{ "id": 5582105, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH SMITH, Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "1979-05-29", "docket_number": "No. 78-78", "first_page": "956", "last_page": "965", "citations": [ { "type": "official", "cite": "72 Ill. App. 3d 956" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "367 N.E.2d 1313", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811071 ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0564-01" ] }, { "cite": "351 N.E.2d 594", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 635", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2971510 ], "pin_cites": [ { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0635-01" ] }, { "cite": "384 F.2d 643", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2082185 ], "opinion_index": 0, "case_paths": [ "/f2d/384/0643-01" ] }, { "cite": "345 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 542", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2630300 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0542-01" ] }, { "cite": "306 N.E.2d 292", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404662 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0162-01" ] }, { "cite": "97 S. Ct. 2929", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "53 L. Ed. 2d 1065", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "431 U.S. 969", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1826, 1671, 2120, 1897, 1911, 2071, 1910, 1847, 1656, 1689, 1724, 1853, 2111 ], "opinion_index": 0, "case_paths": [ "/us/431/0969-04", "/us/431/0969-10", "/us/431/0969-08", "/us/431/0969-07", "/us/431/0969-12", "/us/431/0969-11", "/us/431/0969-03", "/us/431/0969-06", "/us/431/0969-01", "/us/431/0969-13", "/us/431/0969-09", "/us/431/0969-02", "/us/431/0969-05" ] }, { "cite": "352 N.E.2d 282", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 448", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2966000 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0448-01" ] }, { "cite": "327 N.E.2d 146", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 535", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2863836 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0535-01" ] }, { "cite": "339 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 616", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2962121 ], "year": 1975, "pin_cites": [ { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0616-01" ] }, { "cite": "347 N.E.2d 807", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 383", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2803598 ], "year": 1975, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0383-01" ] }, { "cite": "95 S. Ct. 62", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "42 L. Ed. 2d 62", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "419 U.S. 835", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6232516, 6233161, 6234571, 6233970, 6234258, 6233493, 6235541, 6234871, 6235193, 6232827 ], "opinion_index": 0, "case_paths": [ "/us/419/0835-01", "/us/419/0835-03", "/us/419/0835-07", "/us/419/0835-05", "/us/419/0835-06", "/us/419/0835-04", "/us/419/0835-10", "/us/419/0835-08", "/us/419/0835-09", "/us/419/0835-02" ] }, { "cite": "306 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2517322 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0574-01" ] }, { "cite": "325 N.E.2d 378", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 1028", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2789230 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/1028-01" ] }, { "cite": "308 N.E.2d 39", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 285", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2513011 ], "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0285-01" ] }, { "cite": "356 N.E.2d 1156", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2721124 ], "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0097-01" ] }, { "cite": "402 F.2d 380", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2132278 ], "year": 1976, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/f2d/402/0380-01" ] }, { "cite": "432 F.2d 1115", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2224288 ], "year": 1968, "pin_cites": [ { "page": "1118" } ], "opinion_index": 0, "case_paths": [ "/f2d/432/1115-01" ] }, { "cite": "333 N.E.2d 241", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1970, "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 423", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2708111 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0423-01" ] }, { "cite": "96 S. Ct. 1678", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "48 L. Ed. 2d 183", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "425 U.S. 940", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6248161, 6248995, 6249254, 6248455, 6249928, 6249576, 6250858, 6250571, 6251147, 6251437, 6248697, 6250298, 6251773 ], "opinion_index": 0, "case_paths": [ "/us/425/0940-01", "/us/425/0940-04", "/us/425/0940-05", "/us/425/0940-02", "/us/425/0940-07", "/us/425/0940-06", "/us/425/0940-10", "/us/425/0940-09", "/us/425/0940-11", "/us/425/0940-12", "/us/425/0940-03", "/us/425/0940-08", "/us/425/0940-13" ] }, { "cite": "47 U.S.C. \u00a7605", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1970, "opinion_index": 0 } ], "analysis": { "cardinality": 864, "char_count": 21787, "ocr_confidence": 0.895, "pagerank": { "raw": 2.0204992988094364e-07, "percentile": 0.7453376625432603 }, "sha256": "b4d26730e94883ce9835b8063465fe7138e9e7c7d2321ab840d0f3411a75c11d", "simhash": "1:6b7c68471b8a76c6", "word_count": 3542 }, "last_updated": "2023-07-14T14:39:04.921292+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH SMITH, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE PERLIN\ndelivered the opinion of the court:\nDefendant Kenneth Smith was charged with \u201cintent to defraud\u201d the Illinois Bell Telephone Company (Ill. Rev. Stat. 1973, ch. 134, par. 15c(c)) after police searched defendant\u2019s apartment and recovered a \u201cblue box\u201d device. On February 14,1974, the court sustained defendant\u2019s motion to quash the warrant authorizing the search of defendant\u2019s apartment. On February 25, 1974, the State filed notice of appeal and the trial court\u2019s order quashing the warrant was reversed by the appellate court on August 13,1975. Defendant\u2019s petitions for leave to appeal to the Illinois Supreme Court and for a writ of certiorari to the United States Supreme Court were denied, and the cause was set for trial.\nAt trial held on October 22, 1976, defendant was found guilty of \u201cintent to defraud\u201d and was sentenced to two years probation and ordered to pay *1000 restitution. Defendant appeals.\nThe issues presented for review are (1) whether the prior appellate court decision of August 13,1975, upholding the search warrant precludes further challenge to the warrant; (2) whether the search warrant failed to meet the constitutional requirements for the establishment of probable cause; (3) whether the search warrant was invalid because it allegedly failed to describe with sufficient particularity the items to be seized; (4) whether the warrant was predicated upon evidence allegedly obtained in violation of defendant\u2019s right to privacy granted by the Illinois Constitution; and (5) whether the State failed to prove defendant guilty beyond a reasonable doubt.\nWe affirm.\nOn May 8, 1973, John Connally, a security representative for Illinois Bell Telephone Company, executed a complaint for a search warrant for the person of Kenneth Smith and for the second floor apartment at 3531 West Melrose, Chicago, Illinois. Connally\u2019s affidavit alleged the following:\n\u201cThe above named person is the subscriber to telephone #539-7242 at the above address. The use of this telephone number has been mechanically observed to determine its usage by the complainant for approximately two weeks prior to 6 May 1973. This mechanical observation has revealed that long distance telephone calls placed by the user and only listed occupant of the apartment in question. These long distance calls are being made without being charged to the user\u2019s (Smith\u2019s) bill by use of a device which mechanically reproduces tones which allow the user (Smith) to bypass normal telephone billing procedures. The affiant has expertise and personal knowledge of the device being used by said Kenneth Smith and based on this expertise and personal knowledge obtained through Telephone Companies mechanical observation and recordation of phone calls dialed on the said user\u2019s (Smith\u2019s) telephone swears under oath that the said Kenneth Smith is defrauding the Illinois Bell Telephone Company of the lawful charges.\u201d\nOn May 8, 1973, based on the above affidavit, a search warrant was issued for the person of Kenneth Smith and the apartment. The warrant authorized seizure of \u201cany and all machines, contrivances, devices, equipment and documents which have been used in the commission of or which constitute evidence of the offense of obtaining service with intent to defraud in violation of I.R.S. Chapter 134,15c, \u00a7l(c).\u201d Chicago Police Officer John Jennings executed the warrant on May 8,1973, and seized a \u201cblue box\u201d from defendant\u2019s apartment. A complaint was then filed charging Kenneth Smith with defrauding Illinois Bell Telephone Company.