Appendix — Smith v. Maryland

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APPENDIX JAN 24 (979

“WHEL ROOAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-5374

MICHAEL LEE SMITH,

Petitioner,

— |

STATE OF MARYLAND,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

PETITION FOR CERTIORARI FILED SEPTEMBER 11, 1978

CERTIORARI GRANTED DECEMBER 4, 1978

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-5374

MICHAEL LEE SMITH,

Petitioner,

—

STATE OF MARYLAND,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

INDEX

Page

RAE Te AEN ATOR TT 1

Excerpts from Transcript of Hearing, November 8, 1976:

Definition of Issue by Trial Counsel ............000000000000000000... 3

eG See TI cc alaeceliaratedectcpekta sere ccnnccesenedilieticennn aca 3

Opinion of the Court of Appeals of Maryland .............00......... 4

Mandate of the Court of Appeals of Maryland .............000000...... 36

Order of the Supreme Court of the United States Granting

Motion for Leave to Proceed In Forma Pauperis and

Granting Petition for Writ of Certiorari ................0000000..... 38

IN THE CRIMINAL COURT OF BALTIMORE

STATE OF MARYLAND

vs.

MICHAEL LEE SMITH

DOCKET ENTRIES

April 2, 1976—Application for bail reduction Order of Court

setting Bail at $15,000.00

April 6, 1976—Indictment filed (Robbery, etc.) Number:

57609713

April 8, 1976—Copy of Request for further information filed

April 9, 1976—Recognizance—Allegheny Mutual Cas Co.—

$15,000.00 total

April 26, 1976—Appearance of Howard L. Cardin filed

April 30, 1976—Arraignment removed. Atty. appearance filed

Arabian, J.

May 27, 1976—Insanity plea filed

June 21, 1976—Arraignment post-poned reset 7/12/76. Arab-

ian, J.

July 14, 1976—Removed from docket—Location: Bail

July 28, 1976—Insanity plea withdrawn—set for trial, Bundy,

J. Location: Bail

October 20, 1976—Medical Report filed

November 8, 1976—Motion for Discovery filed

November 8, 1976—Motion to dismiss heard & denied, Mur-

phy, J.

November 8, 1976—Motion to suppress evidence withdrawn

by defendant.

Arr. & submits under plea: Not guilty, statement of facts

before Murphy, J.

November 8, 1976—Verdict: Guilty-1st count, stricken & held

Sub-curia

November 29, 1976—Probation Report filed

March 9, 1977—Verdict: Guilty—1st count

March 9, 1977—Judgment: Six (6) years c/o C of C from

2/9/77 and to go to Patuxent Institution for examination

and report. Murphy, J.

March 9, 1977—Accept bail in the amount of $25,000 in the

event of an appeal to the court of special appeals. Mur-

phy, J.

March 9, 1977—Commitment & Order filed

March 9, 1977—Medical report of 12/7/76 filed

March 10, 1977—Appeal to the Court of Special Appeals filed.

To be transmitted by: 5/9/77

March 10, 1977—Appearance of Howard L. Cardin Counsel

for Appellant. ;

March 10, 1977—Recognizance taken: Allegheny Mutual Cas.

Co. $20,700. and Property Bail

3404 Esther Place $4300.00—$25,000. Total

May 24, 1977—Extension of time to file transcript w/clerk

on 30 May 1977, and to transmit record by 6 June 1977,

Morton, J.

June 03, 1977—Transcript of Testimony filed and Record

transmitted to the Court of Special Appeals.

IN THE CRIMINAL COURT OF BALTIMORE CITY

EXCERPTS FROM TRANSCRIPT OF HEARING,

November 8, 1976

DEFINITION OF ISSUE BY TRIAL COUNSEL

[60-61] MR. CARDIN: Our argument is that it [pen

seizure, that that’s what it is, and that’s exactly what

the Court in Giordano said. We’re not trying to say

it’s excluded because it’s in conflict with Title 3 or with

Article 27, Section 125 or 10-402. We are saying it is

in conflict with search and seizure law as we know it

because it is a search and seizure, we submit, and there-

fore it does require prior court authorization before

there can be invasion of that particular privacy. If it

fell under either 125 or Title 3, then the State in order

to attach a pen register would have to show that no

other investigative techniques are available and the Court

has already said—The Supreme Court of the United

States has already said even if there are hundreds of

other investigative techniques available, a pen register

can also be used, but it needs still the prior court au-

thority, at least. That’s our argument.

* * * *

RULING OF THE TRIAL COURT

[62-68] THE COURT: Mr. Cardin, I have read the

cases and on your motion to dismiss it will be denied.

That’s the one that addresses itself to the pen register.

I am not of the opinion that the pen register device is

a violation of the Fourth Amendment...

* * * *

MICHAEL LEE SMITH

Vv.

STATE OF MARYLAND

[No. 98, September Term, 1977]

Decided July 14, 1978

CRIMINAL LAW—Electronic Recording Devices—Mary-

land Wire Tapping Act—Consent To Recording Tele-

phone Conversation Need Not Be Given By All Partici-

pants—Attachment Of Recording Device To Victim’s

Telephone Without Court Order Does Not Constitute

Illegal Interception Of Telephonic Communication Under

Code (1974) Courts Article § 10-402. Where victim of

threatening and obscene phone calls, tape recorded such

conversations without knowledge of caller or the police,

the Court held that such interception and recording of

the conversations did not violate § 10-402 of the Mary-

land Wire Tapping Act. Code (1974) Courts Article

$§ 10-401 through 10-408.

pp. 160-162

CRIMINAL LAW—Electronic Recording Devices—Re-

cording Telephone Conversation Without Knowledge And

Consent Of All Participants Violates_Criminal Statute—

Code (1957, 1976 Repl. Vol.) Art. 27, § 125A.

pp. 160-162

CRIMINAL LAW—Electronic Recording Devices—Mary-

land Wire Tapping Act—Use Of Pen Register To Record

Telephone Numbers Dialed Is Not An Interception Of

Telephonic Communication—Use Of Pen Register Does

Not Violate Maryland Wire Tapping Act—Code (1974)

Courts Article § 10-402(a). Where telephone company, at

request of police, installed a pen register at central office

to record phone numbers of outgoing calls made from de-

fendant’s telephone, the Court held that the use of a pen

and that evidence obtained from use of the pen register

was properly admitted at defendant’s trial. Code (1974)

Courts Article § 10-402 (a).

pp. 162-164

CONSTITUTIONAL LAW—Electronic Recording Devices

—Searches And Seizures—There Is No Constitutionally

Protected Expectation Of Privacy In Numbers Dialed

Into A Telephone System—Use Of Pen Register To

Record Numbers Dialed Does Not Involve Search Or

Seizure Within Fourth Amendment. Where telephone

company, at request of police, installed a pen register

at central office to record phone numbers of outgoing

calls made from defendant’s telephone, the Court held

that the use of a pen register did not violate the search

and seizure protection of the Fourth Amendment of the

U.S. Constitution, and that information obtained from

use of the pen register and the fruits thereof properly

were admitted at defendant’s trial.

pp. 164-174

J.A.A.

Appeal from the Criminal Court of Baltimore (Mur-

PHY, J.), pursuant to certiorari to the Court of Special

Appeals.

Michael Lee Smith was found guilty of robbery and

sentenced vo ten years’ imprisonment. From that con-

viction and sentence, Smith appealed to the Court of

Special Appeals. Certiorari was granted prior to con-

sideration by that court to review whether electronically

obtained evidence was improperly admitted at Smith’s

criminal trial.

