## Facts

- A Chicago police investigator conducted an undercover internet investigation posing as an underage teenage boy using an AOL profile and screen name.
- David Gariano contacted the undercover officer using AOL screen names and engaged in multiple one-on-one instant-message conversations over several dates in September 2001.
- The communications were explicitly sexual and included plans to meet at Gariano’s apartment to engage in sex.
- The officer used department-provided software (“power tools”) that automatically recorded, saved, and printed verbatim transcripts of the instant messages (about 23 pages).
- The officer did not obtain Gariano’s consent to record or transcribe the messages and did not obtain a court order.
- Police arrested Gariano after observing him at the planned meeting location.
- Gariano was charged with and, after a bench trial, convicted of five counts of indecent solicitation of a child to commit aggravated criminal sexual abuse; the State introduced the IM transcripts and Gariano’s post-arrest statement to an assistant State’s Attorney.
- Gariano moved to suppress the transcripts and his statement on Fourth Amendment, Illinois Constitution, and Illinois eavesdropping statute grounds; the trial court denied the motion.

## Issues

1. Whether an undercover officer’s warrantless recording and transcription of instant messages in which the officer participated violated the Fourth Amendment or the Illinois Constitution, requiring suppression of the transcripts and derivative evidence.
2. Whether using software to record the instant-message conversations without the defendant’s consent violated the Illinois eavesdropping statute, requiring suppression of the transcripts and the defendant’s subsequent statement.

## Decision

- The appellate court affirmed the denial of the motion to suppress and affirmed the conviction and sentence.
- The court held there was no Fourth Amendment violation because a government agent who is a party to a conversation may record it without a warrant.
- The court held the Illinois Constitution did not provide greater protection on these facts than the Fourth Amendment.
- The court held the Illinois eavesdropping statute was not violated because the statutory privacy requirement for protected electronic communications was not met where the undercover officer did not intend the conversation to be private.
- The IM transcripts and the defendant’s post-arrest statement were properly admitted.

## Legal Principles

- A person who voluntarily communicates with another assumes the risk that the recipient is a government agent or will disclose or memorialize the communication; participant recording does not, by itself, constitute a Fourth Amendment search requiring a warrant.
- Under the applicable Illinois eavesdropping statute framework, statutory protection for certain electronic communications depended on mutual intent that the communication be private; if one party (including an undercover officer) lacks that intent, the statute does not bar recording by that participant.
- When the recording is lawful, suppression is not required for the recorded communications or for later statements alleged to be derivative of the recording.

## Conclusion

The court upheld the admission of automatically transcribed AOL instant messages captured by an undercover officer who participated in the chats, concluding that participant monitoring did not violate constitutional protections and that the eavesdropping statute’s privacy requirement was not satisfied where the officer did not intend the communications to be private.


People v. Gariano, 852 N.E.2d 344 (Ill. App. Ct. 2006)