# Petition — Smith v. Maryland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0425%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 442 U.S. 735 ## Text 8° 5374 RICHEY POA mm, cme IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1978 NO. MISC. MICHAEL LEE SMITH, Petitioner, vs. STATE OF MARYLAND, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND CARDIN & GiTOMER HOWARD L. CARDIN 233 Equitable Building Baltimore, Maryland 21202 Attorneys for Petitioner INDEX TABLE OF CONTENTS seeveles: PELE. 66 4s ss ane See ee re sa 5. a eS eS OO STATEMENT OF THE ee gs so Oe ASE ee Oe STATEMENT OF FACTS --+-+-+****e* 277% % * ° QUESTION PRESENTED -- +++ **** °° * ° . REASON FOR ALLOWANCE OF THE WRIT Does the installation of a pen register or touch tone decoder without a Court Order or search warrant violate the Fourth Amendment to the Constitution of the teltuel Staeeh. . « « + « « 6°02» * Eg 6 5 ae 88 ORD OPS Oe APPENDIX A: Dissenting Opinion by Judge Cele .« > . . >. . . . . >. . . . . . . Long v. State, 332 S.W.2d 591, (Tex. Crim. App. 1975) cert. denied 425 U.S. 937 Deen se «se @ es «8 Lustig v. U.S., 338 U.S. 74, 78, 69 S.Ct. 1372, 1374, 93 = Fe 1819 (1949) . . . . . . . . . . . . Marshall v. U.S., 422 F.2d 185 (5th Cir. 1970) . Minnick v. State, 4 Md. App- 81, 241 A.2d 153 (1968) Nolan v. U.S., 423 F.2d 1031 (1LOth Cir. 1969) cert. denied, 400 ee Cherep ls «2 ¢ * « © ° Page 19 13 5,13,14 ll ll 12 ll 1l 13 iii State v. Ashby, 245 So.2a 255 (Fla. 1971) State v. Cundy, 201 N.W. 2a 236, (S.D- 1972) cert. denied, 412 U.S. 298 (1973) oe State v. Person, 34 Ohio Misc. 97, 298 N.E. 2d See CGV Sls as aS BO Ee re eee State v. Tully, 166 Conn. 126, 348 A.2d 603 (1974) u.S. v. Baxter, 492, F.2d 150 (9th Cir.) cert. dismissed, 414 U.S. 801 (1973) U.S. v. Bowler, 56l, F.2d 1323 (9th Cir. U.S. v. Brick, 602 F.2@ at 223 + + + . . . . . . . U.S. v. Katz, 389 U.S. 347, 88 S.Ct. 507, ey, Bet yy A Ng ae Sa Ma De ed Gnd U.S. v. Leonard, 524 F.2d 1076 (2nd Cir. denied, 425 U.S. 958 (1976) M25 1976) + + « . . . . o - 531 F.2d 809 19 L.Ed. 1975) cert. Page 5,6,11 13 13 15,17 6,11 12,17 15 522 F.2d 228 XXxXX (7th Cir. 1975) 1078 (1976) Martinez-Fuerte, 3074, 49 L.£d.2d 116 48 L.Ed.2d 71 (1976) Moore, 562 F.2d 106 (lst Cir. 1977) New York Telephone Company, decided by the e Court December 7, 1977 . Nick John, et al, 508 F.2d 1134 (8th Cir.) U.S. v. Southwestern Bell Telephone Company, 546 Application of U.S. in Matter of Order, 538 F.2d 956 279 Md. 47, 52, 367 A.2da 949, cert. 932 (1977) Venner V.- VonLusch v. A.2d (1978) (No. 1069 Sept. Term 1977, decided June 9, 28 L.Ed.2d 453 (1971. Page ll 16 14,15,16 17 8,9 Fea 10,11 17 ll 15 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1978 NO. _—s MISC. MICHAEL LEE SMITH, Petitioner, vs. STATE OF MARYLAND, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND Petitioner moves this Court to issue a Writ of Certiorari to review the Judgment and Opinion entered on July 14, 1978 by the Court of Appeals of Maryland. DECISION BELOW The Judgment and Opinion of the Court of Appeals of Maryland is reported as No. 98 September Term, 1977, Smith “*% v. State of Maryland (filed July 14, 1973) .A copy of that Judgment and Opinion is attached hereto. JURISDICTION Jurisdiction is invoked under Article 28 U.S.C. § 1257(3), and Fourteenth Amendment to the Constitution of the United States. STATEMENT OF THE CASE This is an Appeal from the affirmance of the conviction of the Petitioner by the Court of Appeals of Maryland after he had been found guilty of the crime of robbery by the Criminal Court of Baltimore City. STATEMENT OF FACTS The Petitioner, Michael Lee Smith, was charged under criminal information number 57609713 with the crime of common law robbery. The Petitioner entered a plea of not guilty and proceeded before the Trial Court sitting without the aid of a jury. Moreover, the Petitioner's attorney advised the Court that there was no vont contest as to the facts and submitted same under an agreed Statement of Facts. However, on behalf of your Petitioner, counsel advised the Court that crucial evidence obtained by the State of Maryland was a direct result of a pen register and touch tone decoder which had been placed on the telephone of your Petitioner without the authority or authorization of a search warrant. -3- Your Petitioner through counsel advised the Court that it was his contention that although a pen register and touch tone decoder did not have to meet the requirements of Title 18 § 2510 it could not be properly attached unless it met the requirements of the Fourth Amendment to the Constitution of the United States preventing illegal searches and seizure mt based on probable cause. After the presentation of facts by the Assistant State's Attorney indicating that the key evidence against your Petitioner was derived from the pen register device the Court ruled that the installation of said device did not require prior authori- zation through search and seizure warrant procedures and as such the evidence obtained was properly admitted. A judgment of guilty was entered and your Petitioner was sentenced to six years under the jurisdiction of the Department of Correctional Services. Within the proper guidelines and standards set up by the Maryland Rules of Procedure appeal was entered to the Court of Special Appeals of Maryland. However, the Court of Appeals of Maryland (the highest Appellate Court of the State of Maryland) issued a Writ of Certiorari on its own Motion and considered the case without the benefit of the Court of Special Appeals. Yhe reason why the highest Appellate Court ‘of Maryland took sach action was apparently the fact that this was a new issue in this State; that it had been decided differently by several -4- of the Federal Circuits; and it appeared at the time that the same issue was pending before the Supreme Court of the United States. The Court of Appeals of Maryland requested that additional Sriefs be filed and that arguments be heard on two separate occasions before rendering an opinion. The Opinion by the Court of Appeals confirming the conviction of your Petitioner was a four-three decision and contained several strong dissents. It is from this affirmance of the conviction of your Petitioner that 4 Petition for Writ of Certiorari is sought. QUESTION PRESENTED Does the installation of a pen register or touch tone decoder without a Court Order or search warrant violate the Fourth Amendment to the Constitution of the United States. REASON FOR ALLOWANCE OF THE WRIT The question presented above has been considered by various Circuits throughout the United States and one would have to admit that 2 variance of opinion exists between them. As will be illustrated from the arguments hereinafter presented, the Second, Seventh and Eighth Federal Circuits have agreed that in order to install a pen register device the require- ments of the Fourth Amendment and a showing of probable cause are required. To the contrary, the Fifth Circuit in United State v. Clegg, 509 F.2a 605 (Sth Circuit 1975) espouses a different opinion. The State of Maryland would also argue that the Ninth Circuit has followed the leadership of the Fifth Circuit in the case of Hodge v. Mountain States Telephone & Telegraph Company, 555 F.2d 254 (Ninth Circuit 1977). With this your Petitioner would not agree as the later case involved a civil suit for damages but your Petitioner would agree that it does serve to illustrate the fact that the Circuits throughout these United States are in disagreement as to the issue raised in the case at hand. It is the Petitioner's position that those cases which suggest ,and mandate that prior to a pen register (or touch tone decoder) being properly appended to a person's telephone, the requirements of the Fourth Amendment to the Constitution of the United States requiring a showing of probable cause be met are the more valid and well recent opinions. Moreover, by way of dicta your Petitioner believes that this Court has also expressed the opinion and position maintained by the Second, Seventh and Eighth Circuits. "Because a pen register device is not subject to the provisions of Title III, the permissability of its use by law enforcement authorities depends entirely on compliance with the constitutional requirements of the Fourth Amendment." In this case the Government secured a court order, the equivalent for this purpose of a search warrant, for each of the two extensions of its authorization to use a pen register." U.S. V- Giordano, 416 U.S. 505 at 553-554 94 S.ct. at 1844-45. a la tt This statement by Mr. Justice Powell in United States vy. Giordano, supra, would seem to be dispositive of this issue. Such has been the holding of the various Circuit Courts of Appeals throughout the country: "We take this statement {Justice Powell in Giordano] to mean that a pen register order involves a search and seizure under the Fourth Amendment and that a Court may issue such an order only upon a showing of probable cause." "Moreover, relying principally on Justice Powell's statement in United States v. Giordano, supra, we agree with tne Seventh Circuit that a pen register order may only be issued after a showing pf probable cause." lication of an Order Authorizing the Use 7 a Pen Register, 328 F.2d 956, second Circuit. Also: "The District Court entered that part of its order based upon an affidavit signed by a special government agent which established probable cause for believing that evidence of the commission of violations of the Internal Revenue Code would be obtained by using a pen register. Such an accommodation for issuing an order for the use of a pen register was cited with apparent approval by Mr. Justice Powell in United States v. Giordano," United States of