Respondents Brief — Smith v. Maryland

eUpreme Gaus, D’ |

if FILED |

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FEB 17 (979

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-5374

MICHAEL LEE SMITH,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

ON CERTIORARI TO THE COURT OF

APPEALS OF MARYLAND

BRIEF OF RESPONDENT

STEPHEN H. SACHs,

Attorney General

of Maryland,

GEORGE A. NILSON,

Deputy Attorney General

of Maryland,

DEBORAH K. HANDEL,

Assistant Attorney General

of Maryland,

Chief, Criminal Appeals Division,

STEPHEN B. CAPLIS,

Assistant Attorney General

of Maryland,

1400 One South Calvert Street,

Baltimore, Maryland 21202,

Attorneys for Respondent.

The Daily Record Co., Baltimore, Md. 21202 So (ms)

TABLE OF CONTENTS

PAGE

OPINION BELOW AND JURISDICTION .........ccccccc00000 1

ssc etadesnsonassctnuboonns 1

STATEMENT OF THE CASE .............005. ecnaenaaCendiibdat 2

ARGUMENT:

The Pen Register Recording of Tele-

phone Numbers Dialed Does Not Con-

stitute A Search and Seizure Contem-

plated By The Fourth Amendment To

The United States Constitution. ............ 2

SRE RS Sh RE cee et 17

TABLE OF CITATIONS

Cases

Application of the United States of America In

the Matter of an Order Authorizing the Use

of the Pen Register or Similar Mechanical

Device, 538 F.2d 956 (2nd Cir. 1977) ............ 15

Carswell v. Southwestern Bell Telephone Co., 449

S.W.2d 805 (Tex. Civ. App. 1969) .................. 12

Coleman v. District of Columbia, 250 A.2d 555

ARREST eh 0 ee er 13

Harmon v. Commonwealth, 166 S.E.2d 232 (Va.

RET SEN ERS Se ECE So a Ne eer a 13

Hodge v. Mountain States Telephone & Tele-

graph Co., 555 F.2d 254 (9th Cir. 1977) ....... 5, 6,13

Hoffa v. United States, 385 U.S. 293 (1966) ...... 8

Jarvis v. Southwestern Bell Telephone Co., 432

S.W.2d 189 (Tex. Civ. App. 1968) .................. 12

Katz v. United States, 389 U.S. 347 (1967) ......... 3,4

Lopez v. United States, 373 U.S. 427 (1963) ...... 8

ii

Lustiger v. United States, 386 F.2d 132 (9th Cir.

1967), cert. denied, 390 U.S. 951 (1968) ........

Martin v. DeSilva, 566 F.2d 360 (1st Cir. 1977)

People v. Schneider, 257 N.Y.S.2d 876 (N.Y. 1965)

Rakas and King v. Illinois, ___ U.S. ___., 99 S.

Ct. 421, 58 L. Ed. 2d 387 (1978) ..............c0000

Smith v. State, 283 Md. 156 (1978) ...........ccccceeees

State v. Cyr, 389 A.2d 834 (Me. 1978) ............06..

United States v. Balistrieri, 403 F.2d 472 (7th Cir.

RIPE sustsiniiannmsetiinyininsacenceeusyenesouttnenntaenmnaonctseaseties

TTT aabicohsncnuntsisnbeitisietineseindavectniensctenselioananiebeianness

ITE ssbesdstensanihscalieacinieieiysbasntintchiiniestngalledéaioheasenid eaenasts

UIT Sicibesteincsntamcctdgltvieniiaheahahaidehinessiekdiseiedldiainbansane

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

1969), cert. denied, 396 U.S. 879 (1969) ........

United States v. Doolittle, 507 F.2d 1368 (5th Cir.

1975), cert. dismissed, 423 U.S. 1008 (1975)

United States v. Falcone, 505 F.2d 478 (3rd Cir.

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

United States v. Giordano, 416 U.S. 505 (1974)

United States v. John, 508 F.2d 1134 (8th Cir.

1975), cert. denied, 421 U.S. 962 (1975) ........

United States v. Illinois Bell Telephone Co., 531

Be Ge CU GR RTD. vscnccsencncecccnccnnsccnensccecese

United States v. Leonard, 524 F.2d 1076 (2d Cir.

1975), cert. denied, 425 U.S. 958 (1976) ........

