District Attorney for Plymouth Dist. v. Coffey

• Citation: 434 N.E.2d 1276,386 Mass. 218
• Parties: DISTRICT ATTORNEY FOR the PLYMOUTH DISTRICT v. Robert A. COFFEY.
• Decision Date: 12 May 1982
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1276

434 N.E.2d 1276

386 Mass. 218

DISTRICT ATTORNEY FOR the PLYMOUTH DISTRICT v. Robert A. COFFEY.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Feb. 1, 1982.

Decided May 12, 1982.

Samuel Lazarus, Asst. Dist. Atty., for plaintiff.

Daniel G. Raymondi, Quincy, for defendant.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.

NOLAN, Justice.

The defendant was charged with three violations of G.L. c. 269, § 14A. The complaints alleged that he used the telephone repeatedly for the sole purpose of harassing, annoying, or molesting Elaine Coffey, his former wife. A judge of a District Court, after a hearing, allowed the defendant's motion to suppress "(a)ny portions of the contents of any interception or any evidence derived therefrom as a result of the use of a pen register or similar device pertaining to the telephone number of the defendant's residence." The Commonwealth appealed the allowance of that motion. We transferred the case here on our own motion. We reverse the order allowing the motion to suppress.

The parties have submitted a statement of agreed facts. On or about February 1, 1980, Mrs. Elaine Coffey called the Annoyance Call Bureau of New England Telephone Company (company), to report annoying telephone calls. At her request the company installed an XFVT on-line trapping system, commonly called a cross frame unit trap, on Mrs. Coffey's telephone line. This system allowed the company to determine the source of incoming calls to Mrs. Coffey's line. The trapping system did not, and was not designed to, record any conversation. ¹ The company, on three successive dates, traced the reported annoyance calls to the defendant's unlisted residential telephone number. The defendant was unaware of the existence or operation of the unit. Mrs. Coffey signed complaints against the defendant, alleging violations of G.L. c. 269, § 14A. A search warrant was neither applied for nor obtained by the Commonwealth.

The defendant filed a motion to suppress the evidence, alleging as grounds that the evidence was obtained in violation of his right to be secure from an unreasonable search and seizure as guaranteed by the Fourth Amendment to the United States Constitution, and art. 14 of the Massachusetts Declaration of Rights, set forth in the margin. ² The defendant further alleged that the use of the device without a warrant violated § 605 of the Federal Communications Act of 1934, as amended by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1976). The judge relied on Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and concluded that the installation of a cross frame unit trap at the telephone company office was not a search within the meaning of the Fourth Amendment. He also concluded that the use of the trap did not violate § 605 because that section did not prohibit the use of pen registers or similar devices. However, he concluded that the Commonwealth had conducted an improper search under art. 14 of the Massachusetts Declaration of Rights. In reaching this conclusion, the judge stated his reliance on our decision in District Attorney for the Plymouth Dist. v. New England Tel. & Tel. Co., 379 Mass. 586, Mass.Adv.Sh. (1980) 197, 399 N.E.2d 866. The judge allowed the motion to suppress on the basis of art. 14.

State action. At the outset we must determine whether the degree of State involvement with the challenged conduct is sufficient to raise the constitutional issue. The judge did not discuss this threshold question. It is well settled that the Fourth Amendment to the United States Constitution applies only to searches and seizures conducted by or at the direction of the State. "Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies." Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). Consequently, evidence illegally obtained by private parties and turned over to the police is not a violation of the Fourth Amendment. Id. The same considerations apply to art. 14. Neither the Fourth Amendment nor art. 14 is implicated when the State is not involved in the private "search," even when the evidence is subsequently given to the police. See Commonwealth v. Weiss, 370 Mass. 416, 419, 348 N.E.2d 787 (1976) (search of locker by airport attendant does not bring the Fourth Amendment into play); Commonwealth v. Mahnke, 368 Mass. 662, 676-678, 335 N.E.2d 660 (1975); Commonwealth v. Storella, 6 Mass.App. 310, 313, 375 N.E.2d 348 (1978) (bullet removed from defendant and turned over to police does not implicate Fourth Amendment). The constitutional analysis is triggered only when either the Federal or State government is significantly involved in the search, either participating in it or directing it in some way. United States v. Winbush, 428 F.2d 357, 359 (6th Cir.), cert. denied, 400 U.S. 918, 91 S.Ct. 179, 27 L.Ed.2d 157 (1970). See generally, Admissibility, in Criminal Case, of Evidence Obtained by Search by Private Individual, 36 A.L.R.3d 553 (1971 & Supp. 1981).

