Smith v. State

MICHAEL LEE SMITH v. STATE OF MARYLAND Term, September

[No. 1977.] July

Decided 1978. J.,C. and argued was before Smith, The cause Murphy, JJ., Eldridge reargued and and Orth, Digges, Levine, J., and before Levine, Eldridge, C. Digges, Murphy, Smith, and JJ. Cole, Orth appellant. for

Howard L. Cardin General, with whom Attorney B. Assistant Stephen Caplis, Burch, General, A. Attorney B. William were Francis Swisher, Ann Attorney City, Mary Baltimore and State’s Willen, City, for Baltimore on the Attorney Assistant State’s brief, for appellee. J., of the opinion delivered Court. Murphy, Digges, C.

Eldridge JJ., J., filed a and dissent. Cole, Eldridge, Digges, J., at dissenting opinion page concurs page dissenting opinion Cole, J., at filed a infra. infra. improperly Whether obtained evidence electronically was criminal appellant admitted at the Smith’s trial in violation state law and the federal constitution is the central issue in this case. charged having Patricia

Smith was robbed 1976. at trial McDonough March Evidence adduced showed that the to her home returning shortly victim was midnight morning after on the of the crime when she neighborhood changing observed a man in her a tire on a 1975 green Monte a dark and Carlo automobile which had bottom home, her she top. McDonough approached tan As Miss was pocketbook and suddenly grabbed forcibly from her behind had robbery, taken from her. In the course victim gave Officer promptly a full-face of the robber and view of the 1975 description Kenneth Lucas a of her assailant and Monte automobile. Carlo committed, McDonough crime Miss

Shortly after the call from an threatening received a obscene had identified himself as the who individual who from her. received a series of such calls robbed She thereafter police. police, the robber and so advised Unknown Heline, attached a McDonough, a friend of Miss Walt had her how to to her and instructed recording device he called. After Miss tape the conversation when robber’s assailant, four from her she McDonough taped three or calls conversations, recorded the police informed the that she had gave tapes to them. eventually meantime, 13, police, of the request In the on March at the office, the at its central installed telephone company, telephone terminating accounting equipment on the victim’s the of calls she was origin line in an effort to determine the result, ascertained that receiving from the As a it was robber. phones from being pay some of the calls made were Earlier, of the home. the victim vicinity immediate victim’s of calls had thought had the that she one the police advised at a residence. telephone private been made from a 15, a call from the McDonough March Miss received On so that he requesting step porch that she out on her robber the 1975 Monte Carlo could see her. She did so and observed driving slowly the police, which she had earlier described to her home. Lucas, originally reported to the had Officer whom victim crime, description fitting the on'the lookout for a man the was 16, in of the and of the vehicle. On March robber described home, appellant the Smith general vicinity the victim’s locked sought opening and his assistance in stopped Lucas door of his 1975 Monte Lucas took the license number Carlo. vehicle, registered appellant of the learned that it to the Smith, officers. investigating police so notified other and 17, of the request March at the company,

On to register1 a at its central offices record police, installed at of calls made from the phone numbers residence. March a call was made from Smith’s Smith’s On home. The thereafter obtained police residence to victim’s a and residence. search warrant to search Smith’s automobile page a in Smith’s The search of the residence revealed that down; name turned it contained the telephone book was of the On March the victim viewed number victim. line-up police headquarters six-man at and identified the appellant as the man who robbed her. Smith sought suppress the motions, had Smith pretrial recordings register; the pen tape evidence obtained He line-up identification. suppress the he also moved to recording of the device that the attachment contended Maryland order a court violated victim’s without § (a); under that (1957, Vol.) Art. 125A Repl. Code in this State section, person “for any it is a misdemeanor any part record or electronic device ... overhear any use person in spoken by any to or or words the conversation knowledge or consent... private conversation without recording He also contended that person.” that other violated Code phone attached to the victim’s device § Article; that Proceedings and Judicial 10-402 Courts or any “the prohibits person obtaining section from whole part telephonic ... communication to unless consent of a device ... participant by means contended participants.” further given by Appellant the pen from resulting the installation evidence its obtention was suppressed should be because tape from the unlawful gleaned based information argued He also recordings of the conversations. pen register by A described Powell in United States 1. was well Justice Giordano, 1820, (1974), 416 U. S. 94 S. as follows: Ct. L.Ed.2d 341 505, given pen register “A is a mechanical device attached to usually telephone facility. telephone line installed at a central and tape It does calls paper It records on a dialed from that line. numbers all incoming identify not numbers from which call, incoming originated, any or nor does it reveal whether either any monitoring outgoing, completed. was use does not Its involve S. at 549. U. of conversations....” that the constituted an “interception” unlawful § telephonic of a communication forbidden 10-402 of the that, Article. He Courts furthermore maintained á absent warrant, or court order search use of the an illegal constituted search and seizure in contravention the fourth amendment to the federal Finally, constitution. argued illegally Smith that without the obtained electronic arrested, he required appear evidence would have been line-up in a and identified He therefore victim. claimed line-up that the identification should suppressed, also be but he this contention judge withdrew before trial acted on his motions.

The trial judge suppress, overruled the motions to and the electronically evidence admitted. obtained was Smith was found guilty robbery years prison. sentenced ten granted prior We certiorari to decision Special Court Appeals important to review the issues raised in the casé.

(1) Tape Telephone The Recorded Conversations trial, At the recording State conceded of the § telephone conversations 27. It violated 125A of Art. tape maintained that recordings were nevertheless prescribed admissible evidence because the sanction only by the statute criminal prosecution those who violate provisions. its The in Reed Special Appeals Court so held State, App. (1977), 35 Md. 372 A. 2d State, Pennington v. 19 Md. 310 A. 2d 817 App. denied, cert. 271 Md. 419 U. S. 1019 appellant does not challenge interpretation statute, and we therefore no occasion to consider the have question in this case.