America Vv. Illinois Bell Telephone Company, 231 F.2a 909, Seventh Circuit. And again: "It is our view that the propriety of a pen register's usage depends entirely upon compliance with the Fourth Amendment rather than Title III." “We conclude that the District Court's approach with all the attendant Fourth Amendment safeguards was a valid exercise of authority." Application of the United States for Order Authorizing Installation and Use or a Pen Register, United States of America v. Southwestern Bell Telephone Company, 346 F.2d 243 eighth Circuit. To the same effect: “In this situation it has been held that a pen register order based upon a showing of probable cause even if considered to be a search is not constitutionally offensive. The propriety of their use depends entirely upon compliance with the Fourth Amendment." United States of America v. Nick John, et al, 508 F.2d 1134, Eighth Circult. And lastly: "Because the orders authorizing the installation of pen registers satisfied the probable cause requirement of the Fourth Amendment, it is not necessary to decide whether their use constitutes a search." United States of America v. Brick, 502 F.2d at 223. The great weight of authority from the various Federal Circuits indicate that before a pen register can properly be placed on a person's phone, a Court Order authorizing said installation must be obtained; said authorization being based upon probable cause. When one reviews the dissents that are found in these various cases, it is apparent that these opinions express the rationale that stronger showing be made before said invasion is permitted. It is the feeling of the majority, that compliance with Fourth Amendment requirements iss sufficient to protect the persons involved. To the contrary, the minority believe that the only way to protect the privacy of the individuals is to require compliance with Tizle III. Perhaps the strongest wording by a dissent on this issue is found in the most recent case of United States of America v. New York Telephone Company decided by the Supreme fourt on December 7, 1977. The dissent was written by Mr. Justice Stevens with whom Mr. Sustice Brannan and Mr. Justice Marshall joined. These three justices espouse the doctrine that Federal Courts possess limited jurisdiction. They recognize that: “The principle of limited federal jurisdiction is fundamental; never is it more important than when a Federal Court proports to authorize and implement the secret invasion of an individual's privacy." It is apparent to the dissenters that the use of a pen register no matter how authorized, is a secret invasion into an individual's privacy. Thus, the question becomes one of under what circumstances can that pr-vacy be invaded. The dissent then goes on to say: "yet that principle was entirely ignored on March 19 and April 2, 1976 when the District Court granted the Government's application for permission to engage in surveillance by means of a pen register and ordered the respondent to cooperate in the covert operation." -10- Again it is apparent to the dissent that the procedure . me re Fourth Amendment, an indiscriminate use of police power is followed in authorizing the secret invasion into the individual's ; ry avoided. The individual can safely rely on his right of privacy was not sufficient under the circumstances of the case. . privacy. On the other hand, law enforcement officers who The dissent suggests that the mere adherence to the require- , La have probable cause to believe a crime or crimes will be ments of the Fourtn Amendment and obtaining a Court Order ‘ Pee ; committed by the use of a telephone and the discovery of based on probable cause do not provide a sufficient basis : . é Pets A same can be detected by the use of a pen register, can upon which to invade the privacy of an individual. These apply to a judicial officer for the installation of this persons would cry for more. : electronic device. Law enforcement will not be hampered This Court, then, has three questions to answer. First, k ; ; and the individual is secure. should the installation of a pen register require the , ; ? ; Thus it is apparent that there is a divergence of fulfillment of the standards contained in Title III of the 5 opinion throughout the United States as to the proper means Omnibus Crime Bill. The answer to that is clearly "“no’.- : ; J of installing a pen register device. Law enforcement officers Secondly, should the installation of a pen register device Rae tae ; Fae é throughout the country are in need of direction from this, be allowed indiscriminately without any judicial authorization? eek i the highest Court of the land. It is with this thought in The answer to this 1s likewise, "no". Exactly for the reasons “ ; . mind i.e. the need for uniformity among law enforcement expressed by the dissent in United States of America Vv. ; agencies and the proper application by them of law enforcement New York Telephone Company and the other comments made by ; ‘ procedures that this Court must now resolve key issues. the various Judges and Justices in the cases heretofore Mec 2 ; ON In doing so that portion of the dissent by Judge Cole is cited, an indiscriminate "secret invasion of an individual's highly relevant: privacy" cannot be permitted. — "The question actually before us, then, is whether police interception of the information from Smith's telephone Yeertain numbers dialed) by means of a pen register, was a “search”. Thirdly, does compliance with Fourth Amendment require- ments satisfy the need to protect the individual's privacy on the one hand and yet provide law enforcement officers with sufficient latitude to properly conduct their duties. The 1/ Two federal circuits have held that the use of a pen register momstitutes a search. See United States v- Southwestern Bell telephone Company, 546 F.2d 243 (8th Cir. 1976); Application answer to that question is "yes". By requiring that law enforcement officers adhere to the requirements of the -ll- "nA 'search' in the constitutional sense has three components: it is (1) an invasion into otherwise private or con~ cealed areas or matters (2) by the government (3) exploring for evidence of guilt in a criminal prosecution. See Von Lusch v. State, Md. App. ,/A.2a (1978) (No. .1069, September Term, 1977, decided June 9, 1978]; Minnick v. State, 4 Md. App. 81, 241 A.2d 1l53 (1968); Kleinbart v. State, 2 Md. App. 183, 235 A.2d 268 (1967). Other courts have adopted similar definitions of the term ‘search'. See, ©-G-r United States Vv. Lisk, 522 F.2d 228 XXXX (7th cir., 1975), cert. Genied, 423 U.S. 1078 (1976); United States v. Davis, 482 F.2d 893 XXXX (9th Cir. 1973); Marshall v. United States, 422 F.2d 185 (5th Cir. 1970); State V- Tully, 166 Conn. 126, 348 A.2d 603 (1974); State Vv: Ashby, 245 So. 2d 255 (Fla. 1971); Alcorn vy. State, 255 Ind. 491, 265 N.E.2d 413 (1970); State v. Person, 34 Ohio Misc. 97, 298 N.E.2d 922 (1973); State V- Cundy, 201 N.W.2d 236 (S.D- 1972), cert. denied, 412 u.S. 298 (1973); Long V- State, 222 9.W.2d 591 (Tex. Crim. App- 1975), cert. denied, 425 U.S. 937 (1976). Especially concise is the definition in Davis, supra, at 896-97: (Footnote One continued) of U.S. in Matter of Order, 538 F.2d 956 (2d Cir. 1967), rev'd on other grounds, sub nom. United States v. New York Telephone Company.» U.S. , 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). Dicta from other circuits endorse _the views of Mr. Justice Powell in United States V- Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (concurring and dissenting opinion). See United States V- Illinois Bell Tel. CO-, 531 F.2d 809 (7th Cir. 1976); United States Vs John, 508 F.2d 1134 (8th Cir.), cert. denied, 421 U.S. 962 (1975); United States V.- Falcone, 505 F.2d 478 (3rd Cir. 1974), cert. denied, 420 U.S. 955 (1975). -12- '(Sjearch is a functional, not merely a physical, process.' Lustig v. United States, 338 U.S. 4, 78, 69 S.Ct. I372, 1374, 93 L.Ed. 1819 (1949). A search begins with the planning of the invasion and continues ‘until effective appropriation’ of the fruits of the search ‘for subsequent proof of an offense.' Id. The Fourth Amendment applies to 4 search when- ever the government participates in any significant way in this total course of conduct. 'The decisive factor... is the actuality of a share by a(n].-- official in the total enterprise of securing and selecting evidence by other than sanctioned means.' A 'search', therefore is a step in a criminal investigation by the government which focuses on the gathering of information or clues relevant to prosecution. Information is not restricted to the contents of oral communication. In many situations non-verbal action may be more explicit and highly relevant to a criminal investigation. Such signals may be a command to bet or not to bet, to print or not to print, to preserve or to destroy, OF indeed, to stay OF flee. It is only left to the investigator to understand the question being answered. I agree with the majority that conversation is protected under the teachings of United States v. Katz, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 3/06 (1967). However, infcr- mation received from monitoring Smith's tele- phone is also entitled to protection. Techno- logically, @ distinction between verbal and digital transmissions is absurd. There can be no doubt that the fact that Smith made certain calls from his home telephone is highly relevant information in a criminal prosecution for obscene or annoying phone calls. The ‘government action' part of the definition of a ‘search’ is satisfied in Smith's case because the telephone company attached the pen -13- -14- register to Smith's line at the request of the police and was not ordered to do so by a court or acting under compulsion of a warrant. In essence, the telephone company, not conducting an independent investigation of its own, assumed the role of an agent of the government in conducting a warrantless search. The majority cites cases which on this point are inapposite. The surveillance of the defendants’ telephone in Hodge Vv. Mountain States Tel. & Tel. Co., 555 F.2d The ‘invasion of privacy’ prong of the definition of a ‘search' is also met in this case. While telephone companies routinely maintain records of toll and long distance calls for billing purposes, or monitor a telephone line to correct problems with services, OF deal with customer complaints, local calls made by Smith on his home phone are a private matter. Routine telephone company == a — + activities do not include the monitoring of rt hd (Sth Cir. 1977); United seaccs local calls because customers usually pay for v. Harvey, 540 P.2d 1345 (8th Cir. 1976); : : St basic use of equipment at 4 flat rate. Nor United Stztes V. Cleaa, 509 F.2d 605 (Sth : : Ci ==\- tal =m itt would the government routinely be privy to Cir. 1973); Moos United States, 425 e326 information concerning Smith's private local 1031 (10th Cre. 1969); cert.denied, 400 U.S. ant te absent a sorponrs 848 (1970); and Brandon v- Unitea States, : Srandon * 382 F.2d GO7 (LOthH Cir. 1967) was conducted solely by the telephone companies, independent of govermment agencies.