Michigan Bell Telephone Company v. United States

BELL TELEPHONE MICHIGAN Petitioner,

COMPANY, America, STATES

UNITED

Respondent. 76-2202, 76-2203.

Nos. Appeals, Circuit.

Sixth 23,

Argued June 7, 1977. Filed Oct.

Decided Detroit, Mich., Wyckoff,

Frederic L. petitioner in No. 76-2202. Zuckerman, opinions and the Eighth dissenting Circuit E. Detroit Strike Richard opinion Judge of Mansfield in the Second Justice, Force, Dept, of United States C. case, Circuit 538 F.2d at 963. Hunterton, Dam, Philip M. Van U. Stanley Mich., in Detroit, respondent for Atty., S. All three of the foregoing cases involved 76-2202. No. pen registers. We conclude that the same legal principles Ankiel, applicable pen J. Wyckoff, registers Conrad Frederic L. in No. 76-2203. Mich., petitioner for also Detroit, control with respect to the devices for trapping and tracing telephone calls in- Hunterton, Stanley C. Detroit Strike volved in the Force, Justice, Dept, U. of S. Richard E. Zuckerman, Dam, Philip M. Van May 24, 1976, U. S. On the district court en- Detroit, Mich., respondent in No. Atty., tered an pursuant order to 18 U.S.C. 76-2203. (Title III), §§ authorizing the Unit- ed intercept States to wire communications PHILLIPS, Judge, Chief and Before and to install a register. These inter- PECK, Judges. Circuit and CELEBREZZE ceptions related to a continuing investiga- PHILLIPS, Judge. Chief tion of illegal gambling operations. Ac- cording to an affidavit filed with the ap- on this dis- questions presented Two are court, trict the wiretaps confirmed (1) a the ex- peal: Does United States istence of illegal an operation numbers authority, upon showing probable of have us- ing the telephone However, lines. company to cause, telephone a it be- came apparent other mechanical Government drops and or install card investi- gators that sophisticated more trace devices and techniques electrical would be required (2) Does a because incoming telephone calls? and the gambling operators authority to direct the had court have established procedures district thwarting perform manual trac- telephone company effectiveness of the wiretaps pen registers. and and the facilities and ing operations Investigators were un- able to necessary imple- assistance for the locate the technical central bookkeeper for court, operation with of the order of all and mentation other links in the organi- incurred the Com- zation. The gambling operators reasonable had estab- by the lished pany to be reimbursed Government? a routine whereby the monitored tel- ephones never called the higher next links question answer the first in the af We in organization. a pen register Since authority on the of firmative United States only records the numbers dialed Co., Telephone Bell Southwestern by a telephone, monitored the use of the 1976), petition F.2d 243 for cert. pen register to identify the central book- pending, (U.S. Apr. U.S.L.W. 3638 keeper was impossible.1 To complicate the 1977); Application of the United States of investigation further, messages some were America in the Matter of an Order Autho scrambled an electronic device on one rizing Register Pen the Use of a or Similar end and unscrambled on the other. Device, (2d Mechanical 1976), rev. sub nom. United States v. New A motion was filed in Government —Co., —, York Telephone court, supported by the district an affidavit and United by special agent, requesting executed a FBI Co., v. Illinois Bell authorizing an order the use of trapping F.2d 809 We answer the tracing equipment. and District question second on au affirmative Philip Pratt entered order on June an thority foregoing Seventh granting the trace telephones of two (or 12) outgoing TR is a cates 1. A TTS 176 or whether call is ever com line, pleted. identify device attached to a It does not the numbers from mechanical usually originated. at office. It records which calls See a central readout) Giordano, 505, 549, tape (or by digital paper all States v. J., (1974) (Powell, numbers dialed from that line. The device nei- concur call, ring part dissenting part). nor indi- ther monitors the contents of a wiretap partment Justice, included which had been if it determines that judge 24. The district found May order of compliance disruptive Michigan individuals cause to believe that Telephone Company services. committing order were of- named in the It is further ordered that: illegal gambling busi- involving fenses (f) All gathered information by reason of Michigan ness in violation of the laws May Order of this Court be two 18 U.S.C. § Special turned over to Agents of the Fed- telephones making were used out- eral Investigation, Bureau of and that receiving incoming and in calls going calls upon Order, the signing of the instant of the in connection with commission 28, 1976, of May supersed- Order shall be provided The order as described offenses. by ed this Order. follows: Michigan Telephone Company 5, 1976, The Bell is August On a similar order was hereby authorized and ordered to: by issued District James P. Churchill. (a) drops Install card and other mechani- Michigan Bell Company filed devices, per- or electrical and/or cal motions in the quash district court to tracing operations designed form manual stay. orders and for a These motions were trap incoming telephone and trace overruled hearings. after oral Michigan calls, technically possible, to the extent orders, appeals Bell from both and the two telephone bearing designat- two [the cases were hearing consolidated for in this ed numbers]. court. We affirm. It is further that: ordered (b) Michigan The Bell Telephone Compa-