Appellant claims instead that the attachment to the victim’s phone of the recording device without a court order constituted an of a illegal “interception” telephonic § communication in contravention of 10-402 of the .Courts Article. § 1977,2 of the 10-402 repeal

Until its ch. 692 Acts was by §§ Act, through of the 10-401 part Maryland Tapping Wire Article, time of the in effect at the of the 10-408 Courts Act in That declared appellant’s prosecution. arrest and § against of the to secure right people 10-401 the be telephonic ... communications interception “unreasonable expressed legislative not It the mandate may be violated.” of a “interception divulgence private the and is person contrary communication not a thereto by any party state, permitted not public may of the and policy protect to except court in unusual circumstances the by order unlawful, (a) Section makes it absent a court people.” 10-402 order, a communication any telephonic obtain device unless any he is means participant to which provides 10-406 given participants. Section consent Maryland of the Wire that evidence violation obtained Act is in court. Tapping inadmissible State, 220 Md. on appellant relies Robert v. tape of the for the exclusion authority

A. 2d 737 as § Robert, officers, (a). police recordings under 10-402 phone call to make anticipating that the defendant would motel, themselves at positioned friends in a certain call came expected motel’s switchboard. When it switchboard, by means through the the officers monitored through press key of a headset connected officers could not be observing switchboard. After conversation, they and that as participants classified our participants, of the the consent all overheard without electrical the headset an device held that predecessors conversation officers obtained rendering the evidence provisions, contravention of the Act’s in court. thereby obtained inadmissible Maryland and Chapter repealed Act Art. 2. Wire Tapping § 125A; regulating place comprehensively in its it enacted a new statute statute interception of The new became wire and oral communications. 1,1977 (1974, 1977 July Maryland as Cum. effective on and is codified Code §§ Supp.) through closely parallels Title III of the 10-401 The Act 10-412. §§ 1968,18 2510-2520. Streets Act of U.S.C. Omnibus Crime Control Both Safe and unlawful, exceptions, certain make it state federal statutes communication,” intercept “any terms are therein as those wire or oral defined, provision making each all evidence obtained contains in court. violation statute inadmissible There, police its facts. inapposite plainly Robert In the in the conversation. participants officers were not the case, a in McDonough participant Miss was present , requirement she There is no which recorded. conversations § (a) given must recording in that consent to the 10-402 there Consequently, all conversation. participants § (a), the plainly no of although was 10-402 violation §27, 125A. Cf. the conversations violated Art. recording of (1968), cert. State, 756, A. 2d 2 Md. 237 768 App. Clark (1969). 1001 394 S.U. the Heline and not victim Appellant’s suggestion that was the supported is not who recorded conversations claim support any record. Nor is there evidence Smith’s phone device to the victim’s attaching recording that police Simply because police agent. Heline acted as fact, learned, had attached the device after the been removal, not its does require did not phone, victim’s but § Finally, (a) 10-402 was violated. finding warrant a reliance there no for Smith’s justification (1971), 234, 275 2d 28 McCoy, 442 Pa. A. Commonwealth v. State, (Okla. to establish 365 P. 2d 576 Cameron v. § (a) of recording 10-402 violated were conversations; cases the statutes involved those § are not (a) and therefore markedly different from 10-402 applicable in this case.

(2) The Register Pen merit in the that the installation argument We find no at the central offices of the made calls company phone outgoing to record the numbers constituted from residence Smith’s “interception” telephonic of a communication in violation § (a). 10-402 York

The New held in United States v. Supreme Court Co., Ct, 376 Telephone 434 U. L.Ed.2d 98 S. encompassed is not within that a and Safe provisions Title III of Crime the Omnibus Control §§ Act, Act of 2510-2520.That Streets U.S.C. regulates and electronic comprehensively wiretapping surveillance, authorizing approving order requires court or interception oral of wire or communication. term § (4) “intercept” is mean “the defined the statute to acquisition aural or any contents of wire oral electronic, mechanical, through communication of any the use Supreme registers or other device.” The Court said that are not the statute they within because are not used devices communications, i.e., to intercept they oral or wire do not “intercept” they acquire because do the “contents” of a § communication, as that latter term is defined in The Court said:

“Indeed, a enforcement even law official could not determine a pen from use of whether communication These existed. do not hear devices sound. disclose They only telephone the numbers — that have dialed establishing been means of communication. purport Neither the of any recipient communication between the caller and the call, identities, of the their nor the whether call was completed even are pen disclosed by registers. Furthermore, pen registers do accomplish not the 'aural acquisition’ of anything. decode They outgoing telephone numbers by responding changes in voltage electrical turning caused the (or the telephone pressing dial on buttons push telephones) button present the information in a form interpreted by sight rather than by hearing.” 98 S. Ct. at 369-70. §

Although verbiage (a) 10-402 from differs statute, federal prohibitions require each law underlying the “interception” conclude, of a communication. We as did the Supreme Court New York Telephone, and most federal courts which considered the question,3 pen have that a 3 See, e.g., Co., (7th United States v. Illinois Bell Tel. 531 809 F. 2d Cir. 1976); Co., United (8th Telephone v. Bell Southwestern 2d 243 546 F. 1976); Cir. Falcone, (3rd United States v. F. 505 2d 478 (1975). 420 U. S. 955

] 64 “intercepts” telephonic not device register which pen register did the use of the Accordingly, communication. § (a). 10-402 not violate recording procured by

Since the evidence had her assailant was the victim conversations which trial, argument at the Smith’s alternative properly admitted as an suppressed evidence must be that the of the recorded conversations illegal derivative use 459, State, 274 Md. in merit. Cf. Everhart lacking is also (1975); State, Md. 337 A. 2d A. Carter 274 2d surveillance Appellant next contends subject requirements constitutes a search warrant order no warrant or court the fourth amendment. Since register, authorizing pen the installation obtained register pen claims that the evidence which Smith use, its derived from must be and all evidence produced, State, hand, other contends that suppressed. support cases view better-reasoned search the fourth amendment surveillance is not a within install such device. required that a warrant for each authority position. exists Substantial States, 389 U. S. Ct. In Katz v. United held evidence Court Supreme L.Ed.2d 576 of words by government agents a warrant obtained without conversation, spoken the defendant in a attaching listening agents overheard an electronic of a booth from which public telephone device to the outside call, the fourth the defendant violated placed had States, held, overruling amendment. It Olmstead United 564, 72 L. that the 277 U. 48 Ct. Ed. S. S. of governs only tangible fourth not the seizure amendment overheard, items, also of oral statements recording but the local trespass against even in the a technical absence protects amendment law. It said that the fourth property searches people, merely places, against and not unreasonable seizures; against privacy it protects and “individual intrusion”; certain kinds of what governmental public, in his home or to the own knowingly exposes even but protection; amendment office, of fourth subject is not be preserve private may to as he seeks that what said that while The Court constitutionally protected. general into a cannot be translated amendment

