U.S. for Order Authorizing Installation and Use of Pen Register, Application of

Decision Date18 January 1977
Docket NumberNo. 76-1725,76-1725
Citation546 F.2d 243
PartiesApplication of the UNITED STATES for an ORDER AUTHORIZING INSTALLATION and USE OF a PEN REGISTER. UNITED STATES of America, Appellee, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Missouri Corporation, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Leo E. Eickhoff, Jr., St. Louis, Mo., for appellant; John D. Rahoy and Alfred G. Richter, Jr., St. Louis, Mo., on brief.

David W. Harlan, Asst. U. S. Atty., St. Louis, Mo., for appellee; Barry A. Short, U. S. Atty., St. Louis, Mo., on brief.

Gary R. Sarachan, St. Louis, Mo., for amicus curiae, American Civil Liberties Union; Allan F. Stewart, Peter D. Zeughauser and Francis Ruppert, St. Louis, Mo., on brief.

Before LAY, ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This case involves the government's application for an order authorizing the installation and use of a pen register 1 and directing the Southwestern Bell Telephone Company to provide facilities, information and technical assistance to special agents of the Federal Bureau of Investigation in the installation and use of the device. Southwestern Bell contends in this appeal that the district court 2 erred in authorizing the use of the pen register and in ordering appellant to provide technical assistance to the government. We affirm the order of the district court.

In an in camera ex parte proceeding on July 26, 1976, the United States Attorney sought and received the permission of the district court to install and monitor a pen register device to identify the outgoing telephone numbers dialed from a particular telephone. An affidavit signed by a Federal Bureau of Investigation agent set forth facts which disclosed probable cause to believe the telephone in question was being used to further the commission of a racketeering offense prohibited by Title 18, United States Code. Although the offense is one for which governmental electronic surveillance is permitted by the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, the United States Attorney did not make the application thereunder. The order issued by the district court affirmatively required Southwestern Bell Telephone Company to "furnish the applicant forthwith all facilities including lease lines, information, including the identification of lease line pairs, subscriber pairs and the location of a suitable junction box where a connection can occur, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such carrier is providing." 3

On July 27, 1976, the appellant moved the district court to reconsider its order and to remove the appellant from the provisions of the order. On July 30, 1976, the district court denied appellant's motion and held appellant in contempt for failure to comply with the order of July 26, 1976. No citation was issued and compliance with the order was stayed pending appeal to this court. 4 We will consider separately the two substantial questions raised on this appeal: first, whether the district court erred in holding that pen register orders are not covered by Title III of the Omnibus Crime Control and Safe Streets Act of 1968; and second, whether it erred in ordering the appellant to provide technical assistance to the government.

I.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, prescribes the procedure for securing judicial authority to intercept wire communications in the investigation of specified serious offenses. United States v. Giordano, 416 U.S. 505, 507, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). Appellant contends that pen register devices fall within the purview of Title III. The greater weight of authority, however, is contrary to that position. United States v. Giordano, supra, 416 U.S. at 553-554, 94 S.Ct. 1820 (Powell, J., concurring in part and dissenting in part); United States v. Illinois Bell Telephone Co., 531 F.2d 809, 812 (7th Cir. 1976); United States v. Clegg, 509 F.2d 605, 610 (5th Cir. 1975); United States v. Falcone, 505 F.2d 478, 482 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975); United States v. Brick, 502 F.2d 219, 223 (8th Cir. 1974); United States v. Finn, 502 F.2d 938, 942 (7th Cir. 1974); Korman v. United States, 486 F.2d 926, 931 (7th Cir. 1973).

Title III's applicability to a pen register device turns on the definition of an "interception" of wire communications. "Interception" as defined by 18 U.S.C. § 2510(4) is "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device" (emphasis added). An "aural acquisition" by definition engages the sense of hearing. United States v. Falcone, supra, 505 F.2d at 482. The pen register device does not possess this sense. It acquires its information (the recording of numbers dialed at a telephone) by interpreting and printing out electric pulses. The conclusion is therefore inescapable that a pen register device falls outside the ambit of Title III. This conclusion is bolstered by the legislative history of the Act. As Mr. Justice Powell stated in a concurring and dissenting opinion, joined by Chief Justice Burger, Mr. Justice Blackmun, and Mr. Justice Rehnquist, in United States v. Giordano, supra, 416 U.S. at 553, 94 S.Ct. at 1844:

The installation of a pen register device to monitor and record the numbers dialed from a particular telephone line is not governed by Title III. This was the conclusion of the District Court in the instant case and of the courts in United States v. King, 335 F.Supp. 523, 548-549 (SD Cal.1971), and in United States v. Vega, 52 F.R.D. 503, 507 (EDNY 1971). This conclusion rests on the fact that the device does not hear sound and therefore does not accomplish any "interception" of wire communications as that term is defined by 18 U.S.C. § 2510(4) "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device" (emphasis added). Any doubt of the correctness of this interpretation is allayed by reference to the legislative history of Title III. The Report of the Senate Committee on the Judiciary in discussing the scope of the statute explicitly states "(t)he use of a 'pen register,' for example, would be permissible." S.Rep.No.1097, 90th Cong., 2d Sess., 90 (1968).

