Bixler v. Hille, 42208
| Citation | 80 Wn.2d 668,497 P.2d 594 |
| Decision Date | 25 May 1972 |
| Docket Number | No. 42208,42208 |
| Parties | Fern BIXLER, Appellant, v. Karen HILLE, Respondent. |
| Court | Washington Supreme Court |
Todd & Goodloe, William C. Goodloe, Seattle, for appellant.
Jonson & Jonson, Richard E. Kane, Seattle, for respondent.
The question herein is the admissibility of pen register tapes.
This is an action seeking money damages and an injunction. Plaintiff and defendant are single women, living in the Seattle area. Before the institution of this action plaintiff was annoyed by ringing of her telephone. Many of the times the telephone rang in the night. Sometimes it would ring once, sometimes more, and, sometimes it would continue to ring until plaintiff finally answered. The caller's voice was never heard.
As a result, plaintiff became nervous, upset and was fearful for her safety. She was unable to learn the identity of the caller and asked the assistance of the telephone company. The telephone company found the calls came from Mercer Island.
Plaintiff was instructed to keep a log of calls and also to make a list of persons whom she knew on Mercer Island. Eventually, plaintiff gave the name of defendant to the telephone company and a pen register was placed on defendant's line. This device was located in the telephone office and recorded a series of marks representing the numbers dialed from defendant's telephone.
After getting this information, the telephone company representatives suggested to plaintiff several possible courses of action. The company could itself act, the matter could be referred to public authorities, or plaintiff could employ her own attorney. Plaintiff employed an attorney. Only then was plaintiff given access to the information obtained by the use of the pen register. Thereafter, this action was instituted.
Defendant's contention the tapes are not admissible is based upon RCW 9.73.030. The pertinent part of the statute reads (I)t shall be unlawful for any individual, . . . to intercept, record or divulge any:
(1) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;
The difference between RCW 9.73.030 and the federal statute, 47 U.S.C. § 605, lies in the consent required. The federal statute requires consent of the sender, the state statute requires consent of all parties to the communication.
The pen register is a 'device'. It does not, however, record or intercept any conversation or communication. The pen register shows only what number has been dialed. It does not show if the receiving telephone even rang, if it was answered, nor if there was any conversation. It records the impulses from dialing and no more.
The use of the pen register has been held not to be an 'interception' of a telephone call. State v. Hulsey, 15 Ohio App.2d 153, 239 N.E.2d 567 (1968); United States v. Escandar, S.D.Fla., 319 F.Supp. 295 (1970); People v. Schneider, 45 Misc.2d 680, 257 N.Y.S.2d 876 (1965). It was said in Antonowicz v. New York Tel. Co., 50 PUR3d 463, 465 (1963):
(D)efendant did not overhear, record, or monitor a telephone communication, but merely took lawful means to identify particular telephone numbers and lines involved in the annoyance and nuisance calls.
Words in a statute are normally given their ordinary meaning. State ex rel. Beam v. Civil Serv....
To continue reading
Request your trial
-
State v. J-R Distributors, Inc.
...rules of statutory construction state that words in a statute are to be given their usual and ordinary meaning. Bixler v. Hille, 80 Wash.2d 668, 497 P.2d 594 (1972); Rena-Ware Distrib., Inc. v. State, 77 Wash.2d 514, 463 P.2d 622 (1970). In defining ambiguous statutory language we must dete......
-
State v. Gunwall
...to intercept telephonic information concerning illegal drug transactions. To the extent that our decision in Bixler v. Hille, 80 Wash.2d 668, 497 P.2d 594 (1972) ruled that a pen register device does not intercept a telephonic communication (such interceptions being prohibited by a predeces......
-
State v. Jones
...their usual, ordinary, commonly accepted and full meaning. Hansen v. Lybbert, 75 Wash.2d 671, 453 P.2d 650 (1969). Bixler v. Hille, 80 Wash.2d 668, 497 P.2d 594 (1972). We assume then that the legislature understood the meaning of these words when it used them; furthermore, since it specifi......
-
Jeanneret v. Rees
...we must be guided by the cardinal rule that words in a statute are to be given their ordinary and usual meaning. Bixler v. Hille, 80 Wash.2d 668, 497 P.2d 594 (1972), and cases cited The legislature has provided certain listed exceptions to the requirements of registration in RCW 18.27.080.......
-
Survey of Washington Search and Seizure Law: 1988 Update
...user's privacy interests. State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986) (specifically overruling Bixler v. Hille, 80 Wash. 2d 68, 497 P.2d 594 (1972) and declining to follow Smith v. Maryland, 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979)). The Gunwall court found that a ho......
-
Survey of Washington Search and Seizure Law: 1998 Update
...interests. State v. Gunwall, 106 Wash. 2d 54, 69, 720 P.2d 808, 816 (1986) (specifically overruling Bixler v. Hille, 80 Wash. 2d 668, 497 P.2d 594 (1972) and declining to follow Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)). The Gunwall court found that a home te......
-
Survey of Washington Search and Seizure Law: 2005 Update
...State v. Gunwall, 106 Wn.2d 54, 69, 720 P.2d 808, 816 (1986) (en banc) (specifically overruling Bixler v. Hille, 80 Wn.2d 668, 497 P.2d 594 (1972) (en banc), which held that a pen register does not intercept telephonic communications, and declining to follow Smith v. Maryland, 442 U.S. 735,......