State v. Thompson

application. known, This precedent difficulty believing broad could but I have opinion have serious adverse and unintended ef- case not that our initial in this tax application fects on laws of unsupportable much more drastic Idaho. sky than Bull or Kolom that the would falling. soon be Defendant-Appellant's Support Brief of p. Rehearing, for The Tax Petition 1. Com- adhere of our continue to to views mission’s brief continues: opinion. unanimous 1987 Tax The State Commission does not now equitable

argue that the doctrine of re- coupment apply proper in- should only Tax

stances. The State Commission argues that this has enunciated of for of too broad a test the doctrine. The test is so broad that the power

this Court has taken for itself 760 P.2d 1162 remedy statutory provision, the cor- Idaho, Plaintiff-Appellant, of STATE (if it rection which should be correct- ed) legis- is the role of the THOMPSON, Judy lature. Defendant-Respondent, Defendant-Appellant’s Support Brief in Rehearing, pp. Petition for 7-8. not, decision, initial The Court did Brown, Rene Rebecca Nelson Wolf provision. It “remedy” statutory did ex- a/k/a Wolf, Lumen, do, Steve Charlie actly what courts constituted Thompson, Yarborough do, hopefully James always endeavor to and his- a/k/a Yarb, Brandt, and Monte Defendants. torically always beginning have done wit, England, eq- exercise courts No. 17308. necessary to uitable doctrines when achieve justice. Moreover, good it acted on author- Idaho. Court of ity. may While the Tax Commission be Aug. cir- entirely distinguishing correct in cumstances the Bull case from this

nothing granting restricted this Court

equitable relief on its which fashioned justice.

own notions of fairness and Con- Tax trary to what the Commissionseems legislature has not to suggest, knowledge occupy my purported ever equity. the field of advised us that The Tax Commission has it: the revenue

... concerned about may effects that be associated with relatively rare circumstance which the recoupment equitable could doctrine properly applied under the three crite- quoted earlier established in Kolom ria in this brief. Sup- Reply Brief in Defendant-Appellant’s Rehearing, p. port 6. Of of Petition course, siding with the with this Court now Commission, never be Tax the answer will Jones, Gen., Atty. Lynn

Jim E. (argued), Gen., Boise, Thomas Sol. plaintiff-appellant. Smith, Boise,

Vernon K. for defendant- respondent.

JOHNSON, Justice.

Appellant, Judy Thompson, seeks review of a decision of Appeals the Idaho Court of Thompson, (Id.App.1987), P.2d 1087 which reversed an order of the suppressing district court evi- dence obtained wiretap means of a Thompson’s telephone. We affirm the de- cision of Appeals except the Court of holdings that the pen reg- installation of a Thompson’s telephone ister on line did not constitute a search within the Constitution, art. 17 of the Idaho probable issuing there was cause for wiretap orders. We hold that the use pen register óf a is a search under art. Constitution, produced by pen register evidence should not have been considered in the orders, wiretap issuance of the and that without the evidence there was no wiretap cause to issue the Therefore, orders. we reverse the decision Appeals of the Court of on these issues and affirm the order of the sup- district court pressing the evidence obtained from the wiretap Thompson’s telephone.

I.

IN INTERPRETING ART. 17 OF THE IDAHO CONSTITUTION THIS COURT IS BY NOT BOUND THE IN- THE TERPRETATIONS OF FOURTH AMENDMENT THE TO UNITED STATES CONSTITUTION BY THE UNITED STATES SUPREME COURT. 17 of the Idaho Constitu provides:

tion right be secure Twice more since Cowen this Court has persons, houses, papers pointed their out that in interpreting effects art. 17§ against we interpretations unreasonable searches are not bound and sei- violated; zures shall not the fourth amendment and no the United war- Supreme Newman, rant shall Court. issue without State v. 108 cause 5, 6, 856, by affidavit, 10 n. 696 particularly shown P.2d 861 n. 6 describ- (1985); ing place State v. 110 Idaho to be searched and the 516, 1, 1288, 520 n. 716 person thing P.2d 1292 1 n. be seized. (1986). As we said in Newman: This section of our constitution is substan- [Fjederal and state constitutions derive tially the same as the fourth amendment to power their independent sources. the constitution of the United States. It readily apparent thus that state The United Supreme States has Court liberty courts are at to find within the held that the installation aof provisions of their own constitutions is not a search within the of the greater protection than is afforded under fourth amendment. Smith v. interpreted by federal constitution as 735, 2577, 442 U.S. 99 S.Ct. 61 L.Ed.2d 220 Supreme the United States Court. See (1979). This Court previously has noted Haas, 714, 719, Oregon v. 420 U.S. 95 1, that art. 17 of our constitution “is to § 1215, 1219, (1975). S.Ct. 43 L.Ed.2d 570 consistently be construed with the fourth This is true even when the constitutional amendment to the United States Constitu- provisions implicated contain similar Cowen, 650, 649, tion.” State v. 104 Idaho phraseology. Long gone days are the 230, (1983). also, 662 P.2d See State v. apply when state blindly courts will Unit- Rice, 686, 109 Idaho Supreme ed interpretation States Court (Id.App.1985), (1986). However, rev. den. methodology process when in the this statement does not bear on our deci- interpreting their own constitutions. portion sion in this since the 108 Idaho at 10 n. 696 P.2d at 861 n. 6. appears decision it Cowen where con- Today interpreting reaffirm we cerned standing person of a to raise the provisions of our constitution that are sim- question of unreasonable search and sei- ilar to those of the federal constitution we zure, rights and not the substance of the protections are free to extend under our protected under art. 17. Seven beyond granted by constitution those Cowen, willing- months after we voiced our Supreme United States Court under the ness to scope consider whether the of art. federal constitution. 1, 17 is different than that of the fourth amendment, interpreted by the United II. Court: guarantee against unreasonable THE A A USE OF PEN REGISTER IS