United States v. Miller, 425 U.S. 435 (1976) ......

United States v. New York Telephone Co., 434

MIs, UUIIIIIITI chtilcenetieee an 3,

PAGE

10

15

13

10

iil

PAGE

United States v. Southwestern Bell Telephone

Co., 546 F.2d 243 (8th Cir. 1976) «00... 16

United States v. White, 401 U.S. 745 (1971) ...... 4,8

Von Lusch v. C & P Telephone Co., 457 F. Supp.

O16 @. Wid. TOFS? ications 10,13

Statutes

Annotated Code of Maryland:

Article 27—

Decl TR: sensnceatntinniesncniodamene 10

Courts and Judicial Proceedings Article—

aes: TEED cssecccssccttinntnssaatinaciscnen 14

United States Code:

18 U.S.C.—

ae BIRD - snseccicisisticcsniticttascuiveiaionent 14

47 US.C.—

NT TID seiccinscstnssinneneoiamenind iesaebsianiaenuaiia 10

enties ED siscciicinsiincinasenacnian 14

Ala. Code tit. 37, Section 37-8-214 ........ ccs 11

Alaska Stat. Section 11.45.0385 oo... eeeeeeeeees 11

Ariz. Rev. Stat. Section 12-2916 ou... eesssssseees 11

Ark. Stat. Ann. Section 41-143 0... cccsseseeee 11

Cal. Penal Code, Section 653m ..............ccceeeeeeeees 11

Colo. Rev. Stat. Section 18-9-L11 wc. eceeseeees 11

Conn. Gen. Stat., Section 53A-183 ..........c eee 11

Del. Code tit. 11, Sections 1311, 1312 .................. 11

Pien.. Btenk. Bentienth SAB wiscssancecksssccnenseesisscnsctinnnssons 11

Ga. Code, Section 104-9901 cc eeeeesssseteeeeees 11

Haw. Rev. Stat. Section 711-1106 oo... eee 11

Idaho Code, Sections 18-6710, 6711 ............cceeeeee 11

Ill. Rev. Stat. ch. 134, Sections 16.4, 156. ........... 11

iv Vv

PAGE PAGE

Teel, Cote Bocthaen 1OGBGA . ccccccccnsssccoctsoniescessiescscstees 11 Vt. Stat. Ann. tit. 13, Section 1027 o..ccccccccseccsseeses 11

Towa Code, Section 708.7 .......s:sssessssesesesnesesessesesees 11 Vids Ce I BIS eictecienicccenvinnctosvcinscenneinanes 11

Kan. Stat. Section 21-4113. ................sccccscsssssssesees 11 Wash. Rev. Code Section 9.61.230 ...........ccccccccccee- 11

Ky. Rev. Stat., Section 436.107 ......ssssssssessssseeees 11 W. Va. Code Section 61-8-16 ........ccccsssssssessesssseeeeees 11

La. Rev. Stat. Ann. Section 285. ......sssssessessesseens 11 Wii, Te a I saiciseic sere scence 11

Me. Rev. Stat. tit. 17, Section 3703 ........sss00 11 Wyo. Stat. Yection 6-4-612 .........coccccesssssessssessesesees 11

Md. Ann. Code, art. 27, Section 555A ................. 10, 11

Mass. Ge. Laws Ann. ch. 269, Section 14A ....... 11 Miscellaneous

*Mich. Stat. Ann. Section 28-364 ..........ssesseseseees 11 Claerhout, The Pen Register, 20 Drake L. Rev.

eee, a TI a Fe citiattncnecsersescnasiensoninnsconinn 11 DE COD cichsasencdecssacetiaccatenisentalenstsiicuaaaitdanotdianiini 12

Miss. Code Ann. Section 97-29-45 ..........cccccecceeeeees 11 H.R. Rep. No. 1109, 90th Cong., 2nd Sess. 21,

Mo. Rev. Stat. Section 565.090 .0............cccccsseeeeeees 11 reprinted in [1968] U.S. Code Cong. & Ad.