@ Furthermore, in The majority contends that 4 legal distinction between telephone customer expectations i tats . : regarding local calls and toll calls cannot United Scaces va Bester: 107720 501. (1973) ) Le aee ee Because subscribers have no real piPiazza v- cnited States, 415 F.2d 99 (6th knowledge as to the gecgraphic boundaries Cir, 196%), cert- cenied, 402 u.S. 949 (1971); of their local calling area This amounts and United States V- Govello, 410 F.2d 536 to mere speculation as to what the average (2d Cir-). Cert- Genied, 390 U.S. 879 (1969), telephone customer knows. In addition, in Maryland, a person using the telephone must no pen registers oF blue boxes were ever used; : ; i j have some knowledge of his local calling government agencies merely subpoenaed tne toll zone because a special n aber prefix, eat, or long aistance billing records routinely : ~ : per ; “ kept Dy Se F.28 505 Teen Ske: wT ooas* = calls which are made to telephones outsice —— involved the exercise of governmental power to subpoené telephone company records rather than govermnental or telephone company surveillance of the making of calls, although the opinion is unclear as to whether the documents recorded to agree with this argument because it assumes that telephone subscribers are sO unconcerned about the amount of their monthly bills that they pay no attention to whether they are local or toll calls, or both. 3 making toll calls. 2/ Although not cited by the majority in this case, two other (Footnote Three continued) recent Ninth Circact decisions specifically excluded Fourth Amendment considerations because monitoring activities were The majority attempts to minimize the significance of these conducted by telepnone companies, independent to the govern- factual distinctions by quoting a portion of Hodge, supra, ment. See United States v. Bowler, 561 F.2d 1323 (9th Cir. in which, without citing any authority other than its own 1977); United States v. Glanzer, 521 F.2d 11 (9th Cir. 1975) opinion, the Ninth Circuit stated that the difference (per curiam). between a pen register's recording of all attempted outgoing calls and a telephone company's routine records of completed 3/ In the case sub judice the police obtained information toll and long distance calls is not of constitutional dimension. about all of Smith's outgoing calls, not just long-distance See Hodge, supra, 555 F.2d at 256-57 and n.6. or toll calls, as in Baxter, DiPiazza, and Covello, supra. -15- Second, the majority suggests that since all telephone calls must pass through equipment owned by the telephone company, the telephone company will have knowledge of the fact that calls were made. The majority then attempts to construct an analogy between the facts in this case and prior cases holding that transfer of information to the government by a 'wired' informant, United States v. White, supra, OF by a bank, United States V.- Milier, 425 U.S. 96 S.Ct. 1619, 48 L-Ea. ( 6), or by means of ‘mail covers', €-9-» United States v. Leonard, 524 F.2d 1076 (2d Cir. 1975), cert. denied, 425 U.S. 958(1976), OF by observation in a public area, @.d-r United States v. Huftord, 539 F.2d 32 (9th Cir.) , cert. aenied, 429 u.S. 1002 (1976), did not violate the Fourth Amendment because those defendants had no constitutionally protected expectations of privacy when they gave information to the person (s) who ultimately turned the information over to the govern- ment. This analogy just does not hold water. In White, supra, 4 conversation between the defendant and an informant was relayed by the informant to the police by means of an electroniestransmitter that the informant was wearing. The majority opinion in White stressed that because the revelation to the government was made by 2 ‘party’ to conver sation with the defendant, the defendant had no justifiable or constitutionally protected expectation of privacy concerning the conversation. 401 U.S. 745 at 749. I cannot agree that the telephone company in this case was 4 ‘party’ to Smith’s calls in the same sense as the informant in White. Smith did not speak to the telephone company in the direct manner that White spoke to the informant. The telephone company was ‘neutral’ in the telephone call. See California 3ankers Association Vv. Shultz, 416 U.S. 21, 28-49, 94S. ct. 1494, 39 L.Ed. 2d 812 (1974)- Smith was leasing the telephone in order to make private calls from his nome. If Smith had known that a pen register would be attached to his phone merely at the request of the police, without a warrant, he would have little reason to lease a ‘private’ home phone. -16- A home phone would afford him little more privacy than a public phone. Similarly, in Miller, supra, the Supreme Court held that because the derendant's bank was a ‘party’ to the instruments negotiated by the defendant, the bank's revelation of information about the defendant's accounts upon government subpoena did not implicate the Fourth Amendment. 425 U.S. 435 at 440. According to the Court, the defendant had no reasonable expectation of privacy in that situation. Once again, I cannot agree that the telephone company is a 'party' to its customers’ telephone conversations in the same sense in which a bank operates with regard to its customers’ negotiable instruments, SO as to render unreasonable Smith's expectation of privacy in the use of his home phone. Even if the majority's analogy to Miller is valid, (and I do not agree) and Smith Should have expected that the telephone company could itself monitor his phone for billing purposes, to improve service to its customers, or to verify complaints, Smith nevertheless had a reasonable expectation that the telephone company would not, without the safeguards of appropriate legal process, act for the government in collecting information relevant to a criminal prosecution. See California Bankers Association v. Shultz, supra, 416 U.S. 21 at 5e. The majority's analogy to 'mail covers' is also unconvincing. While use of the postal service involves essentially public facilities where any writing on the outside of an envelope or on a postcard can be easily read by postal employees, telephones are placed in the home to provide privacy regarding the parties to ana content of a conversation. The Supreme Court has repeatedly acknowledged the aura of privacy which surrounds activities in the home, as contrasted with ‘public’ activities. See, €-%:- United States vs. Martinez-Fuerte, 428 U.S. 543, 561, 96 Ss. Ct. 3074, 49 L.Ed.2d 1116 (1976) (Fourth Amendment context). The decision in Miller, supra, does not preclude this type of analysis because the Court in Miller expressly based its decision on the assumption that the documents subpoenaed were not the respondent's ‘private #ije~ papers.’ Miller, supra, 425 U.S. 435 at 440. Unlike Miller, who voluntarily gave information to another ‘party’ to his commercial transactions, his bank, and never operated on the assumption that the information was private, defendant Smith sought to maintain his privacy regarding his phone calls by placing them in his home. In contrast to the majority, I believe that the use of ‘mail covers’ is less of an invasion of privacy that a pen register. The address and return address on an envelope are easily visible to anyone handling it, while use of a home phone is designed to make tele- phone communications 4 much more private matter. The same argument also shows the weakness of the majority's reference to observations made on a public highway by the police. Smith placed these calls on his home telephone precisely to avoid ‘knowingly exposing' information to the public, as did the defendants in Hufford, supra, and in United States v. Moore, 562 F.2d 106 (lst Cir. 1977). The ultimate issue to be resolved in whether the warrantless search through electronic detection placed upon Smith's telephone violated the Fourth Amendment. The test that must be applied is one of the reasonableness of the search: '([T}here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable. ' Katz, supra, 389 U.S. 347 at 361; Venner Vv. State, 279 Md. 47, 52, 367 A.2d 949, cert. denied, 431 U.S. 932 (1977). While I would agree with the majority that it is difficult to know whether a telephone subscriber harbors an actual subjective expectation of privacy in the numbers which he dials, I would contend