- 4 841979 APPEND 3111119 gupmtw Ulnar! uf 1hr Hu?rh ?lutrn OCTCIBER TERM. 1973 No. 73-5374 MICHAEL LEE SMITH. Petitioner, STATE OF MARYLAND, Respondent. 0N WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MA RYLAND PETITION FOR CERTIORARI FILED SEPTEHBER 1973 CERTIORARI GRANTED DECEMBER 1, HITS 3111119 ?upreme (11mm [If the Hamil 5131195 OCTOBER TERM, 1973 0. 78-5374 MICHAEL LEE SMITH, Petitioner, STATE OF MARYLAND, Respondent. 0N WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND I Page Relevant Docket Entries 1 Excerpts from Transcript of Hearing, November 3. 1976: De?nition of Issue by Trial Counsel 3 Ruling of Trial Court 3 Opinion of the Court of Appeals: of Maryland 4 Mandate of the Court of Appeals of Maryland 36 Order of the Supreme Court of the United States Granting Motion for Leave to Proceed In Forma Pauperie and Granting Petition for Writ of Certiorari 33 1 IN THE CRIMINAL COURT OF BALTIMORE STATE OF MARYLAND as. MICHAEL LEE SMITH DOCKET ENTRIES April 2, HTS?Application for bail reduction Order of Court setting Bail at $15,000.00 April 6, HTS?Indictment ?led (Robbery, etc.) Number: 5?609713 April 3, 1976?Copy of Request for further information ?led April 9, 1976?Recognizance?Allegheny Mutual Gas Co.? $15,000.00 total April 26, INS?Appearance of Howard L. Cardin ?led April 30, 1976?Arraigmnent removed. Atty. appearance ?led Arabian, J. May 27, 1976?Insanity plea ?led June 21, 1975-Arraignment postponed reset 7/12/76. Arab- ian, J. July 14, HTS?Removed from docket?Location: Bail July 23, HTS?Insanity plea withdrawn?set for trial, Bundy, J. Location: Bail October 20, HTS?Medical Report ?led November 3, 197 B?Motion for Discovery ?led November 3, 197B?Motion to dismiss heard denied, Mur- phy. J- November 3, 1976?Motion to suppress evidence withdrawn by defendant. Arr. submits under plea: Not guilty, statement of facts before Murphy, J. 2 November 3, 1976?Verdict: Guilty-1st count, stricken 6: held Sub-curia November 29, 1976?Prohation Report ?led March 9, 1977?Verdict: Guilty?let count March 9, 1977?Judgment: Six (6) years c/o of from Patuxent Institution for examination and report. Murphy, J. March 9, ISN'T?Accept bail in the amount of $25,000 in the event of an appeal to the court of special appeals. Mur- phy. - March 9, 1977?Commitment 81; Order ?led March 9, 1977?Medical report of 12/7/76 ?led March 10, 1977?Appeal to the Court of Special Appeals ?led. To be transmitted by: 5/9/77 March 10, 1977?Appearance of Howard L. Cardin Counsel for Appellant. March 10, 1977?Recognizance taken: Allegheny Mutual Gas. Co. $20,700. and Property Bail 3404 Esther Place Total May 24, 1977?Extension of time to ?le transcript w/clerk on 30 May 1977, and to transmit record by 6 June 1977, Morton, J. June 03, 19774Transc?pt of Testimony ?led and Record transmitted to the Court of Special Appeals. 3 IN THE CRIMINAL COURT OF BALTIMORE CITY EKCERPTS FROM TRANSCRIPT OF HEARING, November 8, 1976 DEFINITION OF ISSUE BY TRIAL COUNSEL [60-61] MR. CARDIN: Our argument is that it [pen register] comes under any other type of search and seizure, that that?s what it is, and that?s exactly what the Court in Giordmw said. We?re not trying to say it?s excluded because it?s in con?ict with Title 3 or with Article 27, Section 125 or 10-402. We are saying it is in conflict with search and seizure law as we know it because it is a search and seizure, we submit, and there- fore it does require prior court authorization before there can be invasion of that particular privacy. If it fell under either 125 or Title 3, then the State in order to attach a pen register would have to show that no other investigative techniques are available and the Court has already said?The Supreme Court of the United States has alreadyr said even if there are hundreds of other investigative techniques available, a pen register can also be used, but it needs still the prior court au- thority, at least. That?s our argument. ll I- 4. RULING OF THE TRIAL COURT [62-63] THE COURT: Mr. Cardin, I have read the cases and on your motion to dismiss it will be denied. That?s the one that addresses itself to the pen register. I am not of the opinion that the pen register device is a violation of the Fourth Amendment . . . I 4. MICHAEL LEE SMITH v. STATE or MARYLAND [No. 98, September Term, 1977] Decided July 14, 1978 CRIMINAL LAwaElectronic Recording Devices?Marg? land Wire Tapping Act?Consent To Recording Tele- phone Conversation Need Not Be Given By All Partici- pants?Attachment Recording Device To Victim?s Telephone Without Conrt Order Does Not Constit-ate Illegal Interception Of Telephonic Communication Under Code (1974) Co-nrts Article 10-4023. Where victim of threatening and obscene phone calls, tape recorded such conversations without knowledge of caller or the police, the Court held that such interception and recording of the conversations did not violate 10-402 of the Mary- land Wire Tapping Act. Code (1974) Courts Article 10-401 through 10-408. pp. 160?162 CRIMINAL LAW?Electronic Recording Devices?Re- cording Telephone Conversation Withont Knowledge And Consent Of All Participants Violates