Application of United States

• Decision Date: 19 January 1976
• Docket Number: Misc. No. 75 PR 1.
• Parties: Application of the UNITED STATES of America for an Order Authorizing Use of a Pen Register Device.
• Court: U.S. District Court — Western District of Missouri

407 F. Supp. 398

Application of the UNITED STATES of America for an Order Authorizing Use of a Pen Register Device.

Misc. No. 75 PR 1.

United States District Court, W. D. Missouri, W. D.

January 19, 1976.

Bert C. Hurn, U. S. Atty., Kurt P. Schulke, Special Attorney for the Dept. of Justice, Kansas City, Mo.

MEMORANDUM OPINION AND ORDERS

JOHN W. OLIVER, District Judge.

I.

This case pends on the second application made by a Special Attorney of the Organized Crime and Racketeering Section, Kansas City Field Office, Department of Justice, for an order authorizing the use of a pen register device on five particular telephones used by three named individuals, and others yet unknown, located in Kansas City, Missouri. The second application, as did the first application, also prays for an order authorizing the Southwestern Bell Telephone Company to furnish the applicant all necessary assistance to install the pen register.¹ The pending application is based solely upon and purports to invoke power allegedly granted this Court under the All Writs Act, 28 U.S.C. § 1651. As will be later developed in detail, the government has unsuccessfully attempted to invoke other sources of power and jurisdiction in support of its requested orders in an unsuccessful intervening application which it presented to the Chief Magistrate of this Court.

Included in the papers presently before the Court is the government's memorandum of December 1, 1975 and suggestions in support of application for the orders authorizing use of a pen register device. That memorandum and another paper entitled "Government's Filing Under Seal of a Certain Matter Concerning the Use of a Pen Register Device and Suggestions Attached Thereto" purports to state the procedural steps which the Special Attorney has taken in connection with the three applications filed for its requested orders.

Any implication which may appear in those papers, however, that this Court may have suggested that the government present a Rule 41, Federal Rules of Criminal Procedure, application to Chief Magistrate Calvin K. Hamilton for orders similar to those requested in the pending application is inaccurate. The files and records of this Court establish the following sequence of events. The government's first attempt to obtain its requested orders occurred when Mr. Schulke, the Special Attorney named in the application, presented the Court with an application, a supporting affidavit of a special agent of the Bureau of Alcohol, Tobacco and Firearms, United States Treasury Department, and two proposed orders which purported to authorize the use of a pen register device.

None of the papers filed in connection with the government's first application filed with this Court, however, made reference to any statutory or rule authority to support the issuance of any order.

This Court at that time requested that the government prepare and file in camera a memorandum of law in support of its original application. Mr. Schulke submitted a short memorandum of law which candidly stated that "the United States recognizes that no specific statutory authority exists authorizing such devices." The government suggested in its original memorandum that the trilogy of Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) made it clear that "the technical requirements of Rule 41 would not be applied to prohibit a sophisticated investigative technique merely because Rule 41 was drafted in terms of physical, rather than electronic, evidence."

The government stated in its first brief that its first application had been drafted in a manner "similar" to the manner in which an application under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Act of June 19, 1968, Pub.L. No. 90-351, 82 Stat. 197, must be drawn. The government argued that the form of its original affidavit and the procedure which it allegedly was following had been approved in United States v. Brick (8 Cir. 1974), 502 F.2d 219 and in United States v. John (8 Cir. 1975), 508 F.2d 1134.

After receipt of the government's first legal memorandum we invited Mr. Schulke to chambers to discuss the legal questions which had not been discussed in the government's brief. Both he and Michael DeFeo, Attorney in Charge, Kansas City Field Office, Organized Crime and Racketeering Section, Department of Justice, accepted our invitation and conferred informally with the Court. The Court advised government counsel that it did not read the cases cited in its original legal memorandum as authorizing the use of a pen register device unless such device was authorized as an incident of an order authorizing a wire interception under the exacting procedures mandated by Title III.

We frankly stated to government counsel that its original memorandum of law did not, in our judgment, appropriately cite or rely upon any source to establish this Court's power, jurisdiction or authority to issue the orders requested. Government counsel's attention was directed to Weinberg v. United States (2 Cir. 1942), 126 F.2d 1004, as an example of a case in which a particular district judge had attempted to enter an order which varied from the authority conferred by the then existing law.

We advised counsel that we had not had time to independently research the question and requested the submission of further legal authority. We asked whether the Department of Justice in Washington had briefed the question and were advised that the question had not been briefed in Washington and that no assistance could be obtained from that source. Mr. DeFeo advised the Court, however, that he agreed that the original memorandum of law submitted did not fully cover all of the questions presented and that a more adequate memorandum of law would promptly be presented to the Court.

On November 17, 1975, instead of submitting a more adequate memorandum of law as indicated, Mr. Schulke wrote the Court a letter in which he stated that the government had decided to withdraw its original application for a pen register device that had first been presented to this Court on November 3, 1975. Mr. Schulke closed his letter by stating "since this matter has been withdrawn, the government therefore requests return of its application, affidavits and two proposed orders which are presently in your custody." We immediately complied with the government's request and returned to Mr. Schulke the documents requested.

The papers presently before the Court establish that after the government withdrew its original application presented to this Court, it thereafter presented an application for substantially the same orders, purportedly invoking power conferred by Rule 41, F.R.Cr.P., to Chief Magistrate Hamilton. Chief Magistrate Hamilton, however, entered an order, together with a short memorandum opinion, which denied that application. Chief Magistrate Hamilton concluded that the application, as presented, did not fall within the purview of Rule 41, F.R.Cr.P., and that, therefore, a conventional search warrant authorized by that rule could not be issued under the circumstances. He further concluded that he did not believe that he had authority under law to enter the orders presented with the application. The requested orders, of course, involved substantial modification of the warrant procedures mandated by Rule 41.

Sometime after Judge Hamilton's refusal to issue the requested order, the government indicated that it wanted to make a second application to this Court. We reminded Mr. Schulke that Mr. DeFeo had indicated that the only brief which the government had ever presented to this Court was not adequate to support the government's application and that the government should present a supplemental brief with its second application to this Court which would discuss all questions of law presented.

The government presented its second application, together with its new brief, on December 3, 1975. When it became apparent on December 4, 1975 that docket complications would prevent immediate consideration of the second application within the near foreseeable future, the Court directed Mr. Schulke to file all papers under seal with the Clerk so that the Court could, when time permitted, consider the government's second application and new brief.

Consideration of the government's new brief established that it was necessary to conduct independent research in regard to the questions presented. We find and conclude that this Court does not have jurisdiction or authority to issue the requested orders for reasons we shall state.

II.

Both of the government's applications made to this Court and the application made to Chief Magistrate Hamilton recognize that "the propriety of pen register use depends on compliance with the Fourth Amendment."² The government's original application presented to this Court was based on the notion that it did not need to identify any statute or rule of court to support its request that this Court design some sort of ad hoc procedures which could be said to satisfy the requirements of the Fourth Amendment. When this Court requested the government to present legal authority to support its position and to have the benefit of the views of the Department of Justice in Washington, the government withdrew its original application.

The government then presented a similar application to Chief Magistrate Hamilton, purportedly pursuant to power and jurisdiction authorized by Rule 41, F.R.Cr.P. In that separate proceeding, the government unsuccessfully attempted to satisfy the requirements of the Fourth Amendment by attempting to have Chief Magistrate Hamilton make some sort of an ad hoc modification of the express requirements of Rule 41 in order that the subjects of the investigation would be deprived of the...