Bont Rov Coles Ana. Gectien 066114... il OD». ceviicecenedidasnihtienisiidateseblai tases 12

Note, The Legal Constraints Upon the Use of the

Neb. Rev. Stat. nection SINE ledeciiiaiclcdosilatenintacddas 11 Fen Renlater as 0 Law Balbesment Teal 0

Nev. Rev. Stat. Section 201.255 ou... eeseeeeeeeees 11 Cornell L. Rev. 1028 (1975) cecccccccscccscccossccscessee 7

N.H. Rev. Stat. Ann. Section 644:4 oe 11

N.J. Rev. Stat. Section 170-29 ...........ccccccccsssssssseees 11

N.M. Stat. Ann. Section 30-20-12 ........... esses 11

N.Y. Penal Law (McKinney) Section 240.30 ...... 11

N.C. Gen. Stat. Section 14-196 ...............ccccscssesrees 11

Ohio Rev. Code Ann. Section 4931.31 (Page) .... 11

eo me! OD Fk ee 11

Or. Rev. Stat. Section 166.065. ............cccccccssccscsseees 11 ~

Pa. Cons. Stat. Ann. Section 5504 (Purdon) ....... 11

R.I. Gen. Laws Section 11-35-17 .0.2...........ccsssceeeees 11

S.C. Code Section 16-17-4380 ...........ccccccccsccssssscsssees 11

S.D. Compiled Laws Ann. Sections 49-31-31 et

GIG: * kciascinssviontaeibtianenn Snidinnssidaalhielvaseanteiiiiimseaans 11

Tenn. Code Ann. Section 39-3011 0... eee 11

Tex. Penal Code Ann. tit. 9, Section 476 (Vernon) 11

Utah Code Ann. Section 76-9-201 oo... 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-5374

MICHAEL LEE SMITH,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

On CERTIORARI TO THE COURT OF

APPEALS OF MARYLAND

BRIEF OF RESPONDENT

OPINION BELOW AND JURISDICTION

Citation to the opinion of the court below and

statement of the jurisdiction of this Court are correctly

set forth by Petitioner.

QUESTION PRESENTED

Does the pen register recording of telephone numbers

dialed constitute a search and seizure contemplated by

the Fourth Amendment to the United States Constitu-

tion?

2

STATEMENT OF THE CASE

Respondent accepts the Statement of the Case set

forth by Petitioner as accurate and complete.

SUMMARY OF ARGUMENT

1. Because the use of the telephone necessarily

involves the divulgence of information to a third party,

l.e., the telephone company, there is no expectation of

privacy in the telephone number dialed. Therefore, the

information recorded by the pen register does not

constitute a search and seizure protected by the Fourth

Amendment.

2. Because the information recorded by a pen register

is routinely imparted to the telephone company, and

used by the telephone company for billing and other

business purposes, and because society recognizes the

need to curb illegal and abusive use of the telephone,

there can be no reasonable, legitimate expectation of

privacy in the telephone numbers dialed.

3. Neither the balancing test nor the authorities set

forth by Petitioner justify finding that the pen register

constitutes a search and seizure under the Fourth

Amendment.

ARGUMENT

THE PEN REGISTER RECORDING OF TELEPHONE NUMBERS

DIALED DOES NOT CONSTITUTE A SEARCH AND SEIZURE

CONTEMPLATED BY THE FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION.

The device known as 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

3

does not involve any monitoring of telephone

conversations.” United States v. Giordano, 416

U.S. 505, 549 n.1 (1974) (Powell, J., concurring and

dissenting).

Moreover,

‘“(njeither the purport of any communication

between the caller and the recipient of the call,

their identities, nor whether the call was even

completed is disclosed by pen registers. Further-

more, pen registers do not accomplish the ‘aural

acquisition’ of anything. They decode outgoing

telephone numbers by responding to changes in

electrical voltage caused by the turning of the

telephone dial (or pressing of buttons on push

button telephones) and present the information in

a form to be interpreted by sight rather than by

hearing.” United States v. New York Telephone

Co., 434 U.S. 159, 167 (1977).

This case calls upon the Court to decide whether the

mere recordation by a pen register of telephone

numbers dialed by a telephone user constitutes a search

and seizure within the scope of the Fourth Amendment.

The Court of Appeals of Maryland held that it did not.

That judgment should be affirmed.

The Fourth Amendment Right to Privacy

In Katz v. United States, 389 U.S. 347 (1967), this

Court focused on the individual’s expectation of privacy

as the touchstone of the Fourth Amendment, noting

that reference to neither “constitutionally protected

area” nor physical “trespass” adequately defined the

scope of the protection, and that the Fourth Amend-

ment was not restricted to seizure of tangible items.