fourth the activities right privacy, constitutional upon which agents violated “the government [the using booth relied whilé justifiably defendant] and seizure’ within constituted a ‘search and thus at 353. 389 U. S. of the Fourth Amendment.” meaning pen use of a obtained admissibility The of evidence Giordano, 416 U. in register was considered United States There, court 40 L.Ed.2d S. Ct. authorizing interception wire orders had issued been pen register, of a and communications and the installation application The extended. subsequently these orders were detailed the contents of conversations pen register extend the interception orders. intercepted pursuant to the wire orders were invalid since interception held that the wire Court with the conformity had not been authorized they that evidence controlling federal It further held statute. extension order was gathered under unlawfully tainted the use inadmissible because approval to secure intercepted judicial wire communications register order. The Court did pen extend surveillance register requires compliance not hold that use of a pen amendment, although requirements the warrant of the fourth of the decision to exclude might implied that result view pen register produced. the evidence which Powell, concurring dissenting opinion by In a and Justice Blackmun Chief Justice Justices no dispute out that there was Rehnquist joined, pointed cause and probable that the order on was based context, lawful under the fourth amendment. In this Justice subject Powell stated: “Because a device is III, of its use permissibility of Title provisions compliance depends entirely law enforcement authorities Fourth requirements with the constitutional at 553-554.That Justice Powell would Amendment.” is, however, clear not have decided the issue constitutional statement, his from further at appearing footnote 416 U. 554: S. at “The suggests pen Government that the use of a register may not constitute a meaning search within the of the Fourth I question, Amendment. need not address this my view the guarantee, assuming constitutional its applicability, was satisfied in this case.” Justice Powell valid, concluded that the extension order in part because based on the only unlawfully intercepted wire communications, gathered by the evidence the device was admissible.

Relying on support Justice Powell’s .statement proposition pen register depends the use of a compliance requirements amendment, with the of the fourth Order, Etc., in Application court of in Matter of U.S. (2nd F. 2d 956 stated at 959: take Cir. “We this statement mean that a order involves search Amendment, and seizure under the Fourth and that a court may issue such an order only upon showing probable cause.” A number other courts have reiterated Justice Powell’s statement concerning pen registers compliance fourth amendment. See United Illinois Bell v. States Co., (7th 1976); Tel. 531 F. 2d 809 Cir. United States v. Doolittle, (5th Cir.), dismissed, 507 F. 2d 1368 cert. 423 U. S. (1975); John, (8th Cir.), United States v. 508 F. 2d 1134 (1975); Brick, 421 U. S. 962 United States v. (8th 1974). F. 2d 219 each of cases Although these states that the propriety register depends of the use of a pen upon amendment, compliance with the fourth only Application of Order, inU.S. Matter of Etc. holds that the of a pen use indeed, search; John, register constitutes a in United supra, court held that it was not to decide that necessary question. In all four these cases a warrant in fact had been issued, question and none of them address the whether use the device constitutes a search.

Nor did the Supreme question Court decide the in United States New at 369: “The Court York Telephone Appeals Co., ^[4] supra. held that pen register It said, 98 S. Ct. Order, Etc., supra. 4. See Application of U.S. Matter of was subject requirements surveillance of the Fourth challenged Amendment. This conclusion is not either party, and we find it to consider the matter.” unnecessary Telephone, government

In New York had obtained a order, resisted, court which the telephone company authorizing the installation directing of a telephone company provide facilities and assistance necessary to install it. At issue in the case was not whether Rather, warrant was necessary; one had been obtained. primary issue was whether the District the power Court had to issue an order authorizing surveillance. The held that it Court had such authority under Fed. R. Crim. P. (b) 41 which search, was sufficiently encompass broad tangible limited to items including but electronic intrusions, designed to being ascertain the use made of a telephone. The Court did not hold that the fourth amendment required order; such an it merely said that the District Court had the to issue the authority order. Katz,

Under whether requires surveillance compliance with the depends fourth amendment on whether a telephone subscriber has a constitutionally protected expectation that the numbers which he dials will remain private. In determining whether an State,

constitutionally justified, adopted we in Venner v. 279 47,Md. (1977), denied, 367 A. 2d 949 cert. 431 U. S. 932 the twofold test articulated by Justice Harlan his Katz, concurring opinion i.e., “first a person have exhibited an and, actual (subjective) expectation of privacy second, that the expectation be one society prepared ” to recognize as ‘reasonable.’ 389 U. atS. 361. Other courts See, have Peterson, followed this test. e.g., United States v. (4th 524 F. 1975), denied, 2d 167 Cir. (1976); cert. 423 1088 U. S. Hitchcock, United (9th States v. 467 F. 2d 1107 Cir. cert. denied, (1973); 410 State, U. S. 916 Smith v. 510 P. 2d 793 (Alas.), cert. (1973); 414 People U. S. 1086 v. Huddleston, 38 Ill. App. 3d 347 N.E.2d 76

It is generally held that the expectation of privacy protected fourth amendment attaches to the content of a telephone conversation and not to the fact that a

