Basik, T. Scott

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 10Number 1 Fall 1979 Article 91979Supreme Court Decisions: Pen Register Not A"Search"T. Scott BasikFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information,please contact snolan@ubalt.edu.Recommended CitationBasik, T. Scott (1979) "Supreme Court Decisions: Pen Register Not A "Search"," University of Baltimore Law Forum: Vol. 10: No. 1,Article 9.Available at: http://scholarworks.law.ubalt.edu/lf/vol10/iss1/9more than mere preservation of public highway safety,had to be present to allow the police to conduct thesearbitrary spot checks. Privacy must be preserved. Indi-viduals in a democratic society should not have to live inconstant fear of capricious police searches.The holding in this case, however, does not precludeother avenues of police investigation. Checkpoint stopsutilizing roadblocks for the investigation of suspiciousautomobiles, roving patrols for policing borders and othermethods of surveillance are now being used to stop theflow of illegal drugs, cigarettes, liquor, and aliens. Speak-ing for the dissent, Justice Rehnquist indicated spotchecks are useful tools; productive mechanisms thatpromote legitimate state interests, e.g., traffic safety andpublic welfare. Rehnquist felt that individual privacy wascounterbalanced by the need to stop the flow of illicittraffic.While keeping the requirement of probable cause,Prouse, supra, has not disallowed all unwarranted vehiclesearches. It has merely addressed one alternative, discre-tionary spot checks, and left the door open for alterna-tive, perhaps more insidious methods of surveillance. AsJustice White wrote, "this holding does not preclude thestate of Delaware or other States from developingmethods for spot checks that involve less intrusion or thatdo not involve the unconstrained exercise of discretion... we hold only that persons in automobiles on publicroadways may not for that reason alone have their traveland privacy interfered with at the unbridled discretion ofpolice officers." Id at 1401. (Emphasis added)The EqualJustice FoundationWhile the struggle of the 60's focused on ensuringimportant substantive rights for the public, the past de-cade has shown that if the justice system will not open itsdoors, a strong position on the merits is not enough.For information on how you can help work for accessto justice reforms in areas such as liberalizing standing tosue requirements; easing restrictions on class action suits,and allowing indirect purchasers to sue for injuries frommanufacturers' antitrust violations, contact Susan Kellockat (202) 452-1267 or write to EJF, 1333 ConnecticutAve., N.W. #400, Wash., D.C. 20036.Pen RegisterNot A "Search"by T. Scott BasikOn June 20, 1979, in Smith v. Maryland, 99 S. Ct.2577 (1979), the Supreme Court held that the installa-tion and use of a pen register is not a "search" within themeaning of the Fourth Amendment. A pen register is amechanical device, usually installed at a central tele-phone facility, that records the numbers dialed on atelephone-it does not register the content of oral com-munication or even indicate whether the calls made arecompleted. Although the Court has consistently held thatthe interception of conversations (via wiretaps, bugs, etc.)is a "search and seizure," it concluded that FourthAmendment protection should not be extended to thenumbers dialed on a telephone. This holding was theresult of the following facts: Particia McDonough wasrobbed on March 5, 1976, in Baltimore. She gave thepolice a description of the robber and of a Monte Carloautomobile she had observed near the scene of thecrime. After the robbery, McDonough began receivingthreatening and obscene phone calls from a man identify-ing himself as the robber. On March 16, police spotted aman who fit the description of the robber driving a MonteCarlo in McDonough's neighborhood. By tracing thelicense plate number the police were able to determinethat the car was registered in the name of petitioner,Michael Smith.The next day, at the request of the police, the tele-phone company installed a pen register at its centraloffices for the purpose of recording the phone numbersdialed from Smith telephone. The police failed to obtain awarrant before having the device installed. The pen regis-ter revealed that a call was placed from petitioner's hometo McDonough's home. The police then obtained a war-rant to search the home of Smith. The search revealedthat a page in Smith's phone book was turned down tothe name and number of Patricia McDonough. Smithwas arrested and McDonough identified him in a six-manline-up.The Criminal Court of Baltimore City refused to sup-press the evidence obtained as a result of the use of thepen register. The petitioner was convicted, and sentencedto six years imprisonment.After appealing to the Maryland Court of SpecialAppeals, a writ of certiorari was issued by the Court ofAppeals of Maryland in advance of the