State v. Thompson

• Decision Date: 02 November 1987
• Docket Number: No. 16145,16145
• Citation: 113 Idaho 466,745 P.2d 1087
• 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 Court of Appeals

Page 1087

745 P.2d 1087

113 Idaho 466

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. 16145.

Court of Appeals of Idaho.

Nov. 2, 1987.

Petition for Review Granted Jan. 26, 1988.

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

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

BURNETT, Judge.

The state brings this interlocutory appeal from an order suppressing evidence obtained through a wiretap. Although the wiretap was authorized by a warrant, the district court suppressed the evidence because the application for the warrant contained information generated by a pen register which had been installed without a judicial determination of probable cause. Today we must decide whether use of the pen register was an issue properly before the district court and, if so, whether the court was correct in ruling that probable cause must be established before a pen register may be installed.

For reasons explained below, we hold that it was permissible for the district court to consider the pen register issue. However, we further hold that the pen register was not regulated by statutes then existing, nor was it subject to any constitutional restraints under decisions of the United States Supreme Court. Accordingly, we reverse the suppression order. Nevertheless, we offer a critique of the Supreme Court decisions and we suggest that the time has come for Idaho to recognize and to apply the protective language of its own state constitution.

I

In 1983 law enforcement officers began an investigation into an alleged conspiracy to smuggle marijuana into the Idaho State Correctional Institution (ISCI). Sources inside and outside the prison indicated that a drug supplier somehow was managing to deliver marijuana to inmates. Several informants--some named and some anonymous--pointed to Judy Thompson, the mother of an inmate, as the source of the marijuana.

Several months later, as part of the continuing investigation, the police applied for an ex parte court order to place a pen register on Judy Thompson's phone. ¹ The application set forth no facts establishing probable cause. Indeed, the application asserted that pen registers were not governed by existing statutes and that the use of a pen register was free from any constitutional limitation because it did not constitute a "search." The application was approved and an order was issued.

Approximately two weeks later, when operation of the pen register had been discontinued, Boise police officers conducted a six-day surveillance of Judy Thompson. The surveillance produced no incriminating evidence. The Ada County prosecuting attorney then applied for a warrant, denominated as an "order," authorizing a wiretap on Judy Thompson's telephone. A district judge reviewed the prosecutor's application, which was supported by an affidavit of the officer in charge of the investigation. The affidavit included information obtained from the pen register, which had disclosed several calls made to the number of a telephone used by a suspected drug dealer in Twin Falls. The district judge concluded that probable cause existed to issue the warrant. The police operated a wiretap for thirty days, after which the prosecutor applied for and received a thirty-day extension. The wiretap produced additional incriminating information.

The prosecutor filed criminal charges against Judy Thompson and six other persons. He alleged that the defendants had conspired to smuggle marijuana into the ISCI in violation of I.C. § 37-2732(a)(1)(B). After a seven-day preliminary hearing, the defendants were held to answer in the district court. Prior to trial, counsel for Thompson and the other defendants moved to suppress "the contents of any intercepted wire or oral communication, the recordings thereof or evidence derived therefrom ... that were intercepted through electronic, mechanical and/or other devices...." Several grounds were listed in support of the motion. However, the salient issue was whether the application seeking the wiretap was supported by probable cause. The suppression motion was heard and decided by a district judge, the Honorable W.E. Smith, who had neither authorized the pen register nor issued the wiretap warrant. He concluded that the warrant application lacked probable cause because the pen register had been installed unlawfully and that without the information generated by the pen register, probable cause for a wiretap could not have been established. The state promptly filed this appeal.

II

The state contends that Judge Smith acted improperly by addressing the pen register issue sua sponte. Although the motion to suppress was broad in scope, the legality of the pen register was not specifically argued in the district court. However, Judge Smith viewed the legality of the pen register as a necessarily included issue. He stated, "[T]he Court feels that it must address the issue of whether law enforcement officers may obtain a pen register on a suspect's phone without a warrant based upon probable cause." The state now argues that by addressing this issue, the judge exceeded his constitutional powers under Article 5, §§ 1 and 20, of the Idaho Constitution. These provisions describe the subject-matter jurisdiction of the district courts. ² Thus, the state apparently would have us hold that the judge's decision was a nullity due to jurisdictional defects.

We decline to so hold. In our view, a judge does not lose jurisdiction over a case by deciding it on legal grounds other than those argued by the parties. He may commit error by deciding the case in this fashion. But decisional error is not to be equated with a lack of jurisdiction.

It is well established that a trial court ought not to base its decision on a theory completely unrelated to any of the issues raised by the parties. See, e.g., Brantley v. Carlsbad Irrigation District, 92 N.M. 280, 587 P.2d 427 (1978); In re Estate of Hurlbutt, 36 Or.App. 721, 585 P.2d 724 (1978). In such a situation, the court places those aggrieved by its decision in a potentially awkward position on appeal. It forces them to address issues not presented below. It also forces them to address the issues in the context of a record different from that which they might have created if the issues had been properly framed. Finally, it forces appellate judges to do something they should seldom do--consider issues not previously urged by the parties below. Dursteler v. Dursteler, 108 Idaho 230, 697 P.2d 1244 (Ct.App.1985).

These concerns relate to fairness and efficiency in judicial administration. But they do not invoke a rigid bar of jurisdiction. Moreover, these concerns, drawn largely from civil cases, do not necessarily apply with equal force to a motion for suppression of evidence in a criminal prosecution. Here, the legal status of information derived from the pen register was squarely, "in substance and effect, within the issue." State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25 (1909). The question presented was whether the evidence obtained from the wiretap should have been suppressed because the application for the wiretap warrant was not supported by probable cause. The probable cause determination centered on the information provided in the affidavit supporting the prosecutor's application. The information obtained from the pen register constituted a substantial portion of the evidence in the affidavit. Indeed, the state's brief on appeal acknowledges that "[w]ithout [the pen register], the police in this case would not have been able to develop probable cause for the wire tap...." The judge, presented with the question of whether probable cause had been established, could not ignore the role of the pen register in producing the information furnished to him.

We emphasize that it would have been preferable for the judge to identify the pen register issue, and to invite supplemental evidence or briefs, before announcing his decision. But this procedural oversight did not eviscerate his jurisdiction. At most, the oversight would constitute a basis to remand the matter back to Judge Smith for a rehearing. However, for reasons discussed in Part III below, we find a remand to be unnecessary. It is sufficient to hold at this juncture that the district judge did not act beyond his jurisdiction.

III

We now turn to the merits of the pen register issue. Our discussion focuses initially upon federal and state statutes. We then examine the search and seizure provisions of the federal and state constitutions.

A

The district judge noted that the use of pen registers was not governed by the federal wiretap statute, 18 U.S.C. §§ 2510-2520, in effect when this case arose. The federal statute had been authoritatively construed by the United States Supreme Court in United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). The Court's analysis began by reference to the language of the statute itself:

[The statute] is concerned only with orders "authorizing or approving the interception of a wire or oral communication...." 18 USC § 2518(1) (emphasis added). Congress defined "intercept" to mean "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device." 18 USC § 2510(4) ... (emphasis added). Pen registers do not "intercept" because they do not acquire the "contents" of communications, as that term is defined by 18 USC § 2510(8).... 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...