Michigan Bell Tel. Co. v. U.S.

• Decision Date: 07 October 1977
• Docket Number: Nos. 76-2202,76-2203,s. 76-2202
• Citation: 565 F.2d 385
• Parties: MICHIGAN BELL TELEPHONE COMPANY, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 385

565 F.2d 385

MICHIGAN BELL TELEPHONE COMPANY, Petitioner, v. UNITED STATES of America, Respondent.

Nos. 76-2202, 76-2203.

United States Court of Appeals, Sixth Circuit.

Argued June 23, 1977.

Decided and Filed Oct. 7, 1977.

Frederic L. Wyckoff, Detroit, Mich., for petitioner in No. 76-2202.

Richard E. Zuckerman, Detroit Strike Force, United States Dept. of Justice, C. Stanley Hunterton, Philip M. Van Dam, U. S. Atty., Detroit, Mich., for respondent in No. 76-2202.

Conrad J. Ankiel, Frederic L. Wyckoff, Detroit, Mich., for petitioner in No. 76-2203.

C. Stanley Hunterton, Detroit Strike Force, U. S. Dept. of Justice, Richard E. Zuckerman, Philip M. Van Dam, U. S. Atty., Detroit, Mich., for respondent in No. 76-2203.

Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.

PHILLIPS, Chief Judge.

Two questions are presented on this appeal: (1) Does a United States district court have authority, upon showing of probable cause, to require a telephone company to install card drops and other mechanical or electrical devices designed to trap and trace incoming telephone calls? and (2) Does a district court have authority to direct the telephone company to perform manual tracing operations and provide the facilities and technical assistance necessary for the implementation of the order of the court, with all reasonable expenses incurred by the Company to be reimbursed by the Government?

We answer the first question in the affirmative on the authority of United States v. Southwestern Bell Telephone Co., 546 F.2d 243 (8th Cir. 1976), petition for cert. pending, 45 U.S.L.W. 3638 (U.S. Apr. 22, 1977); Application of the United States of America in the Matter of an Order Authorizing the Use of a Pen Register or Similar Mechanical Device, 538 F.2d 956 (2d Cir. 1976), rev. sub nom. United States v. New York Telephone Co., --- U.S. ----, 98 S.Ct. 364, 54 L.Ed.2d 376; and United States v. Illinois Bell Telephone Co., 531 F.2d 809 (7th Cir. 1976). We answer the second question in the affirmative on authority of the foregoing Seventh and Eighth Circuit opinions and the dissenting opinion of Judge Mansfield in the Second Circuit case, 538 F.2d at 963.

All three of the foregoing cases involved pen registers. We conclude that the same legal principles applicable to pen registers also control with respect to the devices for trapping and tracing telephone calls involved in the present case.

On May 24, 1976, the district court entered an order pursuant to 18 U.S.C. §§ 2510-20 (Title III), authorizing the United States to intercept wire communications and to install a pen register. These interceptions related to a continuing investigation of illegal gambling operations. According to an affidavit filed with the district court, the wiretaps confirmed the existence of an illegal numbers operation using the telephone lines. However, it became apparent to the Government investigators that more sophisticated techniques would be required because the gambling operators had established procedures thwarting the effectiveness of the wiretaps and pen registers. Investigators were unable to locate the central bookkeeper for the operation and other links in the organization. The gambling operators had established a routine whereby the monitored telephones never called the next higher links in the organization. Since a pen register only records the telephone numbers dialed by a monitored telephone, the use of the pen register to identify the central bookkeeper was impossible. ¹ To complicate the investigation further, some messages were scrambled by an electronic device on one end and unscrambled on the other.

A motion was filed by the Government in the district court, supported by an affidavit executed by a special FBI agent, requesting an order authorizing the use of trapping and tracing equipment. District Judge Philip Pratt entered an order on June 3, 1976, granting the trace of two telephones which had been included in the wiretap order of May 24. The district judge found probable cause to believe that individuals named in the order were committing offenses involving an illegal gambling business in violation of the laws of Michigan and 18 U.S.C. § 1955; and that the two telephones were being used in making outgoing calls and in receiving incoming calls in connection with the commission of the described offenses. The order provided as follows:

The Michigan Bell Telephone Company is hereby authorized and ordered to:

(a) Install card drops and other mechanical or electrical devices, and/or to perform manual tracing operations designed to trap and trace incoming telephone calls, to the extent technically possible, to the telephone bearing (the two designated telephone numbers).

