Smith v. Maryland, No. 78-5374

CourtUnited States Supreme Court
Writing for the CourtBLACKMUN
Citation442 U.S. 735,99 S.Ct. 2577,61 L.Ed.2d 220
Docket NumberNo. 78-5374
Decision Date20 June 1979
PartiesMichael Lee SMITH, Petitioner, v. State of MARYLAND

442 U.S. 735
99 S.Ct. 2577
61 L.Ed.2d 220
Michael Lee SMITH, Petitioner,

v.

State of MARYLAND.

No. 78-5374.
Argued March 28, 1979.
Decided June 20, 1979.
Syllabus

The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland Court of Appeals affirmed.

Held: The installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746.

(a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Pp. 2579-2580.

(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the infor-

Page 736

mation to the police, cf. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71. Pp. 741-746.

283 Md. 156, 389 A.2d 858, affirmed.

Howard L. Cardin, Baltimore, Md., for petitioner.

Stephen H. Sachs, Baltimore, Md., for respondent.

Mr. Justice BLACKMUN delivered the opinion of the Court.

This case presents the question whether the installation and use of a pen register 1 constitutes a "search" within the meaning of the Fourth Amendment,2 made applicable to the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Page 737

I

On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. Tr. 66-68. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. Id., at 70. On March 16, police spotted a man who met McDonough's description driving a 1975 Monte Carlo in her neighborhood. Id., at 71-72. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith. Id., at 72.

The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home. Id., at 73, 75. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner's home to McDonough's phone. Id., at 74. On the basis of this and other evidence, the police obtained a warrant to search petitioner's residence. Id., at 75. The search revealed that a page in petitioner's phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Ibid. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her. Id., at 70-71.

Petitioner was indicted in the Criminal Court of Baltimore for robbery. By pretrial motion, he sought to suppress "all fruits derived from the pen register" on the ground that the police had failed to secure a warrant prior to its installation. Record 14; Tr. 54-56. The trial court denied the suppression motion, holding that the warrantless installation of the pen

Page 738

register did not violate the Fourth Amendment. Id., at 63. Petitioner then waived a jury, and the case was submitted to the court on an agreed statement of facts. Id., at 65-66. The pen register tape (evidencing the fact that a phone call had been made from petitioner's phone to McDonough's phone) and the phone book seized in the search of petitioner's residence were admitted into evidence against him. Id., at 74-76. Petitioner was convicted, id., at 78, and was sentenced to six years. He appealed to the Maryland Court of Special Appeals, but the Court of Appeals of Maryland issued a writ of certiorari to the intermediate court in advance of its decision in order to consider whether the pen register evidence had been properly admitted at petitioner's trial. 283 Md. 156, 160, 389 A.2d 858, 860 (1978).

The Court of Appeals affirmed the judgment of conviction, holding that "there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system and hence no search within the fourth amendment is implicated by the use of a pen register installed at the central offices of the telephone company." Id., at 173, 389 A.2d, at 867. Because there was no "search," the court concluded, no warrant was needed. Three judges dissented, expressing the view that individuals do have a legitimate expectation of privacy regarding the phone numbers they dial from their homes; that the installation of a pen register thus constitutes a "search"; and that, in the absence of exigent circumstances, the failure of police to secure a warrant mandated that the pen register evidence here be excluded. Id., at 174, 178, 389 A.2d, at 868, 870. Certiorari was granted in order to resolve indications of conflict in the decided cases as to the restrictions imposed by the Fourth Amendment on the use of pen registers.3 439 U.S. 1001, 99 S.Ct. 609, 58 L.Ed.2d 676 (1978).

Page 739

II
A.

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In determining whether a particular form of government-initiated electronic surveillance is a "search" within the meaning of the Fourth Amendment,4 our lodestar is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Katz, Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a "search" can occur only when there has been a "physical intrusion" into a "constitutionally protected area," noting that the Fourth Amendment "protects people, not places." Id., at 351-353, 88 S.Ct., at 511-512. Because the Government's monitoring of Katz' conversation "violated the privacy upon which he justifiably relied while using the telephone booth," the Court held that

Page 740

it "constituted a 'search and seizure' within the meaning of the Fourth Amendment." Id., at 353, 88 S.Ct., at 512.

Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action. E. g., Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, and n. 12 (1978); id., at 150, 151, 99 S.Ct., at 434, 435 (concurring opinion); id., at 164, 99 S.Ct., at 441 (dissenting opinion); United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); United States v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 1623, 48 L.Ed.2d 71 (1976); United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973); Couch v. United States, 409 U.S. 322, 335-336, 93 S.Ct. 611, 619-620, 34 L.Ed.2d 548 (1973); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971) (plurality opinion); Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968). This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," 389 U.S., at 361, 88 S.Ct., at 516 whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." Id., at 351, 88 S.Ct., at 511. The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable,' " id., at 361, 88 S.Ct., at 516—whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the...

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2135 practice notes
  • United States v. Wurie, No. 11–1792.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 17, 2013
    ...service the user of the phone is deemed to surrender any privacy interest he may have had in his phone number”) (citing Smith v. Maryland, 442 U.S. 735, 742–43, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)); see also Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fo......
  • U.S. v. Gray, No. 05-4397.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 2, 2007
    ...invoking the protections of the Fourth Amendment must have a legitimate expectation of privacy in the place searched. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). More specifically, he must have an actual (or subjective) expectation of privacy, and his subject......
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    ...Inc., 529 F.3d 892, 904-05 (9th Cir. 2008); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008); see also Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (no legitimate expectation of privacy in dialing, routing, addressing, and signaling information transmitted to telephone compan......
  • U.S. v. Werra, No. 09–1593.
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 22, 2011
    ...that his “subjective expectation is one that society is prepared to recognize as objectively reasonable.” Id. (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Like the district court, I conclude that Werra has failed to satisfy this burden. [638 F.3d 342]......
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2129 cases
  • United States v. Wurie, No. 11–1792.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 17, 2013
    ...service the user of the phone is deemed to surrender any privacy interest he may have had in his phone number”) (citing Smith v. Maryland, 442 U.S. 735, 742–43, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)); see also Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fo......
  • U.S. v. Gray, No. 05-4397.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 2, 2007
    ...invoking the protections of the Fourth Amendment must have a legitimate expectation of privacy in the place searched. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). More specifically, he must have an actual (or subjective) expectation of privacy, and his subject......
  • Legal Issues Relating To The Testing, USE, and Deployment of An Intrusion-Detection System (Einstein 2.0) To Protect Unclassified Computer Networks In The Executive Branch, 09-1
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • January 9, 2009
    ...Inc., 529 F.3d 892, 904-05 (9th Cir. 2008); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008); see also Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (no legitimate expectation of privacy in dialing, routing, addressing, and signaling information transmitted to telephone compan......
  • U.S. v. Werra, No. 09–1593.
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 22, 2011
    ...that his “subjective expectation is one that society is prepared to recognize as objectively reasonable.” Id. (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Like the district court, I conclude that Werra has failed to satisfy this burden. [638 F.3d 342]......
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