It is unnecessary to discuss the minimal level of governmental involvement required for a private search to be considered a State search, because the record before us shows no governmental involvement whatsoever. Neither the judge's findings contained in his memorandum, nor the statement of agreed facts mentions any State participation in or knowledge of the placement of the cross frame unit trap on Mrs. Coffey's telephone line. The defendant's brief alleges that she "had been in contact ... with the local police department." Even assuming this to be true, the defendant does not allege that the police had any knowledge of the telephone company's actions. In short, there is no evidence in the record before us that could conceivably lead to a finding of significant State involvement in the search.

The defendant argues that we should find State action because the telephone company is regulated by the Commonwealth and has developed an agency-partnership relationship with the State. There is no evidence in the record of any relationship between the telephone company and the State. It is settled that the mere fact that a public utility is subject to State regulation does not necessarily imply State action whenever the utility acts. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). In determining whether State action exists, the inquiry does not turn on the relationship between the private entity and the State in general, but rather focuses on the relationship of the State to the challenged action of the regulated entity. Id. at 351, 95 S.Ct. at 453. Here, there is no evidence that the State significantly involved itself in placing the cross frame unit trap on Mrs. Coffey's phone and, therefore, a finding of State action is not warranted. See Bello v. South Shore Hosp., --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 2411, 2416-2418, 429 N.E.2d 1011; State v. Droutman, 143 N.J.Super. 322, 328-335, 362 A.2d 1304 (1976) (activity of telephone company placing trace on defendant's telephone line to determine source of harassing calls was not State action). Because the actions of the telephone company cannot be viewed as State action, the evidence derived from placement of the cross frame unit trap should not be suppressed on the basis of a violation of either the Fourth Amendment or of art. 14. Reliance on our decision in District Attorney for the Plymouth Dist. v. New England Tel. & Tel. Co., 379 Mass. 586, Mass.Adv.Sh. (1980) 197, 399 N.E.2d 866, is misplaced because in that case the district attorney had obtained a warrant and a court order directing the telephone company to install a cross frame unit trap. The State involvement in that case which raised the constitutional issue is absent in the case before us today.

General Laws c. 272, § 99. The defendant argues as an additional ground for his motion to suppress that the evidence was illegally obtained in violation of G.L. c. 272, § 99, the Massachusetts wiretap statute. General Laws c. 272, § 99 P, provides in part that a defendant in a criminal trial may move to suppress "the contents of any intercepted wire or oral communication or evidence derived therefrom" because, among other reasons, the communication was unlawfully intercepted or because the communication was not intercepted in accordance with the terms of § 99.

We decided in District Attorney for the Plymouth Dist., supra at --- - ---, Mass.Adv.Sh. (1980) at 202-203, 399 N.E.2d 866, that the installation of a cross frame unit trap is regulated by the provisions of G.L. c. 272, § 99 includes persons duly authorized to make specified interceptions by a warrant, G.L. c. 272, § 99 D 1 d, as appearing in St. 1968, c. 738, § 1, we held that the interception in that case was authorized by the statute. The present case does not come within the warrant exception because no warrant was sought or obtained, but it clearly comes within the exception provided for in G.L. c. 272, § 99 D 1 a, which provides under heading 1: "Permitted interception of wire or oral communications. It shall not be a violation of this section-a. for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of service, ... or which is necessary to prevent the use of such facilities in violation of section fourteen A of chapter two hundred and sixty-nine of the general laws" (emphasis supplied). This exception expressly permits the telephone company to intercept and disclose communications...