he used two screen names, Clncutexec and Ddgariano, during his instant message communications with BrianNllS. ASA Rogala testified that defendant told her that he instant messaged BrianNllS about having sex with males and that they exchanged digital photos of themselves. ASA Rogala testified that she showed defendant the transcripts of the instant messages with BrainNllS.

According to ASA Rogala, defendant reviewed the transcripts and told her that the transcripts were accurate logs of the instant messages. ASA Rogala showed defendant the September 5, 2001, transcripts where defendant used explicit terms and defendant explained their sexual meaning. Defendant explained that he and BrianNllS discussed sex, meeting each other, and going to defendant’s apartment to have sex. On September 21, 2001, defendant and BrianNllS confirmed that they would meet on September 24.

Defendant told ASA Rogala that before noon on September 24, 2001, he and BrianNllS spoke by phone and confirmed that they would meet at a bus stop at Illinois and State Streets, and they discussed the clothing that each man would be wearing. ASA Rogala testified that defendant told her that he planned to have lunch with BrianNllS and then they planned to go to defendant’s apartment to have sex as they had previously discussed. Defendant told ASA Rogala that on September 24, 2001, at approximately 2:15 p.m., he went to the designated bus stop to meet BrianNllS and was arrested.

Defendant declined to sign the statement at the end of the interview. The second trial witness, Everett, testified to substantially the same facts that he provided at the suppression hearing. He explained that he was online in his official undercover capacity, monitoring chat rooms on AOL in search of child predators and child pornography offenders. Using his screen name, BrianNllS, Everett posed as a 15-year-old boy. Everett used both AOL and Power Tools.

On September 5, 2001, while on the internet in an AOL chat room as BrianNllS, Everett was contacted through instant messaging, by defendant, under defendant’s screen name, Clncutexec. Thereafter, on September 6, 11, 17, 18, 19 and 21, 2001, Everett, as BrianNllS, had several instant message conversations with defendant, under either his Clncutexec or Ddgariano screen names. The parties discussed sex during the instant message conversations, and Everett retained all of defendant’s instant messages by activating his Power Tools software.

Everett testified that defendant did not consent to this procedure, and Everett never obtained a search warrant to transcribe the instant messages. The parties also exchanged digital pictures of each other — Everett transmitted an image of another Chicago police officer when he was much younger. Everett testified that on September 21, 2001, he and defendant agreed by instant message to meet at the corner of Illinois and State Streets on September 24, 2001, and to go to defendant’s apartment to engage in sex.

Defendant gave BrianNllS his telephone number, and on September 24, 2001, one of Everett’s fellow officers spoke with defendant by phone, and the parties made the final meeting arrangements and discussed the clothing that each man would be wearing. Police officers observed defendant waiting at the prearranged meeting location, wearing the clothing he described on the telephone, and arrested him. The instant message transcripts were read into the record, and the State rested. The trial court found defendant guilty of all five counts of indecent solicitation of a child to commit aggravated criminal sexual abuse.

The trial court sentenced defendant to two years’ felony probation, sex offender counseling, DNA testing, HIV testing, and sex offender registration. Defendant contends the trial court erred when it denied his motion to suppress the transcriptions of the instant messages, which were transcribed without his consent or a court order. As the relevant facts are not in dispute, our review is de novo. People v. Parker, 354 Ill. App. 3d 40, 44 (2004). First, defendant contends that the action of Everett violated both the fourth amendment of the United States Constitution (U.S. Const., amend. IV) and

article 1,

section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, § 6) and cites Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), in support. A more recent Supreme Court case, United States v. White, 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1971), is dispositive.

In White, the United States Supreme Court held: “[A] police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. [Citation.] For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person [citation]; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. [Citation.] If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.” United States v.

White, 401 U.S. at 751, 28 L. Ed. 2d at 458, 91 S. Ct. at 1125-26. Our Illinois Supreme Court has held that “State and Federal constitutional protections against the invasion of privacy are not offended where one party to a conversation allows another party to listen.” People v. Shinkle, 128 Ill. 2d 480, 486 (1989). Thus, defendant’s claims of error as to the United States Constitution and the Illinois Constitution are without merit. Next, defendant contends that the instant message transcriptions were obtained in violation of the Illinois Criminal Code of 1961 (the eavesdropping statute) as amended on January 1,

Section 14 — 2(a)(1) of the eavesdropping statute 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 of the parties to such conversation or electronic communication or (

B) in accordance with

Article 108A or

Article 108B of the ‘Code of Criminal Procedure of 1963’, approved August 14, 1963, as amended[.]” (Emphasis added.) 720 ILCS 5/14 — 2(a)(1) (West 2000).

Section 14 — 1(

e) of the eavesdropping statute defines “electronic communication” as follows: “[T]he term electronic communication means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, pager, computer, electromagnetic, photo electronic or photo optical system, where the sending and receiving parties intend the electronic communication to be private and the interception, recording, or transcription of the electronic communication is accomplished by a device in a surreptitious manner contrary to the provisions of this Article.” (Emphasis added.) 720 ILCS 5/14 — 1(e) (West 2000).

Defendant contends that Everett was an eavesdropper according to the statute, that he used an eavesdropping device, and that his instant messages to Everett are electronic communications. The State argues that Everett did not intend that his communications with defendant would remain private and, therefore, there was no electronic communication as defined by the statute and thus, no violation of the eavesdropping statute. The State is correct. The primary objective of statutory

interpretation is to determine and give effect to the legislature’s intent. People v. Hanna, 207 Ill. 2d 486, 497 (2003). This inquiry properly begins by examining the language in the statute at issue. People v. Phelps, 211 Ill. 2d 1, 15 (2004). The statute should be interpreted according to the plain and ordinary meaning of the language. Paris v. Feder, 179 Ill. 2d 173, 177 (1997). The General Assembly chose its terms and

definitions. Here, an electronic communication is defined as a communication “where the sending and receiving parties intend the electronic communication to be private.” (Emphasis added.) 720 ILCS 5/14 — 1(e) (West 2000). Everett testified that he had no intention of keeping the conversations private; thus, the conversations were not electronic communications according to the statute, notwithstanding our cultural use of such term. Because they were not electronic communications, the claim of error of defendant is without merit.

Defendant claims that the transcriptions and his statement to ASA Rogala should be suppressed as “the fruit of the poisonous tree.” Because of our findings supra, that claim of error is without merit. Accordingly, the trial court did not err in denying defendant’s motion to suppress. Affirmed. O’HARA FROSSARD, J., concurs.