This Court said:

“What a person knowingly exposes to the public,

even in his own home or office, is not a subject of

Fourth Amendment protection.” 389 U.S. at 351.

4

In his concurring opinion, Mr. Justice Harlan, defined a

two part test to determine whether a person’s privacy is

protected within any given area:

“(Fjirst 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.

In United States v. White, 401 U.S. 745, 752 (1971), the

Court wrote: “Our problem, in terms of the principles

announced in Katz is what expectations of privacy are

constitutionally ‘justifiable’ — what expectations the

Fourth Amendment will protect in the absence of a

warrant.” This articulation places emphasis on the

second (objective) prong of Mr. Justice Harlan’s test, a

necessary emphasis since it is a defendant’s subjective

expectation of privacy which gives rise to the seized

communication. If there is no actual expectation of

privacy exhibited, however, inquiry into what is

“reasonable” or “justifiable” to society in general is

unnecessary. This Court recently acknowledged that:

“{ljegitimation of expectations of privacy by law

must have a source outside of the Fourth Amend-

ment, either by reference to concepts of real or

personal property law or to understandings that

are recognized and permitted by society.” Rakas

and King v. Illinois, __. U.S. ___, 99 S. Ct. 421,

58 L. Ed. 2d 387, 401 n.12 (1978).

By focusing on “understandings that are recognized

and permitted by society,” the inquiry becomes one of

whether it is reasonably foreseeable that the conduct or

communication will not remain private.

Pen registers fall outside the scope of the Fourth

Amendment because the use of the telephone, though

the call may originate within a person’s home,

necessarily involves communication to a third party

(the telephone company) of the number desired to be

reached, and thus there is no expectation of privacy.

5

The necessary communication of the number dialed, for

the purpose of enabling the telephone company to

connect the caller with the other phone, as well as for

billing and other business purposes, precludes the

finding that either an actual expectation of privacy in

the number dialed exists, or that society would

recognize that any such expectation would be reasona-

ble. The mere fact that the government obtains the

information from a third party, who necessarily has

access to it for business purposes, establishes the :ion-

applicability of the Fourth Amendment because there

can be no expectation that the number called will

remain private. In short, it is reasonably foreseeable

that the numbers dialed will be known by another, and

that the information will be available for communica-

tion to governmental authorities.

Expectation of the individual

It is only an intrusion by governmental officials

into an individual’s “zone of privacy” which implica-

tions the Fourth Amendment. United States v. Miller,

425 U.S. 435, 440 (1976). Clearly, once an individual

reveals the information to a third party, it is no longer

private. The obvious indication that the number dialed

on a telephone is imparted to the telephone company is

that some of the numbers routinely appear on bills for

long distance charges. The Court of Appeals for the

Ninth Circuit concluded that “[tJhe public awareness

that such records are routinely maintained was held to

negate any constitutionally sufficient expectation of

privacy regarding the records.” Hodge v. Mountain

States Telephone and Telegraph Co., 555 F.2d 254, 256

(9th Cir. 1977). From this basis, the Ninth Circuit

continued:

“Although a pen register record differs from

telephone company billing records, we have no

difficulty in now holding that the information

recorded is not protected by the Fourth Amend-

ment.

6

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 com-

pleted 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 normally maintained, an

expectation of privacy exists. This admitted differ-

ence is not, in our view, of constitutional dimension

and is more than offset by the fact that pen register

records are even farther removed than billing

records from the content of the communications.

Viewed in the round, the information recorded by

pen registers is not entitled to Fourth Amendment

protection.” 555 F.2d at 256-57.

Similar considerations highlighted the specially concur-

ring opinion of Judge Hufstedler:

“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 subscrib-

er’s privacy because, unlike billing records, a pen

register tape does not indicate whether any calls

were answered.

True, the telephone company usually does not keep

a record of local telephone calls. But most subscrib-

ers are unaware of the boundaries of their local

dialing zones, especially in cities where these zones

do not coincide with traditional geographic boun-

daries. 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,

subscribers do not harbor any justifiable expecta-

tion of privacy that a record will not be kept of

their outgoing calls.” 555 F.2d at 266 (footnote and

citation omitted).