Criminal Statnte? Code (1957, 1976 Repl. Vol.) Art. 27, 125A. pp. 160-162 CRIMINAL LAW?Electronic Recording Devices?Mary- land Wire Tapping Act?Use Of Pen Register To Record Telephone Numbers Dialed Is Not An Interception Of Telephonic Communication?Use Of Pen Register Does Not Violate Maryland Wire Tapping Act?Code (1.974) Conrts Article 10-402 Where telephone company, at request of police, installed a pen register at central of?ce to record phone numbers of outgoing calls made from de- fendant?s telephone, the Court held that the use of a pen register did not violate the Maryland Wire Tapping Act and that evidence obtained from use of the pen register was properly admitted at defendant?s trial. Code (1974) Courts Article 10-402 (3). pp. 162-164 CONSTITUTIONAL LAWHEtectronio Recording Devices ?Searches Amt Seizures?There Is No Constitutionality Protected Expectation Of Privacy In Numbers Dialed. Into A Telephone System?Use Of Pen Registm- To Numbers Dialed Does Not Involve Search Or Seizure Within Fourth Amendment. Where telephone company, at request of police, installed a pen register at central of?ce to record phone numbers of outgoing calls made from defendant?s telephone, the Court held that the use of a pen register did not violate the search and seizure protection of the Fourth Amendment of the U.S. Constitution, and that information obtained from use of the pen register and the fruits thereof properly were admitted at defendant?s trial. pp. 164-174 .A.A. Appeal from the Criminal Court of Baltimore (MUR- PHY, .), pursuant to certiorari to the Court of Special Appeals. Michael Lee Smith was found guilty of robbery and sentenced to ten years? imprisonment. From that con- viction and sentence, Smith appealed to the Court of Special Appeals. Certiorari was granted prior to con- sideration by that court to review whether electronically obtained evidence was improperly admitted at Smith?s criminal trial. Judgment af?rmed. Costs to be paid by appellant. The cause was argued before MURPHY, C. ., and SMITH, Drones, LEVINE, ELDRIDGE and ORTH, JJ., and reargued before MURPHY, C. ., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ. Howard L. Cardin for appellant. Stephen B. Coptic, Assistant Attorney General, with whom were Francis 3. Burch, Attorney Gmterat, Wil- liam A. Swisher, State?s Attorney for Baltimore City, and Mary Ann Witten, Assistant State?s Attorney for Baltimore City, on the brief, for appellee. MURPHY, C. ., delivered the opinion of the Court. DIGGES, ELDRIDGE and COLE, JJ., dissent. ELDRIDGE, ., 6 ?led a dissenting opinion in which DIGGES, ., concurs at page 174 infra. COLE, ., ?led a dissenting Opinion at page 178 infra. Whether electronically obtained evidence was imprOp- erly admitted at the appellant Smith?s criminal trial in violation of state law and the federal constitution is the central issue in this case. Smith was charged with having robbed Patricia Mc- Donough on March 5, 1976. Evidence adduced at the trial showed that the victim was returning to her home shoftly after midnight on the morning of the crime when she observed a man in her neighborhood changing a tire on a 197 5 Monte Carlo automobile which had a dark green bottom and a tan top. As Miss McDonough ap- proached her home, she was suddenly grabbed from be- hind and her pocketbook forcibly taken from her. In the course of the robbery, the victim had a full-face view of the robber and gave Of?cer Kenneth Lucas a description of her assailant and of the 1975 Monte Carlo automobile. Shortly after the crime was committed, Miss Mc- Donough received a threatening and obscene telephone call from an individual who identi?ed himself as the person who had robbed her. She thereafter received a series of such calls from the robber and so advised the police. Unknown to the police, a friend of Miss Mc? Donough, Walt Heline, had attached a recording device to her telephone and instructed her how to tape the robber?s conversation when he called. After Miss Mc? Donough taped three or four calls from her assailant, she informed the police that she had recorded the con- versations, and eventually gave the tapes to them. In the meantime, on March 13, at the request of the police, the telephone company, at its central of?ce, in- stalled terminating accounting equipment on the vic- tim?s telephone line in an effort to determine the origin of the calls she was receiving from the robber. As a result, it was ascertained that some of the calls were being made from pay phones in the immediate vicinity of the victim?s home. Earlier, the victim had advised 7 the police that she thought one of the calls had been made from a telephone at a private residence. On March 15, Miss McDonough received a call from the robber requesting that she step out on her porch so that he could see her. She did so and observed the 1975 Monte Carlo which she had earlier described to the police, driving slowly by her home. Of?cer Lucas, to whom the victim had originally re- ported the crime, was on the lookout for a man ?tting the description of the robber and of the described vehicle. On March 16, in the