ny perform tracing opera- is to manual I.

tions, technically to the extent possible, Even though both orders now have only specifically requested when do so expired terms, by their we hold that by Special Agents of the Federal Bureau appeal is not moot. This is a classic exam Investigation. ple of a controversy capable that is repe (c) It is further ordered that the Michi- tition, yet evading review. Wade, Roe v. gan Telephone Company Bell is to be 113, 125, 705, 410 U.S. 93 S.Ct. reimbursed for all reasonable (1973); 147 Southern Pacific Terminal Co. in complying incurred with this Order. ICC, 279, 219 U.S. 31 S.Ct. 55 It is further that: ordered (1911). L.Ed. 310 (d) The drops, use other mechani- 1968, Prior to 605 of the Communica § devices, cal or electrical and manual trac- tions Act of 19342 served as federal statu ing operations designed or trace tory upon restraint the Government’s use of incoming telephones, calls to shall said investiga electronic surveillance in criminal until the all tel- continue identification of Supreme held that tions. wire ephone numbers from which tap information obtained in contravention telephones calls are made to said leads to statute of this was inadmissible evidence. the identities of the subscribers of those Florida, 378, 2096, numbers, Lee period or for a (1968); (20) days the date of this Nardone v. United twenty from Order, 379, 275, whichever is earlier. 302 58 82 L.Ed. (1937). proscription 314 This was extended It is further ordered that: pen registers. to condemn the use of Unit (e) Michigan Telephone Compa- Dote, ed States v. ny may bring hearing regarding on a 1966), aff’g Guglielmo, United compliance upon with this Order oral no- F.Supp. (N.D.Ill.1966); Stanley and to Hunt- tice to the Court C. States v. erton, Special Agent, Caplan, F.Supp. United States De- 805 (E.D.Mich.1966).