\nOn February 13, 1974, defendant filed a motion to quash the search warrant and to suppress evidence, alleging that Connally\u2019s affidavit failed to demonstrate probable cause for issuance of the search warrant, and that the warrant lacked a sufficient description of the property that was to be seized. Defendant also alleged that Illinois Bell had obtained evidence in violation of the Federal wiretap law. 47 U.S.C. \u00a7605 (1970).\nOn February 14,1974, the trial court sustained defendant\u2019s motion to quash the warrant, finding that Illinois Bell had obtained evidence by monitoring defendant\u2019s telephone line in violation of Federal wiretap laws. The State appealed the trial court\u2019s finding and on August 13,1975, the Illinois Appellate Court reversed, finding no violation of the Federal wiretap law. The court did not address the issues of probable cause or sufficiency of the description of the items to be seized, which issues were raised in the parties\u2019 appellate briefs. Defendant raised these again in his petition for rehearing, which was denied September 2,1975; in a petition for leave to appeal, which was denied by the Illinois Supreme Court on October 16, 1975; and in a petition for writ of certiorari, which was denied by the United States Supreme Court. (Smith v. Illinois (1976), 425 U.S. 940, 48 L. Ed. 2d 183, 96 S. Ct. 1678.) The cause was then remanded for trial.\nOn October 4, 1976, defendant filed a second motion to quash the warrant, alleging that: (1) the affidavit in support of the warrant lacked probable cause, (2) the warrant failed to describe with particularity the property to be seized, and (3) the warrant was predicated upon evidence seized in violation of the Illinois Constitution. The trial court denied defendant\u2019s motion, and the cause was set for trial.\nAt trial held on October 22, 1976, John Connally, a security representative for Illinois Bell, testified to the following: In reviewing the March 1973 billing for toll-free calls made by Illinois Bell subscribers, Connally observed that defendant\u2019s number (539-7242) indicated an unusual number of lengthy telephone calls directed to toll-free numbers. Connally installed a \u201cdialed number recorder\u201d (Hekimian device) on defendant\u2019s telephone line at the Illinois Bell office. The \u201cdialed number recorder\u201d prints the numbers dialed on a party\u2019s telephone and indicates whether a party is using a \u201cblue box\u201d device to bypass the telephone billing procedures. The \u201cblue box\u201d or \u201cmulti-frequency tone generator\u201d is a device which permits the caller to make long distance calls to any number, while the phone company\u2019s equipment indicates that the caller is dialing a toll-free \u201c800\u201d number. A caller dialing an \u201c800\u201d number is not charged for a toll call; however, the calls are reflected as a credit on records maintained by Illinois Bell. Connally had detected and caused the arrest of over 100 persons for \u201cblue box\u201d usage, and he stated that the \u201cHekimian device\u201d was designed exclusively to detect \u201cblue box\u201d usage.\nThe \u201cHekimian device\u201d was removed from defendant\u2019s telephone line on April 24, 1973, but the device was reconnected on April 30,1973, and it monitored defendant\u2019s telephone line through May 3,1973. During the period the device was connected to defendant\u2019s line, the device indicated the \u201cblue box\u201d was used on more than eight occasions to complete toll calls that would not be billed to defendant.\nOn May 8, 1973, Connally signed a complaint for a search warrant which was issued by Judge Joseph Power. Later that same evening Connally installed the \u201cHekimian device\u201d on defendant\u2019s telephone line. At 8:09 p.m. the device indicated that a \u201cblue box\u201d call was being made. Connally then so informed his supervisor Mr. Kitzinger and Chicago Police Officer Jennings.\nRobert Kitzinger, security manager for Illinois Bell, testified to the following: On the evening of May 8,1973, Kitzinger and Officer Jennings were outside defendant\u2019s apartment building awaiting a radio call from Connally that the detection equipment indicated use of a \u201cblue box.\u201d After receiving such a call, Kitzinger and Jennings attempted to serve the search warrant but they were denied access to the apartment by defendant. After forcing their way into the apartment, Kitzinger observed defendant, two other men, one of whom was \u201con the telephone,\u201d and a \u201cblue box\u201d on a table near the telephone. No other telephones were found in the apartment.