general vicinity of the victim?s home, the appellant Smith stopped Lucas and sought his assistance in opening the locked door of his 1975 Monte Carlo. Lucas took the license number of the vehicle, learned that it was registered to the appellant Smith, and so noti?ed other investigating police of?cers. On March 17, the telephone company, at the request of the police, installed a pen register 1 at its central of?ces to record the phone numbers of calls made from the telephone at Smith's residence. On March 17, a call was made from Smith's residence to the victim?s home. The police thereafter obtained a search warrant to search Smith's automobile and residence. The search of the residence revealed that a page in Smith?s telephone book was turned down; it contained the name and number of the victim. On March 19, the victim viewed a six- man line-Up at police headquarters and identi?ed the appellant Smith as the man who robbed her. In pretrial motions, Smith had sought to suppress the evidence obtained by the tape recordings and the pen register; he also moved to suppress the line-Up identi?ca- A pen register was well described by Justice Powell in United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1320, 40 L.Ed.2d 341 (1974), as follows: pen register is a mechanical device attached to a given telephone line and usually installed at a central telephone facility. It records on a paper tape all numbers dialed from that line. It does not identify the telephone numbers from which incoming calls originated, nor does it reveal whether any call, either incoming or outgoing, was completed. Its use does not involve any monitoring of telephone conversations. . . 416 U.S. at 549. 8 tion. He contended that the attachment of the recording device to the victim?s telephone without a court order violated Maryland Code (1957, 1976 Repl. Vol.) Art. 27, 125A(a) under that section, it is a misdemeanor ?for any person in this State to use any electronic device. . . to overhear or record any part of the conversation or words spoken to or by any person in private conversation without the knowledge or consent . . . of that other per- son." He also contended that the recording device at- tached to the victim?s phone violated Code (1974) 10- 402 of the Courts and Judicial Proceedings Article; that section prohibits a person from obtaining ?the whole or any part of a telephonic . . . communication to which the person is not a participant by means of a device . . . unless consent is given by the participants.? Appellant further contended that the evidence resulting from the installation of the pen register should be suppressed be- cause its obtention was based on information gleaned from the unlawful tape recordings of the telephone con- versations. He also argued that the pen register con- stituted an unlawful ?interception? of a telephonic com- munication forbidden by 10-402 of the Courts Article. He furthermore maintained that, absent a court order or search warrant, the use of the pen register con- stituted an illegal search. and seizure in contravention of the fourth amendment to the federal constitution. Finally, Smith argued thatwithout the illegally obtained electronic evidence he would not have been arrested, required to appear in a line-up and identi?ed by the victim. He therefore claimed that the line?up identi?ca- tion should also'be sappressed, but he withdrew this con- tention before the trial judge acted on his motions. The trial judge overruled the motions to suppress, and the electronically obtained evidence was admitted. Smith was found guilty of robbery and sentenced to ten years in prison. We granted certiorari prior to decision by the Court of Special Appeals to review the important issues raised in the case. - .9 (1) The Tape Recorded Telephone Conversations At the trial, the State conceded that the recording of the telephone conversations violated 125A of Art. 27. It maintained that the tape recordings were never- theless admissible in evidence because the only sanc- tion prescribed by the statute was criminal prosecution of those who violate its provisions. The Court of Special Appeals so held in Reed v. State, 35 Md. App. 472, 372 A. 2d 243 (1977), and Pennington v. State, 19 Md. App. 253, 310 A. 2d 817 (1973), cert. denied, 271 Md. 742, cert. denied, 419 U.S. 1019 (1974). The appellant does not challenge that interpretation of the statute, and we therefore have no occasion to consider the question in this case. Appellant claims instead that the attachment to the victim?s phone of the recording device without a court order constituted an illegal ?interception? of a tele- phonic communication contravention of .3, 10-402 of the Courts Article. Until its repeal by ch. 692 of the Acts of 10- 402 was part of the Maryland Wire Tapping Act, 10- 401 through 10-408 of the Courts Article, in effect at the time of the appellant?s arrest and prosecution. That Act declared in 10?401 that the right of the people to be secure against ?unreasonable interception of tele- phonic . . . communications may not be violated.? It expressed the legislative mandate that the ?interception and divulgence of a private communication by any person not a party thereto is contrary to the public policy of Chapter 692 repealed the Maryland Wire Tapping Act and Art. 27, in its place it enacted a new statute comprehensively regulating the interception of wire and oral communications. The new statute became effective on July 1, 1977 and is codi?ed as Maryland Code (1974, 1977 Cum. Supp.) 10-401 through 10-412. The Act closely parallels Title of the Omnibus Crime Control and Safe Streets Act of 1963, 13 U.S.C. 2510-2520. Both the state and federal statutes make it unlawful, with certain escaptions, to intercEpt ?any wire or oral communication.? as those terms are therein de?ned, and each contains a provision making all evidence obtained in violation of the statute inadmissible in court. 10 the state, and may not be permitted except by court order in unusual circumstances to protect the people.? Section 10-402 makes it unlawful, absent a court order, for any person to obtain a telephonic communica- tion to which he is not a participant by means of any device unless consent is given by the participants. Sec- tion 10-406 provides that evidence obtained in violation of the Maryland Wire Tapping Act is inadmissible in court. The appellant relies on Robert v. State, 220 Md. 159, 151 A. 2d 737 (1959), as authority for the exclusion of the tape recordings under In Robert, police of?cers, anticipating that the defendant would make a phone call to certain friends in a motel, positioned themselves at the motel?s telephone switchboard. When the expected call came through the switchboard, the of?cers monitored it by means of a headset connected through a press key to the switchboard. After observ- ing that the of?cers could not be classi?ed as participants in the conversation, and that they overheard it without the consent of all of the participants, our predecessors held that the headset was an electrical device by which the of?cers obtained the telephone conversation in con- travention of the Act's provisions, rendering the evidence thereby obtained inadmissible in court. Robert is plainly inapposite on its facts. There, the police of?cers were not participants in the conversation. In the present case, Miss McDonough was a participant in the conversations which she recorded. There is no requirement in 10-402(a) that consent to the record? ing must be given by all participants in the conversa- tion. Consequently, there was no violation of a 10-402 although plainly the recording of the conversations violated Art. 27, 125A. Cf. Clark V. State, 2 Md. App. 756, 237 A. 2d 768 (1968), cert. denied, 394 US. 1001 (1969). Appellant?s suggestion that it was Heline and not the victim who recorded the conversations is not supported by the record. Nor is there any evidence to support Smith?s claim that in attaching the recording device to the victim?s phone Heline acted as a police agent. Simply 11 because the police learned, after the fact, that the device had been attached to the victim?s phone, but did not require its removal, does not warrant a ?nding that Ill-402(3) was violated. Finally, there is no justi?ca- tion for Smith?s reliance on Commonwealth v. McCoy, 442 Pa. 234, 275 A. 2d 28 (1971), and Cameron v. State, 365 P. 2d 576 (Okla. 1961), to establish that 10-402(a) was violated by the recording of the con- versations; the statutes involved in those cases were markedly different from 10-402(a) and therefore are not applicable in this case. The Pen Register We ?nd no merit in the argument that the installa- tion of the pen register at the central of?ces of the tele- phone company to record the phone numbers of outgoing calls made from Smith?s residence telephone constituted the ?interception? of a telephonic communication in viola- tion of The Supreme Court held in United States v. New York Telephone Co., U.S. 98 S. Ct. 364, 54 L.Ed.2d 376 (1977), that a pen register is not en- compassed within the provisions of Title of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510?2520. That Act, which comprehensively regulates wiretapping and electronic surveillance, re- quires a court order authorizing or approving the in- terception of a wire or oral communication. The term ?intercept? is de?ned in of the statute to mean ?the aural acquisition of the contents of anyr wire or oral communication through the use of any electronic, mechanical, or other device.? The Supreme Court said that pen registers are not within the statute because the).r are not devices used to intercept oral or wire communications, they do not ?intercept? because the},r do not acquire the ?contents? of a communication, as that latter term is de?ned in 2511M 8). The Court said: 12 ?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 com- munication. Neither the purport of any communi- cation between the caller and the recipient of the, call, their identities, nor whether the call was even completed are disclosed by pen' registers. Further- more, pen registers do not accomplish the ?aural acquisition? of anything. They decode outgoing tele- phone numbers by reaponding to changes in electrical voltage caused by the turning of the telephone dial (or the pressing of buttons on push button tele- phones) and present the information in a form to be interpreted by sight rather than by hearing.? 