7

The reality that a record of all calls dialed is not

“usually” kept is of no constitutional significance. The

fact that the numbers dialed are imparted to the

telephone company, for whatever length of time, is

sufficient to negate any reasonable expectation of

privacy in the information divulged. Thus, the tele-

phone user has no legitimate expectation that the

numbers he dials on a telephone will not be recorded or

furnished to the authorities. By similar reasoning the

Fifth Circuit has reached the same conclusion. United

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

United States v. Baxter, 492 F.2d 150 (9th Cir. 1978).

That the telephone company keeps records of various

aspects of telephone use is well known. United States v.

Covello, 410 F.2d 536, 542 (2nd Cir. 1969), cert. denied,

396 U.S. 879 (1969). Legal commentators agree:

“First, even assuming that a privacy 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 associated

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 geographical boundaries of

their ‘local call’ zone.” Note, The Legal Constraints

Upon the Use of the Pen Register as a Law

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

(1975).

The constitutional irrelevance of a local-long distance

call distinction is underscored when one considers that

the signals going out from a local call are transported

by the same equipment which handles long distance

calls, namely, equipment maintained and owned by the

telephone company. The equipment, which is the

necessary conduit of all telephone calls, merely replaces

the prior personal assistance of the switchboard

8

operator of by-gone days.! It is worth noting, moreover,

that, since the “intrusion” is of the same magnitude

whether local or long distance calls are involved, there

is no greater reason to require a warrant for the

recording of local numbers than for recording other

numbers. Once the information is validly received by a

third party, there is no Fourth Amendment bar to

disclosure to governmental officials.

Thus, in Hoffa v. United States, 385 U.S. 293 (1966)

(statements to a friend and confidante who recorded

conversation for a police agent) and Lopez v. United

States, 373 U.S. 427 (1963) (participant to a conversa-

tion recorded same for government use), this Court has

recognized the inapplicability of the Fourth Amend-

ment to instances where third parties are voluntarily

made privy to acts or thoughts of the accused. See also

United States v. White, 401 U.S. 745 (1971).

A more recent example of this limitation upon the

scope of the Fourth Amendment is found in United

States v. Miller, 425 U.S. 435 (1976), wherein the Court

held that a bank depositor had no Fourth Amendment

interest in the contents of checks and deposit slips

turned over to his bank. In language strikingly

appropriate to this case, the Court said:

“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

1 In line with this thesis:

“. . 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 enforcement authorities

with respect to the dial pulses directed and recorded by

the telephone company.” 60 Cornell L. Rev. at 1045.

9

Amendment does not prohibit the obtaining of

information revealed to a third party and conveyed

by him to government authorities, even if the

information 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.

We emphasize that Miller found no privacy interest in

the contents of deposit slips and checks, a more

intrusive disclosure than is involved here. In this case,

no information as to the contents of the telephone calls

was recorded or revealed by the third party to the police

— the information given to the police was limited to the

fact that certain numbers were dialed on certain dates.

Moreover, the bank depositor in Miller might have some

notion that he and the bank with which he decides to

deal might have some special contractual or fiduciary

relationship. No such “special” relationship could

reasonably be thought to exist between phone user and

the phone company. Everyone in a given community

must use the local telephone company if one desires to

use a telephone. As the Court below said:

“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 equip-

ment that calls are completed. As a recipient of

such information, the company may reveal it since

the caller can have no reasonable 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 communication.” 283 Md. at 172.

The majority below also pointed out that mail covers,

the process by which postal inspectors copy informa-

tion from the outside of sealed envelopes traveling

through the mails, have been upheld on several

occasions. See, for example, Lustiger v. United States,

10

386 F.2d 132 (9th Cir. 1967), cert. denied, 390 U.S. 951

(1968), United States v. Leonard, 524 F.2d 1076 (2nd Cir.

1975), cert. denied, 425 U.S. 958 (1976), and United

States v. Balistrieri, 403 F.2d 472 (7th Cir. 1968). Again,

by revealing the identify of the parties, the mail cover

elicits more information than that obtained by the pen

register, which does not identify the caller, or indicate if

the call is*even completed.

Thus, there can be no actual expectation that the

numbers one dials will remain private. But even if there

were such an expectation, society has not recognized it

as justifiable or reasonable.