\nChicago Police Officer John Jennings testified to the following: On May 8, 1973, Jennings attempted to execute a search warrant at 3531 Melrose. Jennings announced to defendant that he was a police officer, and defendant \u201cslammed\u201d the door. After forcing his way into the apartment, Jennings recovered a \u201cblue box\u201d device from a table near the telephone. Jennings testified that he was familiar with the \u201cblue box\u201d device because as a liaison officer assigned to Illinois Bell for a period of one year, Jennings had observed approximately 30 \u201cblue boxes.\u201d\nIt was stipulated at trial that between the period March 29,1973, and April 28, 1973, defendant was the sole subscriber to telephone number 539-7242. It was also stipulated that during that period, a credit of *7.10 for toll calls was reflected on the company\u2019s records for the telephone number 539-7242.\nI.\nThe State contends that defendant is precluded from raising any issue concerning the validity of the search warrant because such validity was upheld in a prior decision of the appellate court. (People v. Smith (1st Dist. 1975), 31 Ill. App. 3d 423, 333 N.E.2d 241.) While it is true that an appellate court should not relitigate issues that have already been briefed, argued and decided in a prior appeal of the same case (United States v. Battaglia (7th Cir. 1970), 432 F.2d 1115, 1118; United States v. Hoffa (7th Cir. 1968), 402 F.2d 380, 387), the determination of the issue must be final and on the merits to be conclusive on the parties in the subsequent appeal. See Hall v. Hall (4th Dist. 1976), 43 Ill. App. 3d 97, 98, 356 N.E.2d 1156.\nIn the case at bar the appellate court reversed the trial court\u2019s decision to quash the warrant, determining that Federal wiretap laws were not violated. However, the appellate court did not address other issues briefed and argued by both parties concerning the validity of the warrant. In defendant\u2019s petition for rehearing, his petition for leave to appeal to the Illinois Supreme Court, and his petition for a writ of certiorari to the United States Supreme Court, he alleged the issues of (1) lack of probable cause, (2) failure to sufficiently describe the items to be seized, and (3) violation of the Illinois Constitution. Although these petitions were denied by the respective courts, no court of review has specifically ruled on the merits of the issues raised by defendant in this appeal.\nThe State contends that collateral estoppel or law of the case should apply in the case at bar. Law of the case and collateral estoppel apply only when between the same parties an issue of ultimate fact has already been determined by a valid and final judgment. (See People v. Williams (1st Dist. 1974), 17 Ill. App. 3d 285, 292, 308 N.E.2d 39.) We believe that neither theory would apply here to preclude the trial court from deciding or this court from reviewing issues not previously decided. In fact, it has been held that matters which were presented to, but were not decided by an appellate court could be relitigated upon remand. Foreman v. Martin (2d Dist. 1975), 26 Ill. App. 3d 1028, 325 N.E.2d 378; Hurst v. Papierz (1st Dist. 1973), 16 Ill. App. 3d 574, 306 N.E.2d 532, cert. denied sub nom. Papierz v. Rauth (1974), 419 U.S. 835, 42 L. Ed. 2d 62, 95 S. Ct. 62.\nIn the case at bar we note that it was the State that filed the initial appeal contending that there was no violation of Federal laws. Although the State prevailed on that issue in the appellate court, defendant would have had no reason to raise other issues in that appeal since he had prevailed in the court below. The only matter before the appellate court or the Illinois and United States Supreme Courts was whether the warrant was obtained in violation of Federal law. Thus, we find defendant is not precluded from raising issues pertaining to the warrant, which issues had not been decided in the prior appeal.\nII.\nDefendant contends that the affidavit for the warrant failed to meet constitutional requirements for establishment of probable cause. Defendant argues that Connally\u2019s affidavit was inadequate because it failed sufficiently to set forth Connally\u2019s reliability and the underlying circumstances supporting Connally\u2019s conclusion that defendant was using his telephone to place illegal calls.\nTo support the issuance of a search warrant, facts must be related which would cause a reasonable man to believe that a crime had been committed and that evidence was in the place to be searched. (People v. Krug (5th Dist. 1976), 38 Ill. App. 3d 383, 385, 347 N.E.2d 807.) The court must interpret and test the supporting affidavit in \u201ca common sense and realistic fashion.