168 Tel. Tel.& Hodge v.Mountain States place. took conversation 509 1977); Clegg, v. Co., (9th United States F. 2d 254 Cir. 555 Baxter, F. 2d 1975); v. (5th United States F. 2d 605 Cir. (1973); dismissed, United Cir.), (9th 1971); (9th United States Fithian, 2d 505 Cir. 452 F. 2d (E.D. 1975) aff’d 540 F. Ark. Supp. 228 Harvey, 394 F. respects in all 1976). dealt with device (8th Clegg it was attached pen register; to a similar to determine line to the defendant’s company circumventing illegally he whether “blue box” a so-called by using billing system company’s there said calls. The court long-distance make device to of a the content “protects only amendment the fourth placed a call was not the fact that telephone conversation 2d at 610. This 509 F. was dialed.” particular or that a number have said, subscribers so, telephone the court “because was calls will not records of their that expectation no reasonable are records such it well known made ... that is] [since courts have other Clegg, Id. at 610. kept.” Consistent no reasonable have subscribers telephone held that made. United calls not be of their will that records expectation 1976);DiPiazza v. (8th 2d 1345 540 F. Cir. Harvey, States denied, 402 (6th 1969), States, cert. F. 2d 99 Cir. United (2nd Covello,410 F. 2d 536 (1971); United States U. S. States, (1969); Cir.), Nolan v. United 396 S. 879 cert. U. (10th 1969), denied, 400 423 F. 2d 1031 Cir. States, (10th (1970); 382 F. 2d 607 Brandon v. United Cir. 1967);Baxter, Fithian, supra. These cases in the main supra; phone for or calls. billing long-distance involve records toll that, against the They seemingly proposition stand for the as claim to the fourth amendment is not privacy, subscriber’s of applicable possession to the of such records seizure telephone public that company because awareness constitutionally negates any maintained routinely records are them. privacy regarding protected expectation Co., F. 2d 254 Tel. Tel. In v. Mountain & Hodge fourth (9th held that no substantive the court the warrantless implicated by right amendment was line of a telephone attachment of a calls. making local obscene suspected of subscriber right constitutionally concluding protected that no difference, insofar involved, practical little the court saw maintenance concerned, between awareness was public as It said: register. billing pen records and telephone routine differs from “Although register record pen records, have no telephone billing we company holding the information difficulty now Amendment. protected by recorded not the Fourth pen “A record for register particular different from the contains information telephone. company billing records billing only records show Telephone company calls, not, register, completed pen as with a Furthermore, record numbers dialed. which, dialing

shows the numbers even records, billing if completed, would be shown dialing are a local area. because numbers within of such calls argued It could be that since no records maintained, of privacy are an normally view, not, our exists. This admitted difference more than offset of constitutional dimension6 and is farther the fact records are even records the content billing removed than from round, communications. Viewed in is not entitled by pen registers information recorded protection.” to Fourth Amendment depend right upon “6. The existence of a constitutional should not telephone company the boundaries for its established local calling areas.” 555 F. 2d at 256-257. Hufstedler, Judge opinion concurring in an specially Hodge, pen said did not constitute that the use of meaning a “search” within fourth amendment listening’ “because the encroach ‘the upon ‘electronic does not ’ ” privacy upon Katz. justifiably citing which... [one] reliefs] F. noting justifiable 2d at 266. was no After that there expectation of privacy in the contents of telephone company records, billing she said:

“Similarly, expectation there is no of privacy in the pén register records, contents of a Like tape. billing register tape discloses the numbers dialed from a particular telephone and not the contents of any fact, conversation. In a pen register creates lesser intrusion because, into a privacy subscriber’s records, unlike billing pen register tape does not indicate whether any calls were answered.

“True, the telephone company usually does not keep a record of local calls. But most are subscribers unaware of the boundaries of their zones, dialing local in cities especially where these zones do not geographic coincide with traditional Furthermore, boundaries. it is common practice for keep company record of all calls dialed from a is subject to a special structure____ rate circumstances, Under these do not any justifiable expectation subscribers harbor of privacy that a record will not kept be of their calls____ (‘... outgoing reason, For this acquisition ... of a pen register ... of means nothing more than information concerning ... numbers dialed does not offend the Fourth Amendment.’).” Id. at 266.

The same Note, conclusion was reached in The Legal Upon Constraints of the Pen Register as a the Use Law Tool, 1028, 1044-45 Enforcement L. Cornell Rev. It was there said: fourth amendment does not bar the use of the

“[T]he First, pen register. assuming even that a expectation is in fact present, is well settled that (and records) toll calls their are not entitled to a And, reasonable of privacy. respect to most areas of the there country, seems to no valid expectations distinction between the associated with local calls on the one hand and those calls that billing the local on the cross zone other hand. The no real majority probably subscribers have knowledge as to the boundaries of their geographic ‘local call’ zone.”

A second reason the commentator’s conclusion that for not violate the warrantless surveillance does fourth amendment was stated as follows: must equipment subscribers utilize

“[A]ll by party, telephone company, owned a third order to a call. It is place unreasonable therefore to assume that the fact of his subscriber call passing through will system remain total secret from the Once this telephone company. assertion it is clear that there can no accepted, be privacy reasonable from law expectation respect enforcement dial authorities with pulses detected and recorded by contexts, In a company. variety analogous that a determined Supreme Court has entitled to similarly receive a communication is government entitled to reveal it officials without legal further at 1045. process.” Id.

Supportive of the conclusion that surveillance does not violate the amendment is fourth United States v. White, 1122, S. Ct. 28 L.Ed.2d 453 Miller, and United 425 U. S. 96 S. Ct. (1976). White,

L.Ed.2d 71 In made statements government agents defendant were overheard means of a hidden transmitter which an wear agreed to informer during meetings his with the defendant. The Court no found constitutionally protected expectation of privacy that informant simultaneously would transmit Miller, police. conversation to the Court held bank had no depositor legitimate bank, slips

contents of checks and over deposit turned stating: risk, depositor revealing

“The takes the his another, affairs to will information government.... This conveyed by Fourth repeatedly has held the Court of prohibit obtaining Amendment does not the a third party conveyed information revealed to authorities, if the government him to even it assumption information is on the that will revealed for a and the confidence only purpose be used limited placed party betrayed.” in not 425 the third will be U. at 443. S. of calls.

