State v. Thompson

• Decision Date: 02 August 1988
• Docket Number: No. 17308,17308
• Citation: 760 P.2d 1162,114 Idaho 746
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Judy THOMPSON, Defendant-Respondent, and Rene Brown, Rebecca Nelson a/k/a Wolf and Lumen, Steve Wolf, Charlie Thompson, James Yarborough a/k/a Yarb, and Monte Brandt, Defendants.
• Court: Idaho Supreme Court

Page 1162

760 P.2d 1162

114 Idaho 746

STATE of Idaho, Plaintiff-Appellant, v. Judy THOMPSON, Defendant-Respondent and Rene Brown, Rebecca Nelson a/k/a Wolf and Lumen, Steve Wolf, Charlie Thompson, James Yarborough a/k/a Yarb, and Monte Brandt, Defendants.

No. 17308.

Supreme Court of Idaho.

Aug. 2, 1988.

Jim Jones, Atty. Gen., and Lynn E. Thomas (argued), Sol. Gen., Boise, for plaintiff-appellant.

Vernon K. Smith, Boise, for defendant-respondent.

JOHNSON, Justice.

Appellant, Judy Thompson, seeks review of a decision of the Idaho Court of Appeals in State v. Thompson, 113 Idaho 466, 745 P.2d 1087 (Id.App.1987), which reversed an order of the district court suppressing evidence obtained by means of a wiretap of Thompson's telephone. We affirm the decision of the Court of Appeals except its holdings that the installation of a pen register on Thompson's telephone line did not constitute a search within the meaning of art. 1, § 17 of the Idaho Constitution, and that there was probable cause for issuing the wiretap orders. We hold that the use of a pen register is a search under art. 1, § 17 of the Idaho Constitution, that the evidence produced by the pen register should not have been considered in the issuance of the wiretap orders, and that without the pen register evidence there was no probable cause to issue the wiretap orders. Therefore, we reverse the decision of the Court of Appeals on these issues and affirm the order of the district court suppressing the evidence obtained from the wiretap of Thompson's telephone.

I.

IN INTERPRETING ART. 1, § 17 OF THE IDAHO CONSTITUTION THIS COURT IS NOT BOUND BY THE INTERPRETATIONS OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE UNITED STATES SUPREME COURT.

Art. 1, § 17 of the Idaho Constitution provides The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue without probable cause shown by affidavit, particularly describing the place to be searched and the person or thing to be seized.

This section of our constitution is substantially the same as the fourth amendment to the constitution of the United States.

The United States Supreme Court has held that the installation of a pen register is not a search within the meaning of the fourth amendment. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). This Court has previously noted that art. 1, § 17 of our constitution "is to be construed consistently with the fourth amendment to the United States Constitution." State v. Cowen, 104 Idaho 649, 650, 662 P.2d 230, 231 (1983). See also, State v. Rice, 109 Idaho 985, 989, 712 P.2d 686, 690 (Id.App.1985), rev. den. (1986). However, this statement does not bear on our decision in this case, since the portion of the decision in Cowen where it appears concerned the standing of a person to raise the question of unreasonable search and seizure, and not the substance of the rights protected under art. 1, § 17. Seven months after Cowen, we voiced our willingness to consider whether the scope of art. 1, § 17 is different than that of the fourth amendment, as interpreted by the United States Supreme Court:

[T]he guarantee against unreasonable search and seizure in article I, § 17 of the Idaho Constitution is substantially the same as the parallel provisions of the Fourth Amendment to the United States Constitution; nevertheless, it is for this Court to decide whether to relax the standard for the demonstration of probable cause in accord with [ Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ], or whether to retain the more protective criteria of Agiular and Spinelli and their progeny as our test.

State v. Lang, 105 Idaho 683, 672 P.2d 561 (1983).

Twice more since Cowen this Court has pointed out that in interpreting art. 1, § 17 we are not bound by the interpretations of the fourth amendment by the United States Supreme Court. State v. Newman, 108 Idaho 5, 10 n. 6, 696 P.2d 856, 861 n. 6 (1985); and State v. Johnson, 110 Idaho 516, 520 n. 1, 716 P.2d 1288, 1292 n. 1 (1986). As we said in Newman:

[F]ederal and state constitutions derive their power from independent sources. It is thus readily apparent that state courts are at liberty to find within the provisions of their own constitutions greater protection than is afforded under the federal constitution as interpreted by the United States Supreme Court. See Oregon v. Haas, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975). This is true even when the constitutional provisions implicated contain similar phraseology. Long gone are the days when state courts will blindly apply United States Supreme Court interpretation and methodology when in the process of interpreting their own constitutions.