‘Judgment affirmed. Costs to be paid by appellant.

The cause was argued before Murpuy, C. J., and

SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ., and

reargued before MuRPHY, C. J., and SMITH, DIGGEs,

LEVINE, ELDRIDGE, ORTH and COLE, JJ.

Howard L. Cardin for appellant.

Stephen B. Caplis, Assistant Attorney General, with

whom were Francis B. Burch, Attorney General, Wil-

liam A. Swisher, State’s Attorney for Baltimore City,

and Mary Ann Willen, Assistant State’s Attorney for

Baltimore City, on the brief, for appellee.

Murpnuy, C. J., delivered the opinion of the Court.

DIGGES, ELDRIDGE and COLE, JJ., dissent. ELDRIDGE, J.,

filed a dissenting opinion in which DIGGEs, J., concurs at

page 174 infra. COLE, J., filed a dissenting opinion at

page 178 infra.

Whether electronically obtained evidence was improp-

erly admitted at the appellant Smith’s criminal trial in

violation of state law and the federal constitution is the

central issue in this case.

Smith was charged with having robbed Patricia Mc-

Donough on March 5, 1976. Evidence adduced at the

trial showed that the victim was returning to her home

shoftly after midnight on the morning of the crime when

she observed a man in her neighborhood changing a tire

on a 1975 Monte Carlo automobile which had a dark

green bottom and a tan top. As Miss McDonough ap-

proached her home, she was suddenly grabbed from be-

hind and her pocketbook forcibly taken from her. In

the course of the robbery, the victim had a full-face view

of the robber and promptly gave Officer Kenneth Lucas

a description of her assailant and of the 1975 Monte

Carlo automobile.

Shortly after the crime was committed, Miss Mc-

Donough received a threatening and obscene telephone

call from an individual who identified himself as the

person who had robbed her. She thereafter received a

series of such calls from the robber and so advised the

police. Unknown to the police, a friend of Miss Mc-

Donough, Walt Heline, had attached a recording device

to her telephone and instructed her how to tape the

robber’s conversation when he called. After Miss Mc-

Donough taped three or four calls from her assailant,

she informed the police that she had recorded the con-

versations, and eventually gave the tapes to them.

In the meantime, on March 13, at the request of the

police, the telephone company, at its central office, in-

stalled terminating accounting equipment on the vic-

tim’s telephone line in an effort to determine the origin

of the calls she was receiving from the robber. As a

result, it was ascertained that some of the calls were

being made from pay phones in the immediate vicinity

of the victim’s home. Earlier, the victim had advised

the police that she thought one of the calls had been

made from a telephone at a private residence.

On March 15, Miss McDonough received a call from

the robber requesting that she step out on her porch

so that he could see her. She did so and observed the

1975 Msute Carlo which she had earlier described to the

police, driving slowly by her home.

Officer Lucas, to whom the victim had originally re-

ported the crime, was on the lookout for a man fitting

the description of the robber and of the described vehicle.

On March 16, in the general vicinity of the victim’s

home, the appellant Smith stopped Lucas and sought his

assistance in opening the locked door of his 1975 Monte

Carlo. Lucas took the license number of the vehicle,

learned that it was registered to the appellant Smith,

and so notified other investigating police officers.

On March 17, the telephone company, at the request

of the police, installed a pen register’ at its central

offices to record the phone numbers of calls made from

the telephone at Smith’s residence. On March 17, a call

was made from Smith’s residence to the victim’s home.

The police thereafter obtained a search warrant to search

Smith’s automobile and residence. The search of the

residence revealed that a page in Smith’s telephone book

was turned down; it contained the name and number

of the victim. On March 19, the victim viewed a six-

man line-up at police headquarters and identified the

appellant Smith as the man who robbed her.

In pretrial motions, Smith had sought to suppress the

evidence obtained by the tape recordings and the pen

1A pen register was well described by Justice Powell in United

States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L.Ed.2d 341

(1974), as follows:

“A pen register is a mechanical device attached to a given

telephone line and usually installed at a central telephone

facility. It records on a paper tape all numbers dialed from that

line. It does not identify the telephone numbers from which

incoming calls originated, nor does it reveal whether any call,

either incoming or outgoing, was completed. Its use does not

involve any monitoring of telephone conversations. .. .” 416

U.S. at 549.

tion. He contended that the attachment of the recording

device to the victim’s telephone without a court order

violated Maryland Code (1957, 1976 Repl. Vol.) Art. 27,

§ 125A(a); under that section, it is a misdemeanor “for

any person in this State to use any electronic device...

to overhear or record any part of the conversation or

words spoken to or by any person in private conversation

without the knowledge or consent . . . of that other per-

son.” He also contended that the recording device at-

tached to the victim’s phone violated Code (1974), § 10-

402 of the Courts and Judicial Proceedings Article; that

section prohibits a person from obtaining “the whole or

any part of a telephonic . . . communication to which

the person is not a participant by means of a device...

unless consent is given by the participants.” Appellant

further contended that the evidence resulting from the

installation of the pen register should be suppressed be-

cause its obtention was based on information gleaned

from the unlawful tape recordings of the telephone con-

versations. He also argued that the pen register con-

stituted an unlawful “interception” of a telephonic com-

munication forbidden by § 10-402 of the Courts Article.

He furthermore maintained that, absent a court order

or search warrant, the use of the pen register con-

stituted an illegal search and seizure in contravention

of the fourth amendment to the federg! constitution.

Finally, Smith argued that without the illegally obtained

electronic evidence he would not have been arrested,

required to appear in a line-up and identified by the

victim. He therefore claimed that the line-up identifica-

tion should also be suppressed, but he withdrew this con-

tention before the trial judge acted on his motions.

The trial judge overruled the motions to suppress, and

the electronically obtained evidence was admitted. Smith

was found guilty of robbery and sentenced to ten years

in prison. We granted certiorari prior to decision by the

Court of Special Appeals to review the important issues

raised in the case.

(1)

The Tape Recorded Telephone Conversations

At the trial, the State conceded that the recording

of the telephone conversations violated $ 125A of Art.

27. It maintained that the tape recordings were never-

theless admissible in evidence because the only sanc-

tion prescribed by the statute was criminal prosecution

of those who violate its provisions. The Court of Special

Appeals so held in Reed v. State, 35 Md. App. 472, 372

A. 2d 243 (1977), and Pennington v. State, 19 Md. App.

258, 310 A. 2d 817 (1973), cert. denied, 271 Ma. 742,

cert. denied, 419 U.S. 1019 (1974). The appellant does

not challenge that interpretation of the statute, and we

therefore have no occasion to consider the question in

this case.

Appellant claims instead that the attachment to the

victim’s phone of the recording device without a court

order constituted an illegal “interception” of a tele-

phonic communication contravention of § 10-402 of the

Courts Article.

Until its repeal by ch. 692 of the Acts of 1977,’ § 10-

402 was part of the Maryland Wire Tapping Act, §§ 10-

401 through 10-408 of the Courts Article, in effect at

the time of the appellant’s arrest and prosecution. That

Act declared in § 10-401 that the right of the people

to be secure against “unreasonable interception of tele-

phonic . . . communications may not be violated.” It

expressed the legislative mandate that the “interception

and divulgence of a private communication by any person

not a party thereto is contrary to the public policy of

2 Chapter 692 repealed the Maryland Wire Tapping Act and Art.

27, § 125A; in its place it enacted a new statute comprehensively

regulating the interception of wire and oral communications. The

new statute became effective on July 1, 1977 and is codified as

Maryland Code (1974, 1977 Cum. Supp.) §§ 10-401 through 10-412.

