Hodge v. Mountain States Tel. & Tel. Co., 74-2162

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation555 F.2d 254
Docket NumberNo. 74-2162,74-2162
PartiesJames L. HODGE, Plaintiff-Appellant, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Foreign Corporation, Defendant-Appellee.
Decision Date08 June 1977

I. Harrison Levy, Phoenix, Ariz., argued for plaintiff-appellant.

Roger C. Mitten, Fennemore, Craig, von Ammon & Udall, Phoenix, Ariz., argued for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before MERRILL and HUFSTEDLER, Circuit Judges, and RENFREW, * District Judge.

RENFREW, District Judge:

Appellant James L. Hodge appeals from an order granting summary judgment in favor of appellee Mountain States Telephone and Telegraph Company. In his complaint appellant asserted a number of federal and state claims, all of which relate to appellee's installation of a pen register 1 on his telephone. Appellant's federal claims were that the actions taken by employees of appellee in installing the pen register and divulging some of the information recorded by the device violated his rights under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq.; Section 605 of the Communications Act of 1934, 47 U.S.C. § 605; and the Fourth Amendment to the Constitution of the United States. Appellant's state claims were asserted under the doctrine of pendent jurisdiction. The district court granted summary judgment against appellant as to all claims. 2 For reasons somewhat different from those relied upon by the district court, we affirm as to the federal claims; the state claims are remanded with instructions to dismiss for lack of federal jurisdiction.

After receiving a number of complaints of obscene and annoying telephone calls, appellee began an investigation of those calls in the first part of 1970. Obtaining the cooperation of a woman subscriber who had been the target of a number of obscene calls, security agents employed by appellee traced one such call through the telephone company circuits to appellant's telephone. Soon thereafter the security agents attached a pen register to appellant's telephone. No attempt was made to obtain a search warrant. The device remained in place recording the numbers dialed from that telephone for a period of approximately seventeen days. As part of the investigation, the security agents telephoned the subscribers whose numbers were recorded by the pen register to ask if they were having any trouble with their telephone service. If asked why they were calling, the security agents would explain that the appellee had received complaints that obscene telephone calls were being made and that there was an indication that the subscriber's number might have been called.

Appellant was tried and convicted by a jury on three counts of illegal use of the telephone and one count of using the telephone to extort money. During the trial, security agents who had installed the pen register and a central office foreman who had supervised the security agents gave testimony based at least in part on the information recorded by the device. In a complicated series of post-trial rulings in the Arizona state courts, the jury verdict was set aside. No subsequent criminal proceedings have been brought. Our only concern is with the civil action brought by appellant.


Appellant asserted a claim under 42 U.S.C. § 1983 for the appellee's alleged violation of appellant's Fourth Amendment rights in installing the pen register. This claim was properly rejected by the district court.

Assuming arguendo that the requisite state action could be found, 3 it is clear that no substantive Fourth Amendment right of the appellant has been violated by the appellee. This Court has held that "the expectation of privacy protected by the Fourth Amendment attaches to the content of the telephone conversation and not to the fact that a conversation took place." United States v. Baxter, 492 F.2d 150, 167 (9 Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974), citing United States v. Fithian, 452 F.2d 505, 506 (9 Cir. 1971). Because a pen register record does not indicate whether the calls placed on the monitored telephone were completed, it does not even establish that "a conversation took place." Nevertheless, we recognize that pen registers are not squarely within the existing precedent. In Baxter and Fithian we rejected a claim that the Fourth Amendment applies to telephone company billing records. The public awareness that such records are routinely maintained was held to negate any constitutionally sufficient expectation of privacy 4 regarding the records. 5 Although a pen register record differs from telephone company billing records, we have no difficulty in now holding that the information recorded is not protected by the Fourth Amendment.

A pen register record for a particular telephone contains information different from the telephone company billing records for that telephone. Telephone company billing records show only completed calls, not, as with a pen register, the numbers dialed. Furthermore, a pen register record shows the dialing of telephone numbers which, even if completed, would not be shown by billing records, because the numbers are within a local dialing area. It could be argued that since no records of such calls are normally maintained, an expectation of privacy exists. This admitted difference is not, in our view, of constitutional dimension 6 and is more than offset by the fact that pen register records are even farther removed than billing records from the content of the communications. Viewed in the round, the information recorded by pen registers is not entitled to Fourth Amendment protection. 7 This conclusion has also been reached by the Court of Appeals for the Fifth Circuit in United States v. Clegg, 509 F.2d 605, 610 (5 Cir. 1975). 8


Appellant also asserted a claim under 18 U.S.C. § 2520 for the use of the pen register in alleged violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. ("Title III"). We hold that the district court was correct in holding that the use of the pen register did not constitute a violation of Title III and that appellant therefore was not entitled to recover under § 2520.

No extended statutory exegesis is necessary to dispose of appellant's argument. Title III prohibits the interception of wire or oral communications except by law enforcement officials under carefully defined circumstances. The disclosure and use of intercepted communications is prohibited unless the interception was authorized under the statute. For our present purposes, the statutory linchpin is the concept of interception, which is defined by § 2510(4) 9 as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device." (Emphasis added.) Because a pen register is incapable of making an aural acquisition of any communication, the use of the device does not fall within the statute. This conclusion is further buttressed by the legislative history of Title III. The Senate Report includes the following statement regarding the question now before us:

"Paragraph (4) defines 'intercept' to include the aural acquisition of the contents of any wire or oral communication by any electronic, mechanical, or other device. Other forms of surveillance are not within the proposed legislation. See Lee v. United States, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Corngold v. United States, 367 F.2d (1) (9th 1966). An examination of telephone company records by law enforcement agents in the regular course of their duties would be lawful because it would not be an 'interception.' (United States v. Russo, 250 F.Supp. 55 (E.D.Pa.1966) ). The proposed legislation is not designed to prevent the tracing of phone calls. The use of a 'pen register,' for example, would be permissible. But see United States v. Dote, 371 F.2d 176 (7th 1966). The proposed legislation is intended to protect the privacy of the communication itself and not the means of communication." S.Rep. No. 1097, 90th Cong., 2d Sess. 90, U.S.Code Cong. & Admin.News 1968, pp. 2112, 2178 (1968) (emphasis added).

Other courts that have had occasion to consider the issue have also concluded that pen registers are not controlled by Title III. See, e. g., United States v. Falcone, 505 F.2d 478, 482 (3 Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975); United States v. Brick, 502 F.2d 219, 223 (8 Cir. 1974). See also, United States v. Giordano, 416 U.S. 505, 553, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part).

There is no statutory basis for appellant's argument that an aural acquisition of the contents of a telephone call, triggering the provisions of Title III, occurs when the persons whose telephone numbers were recorded are questioned about the call in a subsequent investigation. Appellant has not suggested that the subsequent investigations involved any independent violation of law. Certainly, appellant as one party to a telephone conversation has no right under Title III to prevent another party to that conversation from discussing it in response to legitimate questions. The pen register is a device used typically in the early stages of an investigation to generate leads for further inquiry. In excluding the use of pen registers from the scope of Title III, Congress certainly did not intend to outlaw the subsequent use of the information obtained from the device. Arguing, in effect, that two rights make a wrong, appellant would have us adopt the doctrine that the fruit of the non-poisonous tree cannot be used by investigatory authorities. This we decline to do.


We also hold that the district court did not err in concluding that appellant could not base a claim on 47 U.S.C. § 605. Only the first...

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