108 Idaho at 10 n. 6, 696 P.2d at 861 n. 6.

Today we reaffirm that in interpreting provisions of our constitution that are similar to those of the federal constitution we are free to extend protections under our constitution beyond those granted by the United States Supreme Court under the federal constitution.

II.

THE USE OF A PEN REGISTER IS A SEARCH UNDER ART. 1, § 17 OF THE IDAHO CONSTITUTION.

In its decision in this case the Court of Appeals used the term "pen register" to refer to a device that is used to record the numbers called on a telephone and to a "dialed number recorder" (DNR) that also records the duration of all calls. The Court of Appeals noted that from the record "it appears that the equipment installed to monitor Thompson's phone actually was a DNR rather than a pen register," but that "the impact of the two devices on the target's privacy is generally similar." We adopt the style of the Court of Appeals in referring to the equipment installed on Thompson's telephone as a pen register. As the Court of Appeals also noted, a pen register " 'does not overhear oral communications and does not indicate whether calls are actually completed.' United States v. New York Telephone Co., 434 U.S. 159, 161 n. 1, 98 S.Ct. 364, 366-67 n. 1, 54 L.Ed.2d 376 (1977)." 113 Idaho at 468 n. 1, 475 P.2d at 1089 n. 1.

This Court long ago pointed out that the fourth amendment " 'was intended as a restraint upon the activities of sovereign authority,' " and that "the same intention prompted the adoption of the provisions of our state constitution, 'to secure the people against unauthorized official action.' " State v. Arregui, 44 Idaho 43, 67, 254 P. 788, 812 (1927).

Both the fourth amendment and art. 1, § 17 protect "[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." This Court has stated that the purpose of both provisions "is to safeguard the privacy of citizens by insuring against the search of premises where probable cause is lacking." State v. Yoder, 96 Idaho 651, 653, 534 P.2d 771, 773 (1975). In applying art. 1, § 17, we have accepted more refined statements of this purpose by the United States Supreme Court:

[T]he Fourth Amendment and art. 1, § 17 are designed to protect a person's legitimate expectation of privacy, which "society is prepared to recognize as reasonable." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978), quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); accord, [State v.] Bottelson, [102 Idaho 90, 92, 625 P.2d 1093, 1095 (1981) ].

State v. Johnson, 110 Idaho 516, 523 n. 5, 716 P.2d 1288, 1295 n. 5, (1986).

In Smith v. Maryland, supra, the United States Supreme Court concluded that the person on whose telephone line the pen register was installed "in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not 'legitimate.' " 442 U.S. at 745, 99 S.Ct. at 2583. Therefore, the Court held there was no search, and no warrant was required. We recognize that so far as the protection provided by the fourth amendment is concerned, both state courts and lower federal courts are bound by Smith. We are convinced, however, that in Idaho there is a legitimate and reasonable expectation of privacy in the phone numbers that are dialed.

We find persuasive the analysis of Justice Stewart in his dissent in Smith, in which Justice Brennan joined:

I am not persuaded that the numbers dialed from a private telephone fall outside the constitutional protection of the Fourth and Fourteenth Amendments.

In Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, the Court acknowledged the "vital role that the public telephone has come to play in private communication[s]." The role played by a private telephone is even more vital, and since Katz it has been abundantly clear that telephone conversations carried on by people in their homes or offices are fully protected by the Fourth and Fourteenth Amendments. As the Court said in United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2135, 32 L.Ed.2d 752, "the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards." (Footnote omitted.)

Nevertheless, the Court today says that those safeguards do not extend to the numbers dialed from a private telephone, apparently because when a caller dials a number the digits may be recorded by the telephone company for billing purposes. But that observation no more than describes the basic nature of telephone calls. A telephone call simply cannot be made without the use of telephone company property and without payment to the company for the service. The telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or overheard by the use of other company equipment. Yet we have squarely...