The Act closely parallels Title III of the Omnibus Crime Control and

Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. Both the state

and federal statutes make it unlawful, with certain exceptions, to

intercept “any wire or oral communication,” as those terms are

therein defined, and each contains a provision making all evidence

obtained in violation of the statute inadmissible in court.

the state, and may not be permitted except by court

order in unusual circumstances to protect the people.”

Section 10-402(a) makes it unlawful, absent a court

order, for any person to obtain a telephonic communica-

tion to which he is not a participant by means of any

device unless consent is given by the participants. Sec-

tion 10-406 provides that evidence obtained in violation

of wg Maryland Wire Tapping Act is inadmissible in

court.

The appellant relies on Robert v. State, 220 Md. 159,

151 A. 2d 787 (1959), as authority for the exclusion

of the tape recordings under § 10-402(a). In Robert,

police officers, anticipating that the defendant would

make a phone call to certwin friends in a motel, positioned

themselves at the motel’s telephone switchboard. When

the expected call came through the switchboard, the

officers monitored it by means of a headset connected

through a press key to the switchboard. After observ-

ing that the officers could not be classified as participants

in the conversation, and that they overheard it without

the consent of all of the participants, our predecessors

held that the headset was an electrical device by which

the officers obtained the telephone conversation in con-

travention of the Act’s provisions, rendering the evidence

thereby obtained inadmissible in court.

Robert is plainly inapposite on its facts. There, the

police officers were not participants in the conversation.

In the present case, Miss McDonough was a participant

in the conversations which she recorded. There is no

requirement in § 10-402(a) that consent to the record-

ing must be given by all participants in the conversa-

tion. Consequently, there was no violation of § 10-402

(a) , although plainly the recording of the conversations

violated Art. 27, § 125A. Cf. Clark v. State, 2 Md. App.

co a A. 2d 768 (1968), cert. denied, 394 U.S. 1001

_Appellant’s suggestion that it was Heline and not the

victim who recorded the conversations is not supported

by the record. Nor is there any evidence to support

Smith’s claim that in attaching the recording device to

the victim’s phone Heline acted as a police agent. Simply

because the police learned, after the fact, that the device

had been attached to the victim’s phone, but did not

require its removal, does not warrant a finding that

§ 10-402(a) was violated. Finally, there is no justifica-

tion for Smith’s reliance on Commonwealth v. McCoy,

442 Pa. 234, 275 A. 2d 28 (1971), and Cameron V.

State, 365 P. 2d 576 (Okla. 1961), to establish that

$ 10-402(a) was violated by the recording of the con-

versations; the statutes involved in those cases were

markedly different from § 10-402(a) and therefore are

not applicable in this case. .

(2)

The Pen Register

We find no merit in the argument that the installa-

tion of the pen register at the central offices of the tele-

phone company to record the phone numbers of outgoing

calls made from Smith’s residence telephone constituted

the “interception” of a telephonic communication in viola-

tion of § 10-402 (a).

The Supreme Court held in United States v. New

York Telephone Co., US. , 98 S. Ct. 364, 54

L.Ed.2d 376 (1977), that a pen register is not en-

compassed within the provisions of Title III of the

Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. §§ 2510-2520. That Act, which comprehensively

regulates wiretapping and electronic surveillance, re-

quires a court order authorizing or approving the in-

terception of a wire or oral communication. The term

“intercept” is defined in § 2510(4) of the statute to

mean “the aural acquisition of the contents of any wire

or oral communication through the use of any electronic,

mechanical, or other device.” The Supreme Court said

that pen registers are not within the statute because

they are not devices used to intercept oral or wire

communications, i.e., they do not “intercept” because

they do not acquire the “contents” of a communication,

as that latter term is defined in § 2510(8). The Court

said:

“Indeed, a law enforcement official could not even

determine from the use of a pen register whether

a communication existed. These devices do not hear

sound. They disclose only the telephone numbers

that have been dialed—a means of establishing com-

munication. Neither the purport of any communi-

cation between the caller and the recipient of the

call, their identities, nor whether the call was even

completed are disclosed by pen registers. Further-

more, pen registers do not accomplish the ‘aural

acquisition’ of anything. They decode outgoing tele-

phone numbers by responding to changes in electrical

voltage caused by the turning of the telephone dial

(or the pressing of buttons on push button tele-

phones) and present the information in a form to be

interpreted by sight rather than by hearing.” 98

S. Ct. at 369-70.

Although the verbiage of § 10-402(a) differs from the

federal statute, the prohibitions underlying each law re-

quire the “interception” of a communication. We con-

clude, as did the Supreme Court in New York Tele-

phone, and most federal courts which have considered

the question,’ that a pen register is not a device which

“intercepts” a telephonic communication. Accordingly,

the use of the pen register did not violate § 10-402(a).

Since the evidence procured by recording the telephone

conversations which the victim had with her assailant

was properly admitted at the trial, Smith’s alternative

argument that the pen register evidence must be sup-

pressed as an illegal derivative use of the recorded

telephone conversations is also lacking in merit. Cf.

Everhart v. State, 274 Md. 459, 387 A. 2d 100 (1975);

Carter v. State, 274 Md. 411, 337 A. 2d 415 (1975).

Appellant next contends that pen register surveillance

constitutes a search subject to the warrant requirements

of the fourth amendment. Since no warrant or court

order was obtained authorizing the installation of the

3 See, e.g., United States v. Illinois Bell Tel. Co., 531 F.2d 809 (7th

Cir. 1976) ; United States v. Southwestern Bell Telephone Co., 546

F.2d 243 (8th Cir. 1976); United States v. Falcone, 505 F.2d 478

(3rd Cir. 1974), cert. denied, 420 U.S. 955 (1975).

pen register, Smith claims that the evidence which the

pen register produced, and all evidence derived from its

use, must be suppressed. The State, on the other hand,

contends that the better-reasoned cases support the view

that pen register surveillance is not a search within the

fourth amendment and that a warrant is not required

to install such a device. Substantial authority exists

for each position.

In Katz v. United States, 389 U.S. 347, 88 S. Ct. 507,

19 L.Ed.2d 576 (1967), the Supreme Court held that

evidence obtained without a warrant by government

agents of words spoken by the defendant in a telephone

conversation, which the agents overheard by attaching

an electronic listening device to the outside of a public

telephone booth from which the defendant had placed

a telephone call, violated the fourth amendment. It held,

overrling Olmstead v. United States, 277 U.S. 438, 48

S. Ct. 564, 72 L. Ed. 944 (1928), that the fourth amend-

ment governs not only the seizure of tangible items, but

also the recording of oral statements overheard, even in

the absence of a technical trespass against local property

law. It said that the fourth amendment protects people,

and not merely places, against unreasonable searches

and seizures; that it protects “individual privacy against

certain kinds of governmental intrusion”; that what a

person knowingly 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 protected. The Court said that

while the fourth amendment cannot be translated into a

general constitutional right to privacy, the activities of

the government agents violated “the privacy upon which

[the defendant] justifiably relied while using the tele-

phone booth and thus constituted a ‘search and seizure’

within the meaning of the Fourth Amendment.” 389

USS. at 353.

