Brown v. Waddell

• Decision Date: 30 March 1995
• Docket Number: No. 93-1729,93-1729
• Citation: 50 F.3d 285
• Parties: Jamie B. BROWN, Plaintiff-Appellant, v. David W. WADDELL, both individually and in his official capacity as a police officer for the City of Durham; City of Durham, North Carolina, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 285

50 F.3d 285

63 USLW 2671

Jamie B. BROWN, Plaintiff-Appellant, v. David W. WADDELL, both individually and in his official

capacity as a police officer for the City of

Durham; City of Durham, North Carolina,

Defendants-Appellees.

No. 93-1729.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 7, 1994.

Decided March 30, 1995.

ARGUED: Mark Alexander Charns, Duvoisin & Charns, Durham, NC, for appellant. Reginald B. Gillespie, Jr., Faison & Fletcher, Durham, NC, for appellees. ON BRIEF: William G. Goldston, Durham, NC, for appellant. Michael R. Ortiz, Faison & Fletcher, Durham, NC, for appellees.

Before BUTZNER and PHILLIPS, Senior Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.

Vacated and remanded by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Senior Judge BUTZNER and Senior Judge YOUNG joined.

OPINION

PHILLIPS, Senior Circuit Judge:

This appeal requires us to determine whether, for purposes of the Federal Electronic Communications Privacy Act of 1986 (ECPA) and relevant state law, a "pager clone" such as two used by a law enforcement officer to monitor numeric messages received by a suspect's digital display pager in this case is effectively a "pen register." If it is, the procedures followed to authorize the use here were legally proper; if it is not, the procedures were not proper and the use was unauthorized. The district court held that the pager clone was effectively a pen register so that its use had been properly authorized, and on that basis dismissed by summary judgment the suspect's statutory action seeking monetary and injunctive relief for allegedly unauthorized use of the device. We hold to the contrary that a "pager clone" such as that used in this case is not a pen register and that its use here was therefore unauthorized. Accordingly, we vacate the district court's judgment and remand for further proceedings.

I

In late October, 1991, David W. Waddell, a member of the Durham, North Carolina, police force assigned to the Major Crimes Unit of its Organized Crime Division, was directed by his superiors to investigate the possibility that Jamie B. Brown, then a telecommunicator in the Department, was engaged in drug trafficking activities. The suspicion of such a possibility purportedly was then based in part on information obtained by the authorized installation on Brown's two home telephone lines of a "trap and trace" device, which had revealed the numbers assigned to telephones from which incoming calls to Brown's number originated.

In addition to one cellular and two home telephones, Brown also then possessed, under lease from Carolina Paging, Inc., two digital display pagers with separate telephone numbers assigned to each. Both pagers were numeric only; they could receive and display only numbers and dashes, and they had no transmission capability. Although the basic intended function of these pagers was to receive telephone numbers that were then to be called by the pager custodian, they could actually receive and display combinations of up to 24 (or 25) numbers and dashes in a single transmission. Transmission to such a pager of any set of numbers and dashes up to that total could be accomplished by a caller's punching the numbers into a telephone key pad, from which point they would be transmitted by telephone line into the paging service's facilities from where, following processing, they would be further transmitted by radio waves to the pager for display on its screen.

To investigate a suspicion by Department officials that Brown was using her pagers to communicate with drug traffickers, Waddell was instructed to obtain legal authorization to use a "pager clone" to monitor the numeric messages being received on those pagers. To do so, he prepared an affidavit, application, and order in the form appropriate under the ECPA and state law for obtaining authorization to install a pen register or trap and trace device. Specifically, Waddell's application, which was presented to a state superior court judge, requested "[t]hat the Court authorize the installation of a pen register type system known as a 'Group Call' by the Durham Police Department on the pager service of Jamie Brown which is known as 598-2086 and 598-2065." J.A. 196.

The state court judge granted the application, and authorized the installation of a "pen register" for a period of 90 days. In issuing the order, the court stated:

The installation of a PEN register on the pager service of this individual by law enforcement officers in furtherance of this investigation is constitutionally permissible under Smith v. Maryland, 442 U.S. 735 (1979), and the installation of such by law enforcement officers is authorized by United States v. New York Telephone Company, 434 U.S. 159 [ 98 S.Ct. 364, 54 L.Ed.2d 376 ] (1977).

On the day Waddell received the authorizing order, he used it to obtain from Carolina Paging, Inc. two pagers programmed identically to the two pagers assigned to Brown. This "cloning" of Brown's pagers allowed Waddell to receive any numeric messages sent to Brown's pagers at the same time that they were received and displayed on her pagers. At this time, Waddell also requested and obtained from Carolina Paging, Inc. Brown's twenty most recent pagings, ten for each pager number, that were temporarily stored in the company's electronic storage bank.

Waddell's monitoring of Brown's pagers lasted less than a month. During that time, he received on his clone pagers a great number of separately transmitted sets of numbers and dashes that were being received simultaneously on Brown's pagers. Waddell prepared a log showing each numeric message received, and the date and time each was received. While the sole original purpose of all this, according to Waddell, was to obtain the telephone numbers of the persons paging Brown, it is undisputed that Waddell intercepted a number of numeric messages containing more extensive sets of numbers than those in telephone numbers, including at least one that was conceded to be a code indicating that a caller which it identified was "en route." Sealed J.A. 314.

On December 19, 1991, Waddell returned the two pager clones to Carolina Paging. No charge resulting from this particular departmental investigation was brought against Brown, and in January, 1992, she received from the Chief of Police a letter of "official apology." It stated, in part, that "The Division failed to meet the high standards of professionalism in your case ... corrective action will be taken to insure that incidents of this nature will not occur in the future." J.A. 55.

Shortly thereafter, Brown brought this action under the private action provision, 18 U.S.C. Sec. 2520(a), of the ECPA, seeking monetary and injunctive relief against Waddell in his individual and official capacities and against the City of Durham. In an amended complaint, she alleged three violations of her rights under the ECPA by virtue of the defendants' conduct: (1) a violation of 18 U.S.C. Sec. 2511 by the unauthorized interception, use, and disclosure of her electronic communications through use of the pager clones; (2) a violation of 18 U.S.C. Sec. 2511 by the interception, use, and disclosure of her oral communications through the unauthorized accessing of the voice mail capability of a pager not in her possession on another occasion; and (3) a violation of 18 U.S.C. Sec. 2701 by the unauthorized obtaining of electronic communications in electronic storage from Carolina Paging, Inc.

The defendants by answer essentially denied that any of the conduct charged to them was unauthorized, and pleaded as affirmative defenses "qualified" and "governmental" immunity, and the statutory "good faith" defenses provided respectively in 18 U.S.C. Secs. 2520(d) and 2707(d). J.A. 71, 72.

Following a period of discovery not restricted as to issues, the district court, on joint motion of the parties, entered a consent order that severed for sequential consideration the issues raised by the pleadings. Under the order, two issues identified as potentially dispositive of, or substantially constrictive of, the entire action would be considered first, with all proceedings as to other issues stayed pending decision on the two issues identified. These were, in summary, first and primarily whether the challenged "investigative technique"--the use of "pager clones"--constituted the installation and/or use of a "pen register" or a "trap and trace device" within the meaning of 18 U.S.C. Secs. 2510-21, 3121-27 and N.C.Gen.Stat. Secs. 15A-260-64; and, as a "subsidiary issue," whether the state superior court judge who authorized their use had legal authority to do so. J.A. 93-94. As to these issues, the parties, at the court's invitation, then filed cross-motions for "partial" summary judgment. The cross-motions of course sought directly opposite rulings on the pager clone issues, and seemed, though imprecisely, to agree that those issues concerned only the claim of illegal interception of "electronic communications" in violation of 18 U.S.C. Sec. 2511(1)(a). See J.A. 95-96 (plaintiff's motion); id. 163-65 (defendants' motion). As will appear, the imprecision on this point may have led to confusion down the road in the district court's ruling on the cross-motions.

The district court denied plaintiff's motion, granted defendants, and in granting defendants' motion, dismissed the entire "case." J.A. 306-07. In an accompanying memorandum opinion, the court spelled out the critical aspects of its analysis and ruling.

On the specific issues, the court held that the defendants' use of the pager clones was effectively the "installation and use of a 'pen register' " ¹ that was authorized by 18 U.S.C. Secs. 2510-21, 3121-27, and N.C. Gen.Stat. Secs. 15-A-260 through 264, and that, accordingly, the state court judge who ordered the use "had the legal...