that the facts in this case clearly support an inference that -18- Smith had an expectation of privacy in the local calls he made. As previously stated, a phone call placed in the home would demonstrate an expectation of privacy, in contrast to one placed from 4 public phone or a private phone located in someone else's home. In addition, the telephone company does not usually keep records of every local call for routine billing or service purposes. At the very least, Smith certainly had an expectation that the telephone company would not act as a government agent in monitoring his calls for purposes of a criminal investigation without appropriate legal process. That such expectation is reasonable seems undebatable. Finally, the majority dismisses Smith's contention rather summarily by stating that 'fejven if he did harbor such an expectation, we are not prepared to say on the record before us that it is one that society would recognize as reasonable and constitutionally protected. ' I emphatically disagree. Not only is society prepared to recognize this expectation of privacy in the use of one's home telephone but society would welcome the fact that this Court would declare its recognition of the right and protect it. Stated differently, I do not believe anyone in our society would be surprised to learn that the police were illegally tapping phones, examining mail or otherwise engaging in unlawful snooping. However, they would be shocked to learn that this Court or any other court condoned, tolerated or put its stamp of approval on such practices. The majority fails to give due weight to the impact of Watergate and its progeny, the recent revelations of illicit surveillance conducted by the F.B.I. upon activities of various civil rights, labor and political leaders, or indeed, the potential abuse to which the pen register may be put by police authorities.4 These factors and others have created an environment of distrust, fear and lack of confidence. I believe society condemns any such unlawful practice and awaits the forces of good to restore the basic right of privacy which has been steadily -19- eroded. I believe that each citizen still clings to the notion that while being deprived of his privacy, he still has the right to it and relies upon the courts to safeguard that privacy from warrantless intrusion. Lest we forget, the heart of the Fourth Amendment is to protect citizens against every unjustifiable intrusion by the state upon their privacy, whatever the means employed. For the Fourth Amendment to remain viable, it must adjust to the times and afford protection against new forms of invasions of privacy, however sophisticated and whether they are generated through electronics or even advances in tne psychic or related sciences. In the instant case, no such intrusion was legal without proper review of a magistrate. lI would recognize Smith's right of privacy and suppress the fruits of the warrantless search.” 4/ A pen register may be subject to abuse because it may be easily converted into 4 wiretap by attaching headphones or a tape recorder to appropriate terminals on the pen register unit. Newer models of pen registers have automatic voice actuated switches which can automatically turn a tape recorder on and off as the telephone is used. See Note, Circumventing Title Iil, The Use of Pen Register Surveillance in Law Enforcement, 1977 Duke L. J. 73l, 759. The pen register also has the potential of inhibiting freedom of association. If pen register data were fed into a central computer on a widespread basis, patterns of acquaintances and dealings among 2 substantial group of people would be available to the government. A. Miller, Assualt on Privacy, supra. at 43. -20- CONCLUSION For the reasons heretofore cited and in reliance upon the legal authorities hereinabove set forth it is respectfully submitted that a Writ of Certiorari to the Court of Appeals of Maryland be issued herein. CARDIN & GITOMER HOWARD L. CARDIN Attorneys for Petitioner _—_—__ 7 — gaa ( | p2meceren Cory eee RECEIVED OCT 18 1978 ne . T S- S37 4 OFFICE UF [HE CLERK SUPREME COURT, U.S. APPENDIX A ai eee nek pan fe MAREE L OS NW Tir COUR. Ss A! CHEALS OF tL Litas: tio. 98 . pone Whether electronically obtained evidence Was improperly} September Term, 1O7% : taal ° abel admitted at the anpcllant Smith's cviminal trial in violation of state law anda the federal constitution is the central issue in this oO Smith was charged with havinz robbed Patricia McDonough MICHAEL LED SMITH = on March 5, 1975. “Zvidence eddauced at the trial shoved that the victim was returnin, to her nome shortly after midnight on the morn- ing of the crime when she observed 2 man in her neighbornood chanting a tire on a 1975 lerve Carlo automebile with a dark green bottom and STATE OF MARYLAND e ton top. As “iiss “enonough approached her home, she was sudcenly grapbed frou tehind and her pecketbock forcitly taxen from her. In the course of the rebbery, the victim had a full-face view of the -- —--—-— robber and promptiy 32ve officer Kenneth Lucas @ descriotion of ner eat assailant anc of L216 1975 Monte Carlo ausomobile. Murony, CedJd-. seen Shortly after the crime was committed, Hiss MeDonoughn ot irene received a tnureatening and obscene teleohone call from an individaua og who identified hime 1f as the persen who had rebbed her. She there- sat Jd. after receired a series of such celis from the roober and so advised the police. Ummotwn to the police, a friend of iiss MeDonouch, ‘alt Cpoinion by wusSDnys Code -- c - ( Aanm So eed -~* 3 a » pales *£asé°* . - : . s Digces, Zidridge ane vost, ves. Heline, had attacher @ recording uevice to her telernone end instructed her how to tase the robber's conversation when he called. After “iss Filed: July 14, 1978 MeDonouch taped three or four calls srom her assailant, she informed the police that she nnd recorded the conversations, and eventually xxx fave the tapes to tnenm. -A2- In the meantime, on Mareh 13, at the request of the police, the telesuone compenys at its central office, inst2lle ed terminating accounting equipments on the victim's telephone line in an erfort to determine tne origin of the calls she was receiving from the robbcr. As @ result, 4+ was ascertained that some of the calls were bein3s made from pay phones in the immediate vicinity of the victim's nome. Earlier, the victim had advised the police that she thought one of the calls had been gade from a telephone at 2 private resicence On March 15, Mics “weponourh received 2 call from the robber requesting that she step out on ner noren so that he could see her. She aid so and coserved the 3.975 Monte Carlo which she nad earlier described to the police, Grivins slowly by her home. officer Lucas, to whom the victin nad orisinally rerorted the crime, “as on the lookout for 2 man fitting the c the robber and of tne Geseribed velvicle. On March 16, in the gen- eral vicinity of the victim's nome the appellant snithn stopped Lucas and sought his assistance in opening the locked acer of his 1975 Mont Carlo. Lucas took the License numser cf the vehicle, learned that it was registered to the appellant Smith, and so notified other inves ti gatviag police officers. On March 17, the telephone company, at she request of the 1 police, installed a pen resister t its central offices to recora Powell in Un nited 1. A pen register was well descrioc justice 05, 9: 5S. Ct. 1020, lO Le Ede 2a 32 Staten v. Giordano, Wyo U.S. (layk), as Sollows: Wo "A pen register is 2 mechenical devices attached to a giuwm telephone line and usucsiy ins allecd at a central ¢eLeanone reciiity. 3% secoris on a giro tape all nusbers - -A3- 3. the phone nwabers of calls made from the telephone at Smith's resi- dence. On March 17. a call was mius from Smith's residence to the victim's hom The police thnereartcr obtained 2 search warrant to search Smita's avécmobile and resiaence. The search of the residence reveeled that a pace in smitn's tej.cplhone bDOOK was turned Gown; it contained the name and number of the victim. On iiarch 19, the victim viewed a six-man line-up at police headcuarvers and identified the appellant Snith as the man who reovocd h In pretrial moticncs, smith/s ucht to suppress the evidence obtained by tne tare recerdinss anc che pen registers; he also moved to suppress the line-up identification. He contended that the attach- ment of the recordi.g device to the victim's telephone without 2 court order violated Marylund code (1957, 1973 Repl. Vol.) Art. 27, § Leda (a); under that section, it is @ mesaemeanor "for any person ir, this State to use any electronic cevice . « + to overnear or record any part of the conversation or words spelen to or py any person in pri- vete conversation ~ithout the knowlLecte or consent . . « of that other person." He also centended that the recording device attached to the victim's phone violated Code (1974), § 10-02 ef the Courts and ‘Judicial Proceedings Article nes section rronivits & person from obtaining "the whcle or any part or a@ telephonic « « « communication .% (contd. ) dialed from that line. It dces not identify the televhone an “numbers from vwnich incomin’ e2ils eriainated, no» does it reve2 aacshs- any ocll, eitn>: Saneemint or outcoint, Wes conpiete ad, its use Goes ot involve amy ™on toring or telepinone conversations. . ' 416 U.S. at 549. 4, to which the person is not a participant dy means of a device .