The admissibility of evidence obtained by use of a

pen register was considered in United States v. Giordano,

416 U.S. 505, 94 S. Ct. 1820, 40 L.Ed.2d 341 (1974).

There, court orders had been issued authorizing inter-

ception of wire communications and the installation of a

pen register, and these orders were subsequently ex-

tended. The application to extend the pen register de-

tailed the contents of conversations intercepted pursuant

to the wire interception orders. The Court held that

the wire interception orders were invalid since they had

not been authorized in conformity with the controlling

federal statute. It further held that evidence gathered

under the pen register extension order was inadmissible

because tainted by the use of the unlawfully intercepted

wire communications to secure judicial approval to ex-

tend the pen register surveillance order. The Court did

not hold that use of a pen register requires compliance

with the warrant requirements of the fourth amend-

ment, although that result might be implied in view

of the decision to exclude the evidence which the pen

In a concurring and dissenting opinion by Justice

Powell, in which the Chief Justice and Justices Black-

mun and Rehnquist joined, it was pointed out that there

was no dispute that the pen register order was based

on probable cause and lawful under the fourth amend-

ment. In this context, Justice Powell stated: “Because

a pen register device is not subject to the provisions of

Title III, the permissibility of its use by law enforce-

ment authorities depends entirely on compliance with the

constitutional requirements of the Fourth Amendment.”

416 U.S. at 553-554. That Justice Powell would not

have decided the constitutional issue is, however, clear

from his further statement, appearing at footnote 4, 416

U.S. at 554: “The Government suggests that the use

of a pen register may not constitute a search within the

meaning of the Fourth Amendment. I need not address

this question, for in my view the constitutional guaran-

tee, assuming its applicability, was satisfied in this case.”

Justice Powell concluded that the pen register extension

order was valid, because based only in part on the un-

lawfully intercepted wire communications, and that the

evidence gathered by the device was admissible.

Relying on Justice Powell’s statement to support the

proposition that the use of a pen register depends on

compliance with the requirements of the fourth amend-

ment, the court in Application of U.S. in Matter of Order,

Etc., 5388 F. 2d 956 (2nd Cir. 1976), stated at 959: “We

take this statement to mean that a pen register order

involves a search and seizure under the Fourth Amend-

ment, and that a court may issue such an order only

upon a showing of probable cause.” A number of other

courts have reiterated justice Powell’s statement con-

cerning pen registers and compliance with the fourth

amendment. See United States v. Illinois Bell Tel. Co.,

531 F. 2d 809 (7th Cir. 1976); United States v. Doo-

little, 507 F. 2d 1868 (5th Cir.), cert. dismissed, 423

U.S. 1008 (1975); United States v. John, 508 F. 2d

1134 (8th Cir.), cert. denied, 421 U.S. 962 (1975);

United States v. Brick, 502 F. 2d 219 (8th Cir. 1974).

Although each of these cases states that the propriety

of the use of a pen register depends upon compliance

with the fourth amendment, only Application of U.S.

in Matter of Order, Etc. holds that the use of a pen

v. John, supra, the court held that it was not necessary

to decide that question. On all four of these cases a

warrant had in fact been issued, and none of them ad-

dress the question whether use of the device constitutes

a search.

Nor did the Supreme Court decide the question in

United States v. New York Telephone Co., supra. It

said, 98 S. Ct. at 369: “The Court of Appeals!) held

that pen register surveillance was subject to the require-

ments of the Fourth Amendment. This conclusion is not

challenged by either party, and we find it unnecessary

to consider the matter.”

In New York Telephone, the government had obtained

a court order, which the telephone company resisted,

authorizing the installation of a pen register and direct-

ing the telephone company to provide facilities and as-

sistance necessary to install it. At issue in the case was

not whether a warrant was necessary; one had been

obtained. Rather, the primary issue was whether the

District Court had the power to issue an order authoriz-

4 See Application of U.S. in Matter of Order, Etce., supra.

ing pen register surveillance. The Court held that it had

such authority under Fed. R. Crim. P. 41(b) which was

sufficiently broad to encompass a search, not limited to

tangible items but including electronic intrusions, de-

signed to ascertain the use being made of a telephone.

The Court did not hold that the fourth amendment re-

quired such an order; it merely said that the District

Court had the authority to issue the order.

Under Katz, whether pen register surveillance re-

quires compliance with the fourth amendment depends

on whether a telephone subscriber has a constitutionally

protected expectation that the numbers which he dials

will remain private. In determining whether an ex-

pectation of privacy is constitutionally justified, we

adopted in Venner v. State, 279 Md. 47, 367 A. 2d 949

(1977), cert. denied, 431 U.S. 932 (1977), the twofold

test articulated by Justice Harlan in his concurring opin-

ion in Katz, i.e., “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.’”’ 389 U.S. at 361. Other courts

have followed this test. See, e.g., United States v. Peter-

son, 524 F. 2d 167 (4th Cir. 1975), cert. denied, 423

U.S. 1088 (1976) ; United States v. Hitchcock, 467 F. 2d

1107 (9th Cir. 1972), cert. denied, 410 U.S. 916 (1973) ;

Smith v. State, 510 P. 2d 793 (Alas.), cert. denied, 414

U.S. 1086 (1973) ; People v. Huddleston, 38 Ill. App. 3d

277, 347 N.E.2d 76 (1976).

It is generally held that the expectation of privacy

protected by the fourth amendment attaches to the con-

tent of a telephone conversation and not to the fact that a

conversation took place. Hodge v. Mountain States Tel.

& Tel. Co., 555 F. 2d 254 (9th Cir. 7977) ; United States

v. Clegg, 509 F. 2d 605 (5th Cir. 1975); United States

v. Baxter, 492 F. 2d 150 (9th Cir.), cert. dismissed, 414

U.S. 801 (1973) ; United States v. Fithian, 452 F. 2d 505

(9th Cir. 1971) ; United States v. Harvey, 394 F. Supp.

228 (E.D. Ark. 1975) aff'd 540 F. 2d 1845 (8th Cir.

1976). Clegg dealt with a device in all respects similar to

a pen register; it was attached by the telephone company

to the defendants’ telephone line to determine whether

h was illgally circumventing the telephone company’s bill-

ing systm by using a so-called “blue box” device to make

long-distance calls. The court there said that the fourth

amendment “protects only the content of a telephone con-

versation and not the fact that a call was placed or that

a particular number was dialed.” 509 F. 2d at 610.

This was so, the court said, “because telephone subscribers

have no reasonable expectation that records of their calls

will not be made... [since it is] well known that such

records are kept.” Jd. at 610. Consistent with Clegg,

other courts have held that telephone subscribers have

no reasonable expectation that records of their calls will

not be made. United States v. Harvey, 540 F. 2d 1345

(8th Cir. 1976); DiPiazza v. United States, 415 F. 2d

99 (6th Cir. 1969), cert. denied, 402 U.S. 949 (1971);

United States v. Covello, 410 F. 2d 536 (2nd Cir.), cert.

denied, 396 U.S. 879 (1969); Nolan v. United States,

423 F. 2d 1081 (10th Cir. 1969), cert. denied, 400 U.S.

848 (1970); Brandon v. United States, 382 F. 2d 607

(10th Cir. 1967); Baxter, supra; Fithian, supra. These

cases in the main involve billing records for toll or long-

distance phone calls. They seemingly stand for the propo-

sition that, as against the subscriber’s claim to privacy,

the fourth amendment is not applicable to the seizure

of such records in the possession of the telephone com-

pany because public awareness that the records are rou-

tinely maintained negates any constitutionally protected

expectation of privacy regarding them.