It is further ordered that:

(b) The Michigan Bell Telephone Company is to perform manual tracing operations, to the extent technically possible, only when specifically requested to do so by Special Agents of the Federal Bureau of Investigation.

(c) It is further ordered that the Michigan Bell Telephone Company is to be reimbursed for all reasonable expenses incurred in complying with this Order.

It is further ordered that:

(d) The use of card drops, other mechanical or electrical devices, and manual tracing operations designed to trap or trace incoming calls to said telephones, shall continue until the identification of all telephone numbers from which incoming calls are made to said telephones leads to the identities of the subscribers of those telephone numbers, or for a period of twenty (20) days from the date of this Order, whichever is earlier.

It is further ordered that:

(e) The Michigan Bell Telephone Company may bring on a hearing regarding compliance with this Order upon oral notice to the Court and to C. Stanley Hunterton, Special Agent, United States Department of Justice, if it determines that compliance is disruptive of Michigan Bell Telephone Company services.

It is further ordered that:

(f) All information gathered by reason of the May 28, 1976, Order of this Court be turned over to Special Agents of the Federal Bureau of Investigation, and that upon the signing of the instant Order, the Order of May 28, 1976, shall be superseded by this Order.

On August 5, 1976, a similar order was issued by District Judge James P. Churchill.

Michigan Bell Telephone Company filed motions in the district court to quash the orders and for a stay. These motions were overruled after oral hearings. Michigan Bell appeals from both orders, and the two cases were consolidated for hearing in this court. We affirm.

I.

Even though both orders now have expired by their terms, we hold that the appeal is not moot. This is a classic example of a controversy that is capable of repetition, yet evading review. Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Southern Pacific Terminal Co. v. ICC,219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911).

Prior to 1968, § 605 of the Communications Act of 1934 ² served as a federal statutory restraint upon the Government's use of electronic surveillance in criminal investigations. The Supreme Court held that wiretap information obtained in contravention of this statute was inadmissible as evidence. Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968); Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937). This proscription was extended to condemn the use of pen registers. United States v. Dote, 371 F.2d 176 (7th Cir. 1966), aff'g United States v. Guglielmo, 245 F.Supp. 534 (N.D.Ill.1966); United States v. Caplan, 255 F.Supp. 805 (E.D.Mich.1966).

In 1968 Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. §§ 2510-20), providing statutory authorization for the use of electronic surveillance by law enforcement officers within the strict standards set forth in the Act. In addition, Title III amended § 605 of the Communications Act of 1934. 47 U.S.C. § 605. It is well settled that § 605, as revised by this amendment, no longer prohibits the use of pen registers. ³ It is equally clear that Congress excluded pen registers from the scope of Title III. ⁴

In his separate opinion, concurring in part and dissenting in part, in United States v. Giordano, 416 U.S. 505, 553-54, 94 S.Ct. 1820, 1844, 40 L.Ed.2d 341 (1974), Mr. Justice Powell said:

The installation of a pen register device to monitor and record the numbers dialed from a particular telephone line is not governed by Title III. This was the conclusion of the District Court in the instant case and of the courts in United States v. King, 335 F.Supp. 523, 548-549 (S.D.Cal.1971), and in United States v. Vega, 52 F.R.D. 503, 507 (EDNY 1971). This conclusion rests on the fact that the device does not hear sound and therefore does not accomplish any 'interception' of wire communications as that term is defined by 18 U.S.C. § 2510(4) 'the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device' (emphasis added). Any doubt of the correctness of this interpretation is allayed by reference to the legislative history of Title III. The Report of the Senate Committee on the Judiciary in discussing the scope of the statute explicitly states '(t)he use of a "pen register," for example, would be permissible.' S.Rep.No.1097, 90th Cong., 2d Sess., 90 (1968).

Because a pen register device is not subject to the provisions of Title III, the permissibility of its use by law enforcement authorities depends entirely on compliance with the constitutional requirements of the Fourth Amendment. (Footnote omitted).

We conclude that the same rules applicable to pen registers also control the orders requiring installation of card drops and other mechanical or electrical devices designed to trap and trace incoming telephone calls entered by the district court in the present case. The equipment used in trapping and tracing...