98 S. Ct. at 369-70. Although the verbiage of 10-402 differs from the federal statute, the prohibitions underlying each law re- quire the ?interCEption? of a communication. We con-_ clude, as did the Supreme Court in New York Tele- phone, and most federal courts which have considered the question,? that a pen register is not a device which ?intercepts? a telephonic communication. Accordingly, the use of the pen register did not violate 10-402la). Since the evidence procured by recording the telephone conversations which the victim had with her assailant was properly admitted at the trial, Smith?s alternative argument that the pen register evidence must be sup? pressed as an illegal derivative use of the recorded telephone conversations is also lacking in merit. Cf. Everimrt V. State, 274 Md. 459, 337 A. 2d 100 (1975) Carter V. State, 274 Md. 411, 337 A. 2d 415 (1975}. Appellant next contends that pen register surveillance constitutes a search subject to the warrant requirements of the fourth amendment. Since no warrant or court order was obtained authorizing the installation of the 3 Sec, 6.9., United States v. Illinois Bell Tel. Co., 531 F.2d 809 (7th Cir. 1976); United States v. Southwestern Bell Telephone (30.. 546 F.2d 243 (3th Cir. 1976): United States v. Falcone, 505 F.2d 478 (3rd Cir. 1974). cert. denied, 420 U.S. 955 (1975). 13 pen register, Smith claims that the evidence which the pen register produced, and all evidence derived from its use, must be suppressed. The State, on the other hand, contends that the better-reasoned cases support the view that pen register, surveillance is not a search within the fourth amendment and that a warrant is not required to install such a device. Substantial authority exists for each position. In Kata v. United States, 339 U.S. 347, 33 S. Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court held that evidence obtained without a warrant by government agents of words spoken by the defendant in a telephone conversation, which the agents overheard by attaching an electronic listening device to the outside of a public telephone booth from which the defendant had placed a telephone call, violated the fourth amendment. It held, overrling Otmsteed v. United, States, 277 U.S. 433, 43 S. Ct. 564, 72 L. Ed. 944 (1923), that the fourth amend- ment governs not only the seizure of tangible items, but also the recording of oral statements overheard, even in the absence of a technical tresPass against local property law. It said that the fourth amendment protects peeple, and not merely places, against unreasonable searches and seizures; that it protects ?individual privacy against certain kinds of governmental intrusion?; that what a person knowingly exposes to the public, even in his own home or of?ce, is not a subject of fourth amendment protection; but that what he seeks to preserve as private may be constitutionally protected. The Court said that while the fourth amendment cannot be translated into a general constitutional'right to privacy, the activities of the government agents violated ?the privacy upon which [the defendant] justi?ably relied while using the tale phone booth and thus constituted a ?search and seizure? within the meaning of the Fourth Amendment.? 339 U.S. at 353. The admissibility of evidence obtained by use of a pen register was considered in United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L.Ed.2d 341 (1974). There, court orders had been issued authorizing inter- ception of wire communications and the installation of a 14 pen register, and these orders were subsequently ex- tended. The application to extend the pen register de- tailed the contents of conversations intercepted pursuant to the wire interception orders. The Court held that the wire interception orders were invalid since they had not been authorized in conformity with the controlling federal statute. It further held that evidence gathered under the pen register extension order was inadmissible because tainted by the use of the unlawfully intercepted wire communications to secure judicial approval to ex- tend the pen register surveillance order. The Court did not hold that use of a pen register requires compliance with the warrant requirements of the fourth amend- ment, although that result might be implied in view of the decision to exclude the evidence which the pen register produced. In a concurring and dissenting Opinion by Justice Powell, in which the Chief Justice and Justices Black- mun and Rehnquist joined, it was pointed out that there was no dispute that the pen register order was based on probable cause and lawful under the fourth amend- ment. In this context, Justice Powell stated: ?Because a pen register device is not subject to the provisions of Title the permissibility of its use by law enforce- ment authorities dEpends entirely on compliance with the constitutional requirements of the Fourth Amendment.? 