A cellphone conversation overheard by a Mount Prospect detective between two people later charged with murder does not violate the Illinois eavesdropping statute, a Cook County judge ruled Thursday.
Defense attorneys for Marko Guardiola, 39, sought to suppress the cellphone conversation between their client and co-defendant Edwin Paniagua, 18, which was overheard by Mount Prospect Detective Anthony Lietzow on the evening of July 23, 2010, two days after 52-year-old Jean Wattecamps was found stabbed to death in his Mount Prospect apartment.
Paniagua, then 15, was at the police station for questioning but was not under arrest when his flip phone -- which was lying on the table -- rang repeatedly, Lietzow testified
Paniagua said, "Hey, that's Macho calling," referring to Guardiola, said Lietzow, who testified he was sitting next to Paniagua at the time.
"I asked Edwin Paniagua to answer the phone, he said 'sure' and answered the phone," Lietzow said.
Testifying that he was within earshot of the conversation, Lietzow said he leaned in and heard a voice say "if you tell the police anything I'll kill you and your family."
Lietzow further testified that he did not ask Paniagua's permission to listen in, but that the teen did not move away when Lietzow leaned in.
Several days later, authorities charged Guardiola and Paniagua with first-degree murder in the death of Wattecamps, a baggage manager for American Airlines at O'Hare International Airport.
Cook County Assistant Public Defender Kristina Yi argued that an individual must have consent of all parties, or the consent of one party and a court order, to use a device to eavesdrop on a conversation. The device in this case was a cellphone, Yi argued, and Lietzow had neither a court order, nor consent to use it.
"Just because he (Lietzow) didn't have a little chip and wasn't at another (location) doesn't mean he wasn't eavesdropping," Yi said.
Cook County Assistant State's Attorney Mike Clarke called the defense argument "a ridiculous interpretation of the statute."
"All (Lietzow) did was allow Edwin Paniagua to answer his cellphone and he took the simple step of leaning in," Clarke said. "It's no different from hearing a conversation in the next room or using the naked ear to overhear a conversation in a public place."
In denying the defense's motion, Cook County Judge Kay Hanlon disagreed that a cellphone constitutes a listening device, adding she would reconsider her ruling if defense attorneys provide case law to support their claim.
Hanlon also made clear that her ruling does not apply to the admissibility of the statements, an issue that may be argued in the future.
As the hearing concluded, Yi requested protective custody for Guardiola and referenced a solicitation for murder charge that Paniagua picked up last year when both men were in custody. Authorities say Guardiola was the intended victim. Yi expressed concern for Guardiola's safety at the Cook County Jail, where he and Paniagua are being held without bond, based on "threats (Guardiola) has received because of the co-defendant (Paniagua)."
Hanlon granted Yi's request for a protective custody order for Guardiola, who next appears in court on April 8. Paniagua appears in court on March 21.