intermediatecourt's decision in order to consider whether the penregister evidence had been properly admitted at petition-er's trial. Smith v. State 283 Md. 156, 389 A.2d 858(1978).FORUMThe Court of Appeals (Murphy, C.J.) affirmed the con-viction, holding that "there is no constitutionally pro-tected reasonable expectation of privacy in the numbersdialed into a telephone system and hence no searchwithin the Fourth Amendment is implicated by the use ofa pen register installed at the central offices of the tele-phone company." Id. at 173, 389 A.2d. at 867. Becausethere was no "search," the Court of Appeals concludedthat no warrant was needed to install the pen register.Three judges dissented, expressing the view that indi-viduals do have a legitimate expectation of privacy in thenumbers they dial from their home phones; that the useof a pen register thus constitutes a "search"; and that thefailure of police to secure a warrant mandated that theevidence obtained as a result of the use of the pen registerbe excluded.The petitioner appealed to'the Supreme Court, whichaffirmed the conviction in an opinion written by JusticeBlackmun. The Supreme Court noted at the outset thatthe controlling case in determining whether a particularform of government initiated electronic survillance is a"search" within the meaning of the Fourth Amendment isKatz v. United States, 389 U.S. 347 (1967). In Katz, FBIagents intercepted telephone conversations by attachingan electronic listening device to the outside of a publicphone booth. The Court found that a physical intrusionwas not a prerequisite to a "search," noting that theFourth Amendment protects people, not places. It heldthat the interception of Katz's conversations violated theprivacy on which he justifiably relied while using thephone booth, and thus constituted a "search and sei-zure." The standard that has developed since Katz iswhether the person invoking protection can claim a justifi-able, reasonable or legitimate expectation of privacy thathas been invaded by governmental action. Terry v. Ohio,392 U.S. 1 (1968).The Court in Smith held that individuals have no legiti-mate or reasonable expectation of privacy regarding thephone numbers they dial. Justice Blackmun reasonedthat all telephone users have both active and constructivenotice that the numbers they dial will not necessarilyremain private. This is evidenced through the telephonecompany's use of switching equipment to complete callsand by the permanent records kept by the phone com-pany of long-distance (toll) calls dialed. Further, pen reg-isters are routinely used by the phone company forchecking billing operations, detecting fraud, and to aid inthe identification of persons making annoying or obscenecalls. "It is too much to believe that telephone subscrib-ers, under these circumstances, harbor any general ex-pectation of privacy that numbers they dial will remainsecret." Smith, supra, at 2581.Smith contended that, notwithstanding any generalexpectations of telephone users, he demonstrated an ex-pectation of privacy in using his home phone. The Courtrejected that argument by stating that the site of the call isimmaterial. It reasoned that petitioner's conduct mayhave been calculated to keep his conversation private,but could not have been calculated to maintain privacy asto the numbers dialed. The Court found further that evenif petitioner did expect that the numbers he dialed wouldremain private, that expectation would not be "reason-able." Citing United States v. Miller, 425 U.S. 435(1976), Justice Blackmun noted that a person has nolegitimate expectation of privacy in information he volun-tarily relinquishes to a third party. In Miller the Court heldthat a bank customer had no legitimate expectation ofprivacy in financial information he voluntarily conveyedto his bank. The Court explained further that a bankdepositor assumes the risk, by being a patron of the bank,that his financial information could be given to the gov-ernment by the bank.Applying the Miller analysis to Smith, Justice Blackmunanalogized that when Smith voluntarily conveyed thenumbers he dialed to the phone company he "assumedthe risk" that the company would reveal that informationto the police.In a further attempt to convince the Court that hemaintained a reasonable expectation of privacy, Smithargued that the phone company ordinarily does not re-cord local calls. He contended that since he was making alocal call to McDonough, his expectation of privacy, as toher number, was "legitimate." The majority discardedthat contention, noting that whether a call is local or longdistance is not the basis for a constitutional distinction.Regardless of what numbers the phone company ordi-narily records, the risk was assumed that numerical infor-mation would be divulged to the police.The Court concluded that Smith had no reasonableexpectation of privacy in the numbers he dialed, and that,even if he did, his expectation was not "legitimate."Because the petitioner failed to meet the test mandatedby Katz, the Court held that the use of a pen register wasnot a "search." It further held that since there was no"search" the failure of the police to obtain a warrant didnot constitute reversible error and that the Court ofAppeals of Maryland had properly affirmed the ruling ofthe Criminal Court of Baltimore City in its holding thatpen register evidence should not be suppressed.Justice Stewart, with whom Justice Brennan joined,filed a dissenting opinion. Although he also found Katz tobe controlling, Justice Stewart was of the opinion that atelephone subscriber has a legitimate expectation of pri-vacy in the numbers he dials. He reasoned that theinformation obtained by a pen register emanates fromprivate conduct within a person's home or office-placesthat are entitled to Fourth Amendment protection-andthat the numbers dialed are not without "content."Justice Marshall, with whom Justice Brennan joined,also filed a dissenting opinion. Justice Marshall noted thattelephone users may not know that the phone companyrecords calls for internal reasons, and therefore users donot expect that the numbers they dial will be made avail-able to the government.Individuals may reveal certain information to third par-ties for a limited business purpose without expecting thatthe information will be released to others for other pur-poses. Justice Marshall also rejected the majority'srationale that petitioner "assumed the risk" that the num-bers he dialed would be revealed to the police. He feltthat this argument was misplaced because implicit in theconcept of assumption of risk is the notion of free choice.Since the telephone has become a personal and businessnecessity, individuals have no realistic alternative.Agreeing with the dissenting opinions filed in the Court ofAppeals of Maryland, Justice Marshall concluded that theuse of pen registers is an extensive intrusion, and thatevidence obtained as a result of their use should besuppressed unless the police secure a prior warrant.* * * * * * * * *Right To Counsel May BeImplicitly Waivedby Mark D. WoodardIn North Carolina v. Butler, - U.S. __, 99 S. Ct.1755 (1979), the Supreme Court ruled that a criminaldefendant under custodial interrogation need not waivehis right to a lawyer orally or in writing: a waiver can beinferred from the facts and circumstances of each case.By so holding, the Supreme Court continues to narrowthe scope of the so-called "Warren" court's emphasis onthe rights of the accused.Shortly after Butler's arrest, FBI agents took him totheir office for questioning. Martinez testified to the fol-lowing: after determining (method not stated) that Butlerhad an 11th grade education and was literate, he wasgiven the Bureau's "Advice of Rights" form which heread and stated he understood. However, he refused tosign the form. At trial, Butler stated he was told thatalthough he was not required to speak or sign the form,he was "requested" to answer questions. The defendantreplied, "I will talk to you but I am not signing anyform." Id. at 1756. He then proceeded to make inculpa-tory statements. FBI agent Martinez stated that Butler saidnothing when advised of his right to a lawyer and at notime asked for one.At the conclusion of the agent's testimony, the defensemoved to suppress the evidence of Butler's incriminatingstatements on the ground that he had not waived his rightto the assistance of counsel at the time the statementswere made.The trial court denied the motion reasoning that Butlereffectively waived his rights, including the right to have anattorney present, by his willingness to answer questionsafter reading the "Advice of Rights" form. The defen-dant's incriminating statements were admitted into evi-dence and the jury convicted him of all charges (kidnap-ping, armed robbery and felonious assault).The North Carolina Supreme Court reversed the con-viction and remanded for a new trial, holding that the trialcourt erred in admitting the defendant's inculpatory state-ments. North Carolina v. Butler, 295 N.C. 250, 244S.E.2d 410 (1978). In its view, the defendant neverwaived (in writing or orally) his right to an attorney duringcustodial interrogation. Miranda v. Arizona, 384 U.S. 436(1966). The court interpreted Miranda as "providing inplain language that waiver of the right to counsel duringinterrogation will not be recognized unless such waiver is,specifically made' after the Miranda warnings have beengiven." 244 S.E.2d at 413. See also, State v. Blackman,280 N.C. 42, 49-50, 185 S.E.2d 123, 127-128; State v.Thackes, 251 N.C. 447, 453-454, 189 S.E.2d 145, 149-150 (1972). The defendant must expressly waive his

Supreme Court Decisions: Pen Register Not A  Search

https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1207&amp;context=lf

Supreme Court Decisions: Pen Register Not A Search

Abstract

Similar works

Full text

Available Versions

University of Baltimore School of Law