In July 2010, Stephen Wachholtz was pulled over in Livingston County for not having a working rear license plate light. The officer discovered that Stephen's license had been revoked and arrested him. During an inventory search of the car before it was towed, the officer discovered a meth pipe in a flap on the driver's side armrest. During the arrest, Stephen told the officer he didn't know the flap was there.
The State charged Stephen with possession of under 5 grams of meth. At trial, the arresting officer testified regarding, in part, his search of Stephen's car and the subsequent conversation following his discovery of the pipe.
Stephen moved to suppress the officer's testimony based on the fact that the police destroyed the recording of his arrest by "recycling" the DVD, in violation of section 14-3(h-15) of the eavesdropping statute (720 ILCS 5/14-3(h-15) (West 2010)).
Section 14-3(h-15) provides that recordings made under the police exception to the eavesdropping statute "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." 720 ILCS 5/14-3(h-15).
The trial court denied Stephen's motion, finding that the police did not violate the statute by destroying the DVD.
In People v. Wachholtz, 2013 IL App (4th) 110486, the Fourth District Appellate Court held that the trial court erred in finding no violation of section 14-3(h-15), but nevertheless affirmed its denial of Stephen's motion to suppress. The court found that "the trial court's error in interpreting the statute was harmless where defendant was not prejudiced by the absence of the recording."
The appellate court noted that, although the police in this case violated section 14-3(h-15) by destroying the DVD, the statute prescribes no remedy for such a violation. The court focused on the substance of the arresting officer's testimony, which was limited to his own subjective observations made during the stop. The officer never testified to what the video would show, and Stephen did not assert the video would impeach or contradict the officer's testimony.
Stephen's argument at trial was that he had just recently bought the car, and he did not know the meth pipe was hidden in the arm rest. However, Stephen never asserted that the video of the arrest could prove this point, nor did he allege the arresting officer lacked probable cause to pull him over.
In affirming the circuit court, the appellate court concluded that the absence of the recording did not hinder Stephen's ability to put on a defense such that he was prejudiced.
As far as I can tell, the Fourth District's prejudice analysis in Wachholtz is fresh law. The court did not elaborate on how the prejudice analysis fits in with the trial court's role in a suppression hearing. Is the defendant required to make specific allegations at the suppression hearing that would tend to show the law enforcement agency's violation of the statute (i.e. absence of the recording) would prejudice his case? This would be difficult to ascertain in the absence of the recording when the substance of the arresting officer's trial testimony has not yet been determined.
I should note that in People v. Kladis, 2011 IL 110920, the Illinois Supreme Court affirmed the trial court's discovery sanction that prohibited the arresting officer from testifying regarding events that were purged from a recording of the defendant's DUI arrest in violation of section 14-3(h-15). Thus, the notion of section 14-3(h-15) providing a basis for excluding testimony is not new.