# Respondents Brief — Smith v. Maryland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 735

## Text

eUpreme Gaus, D’ |
if FILED |
i ae |

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0425%3A5. Public record. Not legal advice.