[T]he I, search and seizure in article 17 of SEARCH UNDER ART. 17 OF substantially Constitution is THE IDAHO CONSTITUTION. parallel provisions the same as the In its decision in this case the Court Fourth Amendment to the United States Appeals “pen register” used the term Constitution; nevertheless, it is for this refer to a device that is used to record the Court to decide whether to relax the on a numbers called and to a proba- standard for the demonstration of (DNR) recorder” “dialed number also cause in ble accord with v. [Illinois records the duration of all calls. The Court Gates, 462 U.S. Appeals noted that from the record “it (1983)], L.Ed.2d 527 or whether to retain appears equipment installed to protective the more criteria of Agiular Thompson’s phone actually monitor was a Spinelli progeny as our and their pen register,” DNR rather than a but that test. impact of the on tar “the two device's generally Lang, get’s 672 P.2d 561 similar.” We adopt style Appeals Court ” referring equipment ‘legitimate.’ installed 442 U.S. at pen register. Therefore, the held Thompson’s telephone as a there was Appeals noted, pen search, required. As the Court of also no and no warrant was “ register oral recognize ‘does not overhear communi that so far as the We cations does not indicate whether calls provided by the fourth amendment is con- actually completed.’ cerned, are States v. both state courts and lower federal Co., 159, 161 Telephone New York 434 U.S. are bound We are con- courts Smith. 1,n. 366-67 n. vinced, however, that in Idaho there is (1977).” 113 Idaho at 468 n. expectation of legitimate and reasonable P.2d at 1089 n. 1. privacy in numbers that dialed. long ago pointed This Court out that the “ fourth amendment ‘was intended as a re- analysis persuasive find We Jus- upon sovereign straint the activities of au- Smith, tice in his dissent Stewart ” thority,’ and that “the same intention joined: Brennan which Justice provisions of prompted adoption of the am persuaded numbers constitution, people our state ‘to secure the private telephone dialed from a fall out- ” against unauthorized official action.’ side 43, 67, v. 44 P. Arregui, Idaho 254 Fourth and Fourteenth Amendments. 788, (1927). 812 347, States, 389 In Katz v. U.S. United 1, Both the fourth amendment and art. 507, 352, 512,19 576, 88 S.Ct. L.Ed.2d protect right 17 to be “[t]he acknowledged the “vital role that houses, persons, in their papers secure public telephone play has come to against effects unreasonable searches and private The role communication[s].” seizures.” This Court has stated that the played by private telephone a is even purpose provisions safeguard both to“is vital, since it more Katz has been by insuring against of citizens abundantly telephone clear conver- premises the search of where by people sations carried their Yoder, lacking.” cause is State v. 96 Ida- protected by are fully homes or offices 651, 653, 771, ho 534 P.2d In 773 the Fourth and Fourteenth Amendments. 1, 17, applying accepted art. we have v. As Court said United States more refined purpose by statements of this Court, District 407 United States U.S. Supreme the United States Court: 313, 2135, 297, 2125, 92 32 1, Fourth Amendment and art. [T]he 752, govern- “the and unsuspected broad designed protect person’s legit are a pri- mental incursions into conversational expectation privacy, imate which “soci vacy which electronic entails surveillance ety prepared recognize as reason necessitate the of Fourth Illinois, able.” Rakas v. (Footnote safeguards.” Amendment 58 L.Ed.2d 387 omitted.) (1978), States, quoting Katz v. United Nevertheless, today says the Court 507, 516-17, 389 U.S. safeguards that those do not extend (1967)(Harlan, J., 19 L.Ed.2d 576 concur private the numbers dialed tele- accord, ring); Bottelson, [State v.] [102 apparently phone, because when a caller 1093, 1095(1981) Idaho P.2d ]. may digits dials number record- State v. n. billing telephone company ed 5, (1986). 1295 n. purposes. But observation no more In supra, than the basic nature of Smith Unit- describes tele- telephone ed phone simply Court concluded that calls. A call can- person on telephone telephone whose line the not be made without the use register probability property was installed “in all company payment and without expectation entertained no priva- company actual for the service. The cy dialed, in the telephone numbers he must be conversation itself did, that, if expectation electronically even he his transmitted within a tions that without to Fourth and Fourteenth Amendment protection. Further, that information is veillance pectation The an nication that under Katz is entitled to pen register telephone is that occur clear to me that private telephone Katz. risk that the constitutional close dialed because the caller assumes the expectation of privacy in the numbers after in a case involving the conversation it- self. relevant to this inquiry than it would be dials. What similar assumption about the numbers he whether a calls from his home is entitled to make a not be broadcast to the world.” Katz v. phone is entitled “to assume that words he utters into pany equipment. Yet we have squarely held that the user of ed or company equipment, I think that the numbers dialed from a integral part might S.Ct., information them to the Katz, overheard It central (Footnote omitted.) emanates from person’s of privacy. do with those numbers is more is at 512. subscriber has a during person simply information surveillance of a question information obtained —like captured by there is no a call—are within the home or office—loca- who police. question the use of other com- (Footnote telephonic even a the conversations company will dis- makes enough private in this case is mouthpiece may recognized in legitimate company does U.S., are entitled public which the legitimate such sur- It seems be record- omitted.) commu- conduct private say, will ex- by whom Justice dissent of 442 U.S. at ment. Shultz, tive values those 786, 91 S.Ct. 453 States v. ing ^[1494] (MARSHALL, J., dissenting). And for ate the “intrinsic without saddling we should who formulated the standard the Court applies “[sjinee it is the task of the law to form responsibility. assigns its of unreasonable searches and seizures when ties, but on the risks he should be forced tions are individual of Katz We most and the because such be incriminating, could reveal the numbers In assume in a free and terms, (1971) (dissenting opinion). this project, practices my view, imparting intimate details of a “extensive intrusions that at 1534 underlying also places called, California 416 U.S. assessment, Justice Marshall in examining White, supra, them today, depends they ] legitimate not ... can be the constitutional as well as mirror and persuaded by portions Brennan ^[1122] with reference to the basic judiciary a list whether have called. This is not [39 upon society.” As Mr. Justice information identities of the character” of merely but because it ^[21] himself not on the risks an the Fourth Amend- presumed 99 S.Ct. at 2583-84. L.Ed.2d 812 might at 1143 Bankers Assn. v. within courts must evalu- and thus reveal the joined some open 401 U.S. at privacy expecta- recite ... risks desirability in some sense person’s to third Smith, society. By [28 prescriptive also: recognized: prohibition investiga- 94 In mak- ^[745] Harlan, persons (1974)] reflect, signifi- accept easily par- life. at cantly jeopardize sense of protection, [individuals’] whether or not security ... more than self-restraint captured by it is a trespass into such an law enforcement required.” officials is area. White, U.S., United States v. 401 The private numbers dialed from a S.Ct., (Harlan, J., at 91 1143 at dis- telephone although certainly pro- more — senting.) saic than the conversation itself—are not believe, The private registers, without “content.” use of I Most may subscribers constitutes such an have their own extensive intrusion. publicly ignores numbers listed in a To hold distributed otherwise role vital directory, telephonic doubt there are plays who communication in our but happy professional would be to have personal relationships, broadcast to the world long U.S., a list of the local or distance see Katz v. United 389 at S.Ct., majority of the United States at as the First come when a well impli Supreme and Fourth Amendment interests will decide to overrule cated unfettered official surveillance. pro- for the nation the Smith and establish Privacy placing calls of value those who use tection to which we believe only engaged to those in criminal activi telephones in Idaho are entitled. Until govern ty. prospect unregulated The then, as a art. 17 will stand bulwark monitoring undoubtedly mental will pen registers into against the intrusions prove disturbing even to those with noth life in Idaho. daily our individuals, ing in Many illicit to hide. cluding unpopular political members of III. organizations journalists confi sources, may legitimately dential towish THE COURT CORRECTLY DISTRICT personal avoid disclosure of their con THE SUPPRESSED EVIDENCE Alabama, tacts. NAACP v. See FROM THE WIRETAP. OBTAINED 449, 463, 1163, 1172, U.S. 2 L.Ed. Since there was no warrant based (1958); 2d Branzburg Hayes, v. probable cause for the installation and pen register use of the in this (1972); id., L.Ed.2d 626 use information obtained should have S.Ct., (STEWART, J., at 2673-2676 dis excluded from the determination of been senting). Permitting governmental ac probable cause for the issuance of the wire cess to records on less than tap orders. may impede cause thus certain political forms of journal affiliation and question presented we are then with which istic endeavor that are the hallmark of a infor whether without truly society. free Particularly given the mation there sufficient evidence to es was previous Government’s reliance on war wiretap. probable tablish cause for the telephonic rantless surveillance to trace acknowledges: The state itself reporters’ sources and protected monitor pen register], police in Without [the political (Footnote omitted.) activity, this case would have been able unwilling am pen reg to insulate use of develop tap probable cause for the wire independent judicial isters from review. eventually produced which sufficient evi- public Just as one who enters a charge justify against Judy dence phone booth is “entitled to assume that Thompson coconspirators. her mouthpiece the words he utters into the world,” Review, will not be Appellant’s p. broadcast to the Katz Brief on Petition for U.S., at 18. S.Ct., too, at so he should be wiretap by orders were issued Two entitled to assume that the numbers he authorizing wiretap of district court dials in the of his home will be Thompson’s telephone. The that affidavit recorded, all, if solely phone at for the support offered in was company’s purposes. business Accord- wiretap for the first order stated that ingly, I require would law enforcement pen register from the install- data obtained they officials to obtain a warrant before Thompson’s telephone line indicated ed on telephone companies enlist to secure in- contacting Thompson that was a residence beyond govern- formation otherwise drug suppli- in the Twin Falls area where a ment’s reach. frequented. er The affidavit also lived or 747-48, Smith v. pen register stated that the data indicated 2583-84. Thompson contacting that was females making dissenting who were visits Idaho State adopt We these comments in Penitentiary, stating the location where the law interpretation Smith as given drugs enforcement authorities should be to art. 17 of the Idaho believed addition, being applies Constitution as it to the use of were delivered. In the affi- registers Perhaps day in Idaho. will davit indicated that the data obtained from high not, frequency properly showed a order issued. If it was was phone by Thompson 1,100 by use calls none of the information obtained — days, admissible, excluding Thomp- wiretaps calls to or from was since the basis for place making illegali-