A similar situation exists the case the content of a call is not revealed to the While as to the dialed must company, information number revealed, is through telephone company since it necessarily calls are a switching equipment completed. recipient As information, of such reveal it since the company may remain expectation caller can have no reasonable that will fact, In caller less of a private. justified should have even since unlike the disclosures in privacy, White does not and Miller the use of a reveal contents of a communication. are also involving types other of surveillance

Cases Hufford, (9th Cir.), 539 F. 2d 32 relevant. United States v. cert. denied 429 U. 1002 the court held that S. tracking device on a drum installation of an electronic government agents caffeine to aid the defendant’s tracking Katz, did Citing truck the fourth amendment. violate court stated: did not have reasonable “[The defendant] , expectation of as he privacy along public drove road. hoped unmonitored, While he that his go travel would his movements knowingly exposed public, were therefore are not subject protection.” of fourth amendment 539 F. 2d at 33-34. Accord: Pretzinger, United v. 542 States (9th 1976). Holmes, F. 2d 517 Cir. Contra: United 521 States v. (5th 1975), court, F. 2d 859 Cir. aff’d an en evenly divided banc 537 F. 2d 227 covers, use of mail postal inspectors where copy

information contained on the outside of envelopes sealed traveling mail, through may also be likened to the use of situation, travel communications In each pen register. reveals surveillance each the through public conveyances; communications, but origin of the point the destination or use of If message anything, content itself. not the of the than of an invasion a mail cover more the identities since mail cover reveals held that the use Nonetheless, generally courts have parties. fourth amendment. See mail covers not violate the does 1967), States, (9th cert. 2d 132 Cir. Lustiger v. United F. States, 354 denied, (1968); v. United Canaday 390 U. 1966). upholding the (8th authority F. 2d 849 Post-Katz Cir. Leonard, v. States use of mail is limited. See United covers (1976) (2d 425 U. S. 958 524 F. 2d 1076 Cir. Balistrieri, (mail mail); cover on international United Isaacs, F. 1968); (7th F. 2d 472 United States (N.D. 1972). Choate, 422 F. Supp. Ill. United States (C.D. a view. contrary took Supp. Cal. court recognized expectation privacy of person’s it While one, the mail is a limited respect to addresses on with return expects that person justifiably court concluded that a and that only postal purposes information will used be did have kept. records of it will not The court held be not used for that his mail would be expectation a reasonable may in holding surveillance Choate purposes. Miller, however, supra, of questioned, light UnitedStates information, of held Supreme where the Court that disclosure limited on the that it used for a assumption even would be to negated respect with purpose, expectation privacy of any that information. constitutionally protected hold that there is no

We into in the numbers dialed expectation privacy reasonable of hence no search within the fourth telephone system installed amendment is of a implicated by use company. telephone at central offices of the While broad, of are not guarantees they fourth amendment are (1972); boundless, A. 2d Siegel, 266 State v. Md. protected is everything person may private want to be teaches, the fourth As the fourth amendment. Katz general citizens “a amendment does not afford our Title III right imposing constitutional to In not privacy.” evident, it is as New pen registers, the use of restrictions on out, Congress did points Telephone explicitly York of the pose privacy a threat not consider that such devices communication. of an oral interception same dimension as the case, do not pen registers noted in that Supreme As the Court recognized it existed and a communication reveal whether used regularly such devices are checking purposes a court order “for the company without fraud, and violations detecting preventing billing operations, The intrusion involved of law.” 98 at 373. S. Ct. minimal; integrity no

surveillance is violation entailed; and no conversation communication itself system overheard. .is an actual harbors

Whether a subscriber which he expectation privacy numbers subjective he is, course, In all probability, difficult know. dials mechanical placed through his calls are understands that unlikely think it that some record is made. We equipment and local or distinguishes between that the subscriber respect calls to an toll expectation, if he did such an he dials. Even harbor

numbers us that on the record before prepared say we are not as reasonable and recognize society one that would constitutionally protected. affirmed;

Judgment paid costs to be by appellant.

Eldridge, J., dissenting :

Although one, I recognize that the issue is I a close do not share the majority’s view that there is no reasonable expectation of dialed privacy telephone numbers into a system. I Consequently, disagree with the majority’s conclusion that no search within the the meaning of Fourth implicated Amendment is police’s the a having installed to record the numbers dialed at telephone from the the defendant’s home.

In States, Katz v. United 389 88 S. Ct. (389 S. at U. Supreme L.Ed.2d 576 the Court held emphasis supplied): electronically in activities

“The Government’s recording petitioner’s the words listening to and he relied privacy upon justifiably which violated and thus constituted using while booth meaning within ‘search and seizure’ a Fourth Amendment.” which one privacy upon exists a opinion, similarly there my to respect numbers relies with

justifiably he in his own home. dials in Katz opinion the majority joined Justice Harlan both

Mr. concurring ain principles explained applicable and further (389 361): U. S. at opinion, stating states, Fourth “As ‘the opinion Court’s places.’ protects people, Amendment to however, is what affords question, protection here, to the answer that people. Generally, as those ‘place.’ My to reference a requires question from emerged understanding of rule that has requirement, a twofold prior decisions that there is an person first have exhibited actual second, and, privacy (subjective) expectation to expectation prepared society one that is, for recognize as Thus a man’s home ‘reasonable.’ privacy, he but place expects most where purposes, activities, exposes he objects, or statements ‘protected’ are not view’ of outsiders ‘plain has no them to himself keep intention because hand, On the other conversations been exhibited. open against being protected would not be

overheard, under the for the would be unreasonable.” circumstances pointed purposes” As “for most quotation, the above out I of no know sound expects privacy in his own home. person general exception an to this concluding basis that there is proposition regard numbers which 176

dials on telephone. his home It is not like a conversation “in the open.” the average person When dials a number home, privacy of his he does not contemplate, nor should he reasonably contemplate, that he is the information exposing “to the ‘plain view’ of outsiders.”