In Hodge v. Mountain States Tel. & Tel. Co., 555 F. 2d

254 (9th Cir. 1977), the court held that no substantive

fourth amendment right was implicated by the warrant-

less attachment of a pen register to the telephone line

of a subscriber suspected of making local obscene calls.

In concluding that no constitutionally protected right of

privacy was involved, the court saw little practical dif-

ference, insofar as public awareness was concerned, be-

tween the maintenance of routine telephone billing rec-

ords and a pen register. It said:

“Although a pen register record differs from tele-

phone company billing records, we have no difficulty

in now holding that the information recorded is not

protected by the Fourth Amendment.

“A pen register record for a particular telephone

contains information different from the telephone

company billing records for that telephone. Tele-

phone company billing records show only completed

calls, not, as with a pen register, the numbers dialed.

Furthermore, a pen register record shows the dialing

of telephone numbers which, even if completed,

would not be shown by billing records, because the

numbers are within a local dialing area. It could be

argued that since no records of such calls are nor-

mally maintained, an expectation of privacy exists.

This admitted difference is not, in our view, of con-

stitutional dimension’ and is more than offset by

the fact that pen register recorsd are even farther

removed than billing records from the content of

the communications. Viewed in the round, the in-

formation recorded by pen registers is not entitled

to Fourth Amendment protection.”

“6 The existence of a constitutional right should not depend

upon the boundaries established by the telephone company for

its local calling areas.” 555 F.2d at 256-257.

Judge Hufstedler, in an opinion specially concurring

in Hodge, said that the use of the pen register did not

constitute a “search” within the meaning of the fourth

amendment “because the ‘electronic listening’ does not

encroach upon ‘the privacy upon which . . . [one] jus-

tifiably relie[s]’” citing Katz. 555 F. 2d at 266. After

noting that there was no justifiable expectation of pri-

— ? the contents of telephone company billing records,

she said:

“Similarly, there is no expectation of privacy in the

contents of a pen register tape. Like billing records,

a pen register tape discloses the numbers dialed from

a particular telephone and not the contents of any

conversation. In fact, a pen register creates a lesser

intrusion into a subscriber’s privacy because, unlike

billing records, a pen register tape does not indicate

whether any calls were answered.

“True, the telephone company unusually does not

keep a record of local telephone calls. But most sub-

scribers are unaware of the boundaries of their local

dialing zones, especially in cities where these zones

do not coincide with traditional geographic bound-

aries. Furthermore, it is common practice for the

telephone company to keep a record of all calls dialed

from a telephone which is subject to a special rate

structure. . . . Under these circumstances, sub-

scribers do not harbor any justifiable expectation

of privacy that a record will not be kept of their out-

going calls.... (‘... For this reason, the acquisi-

tion... by means of a pen register .. . of nothing

more than information concerning . . . the numbers

dialed does not offend the Fourth Amendment.’).”

Id. at 266.

The same conclusion was reached in Note, The Legal

Constraints Upon the Use of the Pen Register as a Law

Enforcement Tool, 60 Conrnell L. Rev. 1028, 1044-45

(1975). It was there said:

“(T]he fourth amendment does not bar the use of

the pen register. First, even assuming that a pri-

vacy expectation is in fact present, it is well settled

that toll calls (and their records) are not entitled

to a reasonable expectation of privacy. And, with

respect to most areas of the country, there seems to

be no valid distinction between the expectations as-

sociated with local calls on the one hand and those

calls that cross the local billing zone on the other

hand. The majority of subscribers probably have no

real knowledge as to the geographic boundaries of

their ‘local call’ zone.”

A second reason for the commentator’s conclusion that

warrantless pen register surveillance does not violate

the fourth amendment was stated as follows:

“All telephone subscribers must utilize equipment

owned by a third party, the telephone company, in

order to place a call. It is therefore unreasonable for

a subscriber to assume that the fact of his call

passing through the telephone system will remain a

total secret from the telephone company. Once this

assertion is accepted, it is clear that there can be no

reasonable expectation of privacy from law enforce-

ment authorities with respect to the dial pulses

detected and recorded by the telephone company.

In a variety of analogous contexts, the Supreme

Court has determined that a person entitled to re-

ceive a communication is similarly entitled to re-

veal it to government officials without further legal

process.” Id, at 1045.

Supportive of the conclusion that pen register sur-

veillance does not violate the fourth amendment is United

States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L.Ed.2d

453 (1971), and United States v. Miller, 425 U.S. 435,

96 S. Ct. 1619, 48 L.Ed.2d 71 (1976). In White, state-

ments made by the defendant were overheard by govern-

ment agents by means of a hidden transmitter which an

informer agreed to wear during his meetings with the

defendant. The Court found no constitutionally pro-

tected expectation of privacy that the informant would

not simultaneously transmit the conversation to the

police. In Miller, the Court held that a bank depositor

had no legitimate expectation of privacy in the contents

of checks and deposit slips turned over to the bank,

stating:

“The depositor takes the risk, in revealing his

affairs to another, that the information will be

conveyed by that person to the government... .

This Court has held repeatedly that the Fourth

Amendment does not prohibit the obtaining of in-

formation revealed to a third party and conveyed

by him to government authorities, even if the in-

formation is revealed on the assumption that it will

be used only for a limited purpose and the confidence

placed in the third party will not be betrayed.” 425

U.S. at 443.

A similar situation exists in the case of telephone

calls. While the content of a call is not revealed to the

telephone company, the information as to the number

dialed must necessarily be revealed, since it is through

telephone company switching equipment that calls are

completed. As a recipient of such information, the com-

pany may reveal it since the caller can have no reason-

able expectation that it will remain private. In fact,

the caller should have even less of a justified expectation

of privacy, since unlike the disclosures in White and

Miller the use of a pen register does not reveal the

contents of a communciation.

Cases involving other types of surveillance are also

relevant. In United States v. Hufford, 539 F.2d 32 (9th

Cir.), cert. denied, 429 U.S. 1002 (1976), the court held

that the installation of an electronic tracking device on

a drum of caffeine to aid government agents in tracking

the defendant’s truck did not violate the fourth amend-

ment. Citing Katz, the court stated: “(The defendant]

did not have a reasonable expectation of privacy as he

drove along the public road. While he hoped that his

travel would go unmonitored, his movements were

knowingly exposed to the public, and therefore are not a

subject of fourth amendment protection.” 539 F. 2d at

33-34. Accord: United States v. Pretzinger, 542 F. 2d

517 (9th Cir. 1976). Contra: United States v. Holmes,

521 F. 2d 859 (5th Cir. 1975), aff'd by an evenly divided

court, en bane 537 F. 2d 227 (1976).

The use of mail covers, where postal inspectors copy

information contained on the outside of sealed envelopes

traveling through the mail, may also be likened to the

use of a pen register. In each situation, communications

travel through public conveyances; in each the surveil-

lance reveals the destination or point of origin of the

communications, but not the content of the message it-

self. If anything, the use of a mail cover is more of an

invasion of privacy than a pen register since the mail

cover reveals the identities of the parties. Nonetheless,

courts have generally held that the use of mail covers

does not violate the fourth amendment. See Lustiger v.