son’s of work. The officer second would be tainted Thompson’s ty supra. the affidavit concluded that of the first. State v. phone activity comparable hand, was to the fre- On the other if the first order was valid, quency drug of calls of other traffickers none of the information obtained Thompson using through sup- and that the tele- orders was the two should be drugs. pressed. to distribute or sell illicit Other than this information that was the “totality adopted We have pen register, result of the use of the there analysis circumstances” as the standard affida- was no information contained probable which cause will be determined in indicating Thompson using vit her Lang, Idaho. State v. drug-related

telephone any to conduct ac- approach This officer made tivities. The who the affida- appropriate determining probable cause parenthetically: statute, vit stated wiretap under I.C. through 18-6701 18-6708. (Because large geographical §§ dis- ' Judy Thompson her tances between judge may Before a enter an ex drugs probable source of illicit in the wiretap wiretap parte order under this area, Falls the likelihood of the use Twin statute, judge determine “on the must to conduct transactions appli basis of the facts submitted increases.) cant” that there is cause: The affidavit also stated: 1. belief that an has “for individual Through independent other various committed, commit a or is about to information, we have con- sources particular offense enumerated sec- Thompson using Judy firmed that ... Code;” (I.C. tion devices to 18-6708(3)(a)) types, quantities prices transmit particular communi- “for belief and/or other means used to distrib- concerning the offense cations will drugs. ute or sell illicit through wiretap] in- be obtained [the No further identification of these “various (I.C. 18-6708(3)(b)) terception;” § independent other sources of information” and reliability or their in the was contained 3. “for that the facilities belief affidavit. which, where, place or the the wire support The offered in of the affidavit are to be in- or oral communications used, alleged wiretap tercepted being second order as a basis for or are used, wiretap of the for another in connection with the extension about to be offense, thirty days during period that the covered the commission of such or to, of, in name by intercept- calls had are leased listed the the first order been commonly person.” indicating on-going conspiracy or used such ed an be- (I.C. 18-6708(3)(d)) Thompson, drug supplier in Twin tween the Thompson supply Falls and others to reviewing held that in Lang, In we marijuana, which she would then distribute warrant, findings judge of a who issued a others, including smug- those who would ensuring that “our function is limited to Peni- gle marijuana the into the Idaho State for con- [judge] the had a substantial basis tentiary. and cluding probable cause existed” that paid such “great that deference is to be sought Thompson’s suppress motion to by reviewing courts.” 105 determinations suppression of the information obtained P.2d at 562. Idaho at through wiretaps resulting from both the the officer in Reviewing the affidavit of the orders. Since the second order was wiretap con- support the first order we produced on information the of based the order, judge the district had a substan- if the first clude that first we must determine Thompson pen for belief a search within the register tial basis had committed, commit, or was about the and as to the determination of art. 17§ dealing marijuana, of of the crime one the probable cause for the issuance of of offenses enumerated in I.C. 18-6706. wiretap We affirm the order of orders. Excluding information obtained suppressing ob- district the evidence court register, through pen use of the we through wiretap Thompson’s of tained conclude that there was not a substantial telephone. “particular basis for belief that communica- concerning the tions offense” would ob- HUNTLEY, JJ„ BISTLINE and through wiretap Thomp- tained or that concur. being used, son’s was or was about used, to be “in connection commis- with the Justice, BAKES, dissenting: offense,” required sion of I.C. 18-6708(3)(b) (d). parenthetical and The §§ opinion impermissibly ex- majority comment of the officer that there was pands scope of Art. of Thompson her Twin “likelihood” and Accordingly, Constitution. dissent. might Falls source use terms, very By their the fourth amend- speculation only conduct transactions is Constitution, ment to the United and does create a basis for substantial Constitution, of the Idaho Also, probable cause. the statement right apply only to “the to be independent officer that “various other persons, houses, papers secure in their sources information” confirmed that (Emphasis added.) Nothing Thompson using her effects.” protection. else is accorded constitutional dealing marijuana is not a substantial There basis for the probable cause, is no basis for since is no there veracity, reliability indication of the exclusionary or sanctions in cases to which knowledge source these other against unreasonable pointed sources. As this out Court searches seizures was not meant to Johnson, supra, under State v. even extend, i.e., anything beyond “persons, “totality test, of circumstances” the veraci- houses, Nothing in papers and effects.” ty, reliability knowledge and basis of language this has applicability to persons supplying hearsay information registers. “ highly ‘are determining all relevant in ” has, The United States report’ his making value of occasions, reiterated several cause, determination of “ fourth amendment is not addressed judge’s ‘action cannot be a mere rat- things places lan- mentioned the bare conclusions oth- ification of ” guage Initially, of the amendment. in Hes- ers.’ 110 Idaho at P.2d 527 n. ter v. United Gates, (Quoting 1299 n. 13. Illinois v. 446, 213, 445, (1924), S.Ct. L.Ed. 898 Justice 2317, 229 and U.S. 2327, 2332, (Em- succinctly (1983)). and Holmes stated: L.Ed. 527 original.) in phasis the special “The afforded Fourth Amendment to the in their the analysis We concur with the of state houses, “[wjithout pen register], po- ‘persons, papers that the is and effects’ [the lice in this case would able to open not have been to not extended the fields. The develop wiretap.” cause for the between distinction the latter and the decision of Court of We reverse house old as the is as common law.” Appeals sup- on this issue and affirm in recently, More Oliver v. United pression order of the district court. 170, 104 1735, U.S. (1984), held that the the Court reason there IV. recognizable privacy was no interest

