United States v. Caplan

• Decision Date: 06 July 1966
• Docket Number: Crim. A. No. 41200.
• Citation: 255 F. Supp. 805
• Parties: UNITED STATES of America, Plaintiff, v. Arthur CAPLAN et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

255 F. Supp. 805

UNITED STATES of America, Plaintiff, v. Arthur CAPLAN et al., Defendants.

Crim. A. No. 41200.

United States District Court E. D. Michigan, S. D.

July 6, 1966.

Lawrence Gubow, U. S. Atty., by Paul J. Komives and William H. Merrill, Asst. U. S. Attys., for United States.

S. Allen Early, Jr., Detroit, Mich., for defendants Maxine Monford and Homer Monford.

Albert A. Goldfarb, Detroit, Mich., for all other defendants.

OPINION AND ORDER GRANTING MOTIONS TO QUASH SEARCH WARRANTS AND TO SUPPRESS AND RETURN EVIDENCE

McCREE, District Judge.

This opinion considers motions filed on behalf of all twenty-five defendants indicted herein to quash search warrants issued by another judge of this court. Under the present practice, these motions would be addressed to him for disposition. Considerable time has elapsed since submission of this matter because the court was requested to reconsider its previous decision in United States v. Somalis and Chapps, Criminal No. 40464, which was concerned with the pivotal issue presented by these motions. The court has withheld decision in anticipation of controlling authority on the question. I have not been advised of any such authority nor have I found any in my own research. Accordingly, this overdue opinion issues at this time.

The single affidavit supporting the several warrants is concerned with sixteen different locations (a practice which presents more than ordinary difficulty to the issuing judge) and for this reason more than ordinary analysis is required in order to avoid attributing to one location allegations relevant only to another. Nevertheless, a careful reading and allocation of the many averments persuades the court that probable cause existed for the issuance of the several warrants unless the court was precluded by law from considering some of the allegations.

The motions raise other issues in addition to the contention that some of the information contained in the affidavit was illegally obtained. For the reasons set forth below, it is unnecessary to consider them.

The claim of illegality is that the information obtained by the Internal Revenue Service from the telephone company was secured in violation of 47 U.S.C. § 605, The Federal Communications Act. Defendants contend that the telephone company divulged to the I.R.S. the existence of a communication not "on demand of other lawful authority," in violation of the first clause of § 605. Defendants also contend that the use of a pen register, under the circumstances, constituted the "interception" of a communication, an act forbidden by the second clause of § 605 and prohibited from communication to others regardless of any authorization from anyone other than the sender or the receiver.

The government urges that the first clause of § 605 does not apply since the telephone calls involved were intrastate. It also urges that if the first clause is applicable to intrastate calls, the information was furnished in response of I.R.S. summons forms 2039 and 2039a, authorized by 26 U.S.C. § 7602 et seq., which satisfies the requirement "on demand of other lawful authority." The government denies that there was an "interception" of a communication since the pen register only records the fact that a number was dialed and does not differentiate between completed and incompleted calls.

The relevant facts are briefly as follows. An I.R.S. agent told an employee of the security department of the telephone company that he desired to find out how many phones were installed at certain locations and by whom they were subscribed and to obtain whatever information could be furnished with reference to these numbers. He indicated that he suspected a gambling operation, illegal use of telephones, possible illegal installations and illegal telephone company employee involvement. Although the I.R.S. agent did not expressly request the installation of a pen register, the telephone company, stimulated by the suggestion, first conducted a "capacitance" test to ascertain whether the suspected telephones were subjected to more than normal usage. After running this test, the company then attached pen registers to the telephones in question.

The pen register is a device attached to a given telephone line usually at a central telephone office. A pulsation of the dial on the line to which the pen register is attached records on a paper tape dashes equal in number to the number dialed. The paper tape then becomes a permanent and complete record of outgoing numbers called on the particular line. With reference to incoming calls, the pen register records only a dash for each ring of the telephone but does not identify the number from which the incoming call originated. The pen register cuts off after the number is dialed on outgoing calls and after the ringing is concluded on incoming calls without determining whether the call is completed or the receiver is answered. There is neither recording nor monitoring of the conversation.

A few days after the initial conversation with the telephone company security employee, the I.R.S. agent served a summons, I.R.S. form 2039, on the telephone company and requested the company to furnish it with credit information and pen register information with reference to the telephones in question. This process was repeated with other telephones some of which were identified by pen register information furnished in response to an earlier...