It is our view that the propriety of a pen register's usage depends entirely upon compliance with the Fourth Amendment rather than Title III. United States v. Giordano, supra, 416 U.S. at 553-54, 94 S.Ct. 1820 (Powell, J., concurring in part and dissenting in part); United States v. John, 508 F.2d 1134, 1141 (8th Cir.), cert. denied, 421 U.S. 962, 95 S.Ct. 1948, 44 L.Ed.2d 448 (1975). The court's power to order pen register surveillance is the equivalent of the power to order a search warrant and is inherent in the district court. 5 It is clear upon the record before us that the district court issued the order based upon a showing of probable cause. We conclude that the district court's approach, with all of the attendant Fourth Amendment safeguards, was a valid exercise of authority. Application of the United States in re Order Authorizing the Use of a Pen Register, 538 F.2d 956 (2d Cir. 1976); United States v. Illinois Bell Telephone Co., supra, 531 F.2d at 812-13.

II.

Appellant's second contention is that the district court erred in ordering the appellant to provide technical assistance to the government. 6 In support of this argument appellant cites Application of the United States,427 F.2d 639 (9th Cir. 1970), and the Congressional action which followed. In that case the government had obtained a valid wiretap order pursuant to Title III and the question arose whether the district court had inherent authority to compel the cooperation of the telephone company. The Ninth Circuit concluded that the district court had no statutory or inherent authority to enter such an order. Application of United States, supra, 427 F.2d at 644. Soon after this decision Congress adopted amendments to Title II which authorized the district court to direct that a communication common carrier furnish all information, facilities, and technical assistance necessary. 18 U.S.C. § 2518(4). Appellant argues that the Congressional reaction to the Ninth Circuit decision was in the nature of an acceptance of the views expressed therein. The clear Congressional intent, according to appellant, was to authorize active participation on the part of the telephone company only in connection with orders issued under Title III.

An equally persuasive argument can be made, however, that the Congressional reaction was more in the nature of an overruling of the Ninth Circuit opinion. Congress may have originally presumed that power existed in the courts to compel compliance with orders authorizing electronic surveillance. United States v. Illinois Bell Telephone Co., supra, 531 F.2d at 813-14. When faced with the Ninth Circuit decision, Congress reacted by legislating in an area where they had presumed the court's inherent power was sufficient. In this light Congress' amendments to Title III provide "strong and persuasive authority, by analogy, for the proposition that district courts in the area of electronic surveillance, inherently have power to effectively compel compliance with validly issued orders." United States v. Illinois Bell Telephone Co., supra, 531 F.2d at 814.

More important than the interpretation of Congressional action, however, is the district court's finding in its memorandum of July 30, 1976. There it was stated "(t)hat without the information, leased lines and assistance (of Southwestern Bell Telephone Company) the Federal Bureau of Investigation...

To continue reading

Request your trial
23 cases
  • Hodge v. Mountain States Tel. & Tel. Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 8, 1977
    ...of privacy.6 Our conclusion is not altered by the holdings in Application of the United States for an Order Authorizing Installation and Use of a Pen Register v. Southwestern Bell Telephone Company (8th Cir. 1976) 546 F.2d 243, cert. petition filed (February 22, 1977) 45 U.S.L.W. 3638, and ......
  • Smith v. State
    • United States
    • Maryland Court of Appeals
    • July 14, 1978
    ...telephone. The same conclusion has been reached by several cases in the United States Courts of Appeal. Application of United States For Order, Etc., 546 F.2d 243, 245 (8th Cir. 1976), Cert. denied, Southwestern Bell Telephone Company v. United States, 434 U.S. 1008, 98 S.Ct. 716, 54 L.Ed.2......
  • Com. v. Bagley
    • United States
    • Pennsylvania Superior Court
    • September 27, 1991
    ...of Appeals that the District Court had power to authorize the installation of the pen registers."); United States v. Southwestern Bell Telephone Co., 546 F.2d 243, 245-46 (8th Cir.1976), cert. denied, 434 U.S. 1008, 98 S.Ct. 716, 54 L.Ed.2d 750 (1978); cf. United States v. Giordano, 416 U.S......
  • In-Progress Trace of Wire Communication, Matter of
    • United States
    • New Jersey Supreme Court
    • April 28, 1978
    ...the federal act, and citing United States v. Illinois Bell Telephone Co., 531 F.2d 809 (7th Cir. 1976); United States v. Southwestern Bell Telephone Co., 546 F.2d 243 (8th Cir. 1976); Michigan Bell Telephone Co. v. United States, supra; United States v. Falcone, 505 F.2d 478 (3d Cir. 1974),......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT