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

• Decision Date: 03 March 1978
• Citation: 373 N.E.2d 960,374 Mass. 569
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 960

373 N.E.2d 960

374 Mass. 569

NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY v. DISTRICT ATTORNEY FOR the NORFOLK DISTRICT.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 5, 1978.

Decided March 3, 1978.

John M. Harrington, Jr., Boston (Thomas B. Wheatley, Boston, with him), for plaintiff.

Matthew T. Connolly, Asst. Dist. Atty., for defendant.

Francis X. Bellotti, Atty. Gen., Stephen R. Delinsky and Barbara A. H. Smith, Asst. Attys. Gen., for Commonwealth, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and ABRAMS, JJ.

BRAUCHER, Justice.

The question presented is whether a judge of the Superior Court has authority to order the plaintiff telephone company to provide technical assistance, including "lease lines," to law enforcement officers to effectuate a wiretap pursuant to a warrant issued under G.L. c. 272, § 99. We hold that the judge does have such authority, and order a judgment so declaring. We follow in substance the reasoning of the Supreme Court of the United States in United States v. New York Tel. Co., --- U.S. ----, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977).

The plaintiff filed its complaint in the Supreme Judicial Court for the county of Suffolk seeking a declaratory judgment, and a single justice of this court reported the case to the full court without decision on the pleadings and a statement of agreed facts. We summarize the agreed facts.

Pursuant to G.L. c. 272, § 99, a judge of the Superior Court issued wiretap warrants on March 21, March 31, and April 5, 1977, on applications by an assistant district attorney specially designated by the defendant. Each warrant included an order that the plaintiff "upon request of the applicant, provide whatever technical assistance is necessary. Said assistance shall include, but not be limited to, . . . the installation of lease lines, the final connection to be within the responsibility of the applicant." The plaintiff furnished cable, pairing, and routing information for the telephone numbers identified in each warrant. As a result personnel retained by the applicant effectuated the wiretaps authorized by the first two warrants.

With respect to the April 5 warrant, none of the locations where the telephone lines were physically accessible was such as to permit the applicant to effectuate the authorized wiretap without being detected. The applicant therefore requested the plaintiff to furnish "lease lines" leading to an available covert monitoring location, creating the equivalent of an extension of the line being monitored. Lease lines are ordinarily furnished under tariff to connect locations on customer premises, but are not offered for wiretaps or other purposes.

The plaintiff refused to provide the requested lease lines, and filed a motion to quash so much of the warrant as ordered it to provide technical assistance, including lease lines. After a hearing in camera, the judge denied the motion, saved the plaintiff's exception, and noted that the matter was to be reported by the court or appealed in the form of a bill for declaratory judgment. The plaintiff complied with the order. The applicant has informed the plaintiff that he intends to seek more such orders, and the plaintiff intends to refuse to provide lease lines, contending that the court has no power to order it to provide lease lines.

1. Background. In Berger v. New York, 388 U.S. 41, 58, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 354-355, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court indicated that electronic surveillance could be authorized by statutes containing "precise and discriminate" requirements. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, adding 18 U.S.C. §§ 2510-2520 and amending 47 U.S.C. § 605, and the Massachusetts wiretap statute, St. 1968, c. 738, § 1, amending G.L. c. 272, § 99, were enacted to supply such requirements. See Commonwealth v. Vitello, 367 Mass. 224, 242-251, 327 N.E.2d 819 (1975).

In Application of United States, 427 F.2d 639, 644 (9th Cir. 1970), the court held that, in the absence of specific statutory authority, a United States District Court was without power to compel a telephone company to assist in a wiretap conducted pursuant to Title III. A little over two months later, Congress amended Title III to authorize such compulsion. 84 Stat. 654 (1970), amending 18 U.S.C. §§ 2511(2)(a), 2518(4), 2520. That action "was not an acceptance of the Ninth Circuit's view but 'more in the nature of an overruling of that opinion.' " United States v. New York Tel. Co., --- U.S. ----, ---- N.25, 98 s.CT. 364, 374 n.25, 54 l.ED.2d 376 (1977) quoting from United States v. Illinois Bell Tel. Co., 531 F.2d 809, 813 (7th Cir. 1976). The Massachusetts statute has not been similarly amended.

2. Pen registers. Since the 1970 amendment to Title III, an analogous problem has been litigated with respect to the installation of "pen registers." A pen register is a mechanical device that records the numbers dialed from a given telephone line. Pen registers are not governed by Title III, since there is no "aural acquisition" of anything. United States v. New York Tel. Co., --- U.S. ----, ----, 98 S.Ct. 364, 369, 54 L.Ed.2d 376 (1977); Commonwealth v. Vitello, 367 Mass. 224, 278-279, 327 N.E.2d 819 (1975). Commonwealth v. Coviello, 362 Mass. 722, 725-726, 291 N.E.2d 416 (1973). But Federal courts under Fed.R.Crim.P. 41(b) and 57(b) may authorize the installation of pen registers. United States v. New York Tel. Co., --- U.S. ----, ---- - ----, 98 S.Ct. 364, 370-371, 54 L.Ed.2d 376 (1977).

The question has arisen whether a Federal court may properly order a telephone company to provide the facilities and technical assistance, including lease lines, necessary to employ an authorized pen register unobtrusively. The Supreme Court of the United States has recently answered that question in the affirmative. United States v. New York Tel. Co., --- U.S. ----, ---- - ----, 98 S.Ct. 364, 372-375, 54 L.Ed.2d 376 (1977). Accord, Michigan Bell Tel. Co. v. United States, 565 F.2d 385 (6th Cir. 1977); United States v. Southwestern Bell Tel. Co., 546 F.2d 243 (8th Cir. 1976), cert. denied, --- U.S. ----, 98 S.Ct. 716, 54 L.Ed.2d 750 (1978); ^a United States v. Illinois Bell Tel. Co., 531 F.2d 809 (7th Cir. 1976). Authority for such orders was found in the All Writs Act, 28 U.S.C. § 1651(a) (1970).

3. The Massachusetts statutes. There is no dispute as to the validity of the warrants here under consideration. They were issued pursuant to G.L. c. 272, § 99, and there is no claim that the statute violates either the Fourth Amendment to the United States Constitution or art. 14 of our Declaration of Rights. The sole question is whether the ancillary order to the telephone company is proper.

Unlike a United States District Court, the Superior Court is a court of general rather than limited jurisdiction and has the inherent powers of a common law court. Commonwealth v. Kemp, 254 Mass. 190, 192, 150 N.E. 172 (1926). Implicit in the grant of judicial power is the authority necessary to the exercise of that power. O'Coin's, Inc. v. Treasurer of County of Worcester, 362 Mass. 507, 510, 287 N.E.2d 608 (1972). That implication is confirmed by G.L. c. 220, § 2, ¹ a statute comparable to the Federal All Writs Act. Additional support may be found in G.L. c. 272, § 99 D 1 d, exempting from criminal liability "any person" duly authorized to make specified interceptions, and § 99 Q 3, making good faith reliance on a warrant a "complete defense" to the civil remedy provided against "any person"...