Reasonableness of Privacy Expectation

The reasonableness of any subjective expectation of

privacy in the telephone numbers dialed must be

analyzed in the context of the climate in which it

occurs. Because some numbers are routinely recorded

by the telephone company and because the telephone

company itself utilizes the pen register when necessary

to investigate customer complaints about annoying

calls, Respondent submits that no expectation of

privacy is constitutionally justifiable.

The public concern with telephone abuse — harass-

ing, annoying, threatening and obscene telephone calls?

— prompted Congress and state legislatures to enact

criminal penalties for abusive calls.* Society has

legitimized the use of the pen register by recognizing

that techniques must be developed and employed to

2In Maryland alone, “750,000 complaints received

throughout the system in 1969 grew to 1.2 million by 1974”.

Von Lusch v. C & P Telephone Company, 457 F. Supp. 814,

817 n.2 (D. Md. 1978).

3 This legislation, 47 U.S.C. Section 223, is fairly compara-

ble to the Maryland Telephone Abuse Statute, Article 27,

Section 555A, Annotated Code of Maryland, and the

11

detect the parties responsible for the abusive calls.

Societal recognition that the telephone company will

employ those techniques, including the pen register,

based upon customer complaints and, when evidence is

gathered, that the company will divulge it to the

authorities, indicates that an expectation of privacy for

the numbers dialed is not reasonable or justifiable. If it

is accepted that the telephone company will record

numbers to detect misuse of the telephone, it is

unreasonable to expect that any particular call dialed

will remain private.

The report of the Interstate and Foreign Commerce

Committee of the House of Representatives, in support

of legislation prohibiting telephone abuse, makes the

following observation:

“{I]t should be noted that none of these techniques

[for tracing or recording such calls] requires

following Statutes in effect in 49 states at the present time.

These states are as follows:

Ala. Code tit. 37, §37-8-214; Alaska Stat. § 11.45.035;

Ariz. Rev. Stat. § 13-2916; Ark. Stat. Ann. § 41-1437; Cal.

Penal Code §653m (West); Colo. Rev. Stat. § 18-9-111;

Conn. Gen. Stat. §53A-183; Del. Code tit. 11, §§ 1311,

1312; Fla. Stat. § 365.16; Ga. Code § 104-9901; Haw. Rev.

Stat. § 711-1106; Idaho Code §§ 18-6710, 6711; Ill. Rev.

Stat. ch. 134, §§ 16.4, 16.5; Ind. Code § 10-4944; Iowa Code

§ 708.7; Kan. Stat. § 21-4113; Ky. Rev. Stat. § 436.107; La.

Rev. Stat. Ann. § 285; Me. Rev. Stat. tit. 17, § 3703; Md.

Ann. Code, art. 27, §555A; Mass. Stat. Ann. § 28-364;

Minn. Stat. § 609.79; Miss. Code Ann. § 97-29-45; Mo. Rev.

Stat. §565.090; Mont. Rev. Codes Ann. § 94-8-114; Neb.

Rev. Stat. § 28-1127; Nev. Rev. Stat. § 201.255; N.H. Rev.

Stat. Ann. §644:4; N.J. Rev. Stat. § 170-29; N.M. Stat.

Ann. § 30-20-12; N.Y. Penal Law (McKinney) § 240.30;

N.C. Gen. Stat. § 14-196; Ohio Rev. Code Ann. § 4931.31

(Page); Okla. Stat. tit. 21, § 1172; Or. Rev. Stat. § 166.065;

18 Pa. Cons. Stat. Ann. § 5504 (Purdon); R.I. Gen. Laws

§ 11-35-17; S.C. Code § 16-17-430; S.D. Compiled Laws

Ann. §§ 49-31-31 et. seq.; Tenn. Code Ann. § 39-3011; Tex.

Penal Code Ann. tit. 9, §476 (Vernon); Utah Code Ann.

§ 76-9-201; Vt. Stat. Ann. tit. 13, § 1027; Va. Code § 18.2-

427; Wash. Rev. Code § 9.61.230; W. Va. Code § 61-8-16;

Wis. Stat. § 947.01; Wyo. Stat. § 6-4-612.

12

monitoring the content of conversations on the

calling or called person’s line.’”’ H.R. Rep. No. 1109,

90th Cong., 2nd Sess. 21, reprinted in [1968] U.S.