416 US. at 553-554. That Justice Powell would not have decided the constitutional issue is, however, clear from his further statement, appearing at footnote 4, 416 U.S. at 554: ?The Government suggests that the use of a pen register may not constitute a search within the meaning of the Fourth Amendment. I need not address this question, for in my view the constitutional guaran- tee, assuming its applicability, was satis?ed in this case.? Justice Powell concluded that the pen register extension order was valid, because based only in part on the un- lawfully intercepted wire communications, and that the evidence gathered by the device was admissible. Relying on Justice Powell?s statement to support the proposition that the use of a pen register depends on compliance with the requirements of the fourth amend- 15 ment, the court in Application of U.S. in atter of Order, Etc., 538 F. 2d 956 (2nd Cir. 1976), stated at 959: ?We take this statement to mean that a pen register order involves a search and seizure under the Fourth Amend- ment, and that a court -may issue such an order only Upon a showing of probable cause.? A number of other courts have reiterated justice Powell?s statement con- cerning pen registers and compliance with the fourth amendment. See United States V. Illinois Belt Tet. Co., 531 F. 2d 809 (7th Cir. 1976); United States v. Doo- little, 50'? F. 2d 1363 (5th Cir.), cert. dismissed, 423 U.S. 1003 (1975) United States v. John, 508 F. 2d 1134 (3th Cir.), cert. denied, 421 US. 962 (1975) United States v. Brick, 502 F. 2d 219 9th Cir. 1974). Although each of these cases states that the propriety of the use of a pen register depends upon compliance with the fourth amendment, only Application of U.S. in Matter of Order, Etc. holds that the use of a pen register constitutes a search; indeed, in United States v. John, supra, the court held that it was not necessary to decide that question. On all four of these cases a warrant had in fact been issued, and none of them ad- dress the question whether use of the device constitutes a search. Nor did the Supreme Court decide the question in United States v. New York Telephone Co, supra. It said, 98 S. Ct. at 369: ?The Court of Appeals?! held that pen register surveillance was subject to the require- ments of the Fourth Amendment. This conclusion is not challenged by either party, and we ?nd it unnecessary to consider the matter.? In New York Telephone, the government had obtained a court order, which the telephone company resisted, authorizing the installation of a pen register and direct- ing the telephone company to provide facilities and as- sistance necessary to install it. At issue in the case was not whether a warrant was necessary; one had been obtained. Rather, the primary issue was whether the District Court had the power to issue an order authoriz- See Application of U.S. in Matter of Order, Etc? supra. 16 ing pen register surveillance. The Court held that it had such authority under Fed. R. Crim. P. 41(b) which was suf?ciently broad to encompass a search, not limited to tangible items but including electronic intrusions, de- signed to ascertain the use being made of a telephone. The Court did not hold that the fourth amendment re- quired such an order; it merely said that the District Court had the authority to issue the order. Under Kata, whether pen register surveillance re- quires compliance .with the fourth amendment depends on whether a telephone subscriber has a constitutionally protected expectation that the numbers which he dials will remain private. In determining whether an ex- pectation of privacy is constitutionally justi?ed, we adopted in Vennse v. State949 (1977), cert. denied, 431 US. 932 (1977), the twofold test articulated by Justice Harlan in his concurring opin? ion in Kate, ??rst that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ?reasonable.? 389 US. at 361. Other courts have followed this test. See, United States v. Peter- son, 524 F. 2d 167 (4th Cir. 1975), cert. denied, 423 U.S. 1088 (197 6) United States V. Hitchcock, 467 F. 2d 1107 (9th cert. denied, 410 US. 916 (1973) Smith v. State, 510 P. 2d 793 (Alan), cert. denied, 414 U.S. 1086 (1973) People V. 38 Ill. App. 3d 277, 347 76 (1976). It is generally held that the expectation of privacy protected by the fourth amendment attaches to the con- tent of a telephone conversation and not to the fact that a conversation took place. Hodge v. Monntain States Tel. <2 Tel. 00., 555 F. 2d 254 (9th Cir. 7977) United States Ciegg, 509 F. 2d 605 (5th Cir. 1975) United States v. Banter, 492 F. 2d 150 (9th Cir.), cert. dismissed, 414 US. 801 (1973) United States v. Fithian, 452 F. 2d 505 (9th Cir. 1971) United States v. Haecei, 394 F. Supp. 228 (ED. Ark. 1975) ajf?d 540 F. 2d 1345 (8th Cir. 1976). Ciegg dealt with a device in all respects similar to a pen register; it was attached by the telephone company to the defendants? telephone line to determine whether 17 was illgally circumventing the telephone company?s bill- ing by using a so-called ?blue box? device to make long-distance calls. The court there said that the fourth amendment ?protects only the content of a telephone con- versation and not the fact that a call was placed or that a particular number was dialed.? 