« « unless consent is civen by tne participants." Appellant further con- tended that the evicence resulting from the installation of the pen register chould be suppressed because its obtention was based on information gleaned from the unlawful tape recordings of the telephone conversations. He also argued that the pen register constituted an unlawful “interception of @ telephonic communication forbiccen by § 310-402 of the Courts Article. He furthermore maintained that, absent a court order or search warrant, the use of the pen register constituted an dilecal search and seizure in contravention of the fourth amendment to the federal constitution. Finally, Smith ergued that without the iriesaily obtained electronic evidence he would not have been arrested, required to appear in a line-up and identified by the victin. we therefore claimed that the line-up identification should also be suppressed, but he withdrew this contention pefore the trial judge acted on nis motions. The trial jucse overruled the motions to suppress, and the electronically obtained evidence was admittec. Smith was found guilty of robbery and sentenced to ten yeare in prison. We granted certiorari prior to decision py the Court of Special Appeals to review the importan® issues raised in the case. (1) The Tape Recorded Telephons Conversations At the trial, tne State conceded that the recordings of the - iw -AS- 5. teler-rone conversations violated § 1254 of Art. 27. It maintained that the tape recorcings were nevertheless aumissible in evidence pecause the only sanction prescribed by the statute was criminal prosecution of thos who violate its provisions. The Court of Special Appeals so nela in Reed v. =tate 35 Md. App. Te, 372 A.2d Q Pr ane fo =U . anata . a * s Dv? c, 10 Nd. ADP. 252, 310 4.26 © ashe mms [1973), cert. denies, 271 xd. 7h2, cers. denied, 419 U.S, 1019 (1974). The appellant dess not challense thet interpretation of the statute, end we therefore a e no occasion to consicer the question in this case. Appellant eleims insteac that the attachment to the victim's phone of the recording device without ua court order constituted an {llegel “tntercention” of 4 telephonic communication in contravention of § 10-402 of *:9 ‘ourts Article. Until its repeal by cn. £92 of the Acts of 1977, § 10-402 was part of the taryland Wire Tapping det, §§ 10-401 througa 10-408 of the Courts Article, in effect at the tine of the appellant's arrest and prosecuticn. “hat Act declared in § 10-401 that the right cf the people to be secure against “unreasonable intercepticn of telephonic " . e e communicetions may not be violated. It expressed the lesisla- tive mandate that ene “interception ans divulgence of 4 private commun 2. Chapter 692 revealed the Marylond Wire Tappins Act and Art. 27, 3 125A; in its piece is enseted a new statuve comorenensively recuse tint the ntercention of wire and oral eemmunications. The new A me errective on culy 1; 1677 and is codivicd as waryland Code (1974, 1977 Cun. Sunn.) 9$ yU-401 threuth 10-410. Tne Act closely parallels 'itle Tif of the Prnibus Crime Control and Sure Strects act oF 1993. 13 U.5.0. B& 9510-2520. Sotn the stave fil tcd- eral statutes miic it uniowrnl, with cervain encenticas, to incercent “any wire or Ova. eorummication, %% t..ose berms are vherein Gain, ma each convains a provision moxinz ali eviccnce obtained in vio.e- tiion. of the statuce inadmissible ia court. -A6- 6. nication by any person not a party tnereto is contrary to the public policy of the state. and may now be permitted except by court order 4n unusual circumstances to protect the people.” Section 10-#02(a) males it unlawful, sbsent a court order, for any person to obtain a telephonic communication to which he is not a participant by means or asry device unless consent is given by the participants. Section 10-406 provides that evidence obtained in violation of the Maryland Wire Tapping Act is inadmissible in court. The appellant relies on Robert v. State, 220 Md. 1595 151 A.2d 737 (1959), 2s authority for the exclusion of the tape recordings under § 10-402(a). In Rebort, police ofiicers, enticipating that the defendant would make a phone calli to certain friends in a motel, positioned themselves at the mov el's telephone switchboard. When the expected call cane threugh the switchoes:i, the officers monitored it by means of 4 hendset connected thresh a press key to the switchboard. After observing that classified as participants in the conve heard it without the consent of 211 of gors held that the headset was an elect afficers obtained tne telepnene conve act's vrovisions, rendering the evidenc gn court. o +s - oad oO re) up | a = o | © po | (eo) ct Mo) fo “I ct | oad Q + 'O fo | ct un re > 3 Py i?) the officers could not be rsaticn, and that they over- the participants, cur prececes- ricel device by whicn the cation in contravention of the e thereby cbtained inadmissible on its facts. There, the police onversaticn. In the present -A7- case, Miss McDonough was a participant in the conversations which sne recorded. fhere is no re i) Ke) oc | a a} ) 4 o a ct = 4 § 10-402(a) that consent to the recordinz muct be given by all participants in the convers2- tion. Conseauently, there was no violation of § 10-402{a), althouch pouainiy the recordi:.3 of the conversationsviolated Art. 27, § 125A. cf. Clark v. State, © ud. App. 756, 237 A.2d 766 (1953), cert. denied, ‘4 U.S. 1002 (1959). Appellant's suggestion that it was Heline and not the vic- tim who recorded the conversations is not supported by the recora. Wor is there any evisence so suvport Smith's cleim that in attaching the recording device to the victim's phone Heline acted as a pelice agent. Simply because the police leaimed, after the fact, that the device had been avteched to the victic.'s phene, but cid not reguire O2(a)} was violated. P= its removal, does not warrant a finding that § Finally, there is no justifieation for Smith's reliance on Ccrromics 21th o v. Mecoy, 442 Pa. 254, 275 A.2d 28 {1971}, and Cameron v. Stat P.2d 576 (Okla. 1952), to estaolish that § 10-402(a) wes violated by the recording of the convezsations; the statutes involved in those cases were marxedly different from 6 19-l"02(a) and thererore are not applicable in this case. (2) The Pen Recister We find no merit in the arvmument that the installation cof the pen register at the central offices of the telephone company to -A8- 8. rerord the phone nurbers of cutgoins calls made from Smith's residence telephone constitut> the "interception" of a telephonic communication in violation of § 10-402(a). The Supreme Court held in United States ve. New York Telenhone Ons U.S. , 98 S. Ct. 364, 54 Le. Ed. 2c 376 (1977)s that a pen register is not encompassed within the provisions of Title III of the Omnibus Crime Contrel and Sate Streets Act of 19 068, 18 U.S.C. §§ 2510-2520. That Act, which comprenensively regulates wiretapping and electronic surv2illance, requires © court order authorizing or approving the interception of a wire or orel communication. The term “intercept” is aerinec in § 2510(4) of the statute to mean “the aural acquisition cf the contents of any wire or cral communication through the use cf any electronic, mechanical, or othe: device The Supreme Coure s2id that pen registers are not within the statute because they are net @evices used to interecent oral or wire commnai- cations, i.e., they do net “intercept” because they do not acquire the “contents” cf 2 communication, as that latter term is defined in § 2511(8). The Court said: "Indeed, a law enforce:ent official eculid not even deserzine rrom ~je use of 2 pen regasvcr whether 2 communica tion existed “nese devices do net hear scund. They disclose cn-y the tcle- phone numbers that have been dialed--a means ot estaolisnint communication. Neiltner the purport of any communication betueen the caller and tne recipient cf the call, their identities, nor whether the call was even completed are a@isclo by pen recisters. Furthermore, pen resisters do the ‘aural acguisit. son! of anything. not accemplish -A9- 9. They decc ie outt roins telephone numbers by respondin= to chanzes in electrical vol.taze caused oy the turnine cf the telerhone dial (or the pressing oF buttons on pusn button teleononc ) and present the informa ticn in a form to dé interpreted oy sight ratner then by hearins. | 98 S. Ct. at 259-70. Although tne verbiege ol 3 10-s02(a) differs from whe federal statute, the prohioitions underlying each law recuire the "geterception” of a cemaunicaticn. We conclude, as did the supreme Cowrt in New_York Telerhonz, and most federal courts which have con- sidered the question, thet a pen register is not e device which “tntereepts 2 telepnenic communication. Accordingly, the use of the pen register did not violete § 10-402(a). Since the evicence procured by recording the telepnone con- versations Whien cue victin had with her ars2ilant was preperly acdmittes at the trial, Smitr's alternative argument that the pen recister evi- dence must be suppre eased as an illesal de rivative use of the recorded telepiione conversations is also lecking in merit. Cf. Everhart Ve State, 274 Md. 459, 337 A.2d iCO (1975); Carter v. S ote, 27% Md. 411, Aprellant next eontends that pen recister surveillance constitutes a search $s bject to the warrant requirements of the fourth amendment. Since no warrent or court order was obtained auth- oriizinz the instal lation cof tne pen register, Smith claims that the Be See, @.f., United states v. Illinois Rell Tel. Co., 531 F.2d 09 EA Cis. 1975); unite States v. Southvestorn Bell Telephone Oe, Sin T.2c 2h (Sth cst. Loo); Unitec States vy, Falcone, 505 1 ATS irk), cork. dented, 420 U.S, 955 (1975). - -A10- 10. evidence which the pen resister produced, and 211 evidence derived from its use, must de suppressed. The State, on the other hand, con- tends that the bett .r-reasoned cases support the view that ven register surveillance is not a search within the fourth amendment and that 2 warrant is nov reocuired to install such «@ device. Substantial autnor- ity exists for