Davis v. United States

• Decision Date: 25 July 1978
• Docket Number: No. 9830.,9830.
• Citation: 390 A.2d 976
• Parties: James Murphy DAVIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

390 A.2d 976

James Murphy DAVIS, Appellant, v. UNITED STATES, Appellee.

No. 9830.

District of Columbia Court of Appeals.

Argued April 4, 1977.

Decided July 25, 1978.

Bennie M. Laughter, Washington, D. C., for appellant. Alan B. Soschin, Washington, D. C., appointed by this court, was on the brief, for appellant.

Mary Ellen Abrecht, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and William D. Pease, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEBEKER, HARRIS and MACK, Associate Judges.

MACK, Associate Judge:

Appellant challenges his conviction of various violations of the municipal gambling laws, where that conviction resulted primarily from evidence gathered through the use of a pen register and subsequent wiretap of his telephone. We affirm.

Appellant was found guilty by a jury of six counts of the indictment charging him and others with (1) conspiracy to operate a lottery in violation of D.C. Code 1973, § 22-1501; (2) operating a lottery in violation of the same provision; (3) possession of numbers slips in violation of id. § 22-1502; (4) maintaining a premises for gambling purposes in violation of id. § 22-1505; (5) conspiracy to accept wages on horse races in violation of id. § 22-1508; and (6) accepting wagers on horse races in violation of that same provision.

The government's evidence established that during the spring of 1973, the Metropolitan Police Department received information about appellant's gambling activities in the vicinity of 18th Street and Columbia Road, N.W., from an informant who had assisted the FBI with other investigations. As a result of that information, Officers William Wagner and Daniel Dooney conducted a surveillance of 1844 Kalorama Road, N.W. between July 12 and July 28, 1973; they concluded that the premises were being used as an office for a gambling operation, and that the telephone was used to receive information from a race track and to relay that information to other offices. On July 18, the officers observed a man place a paper bag in a trash can in front of 1862 Kalorama Road, N.W., after coming out of 1844 Kalorama Road. Officer Wagner retrieved the bag from the trash can and found inside a scratch sheet dated July 17, 1973, on which race results were written, and various other papers generally associated with the operation of a numbers lottery. On August 3, the details of their observations and a description of the papers were presented to Judge Edmond Daly with a request for authorization to attach a pen register (a device to record the numbers dialed) to one of the two telephone lines at 1844 Kalorama Road.¹ The pen register was authorized for up to seven days, with a progress report to be given on the fourth day.

The operation of the pen register began on August 4, and revealed a pattern of phone calls supporting the officers' belief that the telephone was being used to conduct a gambling operation. An incoming call would be received every afternoon and would be followed by a number of outgoing calls made in rapid succession. Most of the telephone numbers could not be linked to individuals. On September 10, the officers presented this information to Chief Judge Harold Greene in a request for an authorization for a wiretap of the same telephone, which was granted for a period of fifteen days.

On or about September 15, 1973, Officer Wagner obtained a key from the building manager of 1844 Kalorama Road, entered the apartment building and proceeded to the third floor where he waited in the hall-way outside Apartment 9. At a pre-arranged time, Officer Dooney called the 234-8376 number to verify the location of the telephone. A search warrant was obtained and executed on September 21, 1973; appellant was found inside the apartment and arrested.

Appellant makes numerous assignments of error, three of which merit discussion here: (1) that there was insufficient probable cause to support the court order authorizing attachment of a pen register to the telephone at Kalorama Road; (2) that the trial court erred in not granting a motion to dismiss the indictment based on discriminatory enforcement of local gambling laws; and (3) that the trial court denied appellant his Sixth Amendment Right to compulsory process by quashing subpoenaes served on government officials.²

I

A pen register is a device attached to a given telephone line, usually at a central telephone office. A pulsation of the dial on the line to which the pen register is attached records dashes on a paper tape equal in number to the number dialed. The paper tape then becomes a permanent and complete record of outgoing numbers called on the particular line. With respect to incoming calls, the pen register only records a dash for each ring of the telephone; it does not identify the number from which the incoming call originated. The pen register cuts off after the number is dialed on outgoing calls and after the ringing is concluded on incoming calls without determining whether the call is completed or the receiver is answered. Thus, there is neither a recording nor a monitoring of the conversation. United States v. Caplan, 255 F.Supp. 805, 807 (E.D.Mich.1966); see also United States v. Guglielmo, 245 F.Supp. 534, 535 (N.D.Ill.1965), aff'd sub nom., 371 F.2d 176 (7th Cir. 1966).