2. Act of June ch. 48 Stat. 1103. § layed by legislative Title III of the reference to the his- Congress enacted In 1968 tory Report of Title III. The of the and Safe Streets Crime Control Omnibus 2510-20), Judiciary Committee on the providing statu- Senate (18 Act U.S.C. §§ discussing scope explic- of the statute for the use of electronic tory authorization states itly register,” use of a “pen ‘[t]he law enforcement officers surveillance example, permissible.’ would be set forth in the the strict standards within Sess., S.Rep.No.1097, Cong., 2d 90th addition, III amended Title § Act. In Act of 1934. 47 Communications of the well settled that device is not 605. It is Because a § U.S.C. amendment, III, longer subject no of Title provisions this as revised permissibility It of its use law enforce- pen registers.3 use of prohibits the depends entirely ment Congress excluded authorities equally clear that compliance with the re- III.4 constitutional of Title registers from of the Fourth quirements Amendment. concurring in opinion, separate In his (Footnote omitted). dissenting part, in in United part and ap We conclude that the same rules Giordano, 505, 553-54, 94 v. States plicable registers pen to also control the (1974), 341 Mr. requiring orders installation of drops said: Justice Powell and other mechanical or electrical devices pen register of a device The installation designed to and trace tele numbers dialed and record the to monitor phone calls the entered district court in telephone line is not particular from a present the equipment case. The used in the con Title III. This was governed by trapping tracing telephone and calls is simi in in the of the District clusion pen register lar to a in that it does not in the courts United stant case and of accomplish acquisition” an “aural within 523, F.Supp. 548-549 King, v. 335 States Traces, meaning the of Title III. pen like v. (S.D.Cal.1971), in United States and registers, neither hear nor monitor convers 503, (EDNY 1971). 507 Vega, 52 F.R.D. ations.5 the fact that the rests on This conclusion legislative The history sound and therefore of Title III does not hear makes device plain Congress it that accomplish any ‘interception’ of never intended not does subject traces to rigorous the standards communications as that term is of wire legislation: that 2510(4) 18 aural defined U.S.C. § —‘the acquisition any of the contents of wire or proposed legislation The not the through oral communication use of prevent tracing phone the of calls. electronic, mechanical, any or other de . The proposed legislation is in- (emphasis added). Any protect vice’ doubt of tended to the privacy of the com- interpretation is al- correctness of this munication itself and not the means of See 3. 4. 482 958-59; 2196. F.2d 555 Pen Matter of 245; Application of the United States in the Similar Mechanical ^[1968] supra, 555 F.2d at Order Southwestern tion of the United States in the Matter of an Hodge Mountain States Tel. & Tel. (3rd F.2d Register or Similar Mechanical 219, Hodge 90th Authorizing U.S.Code United States 254, Cong., v. Mountain States 1974); Order Bell Tel. Cong. 2d Sess. the Use of a Pen Device, supra, United States v. 257-58; Authorizing (9th Co., supra, & Falcone, Cir. Ad.News, (1968), United States v. 1977); Applica- Tel. Cf. 505 F.2d reprinted 538 F.2d 546 F.2d at Register Device, & Tel. Brick, S.Rep.No. pp. Use 478, of a Co., Co., 502 su- or at 5. For a technical discussion of the pra, trapping process, Bell Tel. ister determines the trace determines going calls from a monitored see State v. Super. phone call is recorded. or coming calls to the monitored States effect 1975). intercept, 538 F.2d at traces the v. Co., Clegg, 301 A.2d 789 in which the content of a tele- supra, and trace differ from a 959; 509 F.2d origins telephone telephone 531 F.2d at United States v. Illinois of these calls. Both 605, telephone, numbers of out- telephone, Hibbs, numbers 610 812; tracing pen reg- 123 N.J. wiretap while a of in- or in or 90th we S.Rep.No.1097, conclude that the district court had au- communication. thority Act, the All Sess., (1968), reprinted under Writs Cong., 2d U.S.C. 2112, 2178. ^[1968] U.S.Code Cong. & Ad.News, pp. 1651(a) the necessary assistance for the company calls, tracing including of the performance Second, reasoning of the Applying of manual tracing operations. United Eighth Circuits Seventh Co., Bell Telephone States Southwestern paragraph first cited in the cases register 246; supra, 546 F.2d at United States v. en- that orders we conclude opinion, Co., supra, Illinois Bell 531 F.2d present by the tered at and Application of the United by Fed.R.Crim.P. were authorized case in the Matter of an Order Authoriz- the is authorizes Fed.R.Crim.P. ing Pen Register Use of a or Similar “property” search warrants suance Device, supra, Mechanical 538 F.2d at of a crime. evidence constitutes (Mansfield, J., dissenting). to “in in the rule is used “property” term emphasized It is to be that a documents, books, any papers clude company ordinary party. is no third It is a objects.” Fed.R.Crim.P. tangible other public utility, enjoying monopoly in an the definition 41(h). We do not construe It essential area communications. owns dictates sense inclusive. Common be all and controls the facilities in- the sei possible makes that, technology The district volved in the not the courts should intangibles, zure of court there found that was cause rather we Rule but limit to believe that these facilities were effectuate the rule so as to interpret should criminal purposes. used for States, In Katz United purpose. its only entity the that can effectu- company is 347, 355-56, 88 S.Ct. pre- ate the orders of the district court to (1967), and in Osborn United company-owned facilities from vent 329-30, in violation of both state and used federal held (1966), Supreme the L.Ed.2d 394 company required laws. The was not to warrants could be issued that valid federal provide this law enforcement assistance at intangible objects, to search for and seize expense. The the its own orders of district is, We conclude that oral communications. expressly provide court that the impulses that the the recorded company is to be reimbursed for all reason- fall within equipment present in the case complying able incurred in there- the of Rule 41 and Katz and Osborn. with. At common law a sheriff could an II. unwilling citizen to assist him executing Michigan Bell that the district contends writs, king’s arrest, effecting quelling power compel court does not have the to a apprehending riots and posse robbers. A telephone company against par- its will to emergency comitatus could be assembled in ticipate investigation by in a Government Am.Jur.2d, Sheriffs, situations. See 70 Po- and, tracing telephone calls there is if such Constables, lice and 30. It is obvious that have power, a it should not been exercised the power of the district court present case. present against public case—directed a util- ity prevent the unlawful use of its own We hold that the district court facilities at no the hazard or cost to utili- telephone company properly ordered ty far less burdensome than exercise —-is necessary provide the FBI with all assist of the foregoing powers of the sheriff at tracing operations. ance in manual With common law. telephone compa out this assistance investigation (1) the entire criminal the We conclude: ny, that the district court probable grounded authority, upon on had present showing case— cause, In this situation to require telephone company cause —would be nullified. drops and other mechanical or dissenting), petition

install cert. pending 45 U.S. electrical devices trace L.W. 3638 The government should calls; (2) incoming telephone pleas address its to the Congress, not the authority had to direct courts. the FBI with telephone company assistance, and technical in-

the facilities

cluding performing tracing of manual necessary

operations, implementa- court,

tion of the orders of and that this

authority properly was exercised in the

Affirmed. No costs are taxed. Each will its own costs on this party appeal. bear SIMPSON, Charles Petitioner-Appellant, CELEBREZZE, Judge, dissenting. Circuit Ralph KREIGER, Sheriff, agree majority I am able to with the Respondent-Appellee.

neither the threshold issue of mootness nor respectfully the merits of this case. I dis- No. 76-2595.

sent. Appeals, States Court of majority concedes that this case is Sixth Circuit. moot, yet proposes appeal to consider this coming “capable repetition Argued within the Oct. 1977. yet evading exception review” to the moot Decided and Filed Nov. ness doctrine. While the facts of this case capable repetition, they are will not nec

essarily keep evading review. A stay by Court,

the district or a court of this citation, contempt

as well as a pre could controversy

serve an actual for review in a

future this case. Thus case does not come exception

within the to the mootness doc majority.

trine claimed Southern Telegraph Co. v. United

States, majority merits,

Since the reaches the I register my compelled

feel views on the presented

substantive issues herein. I be majority paints

lieve the with too broad a fashioning powers

brush of the dis

trict Compelling Michigan court. Bell to

participate actively government in a inves

tigation is a serious matter. I do not be upon

lieve that such an intrusion private

entity justified can questionable be such

authority as the All Writs Act or analo

gizing powers of a sheriff at the Application States,

common law. of United (2d 1976),

538 F.2d granted cert.

(1977); Application of United 1976) J.,

F.2d (Lay,

Case Details

Case Name: Michigan Bell Telephone Company v. United States

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 7, 1977

Citation: 565 F.2d 385

Docket Number: 76-2202, 76-2203

Court Abbreviation: 6th Cir.