District Attorney for Plymouth Dist. v. New England Tel. & Tel. Co.

• Decision Date: 24 January 1980
• Citation: 379 Mass. 586,399 N.E.2d 866
• Parties: DISTRICT ATTORNEY FOR the PLYMOUTH DISTRICT, v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 866

399 N.E.2d 866

379 Mass. 586

DISTRICT ATTORNEY FOR the PLYMOUTH DISTRICT, v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 2, 1979.

Decided Jan. 24, 1980.

John P. Corbett, Asst. Dist. Atty., for plaintiff.

Harry A. Davenport, Boston (Casimir S. Lopata, Cambridge, with him), for defendant.

John Reinstein, Judith H. Mizner, Boston, and David Carson, for the Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

WILKINS, Justice.

On March 2, 1979, the district attorney for the Plymouth District (district attorney) obtained an order from a judge of the Superior Court, pursuant to a motion to compel technical assistance, directing the New England Telephone & Telegraph Company (company) to assist the district attorney in the installation of a cross frame unit trap or similar device on a particular telephone line. A cross frame unit trap records the telephone numbers of incoming calls, or attempted incoming calls, to a telephone line under surveillance. The company argues that the judge had no authority to enter the order. We conclude that the judge had that authority and, in the circumstances, acted within his discretion.

We summarize the background as set forth in the judge's memorandum of decision and report. ¹ In early 1979, the district attorney was engaged in an extensive criminal investigation into illegal gaming operations in Plymouth County. On February 16, 1979, a judge of the Superior Court issued a warrant and order, pursuant to G.L. c. 272, § 99 E, authorizing the interception of wire communications to and from the telephone number which was subject to the warrant. That order also explicitly authorized "the installation of a pen register or other device, if practicable, designated for the purpose of ascertaining the telephone numbers called by the subjects . . . and the telephone numbers of instruments used in making calls to the suspect telephone in furtherance of the conspiracy." While the wiretap warrant was in the process of being executed, the district attorney sought and obtained the order compelling the company to provide technical assistance in installing a cross frame unit trap in the company's Brockton switching station. This installation would result in the recording of the numbers of certain incoming local calls. ²

1. Constitutional considerations. The company advances no constitutional arguments. ³ It does not contend that the State lacks constitutional authority to require compensated assistance from it, but only that the judge had no statutory authority to do so. The Supreme Court of the United States has upheld a Federal court order directing a telephone company to provide Federal law enforcement officials assistance in implementing an order authorizing the use of a pen register. United States v. New York Tel. Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). Neither the opinion of the Court nor the dissenting opinions indicate that, assuming appropriate authority for a court to enter such an order, there is any significant Federal constitutional problem. The principal dissenting opinion refers to art. 14 of the Massachusetts Declaration of Rights, concerning unreasonable searches, and suggests, in light of historical abhorrence to "general warrants" and "writs of assistance," that courts should be reluctant to imply authority for court orders commanding third party assistance to law enforcement officials. United States v. New York Tel. Co., supra at 180 and at 190, 98 S.Ct. 364 (Mr. Justice Stevens dissenting in part).

The company does not, and arguably cannot, present constitutional objections which might be advanced by others, most particularly the argument that the recording of the source of an incoming call is an unreasonable search in violation of the constitutional rights of a person who dials the subject telephone number. It must be granted that, in many instances, the caller will never learn of the intrusion and that, unless considered in a preinstallation proceeding such as this, his or her constitutional rights might be infringed without any opportunity for judicial protection. The Supreme Court of the United States has recently held, however, that the use of a pen register in a telephone company office (to record numbers dialed from a particular line) is not a search within the meaning of the Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). We earlier had suggested, in a contrary tone, that the use of a pen register required compliance with the probable cause requirements of the Fourth Amendment (see Commonwealth v. Vitello, 367 Mass. 224, 279 n. 33, 327 N.E.2d 819 (1975)). Presumably, the Supreme Court would not regard the installation of a cross frame unit trap at a telephone company office as a search in the constitutional sense. See Smith v. Maryland, supra at 742-745, 99 S.Ct. at 2581-2582.