CONCLUSION. open they are or fields is not houses meaning Appeals language effects within The decision of the Court of is affirmed, except as to whether use a of the amendment. fourth pen recording ply registers

It is axiomatic the number to as used in this as Supreme has clear- telephone of United States company’s functions ly protection against held. The unreason- switching equipment not search did or seize and seizures is limited to able searches houses, Thompson’s Judy “persons, pa- [or] houses, “persons, papers effects.” manner, In did pers.” like neither the tele- application was intended. Universal never company’s switching equipment Thompson’s Judy search or seize “effects.” privilege majority extends a new purposes For of fourth amendment to before. the ma- where none existed Under Constitution, Art. the United States jority’s holding, protects Art. more § Constitution, an personally of the Idaho “effect” retains or con- than what one trols; Rather, voluntarily protects what has telephone is not a dialed number. it also parties. placed in the hands third been of tangible property are or chattels. “effects” privilege protecting This of what has new Dictionary Law defines Black’s “effects” telephone company is exposed been to the as follows: protecting person, a one’s not matter of property; estate or “Effects. Personal Rather, a papers, or effects. it is house though may include real the term both wording departure the clear of personal property. See Personal ef- is, in provisions at constitutional issue (5th Dictionary Black’s Law fects.” effect, the Idaho judicial amendment to a Ed.1979). is no justification Constitution. There Articles associated “Personal effects. (or Art. expanding amendment fourth having person, property more or as Constitution) protections to person posses- to of less intimate relation registers. nothing devices but These do sor; or ‘effects’ movable chattel well record data that subscribers any property of kind. reference is Usual is kept in There know is not confidence. following items owned a dece- to expectation privacy subjective not even a clothing, at the of death: furni- dent time data, long dialing especially distance collections, ture, coin jewelry, stamp and here, involved as such data like that silverware, china, crystal, cooking uten- billing monthly permanently recorded for books, televisions, sils, cars, radios, etc.” majority holds other- purposes. Yet the Id. at holding legitimate by its finds a wise and any reading of the straightforward a Under expectation everything language steps to plain of the two affirmative person has not taken impermis- issue, applicable public. is an provisions display at neither This the Idaho of Art. by pen register expansion sible numbers recorded A Constitution. telephone company. offices of the simply is not a number dialed legislature say that the That is not to house, paper or an effect. Yet person, a not, in its considered could or should holds, majority in contradiction prohibit by law the use judgment, limit or decision Court’s legislatures as pen registers just some Smith use of prohibited the have limited or (1979), that 61 L.Ed.2d 220 listening i.e., actually phone taps, Constitution, applica- But recording conversations. the case at bar. ble to give authori- does Constitution legislate, it has ty for this Court majority’s holding Carrying in this case. effect done a conclusion logical end would necessitate protection for that there Accordingly, dissent. one a crime that the any evidence of

almost SHEPARD, C.J., concurs. previously crime has suspected display steps to affirmative taken language fourth Neither the

public. States Constitu- the United amendment tion, Consti- nor ap- tution, reasonably construed to can

Case Details

Case Name: State v. Thompson

Court Name: Idaho Supreme Court

Date Published: Aug 2, 1988

Citation: 760 P.2d 1162

Docket Number: 17308

Court Abbreviation: Idaho