Code Cong. & Ad. News 1915, 1916-17.

The discussion does not mention a need for probable

cause or a search warrant before activating the

equipment. Even if the foregoing comment is confined

to activity undertaken by the telephone company alone,

it is yet an acknowledgment that the techniques are

acceptable to the Congress of the United States, the

duly elected representatives of the people of the United

States, so long as the conversations are not overheard.

As this Court observed in New York Telephone

Company, supra: “The Company concedes that it

regularly employs such devices without court order for

the purposes of checking billing operations, detecting

fraud, and preventing violations of law.” 434 U.S. at

174-175.

One writer has even hailed judicial approval of such

devices (in the context of denying civil liability of a

telephone company sued by phone users claiming an

invasion of privacy because pen registers were em-

ployed on their telephone lines as a result of complaints

from other telephone customers) as “a victory for the

privacy of the vast majority of telephone customers.”

Claerhout, The Pen Register, 20 Drake L. Rev. 108,

117 (1970). Commenting upon two cases from Texas,

Carswell v. Southwestern Bell Telephone Company, 449

S.W.2d 805 (Tex. Civ. App. 1969) and Jarvis uv.

Southwestern Bell Telephone Company, 432 S.W.2d 189

(Tex. Civ. App. 1968), the writer noted:

“. . as long as the telephone company follows its

strict standards in refusing to disclose pen register

evidence to persons not a party to the telephone

call, except, of course, to lawful authority, it will

argh: subjected to civil liability.” 20 Drake L. Rev.

at ‘ :

13

Similarly, other jurisdictions have condoned the use

of pen registers by the telephone company for the

avowed purpose of ferreting out violations of the law,

Coleman v. District of Columbia, 250 A.2d 555 (D.C.

App. 1969), Harmon v. Commonwealth, 166 S.E.2d 232

(Va. 1969), People v. Schneider, 257 N.Y.S.2d 876 (N.Y.

1965), and State v. Cyr, 389 A.2d 834 (Me. 1978). See

also Hodge v. Mountain State Telegraph and Telephone

Co., supra, and Von Lusch v. C & P Telephone Co.,

supra. Von Lusch was partly decided upon the finding

of the trial court that the pen register “cannot violate

Fourth Amendment rights”, 457 F. Supp. at 818. It is

therefore evident that pen registers are in widespread

use to combat the equally widespread phenomenon of

abusive use of the telephone and that the telephone

company divulges all relevant information obtained to

the police for purposes of investigation, arrest, and

prosecution. Respondent has found no cases (and

Petitioner notes none) where the telephone company

has indiscriminately given lists of all calls made by the

suspect to the authorities, or where the telephone

company and police have connived to convert a pen

register into a wiretap. No contention is made in the

present case that either form of abuse occurred.

Furthermore, the routine use of the pen register by the

telephone company and judicial approval thereof

demonstrate that, contrary to Petitioner’s assertion,

society has not sought to prevent the use of the pen

register without prior judicial approval as a general

proposition.

In sum, given the non-existent basis upon which to

assert an actual (subjective) expectation of privacy and

the recognition that pen registers are routinely em-

ployed by the telephone company to detect telephone

abuse, the privacy interest with which the Fourth

Amendment is concerned is absent.

14

Petitioner’s assertion that the decision in this case

depends on the resolution of a balancing test assumes

Fourth Amendment applicability. Respondent submits

that the foregoing argument establishes that pen

registers do not abridge any legitimate expectation of

privacy and urges this Court not to be misled by

Petitioner’s argument that, as a policy matter, searches

conducted pursuant to a warrant are to be preferred to

warrantless intrusions.

An examination of the factors, moreover, does not

militate in favor of imposing a warrant requirement as

a policy matter. The possibility of abuse is minimal

given the telephone company procedures and statutes‘

limiting disclosures. Validating the warrantless use of

pen registers will not automatically lead to warrantless

use of more intrusive devices. The unique and limited

nature of the device, which can neither identify the

parties to the call nor overhear any communication,

guarantees that its use will not adversely affect the

exercise of free speech or any individual privacy right.

On the other hand, the burden on law enforcement, if a

warrant requirement is imposed, will be substantial.

