This blog post was written by HeplerBroom Summer Associate Weston T. Stoddard. A supervising partner also contributed to the post.
In People v. Gliniewicz, 2020 IL App (2d) 190412, the Illinois Court of Appeals, Second District reversed the Lake County Circuit Court and held that Defendant, Melody Gliniewicz, voluntarily waived any marital privilege that would have applied to electronic communications that were recovered on her deceased husband’s phone. Gliniewicz, 2020 IL App (2d) 190412, ¶ 48.
Case Summary
After Defendant’s husband died, authorities found evidence that he had been embezzling funds from the Fox Lake Police Explorer Post Program (“Explorer Program”). Id. at ¶ 20. Police interviewed Defendant while investigating her husband’s death. Id. at ¶ 14-20. Defendant told police that the night before he died, her husband told her that the village administrator was demanding a full inventory of the Explorer Program. Id. at ¶ 14. Defendant explained that her husband used an Explorer Program credit card, but they were not “embezzling funds” because they would always reimburse the program. Id. at ¶ 19.
Police asked Defendant about a text message on her husband’s phone in which Defendant and her husband talked about hiding money, and Defendant responded, “I wouldn’t have said ‘hide the money.’” Id. at ¶ 20. Police asked Defendant if they could search her phone, and, while she initially said no, she later consented stating, “[y]eah, I mean, if you’ve got [my husband’s] phone and all the stuff off of there, then you know what the messages are between us.” Id. at ¶¶ 22-23. An extraction report of Defendant’s phone found that nine months of text messages between Defendant and her husband that had appeared on her husband’s phone did not appear on Defendant’s phone. Id. at ¶ 24. Defendant was indicted on charges of disbursing charitable funds without authority and for personal benefit, money laundering, and conspiracy. Id. at ¶ 5.
Defendant filed a motion in limine to bar the State from introducing any evidence of communications between Defendant and her husband based on marital privilege. People v. Gliniewicz, 2018 IL App (2d) 170490, ¶ 4. The Second District held that the State had made a prima facie case of waiver of marital privilege and remanded the case for further proceedings. Gliniewicz, 2018 IL App (2d) 170490, ¶ 50.
Defendant then filed an amended motion in limine and argued that any alleged waiver of marital privilege only applied to what was on Defendant’s phone at the time she consented to a search of her phone. People v. Gliniewicz, 2020 IL App (2d) 190412, ¶ 35. The trial court granted Defendant’s amended motion in limine, finding that Defendant did not waive marital privilege as to the communications on her husband’s phone because those messages were not identical to those on Defendant’s phone. Id. at ¶ 29. The trial court denied the State’s motion to reconsider, reasoning that the Second District held Defendant’s waiver of marital privilege extended to the communications on her phone only. Id. at ¶ 32. The State appealed.
The State argued that Defendant voluntarily waived marital privilege as to the messages on her husband’s phone. Id. at ¶ 35. The State noted that while the extraction method used on Defendant’s phone did not capture deleted files, had the task force done a file system or physical extraction of Defendant’s phone, it would have yielded identical messages to those found on Defendant’s husband’s phone. Id. at ¶ 31. Therefore, the State argued, Defendant’s consent to search her phone was not conditioned on which extraction method was performed, including a method that would have recovered deleted texts. Id. The State further argued that Defendant waived marital privilege as to the contents of her husband’s phone when she discussed texts that appeared on her husband’s phone and when she signed the unconditional consent to search her phone. Id.
Defendant argued the texts on her phone were not “identical” to nor were they “mirror images” of those on her husband’s phone, and because the incriminating messages were not found on the extraction report from Defendant’s phone, she did not waive marital privilege as to communications that were only on her husband’s phone. Id. at ¶ 37. Defendant further argued that when she denied using the term “hide the money” in a text conversation with her husband, that did not constitute a waiver of marital privilege as to the messages on her husband’s phone. Id. at ¶ 44.
The Second District held that Defendant waived any marital privilege because when she consented to the search, she acknowledged that her phone and her husband’s phone would contain the same text messages and she knew that the police could recover deleted messages between her and her husband. Id. at ¶¶ 42, 44. Moreover, Defendant voluntarily disclosed otherwise protected marital communications when she revealed to the police material parts of her conversations with her husband about borrowing money from the Explorer Program. Id. at ¶ 44. The Court noted that while Defendant “might not have appreciated the ‘impact of the disclosure,’” that lack of understanding did not affect her waiver of privilege. Id. at ¶ 44 (citing United States v. Brock, 724 F.3d 817, 822 (7th Cir. 2013)). “Defendant might not have realized the impact of her disclosure of her communications with [her husband], but once she intentionally revealed those communications, the ‘secret is out, it is out for all time, and cannot be caught again like a bird, and put back in its cage.’” Id. at ¶ 45 (citing United States v. Brock, 724 F.3d 817, 822 (7th Cir. 2013) (quoting People v. Bloom, 193 N.Y. 1, 85 N.E. 824, 826 (1908.