each position. In Katz v. United 5%¢ states, 389 U.S. 347, 68 Ss. Ct. 597, 19 L. Ed. 24 576 (1957), the Supreme Court neld that evidence optained without 2 warrant by government ag ents cf words spoxen py tne defendant in a telephone conversation, which the agents overheard by att aching an electronic listening device to tne outside of a public telephone pooth from which the defendant had placed a telephone call, violated the fourth amendment. Tt heid, overrulins Glnstead v. Unites staves, oe 277 U.S. 433, 48S. Ct. 564, 72 Le Ed. Qh (1928), that the fourth amendmens governs not only the seizure of tangible items, put also the recording of oral statements overneard, even in the absence or & technical trespass against local property law. It said that the fourth amendment protects people, and not merely places, &5 inst unreasonable searches and seizures; that it proteces “individual privacy against certain xinds of governmental intrusion"; that what a person knowinszly exposes to the public, even in his own home or office is not a subject of fourth amendment protection; but that what he seeks to preserve as private may be constitutionally Pp protected The Court said that while the fourth amenament cannot pe translated into -All- ll. a general con tutional right to privacy, the activities of the goverment acents volated “the privacy upon which [the defendant] justifiably reliei hile using the telephene booth and thus constituted a "search and seizu~e' within the meaning of the Fourth imendnent." The adaissibility of evidence obtained by usc of a pen register wos consicered in United States v. Giordano, 415 U.S. 505; ot s. ct. 1820, 40 =. Ld. ed 341 (1974). There, court orders nad been issued authorizing interception of wire communications and the installation of a pen register, and these orders were subdsecuently extended. The applicction to extend the pen register detailed the contents f conversations inserceoted pursuant to the wire interccp- tion orders. The Court held thet the wire interception orders were ‘invalid since they had not been authorized in conformit; with tne controlling federal stetvts. It further held tneat evidence gathered under the pen regisver extension order was inecmissible because tainted by the use of the unlavrully intercepted wire cormunications to secure faudicial approval to extend the pen remisver su urveillence order. The Court did not hole tn2t use of a pen resister requires compliance with the warrant recuirements of the fourth amendment, elthough that yasult misht oe implied in view of the decision tc exclude the evicence which the pen resister oF roauced. In a concurring anc d@issentins opinion by Justice Powell, in which the Chicf Justice and Ju ecs Blackmun ane Rehnquist joined, -Al2- 12. 4t was pointed out that there vas no dispute that the pen register order was based on 4robable cause and lawful under the fourth amend- ment. In this context, Justice Powell stated: "Recause a pen register d@evice is not subject to the provisions of Title III, the permissi- bility of its use by law enforcement authorities depends entirely on ewmpliance wit yh the constitutional requirements of the Fourth Amend- ment." 416 U.S. at 553-554. That tustice Powell would not have decides the constitutional issue is, however, clear from his further statement, appearing at footncete 4, 416 U.S. at 554: "The Government sug ests thet the use of a pen register may not eonstitute a search within the meaning of the Tourth anenament. I need not addres s this question, for in my view the constitutional guarantee, suming its appliced ity, ges satisfied in tiuis case.” Justice Powell concluded that the pen register extension erder was valid, because based only in part on the enlewfully intercerted wire communications, anc that the evidence gathered by tne device was admissible ae aim Relyinz on Justice Powell's statement that the us ry +c i i pen register devends om compliance with the requiremenes oO: the an? icasi £ U.S. in Matter of order fourth amendment, the court in Avplicavion of U.S. =n ie —— Btc.s 538 F.2d $55 (end Cir. 1976), stated av 959: "We take this statement to mean that 2 pen register order involves a search and seizure under the Fourth Amendment, and that a court may issue such an order only upon a showing of probable cause." A number of other vi stateme ng pen ecurts have reiterated Justice Povell's statement concerning f vews registers and compliance with the fourth amendment. Sce United States v. Illinois 3cll Tel. Co., 531 F.2d 609 (7th Cir. 1976); United States v. Dolittle, 507 F.2d 1353 (5th Cir.), cert. dismissed, 423, U.S. 1003 (1975); United States v. John, 508 ¥.2d 1134 (Cth Cin), cert. denica, $21 U.e. 962 (1975); Unitea States v. Brick, 502 i.2d 219 (Sth Cir. 1974). Altnouch each of these cases states that the propriety of the use of a pen register depends upon compliance with tne fourth amendmenz, only Anolice of U.S. in Matter of Order ee 2 em > Ete. holds that the use of a pen re ser constitutes a search; indeed, in United States v. John, supra, the court held that it was nct neces- sary to decide that question. In ell four cf these cases a warrant had in fect veen issued, and none of them address the question whether use of the device constitutes ea searcn Nor did the Supreme Court dccide the question in United States v. New York Yelechone Co., supra. It said, 98 S. Ct. at iS "The Court of Appeals held that pen register surveillance -~Oo=- subject to tne requirements of the Fourth Amendment. ‘This conclusion is not challensed by either party, and we find it unnecessary to consider the matter." In New York Telerhone, the covernment had obtaincd a court order, which the telephone company resisted, authorizing the installa- tion of a pen resister and directins the telephone company +o provide facilities and assistance necessary to install it. At issue in the case Was not whether a warrant was necessary; one hed been cdtained. 4, See Application of U.S. in Matter of Order, Etc., supra. -Al4- 14, Rather, the primary issue was whether the District Court had the power to issue an order avthorizing pen register surveillance. hela that it had such authority under Fed. R. Crim. P. 4i(o) which was sufficiently broad to encompass The Ccurt a search, not limited to tancgible itens but includins electronic intrusions, designed to ascertain the use being made of @ teleohone. amendment required such an order; it merely said that the District Court nad the autnority to issue the ordcr. Under Xatz, whetner pen register surveillance requires com- Pliance with the fourth omendment depends on waether a telenicne seriber has a4 constitutionally rrotected tion of privacy is onetitutionally justificda, we v. State, 279 Md. 47, 367 A-2e 949 (1977), cert. denied, 421. U.S. (1977), the twofold test articulated oy Justice Harlan in his conc ring cpinion in Katz, i.e.; "Pirst that a person have exhibited an actual (subjective) expectation of privacy and, second, that the adopted in Venner ur- escpectation be one that society is prepared to recognize as 'reason- abiec.'" 369 U.S. at 361. Other ecurts nave rollaued this test. cert. denied, #23 on Toce (2 e.g. United States v- Feterson, 524 F 2d 107 (itn cir. 1975 ind States v. Hitchceeck, 467 F.2d 1107 (9th Cir. 1972), cert. 4 yn eatnttind “+ cert. denied, TIF Us. Tc25 753 (Alas. )/ ; "Tecets U.S. 916 (1973); Srith vy. State, 510 p.2d- Huddleston, 38 Ill. App. 3d 277, 347 N.E.2d 76 (1975). The Court did not held that the fourth sorminins whether “n expecta- -Al15- 15. It is generally neld that the expectation of privacy pro- tected by the fourtr nendment attaches to the content of a telephone conversation and now to tne fact that a conversation took place. Hodse_v. Mountain Sta ates Tel. & Tel. CO-s 555 r.2a 254 (9th Cir. ~ 1977); United States v- Clecz, 509 F.2d 605 (5th Cir. 1975} UA its? cert. Gismissed, 414 U.S. oor (1975); states v. Baxter, 432 F.2d 150 (9th cir. ),/ United states v. (9th Cir. 1971); United States ve Yarver, 39+ Fithian, 452 F.2d 505 F. Supp. 228 (E.D. Ark. 1975) af='¢ 510 7.24 1345 (Sth Cir. 1975). Clegzz dealt with a device in all respects similar to a pen recister; it was attached oy tne telephone compeany to the defendant's telephone line to determine wnasther he was iliegally ¢ Lrewnventins the tclepnone company's bi11in¢g system by using 4 eo-ezlied "blue box" device to maie long-disvance ealls. The court there said thant the fourth ment “protects enly the cortent of a telerhon? cor crrsntion and now ‘ the fact thet a call was placed or that a particular numoer "as dialed.” 509 F.2d at €10. This was SO, tne court said, “secruse telephone cub- A scribers have nce reasonable expectaticn thas recorcs O2 will not be made . « «+ fsince it is] well known that such records are kept.” Id. at 61. Consistent with Cie%s, other ccurts have held that Pe telephone supcerivers have no reasonabl?2 expectation sacar records of their calls will not be made. 540 F.2d 1345 United States v. Harvey, ea ae oe (8th Cir. 1976); piPiazza v. United ctates, 415 F.21 99 (6th Cir. 1969), cert. denied, 402 U3. O49 (1971); United “tates v. Covello, 416 T.2¢ 39 Weds OTS (TGS; ? ” ’ “Gert. denicd, states, 423 r.2d 1031 (10th Cir (ond Cir.); 7 Solan ¥.” United -Al6- -al?- 16. 