United States, 386 F. 2d 132 (9th Cir. 1967), cert.

denied, 390 U.S. 951 (1968) ; Canaday v. United States

354 F. 2d 849 (8th Cir. 1966). Post-Katz authority up-

holding the use of mail covers is limited. See United

States v. Leonard, 524 F. 2d 1076 (2d Cir. 1975), cert.

denied, 425 U.S. 958 (1976) (mail cover on international

mail) ; United States v. Balistrieri, 403 F. 2d 472 (7th

Cir. 1968); United States v. Isaacs, 347 F. Supp. 743

(N.D. Ill. 1972). In United States v. Choate, 422 F.

Supp. 261 (C.D. Cal. 1976), the court took a contrary

view. While it recognized that a person’s expectation of

privacy with respect to return addresses on mail is a

limited one, the court concluded that a person justifiably

expects that the information will be used only for postal

purposes and that records of it will not be kept. The

court held a person did have a reasonable expectation

that his mail would not be used for surveillance purposes.

The holding in Choate may be questioned, however, in

light of United States v. Miller, supra, where the Su-

preme Court held that disclosure of information, even

on the assumption that it would be used for a limited

purpose, negated any expectation of privacy with respect

to that information.

We hold that there is no constitutionally protected

reasonable expectation of privacy in the numbers dialed

into a telephone ‘system and hence no search within the

fourth amendments is implicated by the use of a pen

company. While the guarantees of the fourth amendment

are broad, they are not boundless, State v. Siegel, 266

Md. 256, 292 A. 2d 86 (1972); not everything a person

may want to be private is protected by the fourth amend-

ment. As Katz teaches, the fourth amendment does not

afford our citizens “a general constitutional right to

privacy.” In not imposing Title III restrictions on the

use of pen registers, it is evident, as New York Tele-

phone explicitly points out, that the Congress did not

consider that such devices pose a threat to privacy of

the same dimension as the interception of an oral com-

munication. As the Supreme Court noted in that case,

pen registers do not reveal whether a communication

existed and it recognized that such devices are regularly

used by the telephone company without a court order

“for the purposes of checking billing operations, de-

tecting fraud, and preventing violations of law.” 98

S. Ct. at 373. The intrusion involved in pen register

surveillance is minimal; no violation of the integrity of

the communication system itself is entailed; and no

conversation is overheard.

Whether a telephone subscriber harbors an actual sub-

jective expectation of privacy in the numbers which he

dials is, of course, difficult to know. In all probability, he

understands that his calls are placed through mechanical

equipment and that some record is made. We think it

unlikely that the telephone subscriber distinguishes be-

tween local or toll calls with respect to an expectation

of privacy in the numbers he dials. Even 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 recog-

nize as reasonable and constitutionally protected.

Judgment affirmed; costs to be paid

by appellant.

Eldridge, J., dissenting:

Although I recognize that the issue is a close one, I

do not share the majority’s view that there is no reason-

able expectation of privacy in the numbers dialed into

a telephone system. Consequently, I disagree with the

majority’s conclusion that no search within the meaning

of the Fourth Amendment is implicated by the police’s

having a pen register installed to record the numbers

dialed from the telephone at the defendant’s home.

In Katz v. United States, 389 U.S. 347, 88 S. Ct. 507,

19 L.Ed.2d 576 (1967), the Supreme Court held (389

U.S. at 353, emphasis supplied) :

“The Government’s activities in electronically listen-

ing to and recording the petitioner’s words violated

the privacy upon which he justifiably relied while

using the telephone booth and thus constituted a

‘search and seizure’ within the meaning of the

Fourth Amendment.”

In my opinion, there similarly exists a privacy upon

which one justifiably relies with respect to the telephone

numbers which he dials in his own home.

Mr. Justice Harlan both joined the majority opinion

in Katz and further explained the applicable principles

in a concurring opinion, stating (389 U.S. at 361):

“As the Court’s opinion states, “the Fourth

Amendment protects people, not places.’ The ques-

tion, however, is what protection it affords to those

people. Generally, as here, the answer to that ques-

tion requires reference to a ‘place.’ My understand-

ing of the rule that has emerged from prior decisions

is that there is a twofold requirement, first that a

person have exhibited an actual (subjective) ex-

pectation of privacy and, second, that the expectation

be one that society is prepared to recognize as

‘reasonable.’ Thus a man’s home is, for most pur-

poses, a place where he expects privacy, but objects,

activities, or statements that he exposes to the ‘plain

view’ of outsiders are not ‘protected’ because no

intention to keep 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 be unreasonable.”

As pointed out in the above quotation, “for most pur-

poses” a person expects privacy in his own home. I know

of no sound basis for concluding that there is an excep-

tion to this general proposition in regard to telephone

numbers which a person dials on his home telephone.

It is not like a conversation “in the open.” When the

average person dials a number in the privacy of his

home, he does not contemplate, nor should he reasonably

contemplate, that he is exposing the information “to the

‘plain view’ of outsiders.”

The principles set forth by the majority and by Mr.

Justice Harlan in Katz lead me to the conclusion that the

Fourth Amendment does apply when the police have a

pen register installed to record the numbers dialed from

one’s telephone. The same conclusion has been reached

by several cases in the United States Court of Appeal.

Application of United States For Order, Etc., 546 F. 2d

243, 245 (8th Cir. 1976), cert. denied, Southwestern

Bell Telephone Company v. United States, 434 US.

1008, 98 S. Ct. 716, 54 L.Ed.2d 750 (1978) ; Application

of U.S. In Matter of Order, Etc., 538 F. 2d 956, 959

(2d Cir. 1976), reversed on other grounds, United States

v. New York Tel. Co., 484 U.S. 149, 98 S. Ct. 364, 54

L.Ed.2d 376 (1977); United States v. Illinois Bell Tel.

Co., 531 F. 2d 809, 813 (7th Cir. 1976) ; United States

v. John, 508 F. 2d 1134, 1141 (8th Cir. 1975), cert.

denied, 421 U.S. 962, 95 S. Ct. 1948, 44 L.Ed.2d 448

(1975) ; United States v. Falcone, 505 F. 2d 478, 482

n. 21 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95

S. Ct. 1839, 43 L.Ed.2d 432 (1975).

The principal basis for the view that the use of a pen

Fourth Amendment seems to be the conclusion of some

judges that there is no justifiable expectation of privacy

with respect to numbers dialed because “[t]elephone sub-

secribers are fully aware that records will be made of

their toll calls.” United States v. Baxter, 492 F. 2d 150,

167 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94

S. Ct. 1945, 40 L.Ed.2d 292 (1974). See also Hodge v.

Mountain States Tel. & Tel. Co., 555 F. 2d 254, 256,

266 (9th Cir. 1977) ; United States v. Clegg, 509 F. 2d

605, 610 (5th Cir. 1975). This theory is relied on by the

majority in the instant case.

However, the mere fact that a person who thinks about

it would realize that the numbers dialed in completed

long distance calls would have to be recorded for billing

purposes, does not, in my judgment, warrant the con-

clusion that no reasonable expectation of privacy exists

generally with respect to telephone numbers dialed. Such

calls represent only a small percentage of those made by

the average individual. The overwhelming majority of

calls made by the average person are local and do not

involve toll charges. Moreover, as to calls outside of

one’s local area, many are not answered or result in busy

signals. Nevertheless, the pen register records even these.

Because one’s expectation of privacy in a particular type

of situation may not be fully realized in a minority of

instances does not necessarily make that expectation

unreasonable.

