Southern Bell Tel. & Tel. Co. (Southern Bell) v. U.S.
Decision Date | 05 November 1976 |
Docket Number | 74-3358,Nos. 74-3357,s. 74-3357 |
Parties | In the Matter of the Application of the United States of America for an Order Authorizing the Use of a Pen Register/Touch-Tone Decoder on the Telephone Line Bearing the Number 305-921, etc. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY (SOUTHERN BELL), Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. In the Matter of the Application of the United States of America for an Order Authorizing the Use of a Pen Register/Touch-Tone Decoder on the Telephone Line Bearing the Number 305-920, etc. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY (SOUTHERN BELL), Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Edward J. Atkins, Miami, Fla., for defendant-appellant.
Robert W. Rust, U. S. Atty., Grafton B. Wilson, II, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, THORNBERRY, * Circuit Judge, and MILLER, ** Associate Judge.
Appellant Southern Bell Telephone and Telegraph Company (Southern Bell), appeals from two orders issued by the District Court of the Southern District of Florida pursuant to F.R.Crim.P. 41, 1 requiring Southern Bell to furnish the Drug Enforcement Administration of the United States (DEA) all information, facilities and technical assistance necessary to install and operate a Pen Register/Touch Tone Decoder (pen register). 2 Because the orders have been complied with and the Decoder searches have been finished, we dismiss this appeal as moot.
On September 4, 1974, the District Court issued two orders, 3 based on the applications of an agent of the DEA, authorizing the installation of a pen register on the telephone lines of two specific subscribers 4 for a period of 30 days or until the information sought was obtained, whichever was the first to occur. The orders also required Southern Bell to "furnish the Drug Enforcement Administration all information, facilities, and technical assistance necessary to conduct the operation of the pen register/touch-tone decoder unobstrusively and with a minimum of interference with the service the subscriber may be receiving."
On September 9, 1974, the United States moved for an order to show cause why two officers of Southern Bell should not be held in contempt for their refusal to give the Government technical assistance in the installation of the pen register, as they were required to do by the September 4 orders. 5 In response to the District Court's order to show cause, Southern Bell filed a motion to reconsider or withdraw its previous orders or in the alternative to eliminate Southern Bell from the requirements of the orders. In support of its motion, Southern Bell argued (i) that if the orders had been issued pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520, the orders were defective because they did not contain the required authorization from the Attorney General; 6 (ii) that if the orders were issued pursuant to F.R.Crim.P. 41, they were defective because that Rule does not authorize the Court to direct persons other than "a civil officer of the United States authorized to enforce or assist in enforcing any law thereof" to carry out the provisions and requirements of a search warrant; 7 (iii) that if the orders were issued pursuant to F.R.Crim.P. 41, they were further defective in that they did not relate to search for or seizure of "property" within the meaning of Rule 41(h) 8 and (iv) that the orders were not required to be executed within 10 days as required by Rule 41(c). 9
Upon consideration of the record and Southern Bell's motion and accompanying memorandum of law, the District Court entered an order dated September 13 finding that Southern Bell should not be held in contempt. The order also modified the September 4 order in several respects. First, it stated that the Court's authority to enter the September 4 order was not founded upon Title III, but upon F.R.Crim.P. 41, which authorizes a Federal Judge to issue search warrants. Second, it shortened the period of the order to the 10 days allowed by Rule 41(c). Finally, the order stated that, since
Although Southern Bell promptly complied with the District Court order, it filed a motion to stay and a motion for clarification of the September 13 order. We denied the motion to stay, but granted the motion for clarification and remanded the case to the District Court, without ruling on the jurisdiction of the District Court to order a pen register installation under F.R.Crim.P. 41 and without ruling on the jurisdiction of the District Court to order the assistance of Southern Bell in installing and operating such a pen register under Rule 41. Upon remand, the District Court stated that the September 13 order relieved Southern Bell of the obligation to assist the DEA in the installation of the pen register, since the telephone company was placed in the same position as any other citizen whose premises the Government seeks to search pursuant to a search warrant. 10
After this appeal was filed by Southern Bell to resolve the legal issues underlying the ordering of the use of pen registers by District Courts pursuant to F.R.Crim.P. 41, the orders were renewed and extended for ten day periods on three different occasions, and each time, Southern Bell complied with the orders. The orders have since expired, however, and Southern Bell is not currently operating under any similar orders. With the case in this posture, any opinion we would render would be a mere advisory opinion, since we conclude that this case is moot.
Gooden v. Mississippi State University, 5 Cir. 1974, 499 F.2d 441, 443-44.
In the case now before the Court, the matter in controversy has become passe, because Southern Bell has complied with all the orders of the District Court and all the orders have now expired. Their controversy is not a live one at this time, so we cannot resolve this matter or give effective relief to either party.
Neither does this case fall within the limited exception to the mootness doctrine of cases which are "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 1911, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, 316. 11 That exception has been restricted by the Supreme Court "to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v....
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