In re Order Authorizing Installation of Pen Reg.

• Decision Date: 14 March 1994
• Docket Number: No. 94-3-CR-MISC-T-23.,94-3-CR-MISC-T-23.
• Citation: 846 F. Supp. 1555
• Parties: In re Application of the UNITED STATES of America FOR AN ORDER AUTHORIZING THE INSTALLATION AND USE OF A PEN REGISTER AND TRAP AND TRACE DEVICE.
• Court: U.S. District Court — Middle District of Florida

846 F. Supp. 1555

In re Application of the UNITED STATES of America FOR AN ORDER AUTHORIZING THE INSTALLATION AND USE OF A PEN REGISTER AND TRAP AND TRACE DEVICE.

No. 94-3-CR-MISC-T-23.

United States District Court, M.D. Florida, Tampa Division.

March 14, 1994.

Kathy Peluso, Asst. U.S. Atty., Tampa, FL, for plaintiff.

OPINION AND ORDER

MERRYDAY, District Judge.

The magistrate judge has twice denied the United States' application for an order authorizing the installation and use of a pen register and trap and trace device.¹ The latter of the two applications, a somewhat supplemented edition of the earlier application, states in part that:

Applicant certifies that the Federal Bureau of Investigation, United States Customs Service, * * * * * County Sheriff's Office and * * * * * Police Department are conducting a criminal investigation of * * * * *, owner/operator of *****, located in * * * * *, Florida; employees of * * * * * located at * * * * *, and others known and unknown, in connection with possible violations of, inter alia, Title 21, United States Code, Sections 846 and 841(a)(1), occurring within the Middle District of Florida and elsewhere; that it is believed that the subjects of the investigation are using telephone number (* * *) * * *_* * * *, listed in the name of * * * * * and located at * * * * *, in furtherance of the subject offenses; and that the information likely to be obtained from the pen register and trap and trace device, that is, a caller ID device, is relevant to the ongoing criminal investigation being conducted by the aforementioned law enforcement agencies in that it is believed that this information will concern the aforementioned offenses.

This Court has jurisdiction to issue an order authorizing the installation and use of the requested pen register and trap and trace device in that the actual pen register equipment and trap and trace device which will be used to monitor telephone number (* * *) * * *_* * * * and will be installed and used at the * * * * * County Sheriff's Office located in * * * * * County, within the Middle District of Florida. United States v. Burford, 755 F.Supp. 607, 611 (S.D.N.Y.1991) (District Court in the Southern District of New York had jurisdiction to issue order authorizing installation and use of pen registers where pen register device was actually "installed and used" at DEA headquarters in New York, even though the telephones being monitored were located in Maryland.), aff'd without opinion, 986 F.2d 501 (2d Cir. 1992), and 990 F.2d 624 (2d Cir.1993).

....

Applicant knows that there are incoming telephone calls to telephone number (* * *) * * *_* * * * and believes the identification of the calling telephone facility will be relevant to the ongoing criminal investigation and that this information will concern the aforementioned offenses.²

The magistrate judge premised his denial on the failure of the United States to advance a "factual demonstration that the pen register is likely to disclose information relevant to an ongoing criminal investigation that has a nexus to the Middle District of Florida." (The magistrate judge's opinion is attached as Exhibit A.) The magistrate judge determined that the statute governing the installation and use of pen registers requires a demonstration of qualifying facts sufficient to establish the correctness of both the United States' assertion of this court's jurisdiction and the pen register's purpose and probable results, i.e., the discovery of information beneficial to an investigation with a nexus to the Middle District of Florida. Asserting energetically that the pen register statute envisions only perfunctory judicial involvement, the United States appeals to the district court. The magistrate judge's order is REVERSED because the application of the United States satisfies the requirements of the applicable statute.

I.

In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), a robbery victim received threatening telephone calls after describing to police the automobile she believed the robbers had driven. The telephone company honored a warrantless and judicially unapproved request from the police to install a pen register to record telephone numbers called from the telephone at the home of a suspect. The pen register recorded a call to the robbery victim, on the strength of which law enforcement procured a warrant, effected a search of the suspect's residence, and arrested the suspect, who was identified in a line-up.

After the suspect's conviction, he sought review of the trial court's denial of his motion to suppress both the pen register results and other incriminating, derivative evidence. Maryland's appellate court affirmed both the conviction and the trial court's denial of the suppression motion. Citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), as the principally controlling precedent and affirming Maryland's decision, the Supreme Court expounded the regnant considerations:

In applying the Katz analysis in this case, it is important to begin by specifying precisely the nature of the state activity that is challenged. The activity here took the form of installing and using a pen register..... Given a pen register's limited capabilities, petitioner's argument that its installation and use constituted a "search" necessarily rests upon a claim that he had a "legitimate expectation of privacy" regarding the numbers he dialed on his phone.

This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud and preventing violations of law." citation omitted Electronic equipment is used not only to keep billing records of toll calls, but also "to keep a record of all calls dialed from a telephone which is subject to a special rate structure." citation omitted Pen registers are regularly employed "to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling." citation omitted Although most people may be oblivious to a pen register's esoteric functions, they presumably have some awareness of one common use: to aid in the identification of persons making annoying or obscene calls. citations omitted Most phone books tell subscribers, on a page entitled "Consumer Information," that the company "can frequently help in identifying to the authorities the origin of unwelcome and trouble-some calls." citation omitted Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

....

Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not "one that society is prepared to recognize as `reasonable.'" Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties....

.... When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business ....

We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not "legitimate." The installation and use of a pen register, consequently, was not a "search," and no warrant was required.

442 U.S. at 739-46, 99 S.Ct. at 2580-83, 61 L.Ed.2d at 230. See also United States v. Diaz-Lizaraza, 981 F.2d 1216, 1223 (11th Cir.1993) (no reasonable expectation of privacy while operating a "beeper"); United States v. Thompson, 936 F.2d 1249, 1250 (11th Cir.1991) (follows Smith and finds no exclusionary rule extending to pen registers).

Smith compels the conclusion that (absent some presently unforeseen, aggravating circumstance) no constitutionally cognizable issues inhere in law enforcement's resort to a pen register. The result in Smith is as definitive as the result in a case at common law is likely to be. The Supreme Court has ruled dispositively. Orderliness requires good faith compliance from the lower courts. While the possibility exists that some fair-minded and reasonable jurists remain uneasy about the result in Smith, the nature of finality in cases presenting litigable constitutional issues precludes further debate about the effect of Smith (excluding, of course, the everlasting but imponderable effect of changes in the composition and disposition of the Supreme Court).³

II.

In 1986, Congress enacted 18 U.S.C. §§ 3121-27, which governs pen registers.⁴ Section 3121(a) provides, with a few irrelevant exceptions, that "no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801, et seq.)."...