State ex rel. Ohio Bell Tel. Co. v. Williams

• Decision Date: 02 July 1980
• Docket Number: No. 79-1443,79-1443
• Citation: 63 Ohio St.2d 51,407 N.E.2d 2
• Parties: , 17 O.O.3d 31 The STATE ex rel. the OHIO BELL TELEPHONE COMPANY, Appellant, v. WILLIAMS, Judge, Appellee.
• Court: Ohio Supreme Court

Page 51

63 Ohio St.2d 51

407 N.E.2d 2, 17 O.O.3d 31

The STATE ex rel. the OHIO BELL TELEPHONE COMPANY, Appellant, v. WILLIAMS, Judge, Appellee.

No. 79-1443.

Supreme Court of Ohio.

July 2, 1980.

Syllabus by the Court

Trial courts have the inherent authority, pursuant to Crim.R. 41(B), to issue a warrant to search for and seize evidence by means of a pen register.

This is an appeal from a judgment of the Court of Appeals, denying The Ohio Bell Telephone Company's (hereinafter appellant) request for a writ of prohibition. Appellant prayed for the issuance of a writ directing Judge Frederick T. Williams (hereinafter appellee) to refrain from proceeding with a pending contempt hearing designed to enforce the trial court's order of October 11, 1978, issued upon the ex parte affidavit of a member of the Columbus Police Department. The trial court's order authorized the police department to install a pen register or similar mechanical or electronic device to record telephone numbers of all outgoing calls made from the residence of a subscriber of appellant in Franklin County for a period not to exceed 20 days. Appellant was ordered further to supply all necessary facilities, technical assistance and information to aid the police department in recording the subscriber's outgoing calls. There is no issue herein concerning the probable cause for issuing the order, since it is unquestioned that the telephone company's equipment was being used for alleged criminal activity. Appellant was not a party to nor was it given notice of the ex parte proceedings which led to issuance of the October 11, 1978, order.

On November 2, 1978, appellant specially appeared before the trial court and entered an objection to the court's jurisdiction by filing a motion to dismiss; whereupon, appellee overruled that motion. Upon appeal, the Court of Appeals dismissed the appeal sua sponte for lack of jurisdiction.

On March 29, 1979, the state moved the trial court for a citation of contempt against appellant for its failure to comply with the October 11, 1978, order. On March 30, 1979, appellee ordered appellant to appear and show cause why it should not be adjudged in contempt for its failure to comply with the court's order.

Appellant, on May 9, 1979, filed a complaint in prohibition in the Court of Appeals to prohibit appellee from proceeding with the show cause hearing and any further action designed to enforce the October 11, 1978, order.

The cause is now before this court upon an appeal as a matter of right.

Porter, Wright, Morris & Arthur, James S. Monahan, Joseph W. Ryan, Jr., Columbus, and Howard R. Besser, Shaker Heights, for appellant.

George C. Smith, Pros. Atty., and James E. Phillips, Asst. Pros. Atty., for appellee.

LOCHER, Justice.

The central issue before this court is whether the Court of Common Pleas properly directed the telephone company, a non-party to an ex parte hearing, to aid law enforcement officials with technical assistance necessary for the implementation of a pen register to investigate a continual course of alleged criminal activity, which there was probable cause to believe was being committed over telephone lines owned, operated and exclusively controlled by appellant. ¹

A pen register only records the number dialed on a particular telephone. The United States Supreme Court, in describing the mechanics of pen registers in United States v. New York Telephone Co. (1977), 434 U.S. 159, at page 167, 98 S.Ct. 364, at page 369, 54 L.Ed.2d 376, stated:

" * * * Pen registers do not 'intercept' because they do not acquire the 'contents' of communications * * *. Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities nor whether the call was even completed is disclosed by pen registers. Furthermore, pen registers do not accomplish the 'aural acquisition' of anything. They decode outgoing telephone numbers by responding to changes in electrical voltage caused by the turning of the telephone dial (or the pressing of buttons on push-button telephones) and present the information in a form to be interpreted by sight rather than by hearing."