\u201d (People v. Philyaw (2d Dist. 1975), 34 Ill. App. 3d 616, 619, 339 N.E.2d 461.) The affidavit need only establish probable cause, not proof beyond a reasonable doubt. People v. Wilson (1st Dist. 1975), 27 Ill. App. 3d 535, 327 N.E.2d 146 (abstract).\nThe cases cited by defendant are inapposite because they involve affidavits executed by police officers based on information received from informants. In such cases, reliability of the informant is an issue. In the case at bar, however, the complaint for the warrant was executed by Connally as an agent for Illinois Bell and as a private citizen, and it was based on his personal observation and knowledge. Where the informant himself is the affiant to the complaint and he recites facts that he observed, a showing of the reliability of the informant is not constitutionally required. (People v. O\u2019Neal (1st Dist. 1976), 40 Ill. App. 3d 448, 352 N.E.2d 282, cert. denied (1977), 431 U.S. 969, 53 L. Ed. 2d 1065, 97 S. Ct. 2929.) Thus, we find that the warrant was not invalid for failure to establish Connally\u2019s reliability. Further, we find that the court was presented with sufficient facts on which it could find there was probable cause to issue the search warrant.\nIII.\nDefendant contends that the search warrant was invalid because it failed to describe with sufficient particularity the items to be seized. We disagree. The warrant directed the seizure of \u201cany and all machines, devices, contrivances, equipment and documents which have been used in the commission of, or which constitute evidence of the offense of obtaining service with intent to defraud.\u201d\nIn the case at bar, Connally\u2019s affidavit indicated that he had mechanically observed that calls were being made on defendant\u2019s phone with the assistance of a \u201cblue box\u201d device. Although Connally had seen over 100 \u201cblue box\u201d devices during his career, he had not previously observed the particular device used by defendant.\nIn People v. Curry (1973), 56 Ill. 2d 162, 306 N.E.2d 292, the supreme court upheld the validity of a search warrant where the warrant contained a general description of items to be seized \u201cin desk drawers and other places\u201d in an office allegedly relating to a \u201ccall girl\u201d operation. The court held that where property of a specific nature is to be seized, a description of the characteristics of the property is sufficient. In People v. Miller (5th Dist. 1975), 36 Ill. App. 3d 542, 345 N.E.2d 1, a search warrant was held valid where it described items to be seized as \u201cstolen vehicles and vehicles or parts of vehicles with the manufacturer\u2019s identification numbers altered or removed.\u201d The court held that even though the warrant did not specify types, makes, or models of vehicles to be seized, the warrant was as particular as it could be under the circumstances, as the items had not been observed and could not otherwise be described or with more particularity. We believe that the description in Connally\u2019s affidavit of the particular characteristics of the \u201cblue box\u201d was sufficient to describe with particularity the property to be seized. We note also that Officer Jennings, who served the warrant, was familiar with \u201cblue box\u201d devices.\nIV.\nDefendant contends that Illinois Bell violated his constitutional right to privacy granted by the Illinois Constitution. Defendant alleges that this violation resulted from the telephone company\u2019s attachment of the \u201cdialed number recorder\u201d to his telephone line to ascertain what long distance calls were being completed and the numbers that were dialed. Article I, section 6 of the Illinois Constitution provides as follows:\n\u201cThe people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. 6 \u201d *\u201d\nWe find that the action taken by Illinois Bell in the case at bar did not violate any rights guaranteed to defendant under the Illinois Constitution. As the appellate court noted in the prior apeal concerning the search warrant (People v. Smith, at 425), defendant\u2019s telephone, like every other subscriber\u2019s phone in the Illinois Bell system, contained a device which produces a printout of the long distance numbers dialed from a subscriber\u2019s phone. This printout indicates deviations from normal telephone usage. If such activity is indicated, Illinois Bell places a \u201cdialed number recorder\u201d on the line to ascertain \u201cblue box\u201d usage. The appellate court noted that the company does not monitor the conversations but only records the numbers dialed, and citing Bubis v. United States (9th Cir. 1967), 384 F.2d 643, the court held that as a subscriber, defendant impliedly consented to Illinois Bell\u2019s recording of long distance numbers dialed on his telephone. Smith, at 426.