509 F. 2d at 610. This was so, the court said, ?because telephone subscribers have no reasonable expectation that records of their calls will not be made . . . [since it is] well known that such records are kept.? Id. at 610. Consistent with Ctegg, other courts have held that telephone subscribers have no reasonable espectation that records of their calls will not be made. United States v. Harvey, 540 F. 2d 1345 (8th Cir. 1976) V. United States, 415 F. 2d 99 (6th Cir. 1969), cert. denied, 402 U.S. 949 (1971) United States v. Covetto, 410 F. 2d 536 (2nd Cir.), cert. denied, 396 US. 379 (1969) Nolan v. United States, 423 F. 2d 1031 (10th Cir. 1969), cert. denied, 400 U.S. 348 (1970) Brandon v. United States, 382 F. 2d 607 (10th Cir. 1967) Banter, supra; Fithian, snpra. These cases in the main involve billing records for toll or long- distance phone calls. They seemingly stand for the propo? sition that, as against the subscriber?s claim to privacy, the fourth amendment is not applicable to the seizure of such records in the possession of the telephone com- pany because public awareness that the records are rou- tinely maintained negates any constitutionally protected expectation of privacy regarding them. In Hodge v. Mountain States Tel. Tel. Ca, 555 F. 2d 254 (9th Cir. 1977), the court held that no substantive fourth amendment right was implicated by the warrant- less attachment of a pen register to the telephone line of a subscriber suSpected of making local obscene calls. In concluding that no constitutionally protected right of privacy was involved, the court saw little practical dif- ference, insofar as public awareness was concerned, be- tween the maintenance of routine telephone billing rec- ords and a pen register. It said: ?Although a pen register record differs from tele- phone company billing records, we have no dif?culty 18 in now holding that the information recorded is not protected by the Fourth Amendment. pen register record for a particular telephone contains information different from the telephone company billing records for that telephone. Tele- phone company billing records show only completed calls, not, as with a pen register, the numbers dialed. Furthermore, a pen register record shows the dialing of telephone numbers which, even if completed, would not be shown by billing records, because the numbers are within a local dialing area. It could be argued that since no records of such calls are nor- mally maintained, an expectation of privacy exists. This admitted difference is not, in our view, of con- stitutional dimension ?3 and is more than offset by the fact that pen register recorsd are even farther removed than billing records from the content of the communications. Viewed in the round, the in- formation recorded by pen registers is not entitled to Fourth Amendment protection.? The existence of a constitutional right should not depend upon the boundaries established by the telephone company for its local calling areas." 555 F.2d at 256?257. Judge Hufstedler, in an Opinion specially concurring in Hodge, said that the use of the pen register did not constitute a ?search? within the meaning of the fourth amendment ?because the ?electronic listeningJ does not encroach upon ?the privacy upon which . .. . [one] jus- ti?ably relie[s]? citing Kata. 555 F. 2d at 266. After noting that there was no justi?able expectation of pri- vacy in the contents of telephone company billing records, she said: ?Similarly, there is no expectation of privacy in the contents of a pen register tape. Like billing records, a pen register tape discloses the numbers dialed from a particular telephone and "not the contents of any conversation. In fact, a pen register creates a lesser intrusion into a subscriber?s privacy because, unlike 19 billing records, a pen register tape does not indicate whether any calls were answered. ?True, the telephone company unusually does not keep a record of local telephone calls. But most sub- scribers are unaware of the boundaries of their local dialing zones, especially in cities where these zones do not coincide with traditional geographic bound- aries. Furthermore, it is common practice for the telephone company to keep a record of all calls dialed from a telephone which is subject to a special rate structure. . . . Under these circumstances, sub- scribers do not harbor any justi?able expectation of privacy that a record will not be kept of their out- going calls. . . . . . For this reason, the acquisi- tion . . . by means of a pen register . . . of nothing more than information concerning . . .. the numbers dialed does not offend the Fourth Id. at 266. The same conclusion was reached in Note, The Legal Constraints Upon the Use of the Pen Register as a. Law Enforcement Toot, 60 Conrnell L. Rev. 1028, 1044-45 (1975) . It was there said: ?