The majority’s attempted analogy between United

States v. Miller, 425 U.S. 435, 448, 96 S. Ct. 1619, 48

L.Ed.2d 71 (1976), and the situation in the instant case

is unpersuasive. In Miller, with regard to checks and

deposit slips, the Supreme Court observed that the “de-

positor takes the risk, in revealing his affairs to another,

that the information will be conveyed by that person to

the government.” But it was not the telephone company

which instigated the installation of the pen register in

the instant case. Miller is thus distinguishable by the

fact that here, absent the government’s intrusion, the tele-

phone company could not have revealed any information

to the government regarding Smith’s calls. Normally the

telephone company does not, in any meaningful sense,

possess information about local telephone calls which it

could pass on. The mere fact that machines (switching

equipment) owned by the telephone company responded

in certain ways to the defendant’s dialing numbers can-

not 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 a record of the numbers dialed, nor

that any telephone company employee did or could be

expected to observe the process. The defendant, by the

simple act of dialing local numbers, did not reasonably

intend to reveal information; he merely made use of

machinery in particular ways which, without the police

intrusion, would have remained fully private.

In sum, I agree with the position suggested by Mr.

Justice Powell, dissenting in part in United States v.

Giordano, 416 U.S. 505, 548, 553-554, 94 S.Ct. 1820,

1842, 1845, 40 L.Ed.2d 341 (1974), that the permissibility

of law enforcement officials using a pen register depends

upon compliance with the requirements of the Fourth

Amendment.

Judge Diggens has authorized me to state that he

concurs with the views expressed herein.

Cole, J., dissenting :

Today no one perhaps notices because only a small,

obscure criminal is the victim. But every person is

the victim, for the technology we exalt today is

everyman’s master.

ea hee ae dissenting in United States

v. ite, SS. 745, 757, 91 S. Ct. 1122

L.Ed.2d 453 (1971). Fe

The majority holds today that the installation of a

pen register, by the telephone company, at the request

of the police and without the authorization of a warrant

at is central office to record all numbers dialed from the

defendant’s telephone, does not constitute a search under

the fourth amendment because “there is no constitu-

tionally protected reasonable expectation of privacy in

the numbers dialed into a telephone system.”

I disagree and I respectfully dissent.

The issue of whether the use of a pen register is a

search and must therefore comply with the standards

of the fourth amendment is one of iirst impression in

this jurisdiction. Heretofore, this Court has only ad-

dressed the question of whether government electronic

interception of a conversation is a search. E.g., Carter

v. State, 274 Md. 411, 337 A. 2d 415 (1975); Siegel v.

State, 266 Md. 256, 292 A. 2d 86 (1972); Trovinger V.

State, 34 Md. App. 357, 367 A. 2d 548 (1977) ; Penning-

ton v. State, 19 Md. App. 258, 310 A. 2d 817 (1973), cert

denied, 419 U.S. 1019 (1974); State v. Graziano, 17

Md. App. 276, 301 A. 2d 36 (1973). The pen register

alone does not record “conversations,” nor whether a call

was completed ; it only records the fact that certain num-

bers were dialed from a telephone. The question actually

before us, then, is whether police interception of the in-

formation from Smith’s telephone (certain numbers

dialed) by means of a pen register, was a “search.” ?

1 Two federal circuits have held that use of a pen i

. . t 4

stitutes a search. See United States v. euiheseeteitn Bell Telephone

Company, 546 F.2d 243 (8th Cir. 1976); Application of U.S. in

Matter of Order, 538 F.2d 956 (2d Cir. 1976), rev'd on other

A “search” in the constitutional sense has three com-

ponents: it is (1) an invasion into otherwise private

or concealed areas or pee (2) by the atpecare ; ce

xploring for evidence of guilt in a criminal pro ,

See soe kaaeh v. State, 39 Md. App. 517 387 A. 2d 306

(1978); Minnick v. State, 4 Md. App. 81, 241 A. 2d

153 (1968); Kleinbart v. State, 2 Md. App. 183, 234

A. 2d 288 (1967). Other courts have adopted similar

definitions of the term “search.” See, e.g., United States

v. Lisk, 522 F. 2d 228 (7th Cir. 1975), cert. denied, 423

U.S. 1078 (1976); United States v. Davis, 482 F. 2d

893 (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 v. Ashby, 245 So. 2d 225

(Fla. 1971); Alcorn v. 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. 928 (1973) ; Long v. State,

532 S.W.2d 591 (Tex. Crim. App. 1975), cert. denied,

425 U.S. 987 (1976). Especially concise is the definition

in Davis, supra, at 896-97:

‘fSjearch is a functional, not merely a physical,

fees Lustig v. United States, 338 U.S. 74, 78,

69 S. Ct. 1372, 13874, 98 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 a search

whenever the government participates in any sig-

nificant way in this total. course of conduct. “The

decisive factor . . .is the actuality of a share by a[n]

nom. United States v. New York Telephone Co.

aT ag ‘" 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 v. John,

508 F.2d 1134 (8th Cir.), cert. denied, 421 U.S. 962 (1975) ; United

States v. Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S.

955 (1975).

. Official in the toal enterprise of securing and

selecting evidence by other than sactioned means.’

A “search,” therefore, is a step in a criminal investiga-

tion 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, or indeed, to stay or 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 576 (1967). However,

information received from monitoring Smith’s telephone

is also entitled to protection. Technologically, a distinc-

tion 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 an-

noying 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 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 in-

dependent 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’ tele-

phones in Hodge v. Mountain States Tel. & Tel. Co.,

555 F. 2d 254, 256 n. 3 (9th Cir. 1977) ; United States

v. Harvey, 540 F. 2d 1845 (8th Cir. 1976) ; United States

v. Clegg, 509 F. 2d 605 (5th Cir. 1975); Nolan v.

United States, 423 F. 2d 1031 (10th Cir. 1969); cert.

denied, 400 U.S. 848 (1970); and Brandon v. United

States, 382 F. 2d 607 (10th Cir. 1967) was conducted

solely by the telephone companies, independent of gov-

ernment agencies. Furthermore, in United States Vv.

Baxter, 492 F. 2d 150 (9th Cir.), cert. dismissed, 414

U.S. 801 (1973); DiPiazza v. United States, 415 F. 2d

99 (6th Cir. 1969), cert. denied, 402 U.S. 949 (1971) ;

and United States v. Covello, 410 F. 2d 536 (2d Cir.),

cert. denied, 396 U.S. 879 (1969), no pen registers or

blue boxes were ever used; government agencies merely

subpoenaed the toll or long distance billing records rou-

tinely kept by the telephone company. United States v.

Fithian, 452 F. 2d 505 (9th Cir. 1971), also involved

the exercise of governmental power to subpoena tele-

phone company records rather than governmental or

telephone company surveillance of the making of calls,

although the opinion is unclear as to whether the docu-

ments recorded local or toll calls, or both.*

The “invasion of privacy” prong of the definition of a

“search” is also met in this case. While telephone com-

panies routinely maintain records of toll and long dis-

tance calls for billing purposes, or monitor a telephone

line to correct problems with services, or deal with

customer complaints, local calls made by Smith on his

home phone are a private matter. Routine telephone

company activities do not include the monitoring of local

calls because customers usually pay for basic use of

equipment at a flat rate. Nor would the government

routinely be privy to information concerning Smith’s

private local calls absent a warrant.

2 Although not cited by the majority in this case, two other recent

Ninth Circuit decisions specifically excluded fourth amendment

considerations because monitoring activities were conducted by

telephone companies, independent of the government. See United

States v. Bowler, 561 F.2d 1323 (9th Cir. 1977); United States v.