The principles set forth and Mr. majority Justice Harlan in lead me Katz to the conclusion that the Fourth Amendment does apply police when the have a installed to record telephone. the numbers dialed from one’s The same conclusion has reached been several cases United Appeal. Application States Courts of of United States Order, For Etc., 243, 245 (8th 1976), denied, F. 2d 546 cert. Cir. Telephone Company States, Southwestern Bell v. United 434 1008, 716, (1918);Application U. S. 98 Ct. 54 L.Ed.2d 750 Order, Etc., (2d 956, 959 1976), U.S. Matter of F. 538 2d Cir. reversed on other grounds, United v. York Tel. States New Co., 149, 364, (1977); 434 U. S. 98 S. 54 L.Ed.2d 376 Ct. United Co., 809, (7th States v. Illinois Bell Tel. 531 F. 2d 813 Cir. 1976); John, 1134, (8th United States 508 F. 2d 1141 Cir. 1975), denied, 962, 1948, cert. 421 U. S. 95 S. Ct. 44 L.Ed.2d (1975); 448 Falcone, 478, United States v. 505 F. 2d 482 n. 21 (3d 1974), denied, Cir. 955, cert. 1339, 420 U. S. 95 43 S. Ct. L.Ed.2d 432

The principal basis for the view that the use of a pen register does not constitute a search for purposes of the Fourth Amendment seems to be the conclusion of some judges that there is no justifiable expectation of privacy with respect to numbers dialed because “[telephone subscribers are fully aware that records will be made of their toll calls.” United Baxter, 150, 492 (9th F. 2d 167 Cir. 416 94 S. Ct. 40 292 L.Ed.2d (1974). See also Hodge v. Co., Mountain States Tel. Tel.& 254, 256, (9th F. 2d 1977); Cir. United Clegg, States v. F. (5th 2d 1975). This theory is relied on by the majority in the instant case.

However, the mere fact that a who thinks about would realize that the numbers dialed in completed long distance calls would have to be recorded for billing purposes, not, does in my judgment, warrant the conclusion that no with generally exists expectation privacy reasonable represent to numbers dialed. Such calls respect average the made percentage by a of those only small made the by of calls overwhelming majority The individual. charges. toll local and do not involve average person are area, are not Moreover, many calls outside of one’s local as to. Nevertheless, the busy signals. result in answered or one’s even these. Because register records fully not be may in of situation particular type necessarily make in does not realized of instances minority expectation unreasonable. that analogy United States attempted

The between majority’s Miller, 435, 443, L.Ed.2d 96 S. 425 U. Ct. (1976), unpersuasive. in the instant case is the situation Miller, slips, the to deposit In checks and regard risk, the “depositor the takes Supreme Court observed that another, information will in his to that the revealing affairs But it was government.” the conveyed by be that instigated the installation telephone company not the is thus in instant case. Miller here, absent distinguishable by the fact not intrusion, could government’s telephone company regarding any government, revealed information to have not, in does Normally telephone company Smith’s calls. sense, local meaningful possess information about any on. The mere fact that pass calls which could equipment) by machines (switching owned dialing certain to the defendant’s company responded ways construed as a transfer reasonably numbers cannot be telephone company. information the defendant the telephone There is no indication this case a record of the numbers company’s machinery preserved dialed, could nor did or any telephone company employee defendant, expected process. observe numbers, dialing reasonably intend simple act of local did information; machinery he use of merely reveal made intrusion, which, particular police would ways without fully private. have remained sum, agree I position suggested with the Mr. Justice

Powell, dissenting Giordano, in part in United States v. 505, 548, 553-554, 1820, 1842, 1845, 94 S. Ct. 40 L.Ed.2d that the permissibility law enforcement officials using depends upon compliance with the requirements of the Fourth Amendment.

Judge Digges has authorized me to state that he concurs with the views expressed herein.

Cole, J., dissenting:

Today no perhaps small, one notices because only obscure criminal is the victim. But every person is victim, for the technology today we exalt everyman’s master.

Mr. Douglass, Justice dissenting United v. White, 757, 745, 1122, 401 U. S. 91 28 S. Ct. L.Ed.2d (1971). 453

The majority holds today that installation of a pen register, at the company, request of police warrant, and without the authorization of a at its central office to all record numbers dialed from defendant’s telephone, does not constitute a search under the fourth amendment because “there is no constitutionally protected reasonable numbers dialed into telephone system.”

I disagree and I respectfully dissent. The issue of whether the use of a is a search and must therefore comply with the standards of the fourth amendment is impression one of first in this jurisdiction. Heretofore, this has only question Court addressed the whether government electronic interception of a conversation State, is a search. E.g., 411, v. 274 Carter Md. 337 A. 2d 415 (1975); Siegel State, 256, (1972); v. 266 Md. 292 A. 2d 86 State, Trovinger 357, (1977); v. 34 Md. App. 367 A. 2d 548 State, 253, Pennington v. 19 Md. App. 310 A. 2d 817 denied, (1974); cert. Graziano, 419 U. S. 1019 State v. 17 Md. 276, (1973). App. 301 A. 2d 36 The alone does not “conversations,” record nor completed; whether a call

179 fact from only records' the that certain numbers were dialed then, us, telephone. is whether question actually before of the information police interception from Smith’s (certain dialed) register, numbers means of a was a 1 “search.” has three constitutional sense

A “search” or (1) private an invasion into otherwise components: it is (3) (2) government or matters concealed areas prosecution. in a criminal See guilt exploring evidence (1978); 517, 2d 306 State, 387 A. App. 39 Md. v. Lusch von (1968); 81, State, App. 241 2d 153 v. 4 Md. A. Minnick 183, 234 (1967). State, App. A. 288 v. 2 Md. 2d Other Kleinbart of the term have similar definitions “search.” adopted courts (7th 1975), See, Lisk, 522 F. 2d 228 Cir. v. e.g., United States Davis, (1976); denied, v. 482 1078 United States cert. 423 U. S. States, 1973); 422 F. (9th v. 2d F. 2d 893 Marshall United Cir. 2d (5th 1970); 348 A. Tully, v. 166 Conn. 185 State 1971); Alcorn (1974); (Fla. 225 245 So. 2d Ashby, 603 State v. Person, (1970); State, State v. 255 Ind. 265 N.E.2d (1973); Cundy, State v. Misc. 298 N.E.2d 922 Ohio (1973); (S.D. 1972), denied, 412 S. 928 N.W.2d 236 cert. U. (Tex. State, Long App. Crim. 532 S.W.2d 591 (1976). concise is the definition 425 U. 937 Especially Davis, supra, at 896-97: functional, not merely physical, is a '[S]earch 74, 78, States, 338 process.’ Lustig v. United 1372, 1374, Ed. A 93 L. search S. Ct. and begins of the invasion planning of the fruits appropriation’ continues 'until effective of an offense.’ subsequent proof the search 'for have held that use of a constitutes 1. Two federal circuits Telephone Company, 546 F. search. See United States v. Southwestern Bell (8th Order, 1976); Application F. in Matter of 538 2d 956 2d 243 Cir. of U.S. 1976), (2d grounds, New v. York Cir. rev’d on other sub nom. United States (1977). 364, 159, Co., Telephone Dicta from 54 L.Ed.2d 376 98 S. Ct. 434 v. in United Powell the views of Mr. Justice circuits endorse other Giordano, (1974) (concurring 505, 1820, 40 94 L.Ed.2d 341 416 U. S. S. Ct. Co., dissenting opinion). (7th Tel. 531 F. See United States v. Illinois 2d and 809 denied, Bell Cir.), John, (8th 1976); F. 2d 1134 cert. 508 Cir. United States (3d Falcone, (1975); F. Cir. S. 2d 478 421 U. United States denied, cert. 420 U. S. 955 applies Id. The Fourth Amendment to a search government participates any whenever in significant inway this total course of ‘The conduct. decisive factor is actuality ... of a share by a[n] ... securing official in the total enterprise selecting evidence other than sanctioned means.’ “search,” therefore, A is a step investigation a criminal government focuses on gathering which information or to prosecution. clues relevant