We, of course, might adopt a broader definition of search under art. 14 of the Declaration of Rights than prevails under the Constitution of the United States. See Commonwealth v. Ortiz, --- Mass. ---, --- - --- ^a, 380 N.E.2d 669 (1978). The amicus brief filed by the Civil Liberties Union of Massachusetts urges us to do so and to strike down the order on State constitutional grounds.

The record in this case, however, provides no adequate basis for reaching any conclusion about the constitutional rights of persons who dial the number of the surveyed telephone line. We do not have before us the information on which probable cause to survey the telephone line was based. We know that a judge of the Superior Court thought it sufficient to conclude that a wiretap was justified in the circumstances, and he issued an order and warrant to that effect. Thus, actual conversations on the telephone line were monitored and perhaps recorded. This process included incoming, as well as outgoing, calls. The monitoring and recording of such calls constitute, at least in most instances, a greater intrusion into a caller's privacy than does the use of a cross frame unit trap (United States v. New York Tel. Co., 434 U.S. 159, 170, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977)), and the installation of a wiretap according to statutory procedures has withstood constitutional challenge. See Commonwealth v. Vitello, 367 Mass. 224, 244 n. 5, 327 N.E.2d 819 (1975). Compliance with statutory requirements itself affords considerable protection against any unconstitutional intrusion. Consequently, we decline in this case, where statutory procedures were followed in obtaining the right to survey the subject telephone line, to pass on the possible rights of third persons to object on State constitutional grounds. ⁴

2. Statutory authority. The company contends that a judge of the Superior Court lacks authority to issue an order directing it to assist in the installation of a cross frame unit trap. Some of the company's arguments seek our reconsideration of conclusions reached in New England Tel. & Tel Co. v. District Attorney for the Norfolk Dist., --- Mass. ---, --- - --- ^b, 373 N.E.2d 960 (1978). There, we held that a judge of the Superior Court had authority to order the company to provide technical assistance to law enforcement officers to make an unobtrusive wiretap pursuant to a warrant issued under G.L. c. 272, § 99. We followed in substance the reasoning of the Supreme Court of the United States in United States v. New York Tel. Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). We adhere to our earlier decision and discuss only those arguments which seek to distinguish the case before us from that earlier one.

The company argues that an order concerning the installation of a cross frame unit trap is not authorized by G.L. c. 272, § 99, and asserts that § 99 occupies the field of statutory authority in Massachusetts. The wiretap order in New England Tel. & Tel. Co. v. District Attorney for the Norfolk Dist. was clearly authorized by § 99. We have already held that a separate order under § 99 authorizing the use of a pen register by law enforcement officials is not required where a valid order authorizing a simultaneous wiretap interception has been issued pursuant to applicable Federal and State statutes. Commonwealth v. Vitello, 367 Mass. 224, 279, 327 N.E.2d 819 (1975). There is no compelling reason to treat a cross frame unit trap any differently in this respect from a pen register.

We agree with the judge below that § 99 expressly authorizes a court order concerning the installation of a cross frame unit trap. The exceptions to the prohibitions of § 99 include "any person duly authorized to make specified interceptions by a warrant issued pursuant to this section." G.L. c. 272, § 99 D 1 d, as appearing in St.1968, c. 738, § 1. An interception is defined, with certain irrelevant exceptions, to include the secret recording of "the contents of any wire or oral communication through the use of any intercepting device" (emphasis supplied). G.L. c. 272, § 99 B 4. "Contents" in turn is defined broadly to include, among other things, "any information concerning the identity of the parties to such communication or the existence . . . of that communication." G.L. c. 272, § 99 B 5. It is true that the information recorded by a cross frame unit trap (or a pen register) does not always establish that there was an oral communication, because the dialed call may not have been completed. However, the recording of the telephone number of the line from which a call was attempted is "information concerning the identity of" a party to a communication and concerning "the existence . . . of that communication." Even if the call is not completed, the caller has initiated a wire communication to the surveyed telephone line which is intended to cause that telephone to ring and the existence of that...