Appellant's contention, in essence, is that the affidavit in support of the pen register order made an insufficient showing of probable cause. The government contends, on the other hand, that it has never been established in this jurisdiction that it is required to establish probable cause in order to utilize a pen register device.

The Supreme Court has recently decided that pen registers do not fall within the scope of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1968) prescribing the procedures by which a wiretap order must be obtained. The Act defines "intercept" to mean "the aural acquisition of the contents of any wire or oral communication . . ." Id. § 2510(4). Because they do not accomplish "aural acquisition" or acquire the contents of communications, pen registers fall outside the purview of the Act. Nor are they otherwise prohibited or regulated by the wiretap provisions of the District of Columbia Code. See D.C. Code 1973, §§ 23-541-546. United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). But the Supreme Court has not determined, nor do we, whether a pen register order must be based on a showing of probable cause. See United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (Mr. Justice Powell, with whom The Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist join, concurring in part and dissenting in part). We need not decide whether the use of a pen register constitutes a search within the meaning of the 4th Amendment, since, assuming its applicability, the constitutional guarantees were satisfied here.

The affidavit in support of the order indicated that an informant who had been providing information to law enforcement officials for a period of four years told police officers that appellant was involved in a numbers operation in the area of 18th Street and Columbia Road, N.W. The informant said that street writers delivered their work to the Columbia Valet at 2448 18th Street, N.W., and that about 11:00 a. m. the work was transferred by a runner from the Columbia Valet to the main office nearby. The informant also reported that numerous bets were accepted by telephone at the main office. The informant, himself a gambler, obtained this information from conversations with appellant and other gamblers.

On July 12, 1973, Officers Wagner and Dooney began a surveillance of the Columbia Valet. They saw a Mr. Santilli leave the Valet carrying a water jug around 11:00 a. m., and saw him carrying that same jug inside 1844 Kalorama Road. At 6:00 p. m. they saw appellant leave 1844 Kalorama Road carrying a similar jug. On the next day the officers saw Mr. Santilli enter the Columbia Valet at 10:45 a. m. carrying a brown paper bag and leave at 11:08 a. m. carrying a water jug which he again took to 1844 Kalorama Road, N.W. Around 11:30 another man entered 1844 Kalorama Road carrying newspapers and shortly after 12:00 appellant entered. On July 16, 17, 18, 19 & 28, essentially similar observations were made: Mr. Santilli would carry a jug from the Columbia Valet to 1844 Kalorama Road at about 11:00 a. m., and appellant would bring in newspapers about the same time. On July 19, an unidentified man came out of 1844 Kalorama Road and deposited a brown paper bag in a trash can in front of 1862 Kalorama Road. In examining the contents of the trash can, the officers found six newspapers: two copies of the Baltimore American, two copies of the Washington Post and two copies of the New York Daily News, and in addition a brown paper bag containing an Armstrong Daily newspaper dated July 17, 1973, with the results of the horse races and the amount of money paid on each bet. At the top of the Armstrong paper "was the "number" for July 17, 1973.

Both Santilli and appellant had previous records for gambling violations. Telephone company records revealed only two telephones in operation at 1844 Kalorama Road, N.W. One was listed to the building's resident manager, who had no criminal record and who was away from his apartment in the afternoon. The other telephone, the 234-8476 number, was listed to Apartment 9 in the name of one S. Corbin, who was a chef at a cafe which was known for gambling activity. All of this information was a part of the affidavit presented to Judge Daly along with the request for authorization for a pen register. Appellant challenges it as being...