17. , cert. denied, 400 U.S. 848 (1970) 1969); Brendon v. Urited Sates, 362 ¥.2d 607 (10th Cir. 1957); recoreés o° such calls are novmelly meintained, an Baxter, supra; Fith-.an, supre. mhese cases in the main involve expectetion of privacy exists. This admitted dif- se feremc2 i: not, in our vici, of constitutional billing, records for toll or long-distance phone calls. They seem- dimemsicn and is more then offset by the tact that pen recis-er records are even farther removed tnan ingly stand for the proposition that, as against the subscriber's billins records rrom tue content of the conmunications. Viewed in the round, she tnfornation recorded by pen claim. to privacy, tne fourta amendment is not appiiceole to tne recasters is net entities to fourth Amendment vrotec- . tion. seizure of such records in the possession of the telephone company because public avereness that the records are routinely inaintained i ‘ d 6 The existence of a constitutional rishs should negates eny constitutionally protected expectation of privacy regarda- not dopene upon the bouncarics establishea by the telephone comrcny for its local cailing areas. ing them. 555 F.2d at 250-257, In Hodre v. Mountain States Tel. *% Tel. Co., 555 F.2d 254 Judge Hufstedler, in an cpinion specially ccncurring in (9th Cir. 1977), the court held that no substantive fourtn anencnent Bodre, seid that the use of the pen register did not constitute & right was implicated by the warrantless attachment of a pen register "search" within the meaning ef the foursn amendment “because the to the telephone line ef a subscriber suspected os making local obscene telectronic listening' does now encreach upon ‘the privacy upen which calls. In concluding that no constitutionally protected right of . ss fone) justifiably relie[s]'* citing Katz. 555 F.2d at 265. privacy was involved, the court saw little practical difference, insofar After noting thet there was noe justifiable expectation of privacy in as public awareness was concerned, between the maintenance of routine the contents of telechene company billing records, she said: telephone billing records and a pen resister. It said: "similerly, there is no exvectation of privacy in the contents of a ben resister tane. Like oilling "Althouzh a pen resister record differs from telephone records, a pen register tare discloses the numbers company billing records, we nave ro difficulty in now dialed rrom a particular televnone and not the con- holding tn2t tne information recorded is not protected tents of cny conversation. In fact, a pen recicster by the Fourth amendment. creates 2 lesser intrusion into a suoscriver's pri- vacy because, wallke tillinm records, a pen register "A pon register recora for a particular telepnone tape docs nov inéicate whether any calls were answered. contains information different from tne telephone com- pany billings records for that telepaone. Teleniione ccm- "True, the teleohone company usually does not pany billing records show only comp eted calls, nov, 25 keap a record of loc2i telennone calls. But most with a pen resister, the numbers dialed. Turthnermorc, suliscribers are unaware af tne boundaries cf their a pen rezister record shows the dialins of telepnone latal dialing zones, esnecially in cities where these numbers which, even it completed, woulc not be shown zoues do not coincide with trauiticnal geomrapnic by billins recercs, because the numoers are witnin 2 boundaries. Furthermore, 4 is common practice for local dialing area. It could be argued that since no the televhone company to teen a record of all calls digiad from a teiepnone whien is subject to a specini -A18- 18. -A19- 19. rate structure. « « « Under these circumstances, ; subscribezs do not harbor any jusvifiable excecta- Supportive of the conclusion tnat pen recister surveillance S&S tion of rrivacy that a = cord will not be kept of their out -oint calls. +» «+ > ('. « » For this reason, does not violete th> fourth amenc:ent is United States Vv. tite, 401 the acuuisiticn . . . by means of a pen retister . « - a of nothin; mere than information concernin” « « + U.S. 745, GL S. Ct. 1122, 28 L. Ed. 2d 453 (1971), and united States the numoe:s dialed dces not offend the Frourta Amena- ment.').' Id. at 265. v. Mizter, 105 U.S. 435, 99 S- ct. 1619, "#8 L. Ed. 2c 71 (1976). in The sane conclusion was reached in ‘ote, The Lesal Cons- White, statements made py tne derendant were overheard dy government taints Upon the Use of the Pen Retister as @ Lew Enforcement Tool, agents by means of a hidden transmitter wnaich an informer agreed to 6D Cornell L. Rev. 7028, LO44-45 (1975). It was there said: wear during his meetings with the defendant. The Court found no cons- "(pT )he fourth emenanent coes not bar the use of the situcionally pretecte exrectation of vrivacy thet the informant vould pen recisver. rirst, even assumint thet 2 privacy expectaticn is in fact vrecent, it +5 well cettled ; not simultaneously transmit tae conversation to the police. in riiller, that toll calis (anc theiy records) are not entitled to a reascneblc expectation of privacy. And, with | the Court held that a ben deposiver had no lecitinate expectation of respect t> moss acces of the country, there seems to be ne valid a stinetion between the exvectations privacy tn the contents of checks and deposit siips turned over %o associated wits Local calls on the one hand and these calls that cross the loca oillins zone on the other the bank, statins: hand. Tae majority ot suoscribers prebpably have ne real imtcwledge as to the seograpnic poundaries of "the denositor takes tue risk, in revealing his their ‘Local cali' zone. affaixs to another, tnat the information wili be con- veyed by thas terscn to the goverament. +» «+ s This 4 second reason fcr tne commentator's conclusion thet warrantless pen . Court has held reneatediy that the Fourth Amendnent . does not pronibit tne cbzeiniat ef information reve: Led register surveillance docs not violate the fourth amendment was stated to a tnira paruy and conveyed oY nin to goverment authcrities, even if tne information {5 revealed on as follows: the ascwusntion snat it will pe used only for a limited " . ? , purpose on the conficence placed in the third party [A]11 teleshone suoseribers must utilize eauipment will not ce betrayed." owned by 7 nird party, the telennone companys in 4o5 U.S, -at E43, order tc piace a ceil. It is therefore unreasonable y for a suoscriber to assure that tn2 fact of his call A similar sitcation exists in the case of telephone calls. passin throuti the telernone system will enain & total secret tren the selernone company. Once this | While the content of & ceil is not revealed to the telephone company’, assertion is accepted, it is clear tnat there can be ‘ no reasonzdle expectation of privacy from law enrorce- the information as to the nwaver dialed must necessarily be revealed, ment authorities with respect to tne dial vulses detected ond recorded by tie telernone compony. in a since it is through telephone company switching equipment that calls variet: of anaio5cus contexts, tne suoreme Court nas determined that a person entitled to receive @ comauni- ‘are emnapleted. AS & recipient of such information, the company may cation is similarly entitled to reveal it to sovernment officials without further lezal process." id. at 1045. reveal it since the eailer can nave no rensonavle expectation that it -A20- 20. will remain private. In fact Vie caller sneuld nave even less of a > ustii fed ex sectation of privacy since unlixe the disclosures in > White and Miller the use of a pen register does not reveal the con- tents of @ communication. Cases involving other types oF surveillance are also rele- vant. In United states v. iufford, 539 F.2a 32 (9th Cir.), cert. denic¢. 429 U.S. 1002 (1976), the court held that the installation of an elec- tronic trackins device on a drum of carfeinsto aid covernment aTeNts 4n tracking the defendant's truck did not violate the fourtn amendment. Citing Katz, the ecurt stated: "(The defentant}] did not have & reason- able expectation of privacy &S ne ¢rove @lons the pvblic ro2d. While he hoped that nis travel would Go unm nitored, his movements were knowingly expesec to the public, aid fourth amendment protection. | 539 F. v. Pretzingers suo r.2d 517 (9th cir, 1975). Contra: United States v. Holmes, 52l F.2d 859 (Sth Cir. 1975)» aff'd x7 xxxx oy an evenly en banc divided court,’ 537 ed 227 (1976). The use of mail covers, where postal inspectors Copy informa- tion contained on the outside of sealed envelopes traveling through the mail, may also be likened to one use of a pen register. Tn each situation, communications travel through public conveyances; in each the surveillance reveals tne destination or point of origin of the communications, but not the content of the message itself. If any- thins, the use of a mail cover is more of an invasion of privacy than - -A21- al. a dem register since the mail cover reveals the jdentities of the parties. Nonetheless, courts have generally held that the use of matl covers does not violate the fourth emendnent. See Lustimer Vv. United States, 365 7.24 132 (9h cir. 1967), cext. dented, 390 U.S. a oo 951 (1968); Canadar v¥. United States, 354 »,26 B49 (Sta Cir. 1956). Post-Katz authority urholding the use of mail covers is limited. Sce United States v. Leonard, 52h F.2d 1076 (2d Cir. 1975), cert. denied, ho5 U.S. 958 (1976) (mail cover on international meil); Unitec states w. Balistricri, “03 F.2d h72 (7th Cir. 1968); United States V- Tsoacs, ( .D. Tl. 1972). In United States v. Choate, 422 F. Supp. 251 (c.5. Cal. 1975), the court toc. a contrary view. While ft recognized that 2 serzonis expectation of privocy with resrcct to return addresses on m2il is 4 limited one, the eourt concluded that a person justifiediv expects that the information will be used only for postal purposes end that records of 4% will not be kept. ‘The court held a perscm diag have a reasonable expectation that his rail mould not be used for surveillance pursones. The holding in Choate may be auesticned, nowever, in light f United States Vv. Miller, supra, where the Suprers Court held that M4sclosure of information, even on the assumption that