Information is not restricted to the contents of oral many communication. In situations non-verbal' action bemay explicit highly more investigation. relevant to criminal signals bet, Such may be command to bet or not to print to to print, indeed, or not or preserve to to or destroy, stay or flee. It only investigator left to the to understand the question being agree answered. I with the majority protected conversation is teachings under the of United Katz, States v. 389 U. S. 88 Ct. L.Ed.2d 576 (1967). However, information monitoring received from Smith’s also entitled protection. Technologically, a distinction digital between verbal and transmissions is absurd. There can no doubt the fact that Smith made certain calls from his home telephone is highly relevant information in a prosecution criminal obscene or phone calls. annoying “government part action” of the definition of a “search” is satisfied Smith’s case because company attached to Smith’s line at the request of police and was not ordered do aby so court or acting under compulsion essence, of a warrant. In company, conducting an independent investigation own, of its assumed the role of an agent government in conducting a warrantless search. The majority cites cases point inapposite. this are The surveillance of the defendants’ telephones Hodge v. Mountain States Co., Tel. Tel. (9th 1977); & 555 F. 2d 256 n. 3 Cir. United (8th States v. F. Harvey, 1976); 540 2d 1345 Cir. United States (5th v. Clegg, 509 F. 2d 1975); States, Cir. Nolan v. United (10th 1969); 423 F. 2d 1031 400 U. S. 848

181 (10th Cir. States, F. 2d 607 382 (1970); United and v. Brandon companies, 1967) by telephone solely was conducted Furthermore, agencies.2 government independent (9th Cir.), cert. Baxter, 492 F. 2d 150 States v. United States, (1973); 415 dismissed, DiPiazza v. United S. 801 414 U. denied, (6th 1969), 402 U. S. 949 2d cert. (1971); F. 99 Cir. (2d Cir.), Covello, F. 536 2d United ever or boxes were pen registers no blue 396 U. 879 the toll or used; subpoenaed agencies merely government telephone kept routinely by records long billing distance (9th Cir. Fithian, 452 F. 2d 505 United States v. company. governmental power the exercise of also involved than records rather company subpoena of the surveillance company governmental or as to calls, is unclear whether although opinion making calls, or or toll recorded local both.3 the documents of a of the definition prong The of privacy” “invasion telephone companies in this case. While “search” also met calls for long of toll and distance maintain records routinely correct telephone line to billing or monitor a purposes, services, complaints, customer or deal with problems with private are a phone local on his home calls made Smith include do not telephone company matter. Routine activities usually pay customers monitoring of local calls because at flat rate. Nor would equipment for basic use of concerning to information government routinely privy local calls absent a warrant. private Smith’s case, Although majority 2. not cited in this two other recent Ninth specifically Circuit decisions amendment considerations excluded fourth monitoring by telephone companies, because activities were conducted Bowler, independent government. 2d States v. 561 F. See United (9th curiam). 1975) 1977); Glanzer, (9th (per 521 F. 2d Cir. United States police judice all 3. the case sub information about obtained calls, calls, Baxter, just long-distance outgoing as Smith’s not or toll DiPiazza, Covello, supra. attempts majority minimize Hodge, quoting significance portion of these factual distinctions which, supra, citing any authority opinion, other than own without its pen register’s recording Ninth Circuit stated that the difference between a attempted outgoing telephone company’s of all routine calls and long completed of constitutional records of toll and distance calls Hodge, supra, dimension. F. 2d and n. 6. See at 256-57 legal majority The contends that a distinction between expectations and toll telephone regarding customer local calls calls cannot because no real be made subscribers have knowledge as to the their local geographic boundaries of calling speculation area. This amounts to mere as to what the telephone addition, In average Maryland, customer in knows. person using telephone knowledge a have some must “1,” calling his local zone because special prefix, a number just must dialed in order to in-state complete calls which are made to outside telephones one’s local zone. It is calling also difficult agree to this it assumes argument because telephone that subscribers are so unconcerned about the monthly they amount their bills pay no attention to making are they whether toll calls.