Furthermore, a pen register is not a wiretap, and any questions concerning violations of the judicially recognized expectations of privacy and violations of Fourth Amendment protections are not applicable to pen registers. The United States Supreme Court, in Smith v. Maryland (1979), 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220, held that the installation and use of a pen register was not a search within the meaning of the Fourth Amendment, and hence no warrant was required. ²

I.

Appellant asserts that the Court of Common Pleas lacked the subject-matter jurisdiction to issue a court order for the installation of a pen register.

Initially, it is noted that R.C. 2931.03 reads as follows:

"The court of common pleas has original jurisdiction of all crimes and offenses, except in cases of minor offenses the exclusive jurisdiction of which is vested in courts inferior to the court of common pleas."

The order which is at issue at bar is directed at an offense which is within the ambit of R.C. 2931.03.

Furthermore, Crim.R. 41(B) grants the court inherent authority for the issuance of the warrant herein obtained. Crim.R. 41(B) provides that a search warrant may be issued to search and seize "(1) evidence of the commission of a criminal offense; or (2) contraband, fruits of crime, or things otherwise criminally possessed; or (3) weapons or other things by means of which a crime has been committed or reasonably appears about to be committed." (Emphasis added.)

Fed.R.Crim.P. 41(b) provides that a search warrant may be issued to search and seize " * * * (1) any property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense * * *." (Emphasis added.)

The Ohio rule encompasses the broader term "evidence," whereas the federal rule includes only the term "property."

The United States Supreme Court, in New York Telephone Co., supra, determined that the definition of "property" in Fed.R.Crim.P. 41(h) ³ is not exclusive. The court, 434 U.S. at page 169, 98 S.Ct. at page 370, stated:

" * * * (Fed.R.Crim.P. 41(b)) is broad enough to encompass a 'search' designed to ascertain the use which is being made of a telephone suspected of being employed as a means of facilitating a criminal venture and the 'seizure' of evidence which the 'search' of the telephone produces. Although Rule 41(h) defines property 'to include documents, books, papers and any other tangible objects,' it does not restrict or purport to exhaustively enumerate all the items which may be seized pursuant to Rule 41. Indeed, we recognized in Katz v. United States, 389 U.S. 347 (88 S.Ct. 507, 19 L.Ed.2d 576) (1967), which held that telephone conversations were protected by the Fourth Amendment, that Rule 41 is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause. 389 U.S., at 354-356, and n. 16 (88 S.Ct. 507). See also Osborn v. United States, 385 U.S. 323, 329-331 (87 S.Ct. 429, 17 L.Ed.2d 394) (1966)."

Accordingly, we also hold that the Court of Common Pleas had the inherent authority pursuant to Crim.R. 41(B) to issue a warrant for intangible objects, especially since Crim.R. 41(B) provides for warrants for tangible objects upon the showing of probable cause. See, also, Michigan Bell Telephone Co. v. United States (C.A. 6, 1977), 565 F.2d 385. Crim.R. 57(B) further supports our reading of Crim.R. 41(B) to include intangibles. Rule 57(B) reads as follows:

"If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules of criminal procedure, and shall look to the rules of civil procedure and to the applicable law if no rule of criminal procedure exists."

In addition to the foregoing, the court order instructing appellant to assist the law enforcement officials installing the pen registers can be simply read as an order for appellant to do what it already has a duty to undertake pursuant to Ohio Adm. Code 4901:1-3-12(B). Rule 4901:1-3-12(B) reads as follows:

"Whenever a telephone or telegraph company has reasonable cause to believe that telephone or telegraph facilities are being used in the furtherance of gambling, it shall be the duty of such telephone or telegraph company to immediately make an investigation of the use of said equipment and facilities and immediately thereafter to make a report in writing to this Commission and to the local law enforcement authority of all facts relating thereto." (Emphasis added.)

For the foregoing reasons we hold that this proposition of law is without merit.

II.

Appellant further asserts, in essence, that the Court of Common Pleas lacked personal jurisdiction over the non-party appellant, and, therefore, the order of October 11, 1978, directing appellant to assist in the installation of a pen register violates the due-process requirements. Appellant contends that there are due-process rights involved, since it was not given notice of or a right to be heard at the ex parte hearing.

Initially, it is noted that the issuance of the order directing appellant to assist in the installation of a pen register was essential to the fulfillment of the purpose to gather evidence of those connected with a...