Glanzer, 521 F.2d 11 (9th Cir. 1975) (per curiam).

3In the case sub judice the police obtained information about all

of Smith’s outgoing calls, not just long-distance or toll calls, as in

Baxter, DiPiazza, and Covello, supra. The majority attempts to

minimize the significance of these factual distinctions by quoting

a portion of Hodge, supra, in which, without citing any authority

other than its own opinion, the Ninth Circuit stated that the differ-

ence between a pen register’s recording of all attempted outgoing

telephone calls and a telephone company’s routine records of com-

pleted toll and long distance calls is not of constitutional dimension.

See Hodge, supra, 555 F.2d at 256-57 and n. 6.

The majority contends that a legal distinction between

telephone customer expectations regarding local calls and

toll calls cannot be made because subscribers have no

real knowledge as to the geographic boundaries of their

local calling area. This amounts to mere speculation as

to what the average telephone customer knows. In ad-

dition, in Maryland, a person using the telephone must

have some knowledge of his local calling zone because a

special number prefix, “1,’”’ must be dialed in order just

to complete in-state calls which are made to telephones

outside one’s local calling zone. It fs also difficult to

agree with this argument because it assumes that tele-

phone subscribers are so unconcerned about the amount

of their monthly bills that they pay no attention to

whether they are making toll calls.

Second, the majority suggests that since all telephone

calls must pass through equipment owned by the tele-

phone company, the telephone company will have knowl-

edge 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, or by a bank, United

States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d

71 (1976), or by means of “mail covers” e.g., United

States v. Leonard, 524 F. 2d 1076 (2d Cir. 1975), cert.

denied, 425 U.S. 958 (1976), or by observation in a

public area, e.g., United States v. Hufford, 539 F. 2d

82 (9th Cir.), cert. denied, 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 ulti-

mately turned the information over to the government.

This analogy just does not hold water. In White,

supra, a conversation between the defendant and an in-

formant was relayed by the informant to the police by

means of an electronic transmitter that the informant

was wearing. The majority opinion in White ,stressed

that because the revelation to the government was made

by a “party” to conversation 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 com-

pany in this case was a “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

Bankers Association v. Shultz, 416 U.S. 21, 48-49, 94

S. Ct. 1494, 39 L.Ed.2d 812 (1974). Smith was leasing

the telephone in order to make private calls from his

home. 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. A home phone would

afford him little more privacy than a public phone.

Similarly, in Miller, supra, the Supreme Court held

that because the defendant’s bank was a “party” to the

instruments negotiated by the defendant, the bank’s reve-

lation of information about the defendant’s accounts upon

government subpoena did not implicate the fourth amend-

ment. 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 tele-

phone 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

US. 21 at 52.

The majority’s analogy to “mail covers” is also un-

convincing. While use of the postal service involves es-

sentially public facilities where any writing on the out-

side 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 and content

of a conversation. The Supreme Court has repeatedly

acknowledged the aura of privacy which surrounds ac-

tivities in the home, as contrasted with “public” activi-

ties. See, e.g., United States v. Martinez-Fuerte, 428

U.S. 543, 561, 96 S. 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 as-

sumption that the documents subpoenaed were not the

respondent’s “private papers.” Miller, supra, 425 U.S.

435 at 440. Unlike Miller, who voluntarily gave informa-

tion 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 plac-

ing them in his home. In contrast to the majority, I

believe that the use of “mail covers” is less of an in-

vasion of privacy than a pen register. The address and

return address on an envelope are easily visible to any-

one handling it, while use of a home phone is designed

to make telephone communications a 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 Huf-

ford, supra, and in United States v. Moore, 562 F. 2d

106 (1st Cir. 1977).

The ultimate issue to be resolved is whether the war-

rantless 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 v. State, 279

Md. 47, 52, 367 A. 2d 949, cert. denied, 421 U.S. 982

(1977). J Fe nae

While I would agree with the majority that it is dif-

ficult to know whether a telephone subscriber harbors

an actual subjective expectation of privacy in the num-

bers which he dials, I would contend that the facts in

this case clearly support an inference that 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 a 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 moni-

toring his calls for purposes of a criminal investigation

without appropriate legal process. That such expecta-

tion is reasonable seems undebatable.

Finally, the majority dismisses Smith’s contention

rather summarily by stating that “[e]ven if he did har-

bor 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 expecta-

tion 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 unlaw-

ful 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. These factors and others

have created an environment of distrust, fear and lack

of confidence.

I believe society condemns any such unlawful practices

and awaits the forces of good to restore the basic right

of privacy which has been steadily 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 the psychic or related sciences.

In the instant case, no such intrusion was legal with-

out proper review of a magistrate. I would recognize

Smith’s right of privacy and suppress the fruits of the

warrantless search.

* A pen register may be subject to abuse because it may be easily

converted into a 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 III, The Use of Pen Register

Surveillance in Law Enforcement, 1977 Duke L.J. 751, 759. The

pen register also has the potential of inhibiting freedom of associa-

tion. If pen register data were fed into a central computer on a

widespread basis, patterns of acquaintances and dealings among a

substantial group of people would be available to the government.

A. Miller, Assault on Privacy, supra. at 43.

MANDATE

COURT OF APPEALS OF MARYLAND

No. 98, September Term, 1977

MICHAEL LEE SMITH

Uv.

STATE OF MARYLAND

Appeal from the Criminal Court of

Baltimore pursuant to certiorari to

Court of Special Appeals.

Filed: October 10, 1977.

January 11, 1978: Order of Court filed

setting case for reargument, etc.

July 14, 1978: Judgement affirmed,

costs to be paid by appellant.

Opinion by Murphy, C.J. Digges, El-

dridge and Cole, JJ., dissent.

July 14, 1978: Dissenting opinion by

Eldridge, J., in which Digges, J.,

concurs.

July 14, 1978: Dissenting opinion by

Cole, J.

STATEMENT OF COSTS:

In Circuit Court:

Record $ 30.00

Stenographer’s Costs 202.00

In Court of Appeals:

Petition Filing Fee ............ nahh

Printing Brief for Appellant ......... Not supplied

Portion of Record Extract—Appellant .

Reply Brief (Supplemental) ......... a se

Appearance Fee—Appellant ......... $ 10.00

Filing Fee on Appeal

(Court of Special Appeals) ........ 30.00

Printing Brief for Appellee .......... 30.00

Portion of Record Extract—

Appellee (Supplemental) .......... 30.00

Appearance Fee—Appellee .......... 10.00

STATE OF MARYLAND, SS:

I do hereby certify that the foregoing is truly taken

from the records and proceedings of the said Court of

Appeals.

In testimony whereof, I have hereunto set my hand

as Clerk and affixed the seal of the Court of Appeals

this fourteenth day of August, 1978.

/s/ James H. Norris, Jr.

Clerk of the Court of Appeals of Maryland

Costs shown on this Mandate are to be settled between

counsel and NOT THROUGH THIS OFFICE.

SUPREME COURT OF THE UNITED STATES

No. 78-5374

MICHAE! LEE SMITH, PETITIONER

Vv.

MARYLAND

On PETITION FOR WRIT OF CERTIORARI TO the Court

of Appeals of the State of Maryland.

ON CONSIDERATION of the motion for leave to proceed

herein in forma pauperis and of the petition for writ of

certiorari, it is ordered by this Court that the motion

to proceed in forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be,

and the same is hereby, granted.

December 4, 1978

W ou. S. GOVERNMENT PRINTING orrice; 1979 285445 285

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.