Lt wculd be L3ed for a limited purpose, negated any expectation of privacy with respect to that information. We hold that there is no constitutionally protected reeson- aple expectation ef privacy in the nwrbers dalaled into a telernone system and hence no search within the fourth amendment is impliceted -A22- 22. by the use of a per. register installed at tne central offices of the tele»none company. While the guarentees of the rourth amendment are proad, they are nov boundless, state v. Steel, 256 Md. 256, 292 A.2d 8 (1972); not everything a person moy want to be private is protected oy the courta amenament. AS £2tZ seaches, the fourth: amenc- mer does not afford our citizens “a general constitutional richt to privacy." in not imposing Title III restrictions on the use of pen registers, it is evident, as New vores Telephone explicitly points out, that the Congress cid not consider that such ccvices pose a threat to privacy of the sane dimension as the interception of an oral cormuni- emtion. As the Suprenc Sourt noved in that case, pen registers Go not reveal whether 24 corminication existed and it recornized that such devices are reguia-ly used oy the telophone company without «@ cours order "for the purpeses of checkin; billing eperations, detecting fraud, and preventing violations of law.” 93S. Ct. at 373. The intrusion involved in pen register surveillance is minimal; no viola- tion of the integrity ef the communication system itself 4s entailed; and no conversation is overneara. Whetner a teleprone subscriber harbors an actual subjective expectation of privacy in the numbers which he dials is, oF course, a@fifficult to know. In all probability, he understands that his calls are placed through mechanical esuipment and that some record 4s mace. We think it unlikely that the telephone subscriber distinguishes between local or toll calls with respect to an expectation of privacy -A23- 23. in the numbers he ¢ials. Sven if he did harbor such an expectaticn, we are not preperec to say on the record vefore us that it is one that society would recognize 2s renconable and constitutionally pro- tectec. cosTs TO BE PAID BY APPELLANT. pore -A25- IN THE COURT OF APPEALS OF MARYLAND Eldridge, J., dissenting: No. 98 September Term, 1977 Although I recognize that the issue is a close one, I do not share the majority's view that there is no reasonable expecta- tion of privacy in 7ne numbers dialed into 2 telephone system. Consequently, 1! disagree with the majority's conclusion that no search within the meaning of the Fourth Amendment is implicated by the police's havine a pen regis*er tnstalled to record the numbers faled from the telephone at the defendant's home. Vv. In Katz v. United States, 389 U.S. 347, 38 S.Ct. 507, 19 STATE OF MARYLAND . L.Ed.24 576 (1957), the Supreme Court held (389 U.S. at 353, emohasis supplied): "The Government's activities in electronically Listening to and recoréing the petitioner's words violated the privacy upon wanton he justtsizbdiy vetted while using the R telephone boosh and shus constituted a ‘search and seizure’ Murphy, Vers within the meaning of the Fourth Amendment." Smith fn pe In my opinion, there similarly exists a privacy uoon which one justi- evine a fiably relies with respect to the telephone numbers which he dials in Cole, his own home. JJ. — Mr, Justice Harian ooth joined the majority opinion in Xatz2 J and. further explained the applicable principles in a concurring ovin= Dissenting Opinion by Eldridze, in which Dieses, J., concurs. : fon, stating (389 U.S. at 361): "As the Court's ovinion states, 'the Fourth Amendment Filed: July i4, 1973 protects veople, not olaces.' The question, however, is whet protection tt affords to those people. Generally, as here, the answer to that auestion requires reference to a 'place.' My inderstanding of the rule that has emersed -A26- a? « from “ire decisions is that there is a two: fold requirement, first that a person have exhibited an actual (subjective) expectat io n of privacy and, second, that the exoecta ation be one that society is preoare ed to recomnize as ‘'reasonable.' Thus 2 man's home is, for mest purocses, a olace where ne expects priva‘y, bur objects, activities, or statements that he exocses to the ‘plain view of outsiders are not ‘pro- . tected’ because no intention to keen them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of.privacy under the circumstances would de unreasonaole.” As pointed out in the above quotation, "for most purposes" a person expects privacy in his own home. I know of no sound basis for con- eluding that there is an exception to this gen eral proposition in regard to teleShone numcers which a person dials on his home tele- phone. It is not like a conversation “in the open." When the average person dials a nu mber in the privacy of his home, he does not con- Scustase, nor should he reasons bly contemplate, that he is exnvosing the information “to the ‘plain view' of outsiders.” fhe principles set forth by the majority and by Mr. Jus- tice Harlan in Zatsz lead me to the conc sion that the Fourth Amend- ment does apply when the oolice have a cen register installed to record the numberc dialed from one's telephone. The same conclusion has been reached by several cases -in the United States Courts of Appeal. Application of United States For Order, Ete., S46 F.2d 243, 245 (8th Cir. 1976), cert. denied, Southwestern Bell Telepnone Com- piny v. United Stares, U.S. , 98 S.Ct. 716, 54 L.Ed.ec 750 (1978); Application of U. S. In Matter of Order, Etc., 538 F.2d m6, 959 (2d Cir. 1975), reversed on other grounds, Ynited States v. New York Tel. Cow, 424 U.S. 145, 08 3.Cct. 364, 54 L.Ed.2d 376 (1977); United States v. Illinots Bell Tel. Co., 531 F.2d 309, 813 (7th Cir. 1 1973) 3; United States v. John, 508 F.2d 1134, 1141 (8th Cir. -A27- o3= cert. denied, 421 U.S. 962, 95 S.Ct. 1948, 44 L.Ed.2d $48 (1975); United States v. Faleone, 505 F.2d 478, 462 n. 21 (3d Cir. 1974), cert. dented, 420 '.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975). tpal basis for the view that the use of a oven a Zz ® c) “7 oy > register does net sonstitute 3 search for purposes of the Fourth kmendment seems to Se the conclusion of some judges that there is ro justifiable exceetation of privacy with respect to numbers dialed wecause "(tljeless oy o 0 subscribers are fully aware that records will be made of their toll cails." United States v. Barter, 492 F.2d 150, 167 (9th Cir. 1973), cert. dented, 416 U.S. 940, 94 S.Ct. 1945, WO L.Ed.2¢ 292 (1374). See also Eodge v. Mountain Staves Tel. & Tel. Co., 555 F232 254, 256, 266 (9th Cir. 1977); United States ». Clegg, 509 F.2d 925, 619 (Sth Cir. 1975). This theory is relied on by the majority fm the instant cass. However, the mere fact that a person who thinks about it would realize that she numbers dialed in compieted lons distance talls would have =o te recorded for billing purpeses, does not, in my judgment, warrant ‘he ecnclusion that no reasonable expectation of srivacy exists generally with resrect to telephone numbers dialed. Sich calls represent only 2 smal percentage of those made by th o average individua:. The overwhelming majority of calls made by the aerage person are local and do not involve toll charges. Moreover, as: to calls outside of one's itocal area, many are not answered or resgult in busy signals. Nevertheless, the pen register records even these. Because one's expectation of privacy in a particular type of e e c gts 2 ~A28- -A29- -'§- » § = situation may not be fully realized in a minority cf instances does which, without the police intrusion, would have remained fully not necessarily make that expectation unreasonable. private. . The majo.ity's attempted analogy between United States In sum, . agree with the position suesested by Mr. Justice Miller, 425 U.S. 435, 443; 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), and Powell, dissenting in part in United States v. Giordano, 416 U.S. 505, the situation in the instant case ts unpersuasive. In Mtiver, with 548, 553-554, 94 S.Ct. 1820, 1642, 1845, 49 L.Ed.2a 341 (1975), that regard to checks and deposit slips, the Supreme Court observed that the permissibility of law enforcement officials using 2 pen register " . .- $ ‘ 14 5 ffairs ‘ the “depositor takes the risk, in revea-ing his affairs to another, depends upon compliance with the requirements of the Fourth Amend- that the information will be conveyed by that person to the govern- ment. ment." But it was not the teleohone company which instigated the , . J “a Ss iz 3 ’ ~” installation of the pen register in the instant case. Milter is udge Digges has authorized me to state that he concurs with the views expressed herein. . thus distinguishable 0b; the fact that here, absen* the government's intrusion, the telephone company could not have revealed any informa- tion to the government regardins Smith's calls. Normally the tele- phone company dces not, in any meaningful sense, possess tnformation about local telephone ealls which it could pass On. The mere fact that machines (switching equipment ) owned by the telephone comoany responded in certain ways to the defendant's dialing numbers cannot reasonably be construed as a transfer of information by the defendant to the telephone company. There is no indication in this case that the telephone company's machinery preserved 4 record of the numbers dialed, nor that any telephone company emplayee did or could xxxxxxX be expected to observe the process. The defendant, by the simple act of dialing local numbers, did not reasonably intend *9 reveal information; he merely made use of machinery in particular ways --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0425%3A1. Public record. Not legal advice.