\nFurthermore, we note that Connally was an employee of Illinois Bell using the \u201cHekimian device\u201d to ascertain whether the telephone company was receiving just compensation from defendant for the use of his telephone. As such, Connally was not a police officer, nor was he acting as an agent of the law.\nEvidence seized by a person who does not act as an instrument or agent of the police is not constitutionally protected under the fourth amendment to the United States Constitution. (People v. Heflin (2d Dist. 1976), 40 Ill. App. 3d 635, 646, 351 N.E.2d 594.) Also, the Committee Reports cited in the Constitutional Commentary accompanying article I, section 6 of the Illinois Constitution indicate that this provision creating a right to freedom from invasions of privacy applies only to invasions of privacy by government or public officials. Ill. Ann. Stat., 1970 Const., art. I, \u00a76, Constitutional Commentary, at 317-18 (Smith-Hurd 1971).\nV.\nDefendant\u2019s final contention is that he was not proved guilty beyond a reasonable doubt of obtaining service with intent to defraud, in violation of \u201cAn Act relating to defrauding persons \u201d 6 \u00b0 for telecommunications service \u00b0 * *\u201d (Ill. Rev. Stat. 1973, ch. 134, par. 15c(c)). The statute prohibits both the use of a device to defraud, and the aiding and abetting of one using such a device. The statute provides in pertinent part:\n\u201c1. Any individual, corporation, or other person, who, with intent to defraud or to aid and abet another to defraud any individual, corporation, or other person, of the lawful charge, in whole or in part, for any telecommunications service, shall obtain, or attempt to obtain, or aid and abet another to obtain or to attempt to obtain, any telecommunications service:\n# # e\n(c) by use of a code, prearranged scheme, or other similar stratagem or device whereby said person, in effect, sends or receives information, \u00b0 * *\no e o\nshall be deemed guilty of a Class A Misdemeanor.\u201d\nIn the case at bar the record establishes that defendant was the subscriber to telephone number 539-7242 at 3531 West Melrose and was the sole occupant of the apartment. The agreement between the telephone company and the subscriber (defendant) is that the subscriber is responsible for all calls made on his telephone. The \u201cHekimian device\u201d placed on defendant\u2019s telephone evidenced positive indications of \u201cblue box\u201d usage and recorded eight instances where long distance calls were completed but bypassed the telephone company\u2019s billing system. On May 8, 1973, at 8:09 p.m. the \u201cHekimian device\u201d indicated \u201cblue box\u201d usage and a \u201cblue box\u201d was found in defendant\u2019s apartment.\nA reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence, and a conviction will not be reversed where the evidence is not so improbable as to raise a reasonable doubt of guilt. (See People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) We find the evidence in this case sufficient to establish that defendant was guilty beyond a reasonable doubt of violating the statute.\nFor the foregoing reasons we affirm the judgment of the trial court.\nAffirmed.\nSTAMOS, P. J., and DOWNING, J., concur.\nA \u201cblue box\u201d device is described in the record as a multifrequency tone generator which allows a party to complete long distance toll calls without charge. The device causes the calls to bypass the telephone company\u2019s billing system, and the calls are reflected as toll-free number usage.\nPeople v. Smith (1st Dist. 1975), 31 Ill. App. 3d 423, 333 N.E.2d 241.\nThe doctrine of \u201claw of the case\u201d expresses the rule that a final judgment of the highest court is a final determination of the parties\u2019 rights. The decision, judgment, opinion or rulings on a former appeal become the \u201claw of the case.\u201d Black\u2019s Law Dictionary 1030 (4th ed. 1968).", "type": "majority", "author": "Mr. JUSTICE PERLIN" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Anthony Pinelli, Assistant Public Defender, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Mary Ellen Dienes, and Dewey Roscoe Jones, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH SMITH, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 78-78\nOpinion filed May 29, 1979.\nJames J. Doherty, Public Defender, of Chicago (Anthony Pinelli, Assistant Public Defender, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Mary Ellen Dienes, and Dewey Roscoe Jones, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0956-01", "first_page_order": 978, "last_page_order": 987 }