Second, the suggests that since all calls .majority telephone pass through equipment must telephone owned company, the telephone company knowledge have will fact that calls made. majority attempts were The then to construct an in analogy prior between facts this case holding cases that transfer of information to the government informant, White, a supra, “wired” United States v. or by bank, a Miller, United v. 425 U. S. 96 Ct. S. (1976), 48 L.Ed.2d 71 or e.g., means “mail covers” Leonard, (2d United States v. 524 F. 1076 2d cert. denied, (1976), area, U. 958 or by in a public observation e.g., Hufford, Cir.), (9th United States F. 2d 32 429 U. S. 1002 did not fourth violate the amendment because those defendants had no constitutionally protected expectations of privacy they gave when information to the person(s) who turned the ultimately government. information over to the White, analogy This does not just supra, hold a water. conversation between defendant and an informant was by the relayed informant police by means an electronic transmitter that the wearing. informant The was opinion majority in stressed White that because the revelation to the government made by “party” was to conversation defendant, with the the defendant had no or justifiable protected constitutionally expectation concerning agree that the at 749.1 cannot 401 U. S. 745 conversation. to Smith’s calls “party” in this case was telephone company did Smith sense as the informant White. the same direct manner speak telephone company company informant. spoke White Bankers call. See California “neutral” Shultz, 21, 48-49, 94 S. Ct. Association in order leasing L.Ed.2d 812 Smith was If had from home. known private to make calls his Smith merely at phone be attached his would warrant, he have little police, without a would request of phone A home would “private” phone. to lease home reason public phone. than a privacy little more him afford Miller, supra, Supreme in the Court held Similarly, to the the a “party” because defendant’s bank was defendant, the the bank’s negotiated by instruments the accounts of information defendant’s revelation about not fourth upon government subpoena implicate did the Court, to According amendment. 435 at 440. 425 U. S. in that had no of expectation privacy defendant reasonable agree I again, situation. Once cannot “party” is a to its customers’ company operates same in in the sense which bank conversations regard instruments, to negotiable to its customers’ so as use expectation of privacy render unreasonable Smith’s phone. home if to Miller majority’s analogy his Even valid, (and expected I should agree) do not and Smith have monitor telephone company phone that the could itself his customers, or to billing purposes, improve service to its to had a complaints, nevertheless reasonable verify Smith not, without company that the would legal act for the safeguards appropriate process, government collecting in to a criminal information relevant Shultz, Association prosecution. See California Bankers supra, at 52. 416 U. 21S. covers” is also

The to “mail majority’s analogy postal service involves unconvincing. use of the While writing on the outside essentially public any facilities where easily can read envelope postcard of an or on a postal in telephones placed provide are to employees, home to regarding parties and content of a privacy Supreme conversation. The Court has repeatedly acknowledged the privacy aura surrounds activities home, See, “public” e.g., as contrasted with activities. Martinez-Fuerte, 428 U. United States S. Ct. (1976) (Fourth context). 49 L.Ed.2d 1116 Amendment Miller, The supra, preclude type decision does this analysis because the Court in Miller expressly based its on the assumption subpoenaed decision that the documents Miller, were not the respondent’s “private papers.” supra, 425 Miller, at 440. Unlike voluntarily gave who to “party” information another to his commercial transactions, bank, his operated assumption never on the private, that the information was defendant sought Smith to his regarding phone maintain his privacy placing calls them in his home. In I believe that .majority, contrast use “mail is less of an covers” invasion of than register. a pen address and return address on an envelope The easily anyone handling it, are visible to use of a home while phone designed make telephone communications a much private more matter. same argument also shows weakness of the

majority’s reference made a public observations highway police. placed Smith these his calls on home telephone precisely “knowingly exposing” avoid public, Hufford, information to the as did the defendants Moore, supra, (1st and in United F. 2d 106 1977).

The ultimate issue to be resolved is whether through warrantless search placed upon electronic detection telephone Smith’s violated the Fourth Amendment. The test that must be is one applied of the. of the reasonableness search: is a

[Tjhere requirement, twofold first that a have exhibited an actual (subjective) expectation of and, second, privacy expectation that the be one that society is to as prepared recognize ‘reasonable.’ State, 361; 279 Md. Katz, 347 at Venner v. supra, 389 U. S. denied, 421 S. 932 A. 2d U. it is difficult to agree majority While I would an actual harbors subscriber know whether which he in the numbers expectation privacy subjective case dials, clearly facts in this. I contend that the would of privacy had an expectation support an inference Smith stated, phone call he As previously calls made. local expectation an home demonstrate placed in the would or a public phone from a placed to one privacy, in contrast addition, the else’s home. In phone located in someone private of every records usually keep does not telephone company At purposes. very or service billing local call for routine least, expectation certainly Smith had an monitoring company government not act agent as a would investigation without his calls of a criminal purposes legal process. expectation That such appropriate reasonable seems undebatable. contention rather

Finally, majority dismisses Smith’s an if he did harbor such stating that summarily by “[e]ven say to the record expectation, are before prepared we recognize as reasonable society us that is one that would disagree. emphatically I constitutionally protected.” and recognize to this society prepared Not only society home but in the use of one’s declare its the fact that this Court would would welcome I it. recognition right protect differently, Stated surprised anyone society do not in our would be believe examining illegally tapping phones, police learn that the were However, snooping. engaging mail or in unlawful otherwise or any learn that this other they would shocked to Court be on such condoned, put stamp approval tolerated or its court practices. impact give weight fails to due majority of illicit

Watergate and its the recent revelations progeny, upon F.B.I. activities of various surveillance conducted leaders, indeed, potential political or civil labor rights, by police put may abuse have created an factors and others These authorities.4 distrust, of fear and lack confidence. of environment unlawful and practice I condemns such society any believe right of good privacy of restore basic awaits the forces that each citizen still steadily has eroded. I believe which been being deprived privacy, that while of his clings to the notion upon it courts to right he still and relies has from intrusion. safeguard privacy warrantless heart of the fourth amendment forget, Lest we unjustifiable intrusion protect against every citizens For the means upon privacy, employed. state their whatever viable, it must to the adjust to remain the fourth amendment forms against times new of invasions protection and afford are sophisticated they of and whether however privacy, psychic electronics or advances in the generated through even or related sciences. case, legal no such intrusion was without

In the instant recognize magistrate. of a I Smith’s proper would review fruits of the right suppress warrantless search. subject easily pen register may may A 4. to abuse because be headphones wiretap by attaching tape converted appropriate or a recorder to into a pen registers models terminals on unit.Newer automatically tape have recorder actuated can turn a automatic voice switches Note, Circumventing Title and off as the See used. Enforcement,

III, Register 1977 Duke Use of Pen Surviellanee in Law potential pen inhibiting L. J. also freedom 759. The has register computer of widespread substantial Assault on data fed into a central on a association. If were among basis, patterns acquaintances dealings Miller, government. group Privacy, people would be A. available supra, at 43.

Case Details

Case Name: Smith v. State

Court Name: Court of Appeals of Maryland

Date Published: Dec 4, 1978

Citation: 389 A.2d 858

Docket Number: [No. 98, September Term, 1977.]

Court Abbreviation: Md.