The time necessary to secure the warrant, assuming

probable cause exists, may well destroy any hope of

securing the needed evidence. And the usefulness of the

device will be eliminated entirely in cases where

reasonable suspicion, but not probable cause, exists. In

short, even a balance of the policy factors argued by

Petitioner does not justify imposition of the warrant

requirement. The severely limited nature of the informa-

tion revealed and recorded by a pen register is simply

not intrusive enough to offset the factors which clearly

weigh against imposing such a requirement.

* See, e.g., 47 U.S.C. Section 605, prohibiting interception

of communications by the telephone company except under

very limited circumstances, and 18 U.S.C. Section 2520,

governing analogous misconduct by police authority. Com-

parable Maryland law is found at Code, Courts and Judicial

Proceedings Article, Section 10-410.

15

The courts which have addressed the issue squarely

have concluded that the pen register is not a Fourth

Amendment intrusion. Just as this Court has twice

found it unnecessary to decide the question posed in

this case, United States v. Giordano,® supra, and United

States v. New York Telephone Company,® supra, so

have other courts where the need for Fourth Amend-

ment compliance was not challenged. Petitioner’s

reliance on those cases is therefore misplaced.

In Application of the United States of America, In the

Matter of an Order Authorizing the Use of a Pen

Register or Similar Mechanical Device, 538 F.2d 956

(2nd Cir. 1977), the case ultimately decided by this

Court sub nom. New York Telephone Co., supra, the

government conceded the applicability of the Fourth

Amendment: “{TJhe government argues that a District

Court has inherent authority or power under Rule 41

F.R.C.P. to issue such an order [for placement of a pen

register], subject only to the restraints of the Fourth

Amendment.” 538 F.2d at 959.

Similarly, in United States v. Illinois Bell Telephone

Co., 531 F.2d 809, 812 n.6 (7th Cir. 1976), the govern-

ment sought a court order to compel a reluctant

telephone company to install a pen register, and the

5 “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 guarantee, assuming its applica-

bility, was satisfied in this case.” 416 U.S. at 554, n.4 (Powell,

J., concurring and dissenting).

6 “The Court of Appeals held that pen register surveil-

lance was subject to the requirements of the Fourth

Amendment. This conclusion is not challenged by either

party, and we find it unnecessary to consider the matter

... 4384 U.S. at 165 n.7.

Despite the disclaimer by this Court, one Circuit, in the

context of a civil suit for invasion of privacy, has found New

York Telephone Co., to hold that there is “no federal bar to

the use of a pen register without a warrant.” Martin v.

DeSilva, 566 F.2d 360 (1st Cir. 1977).

16

company did not question the presence of probable

cause. And, in United States v. Southwestern Bell

Telephone Co., 546 F.2d 243 (8th Cir. 1976), because the

government was seeking a court order to secure

telephone company cooperation, the need for probable

cause was simply not questioned.

The other cases cited by Petitioner all involve use of a

pen register in conjunction with a wiretap for which

Title III authorization had already been obtained,

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

United States v. John, et al., 508 F.2d 1134 (8th Cir.

1975), 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), and United States v. Doolittle, 507 F.2d

1368 (5th Cir. 1975), cert. denied, 423 U.S. 1008 (1974). As

the Falcone court acknowledged: “[nJor must we decide,

under the facts of this case, what authorization is

necessary when a pen register is used alone.” 505 F.2d

at 482.

17

CONCLUSION

When one considers the limited nature of the

intrusion, the specific uses to which the pen register is

put, the routine use of the device by the telephone

company with accompanying privacy safeguards, the

knowledge of the subscriber that some recordation of

his dialed numbers does routinely occur, the use of the

phone company equipment by the subscriber, the

comparison of the pen register to mail covers and bank

deposits, and the limited but persuasive authority on

the Fourth Amendment question, one must conclude

that the Court of Appeals of Maryland reached the

correct result. Respondent prays that the judgment of

the Court of Appeals of Maryland be affirmed.

Respectfully submitted,

STEPHEN H. SACHs,

Attorney General

of Maryland,

GeorGE A. NILSON,

Deputy Attorney General

of Maryland,

DEBORAH K. HANDEL,

Assistant Attorney General

of Maryland,

Chief, Criminal Appeals Division,

STEPHEN B. CAPLIs,

Assistant Attorney General

of Maryland,

1400 One South Calvert Street,

Baltimore, Maryland 21202,

Attorneys for Respondent.