[T]he fourth amendment does not bar the use of the pen register. First, even assuming that a pri- vacy expectation is in fact present, it is well settled that toll calls (and their records) are not entitled to a reasonable expectation of privacy. And, with respect to most areas of the country, there seems to be no valid distinction between the expectations as- sociated with local calls on the one hand and those calls that cross the local billing zone on the other hand. The majority of subscribers probably have no real knowledge as to the geographic boundaries of their ?local call? zone.? A second reason for the commentator?s conclusion that warrantless pen register surveillance does not violate the fourth amendment was stated as follows: ?[A]ll telephone subscribers must utilize equipment owned by a third party, the telephone company, in 20 order to place a call. It is therefore unreasonable for a subscriber to assume that the fact of his call passing through the telephone system will remain a. total secret from the telephone company. Once this assertion is accepted, it is clear that there can be no reasonable expectation of privacy from law enforce- ment authorities with to the dial pulses detected and recorded by the telephone company. In a variety of analogous contexts, the Sopreme Court has determined that a person entitled to re- ceive a communication is similarly entitled to re- veal it to government of?cials without further legal process.? Id. at 1045. Supportive of the conclusion that pen register sur? veillance does not violate the fourth amendment is United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L.Ed.2d 453 (1971), and United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L.Ed.2d 71 (1976}. In White, state? ments made by the defendant were overheard by govern- ment agents by'means of a hidden transmitter which an informer agreed to wear during his meetings with the defendant. The Court found no constitutionally pro- tected expectation of privacy that the informant would not simultaneously transmit the conversation to the police. In Miller, the Court held that a bank depositor had no legitimate expectation of privacy in the contents of checks and deposit slips turned over to the bank, stating. ?The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the government. . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of in- formation revealed toa third party and conveyed by him to government aauthorities, even if the in- formation is revealed on the assumption that it will be used only for a limited purpose and the con?dence placed in the third party will not be betrayed.? 425 U.S. at 443. 21 A similar situation exists in the case of telephone calls. While the content of a call is _not revealed to the telephone company, the information as to the number dialed must necessarily be revealed, since it is through telephone company switching equipment that calls are completed. As a recipient of such information, the com- pany may reveal it since the caller can have no reason- able expectation that it will remain private. In fact, the caller should have even less of a justi?ed expectation of privacy, since unlike the disclosures in l-Vhite and Mitts-r the use of a. pen register does not reveal the contents of a communciation. Cases involving other types of surveillance are also relevant. In United States v. Hn?orct, 539 F.2d 32 {9th Cir.), cert. denied, 429 U.S. 1002 (1976), the court held that the installation of an electronic tracking device on a drum of caffeine to aid government agents in tracking the defendant?s truck did not violate the fourth amend- ment. Citing Kate, the court stated: ?[The defendant] did not have a reasonable expectation of privacy as he drove along the public road. While he hoped that his travel would go unmonitored, his movements were knowingly exposed to the public, and therefore are not a subject of fourth amendment protection.? 539 F. 2d at 33-34. Accord: United States v. Pretzinger, 542 F. 2d 517 (9th Cir. 1976). Contra: United States v. Hotmes, 521 F. 2d 359 (5th Cir. 1975), a??tt by an evenly divided court, en banc 537 F. 2d 227 (1976). The use of mail covers, where postal inspectors cepy information contained on the outside of sealed envelopes traveling through the mail, may also be likened to the use of a pen register. In each situation, communications travel through public conveyances; in each the surveil- lance reveals the destination or point of origin of the communications, but not the content of the message it- self. If anything, the use of a mail cover is more of an invasion of privacy than a pen registm since the mail cover reveals the identities of the parties. Nonetheless, courts have generally held that the use of mail covers does not violate the fourth amendment. See v. United States, 386 F. 2d 132 (9th Cir. 1967), cert. 22 denied, 390 U.S. 951 (1968) Cancdoy v. United States 354 F. 2d 849 {8th Cir. 1966). Post?Kate authority up- holding the use of mail covers is limited. See United States V. Leonard, 524 F. 2d 1076 (2d Cir. 1975), cert. denied, 425 US. 958 (1976) (mail cover on international mail) United States v. 403 F. 2d 472 (7th Cir. 1968) United States v. Ismcs, 347 F. Supp. 743 (ND. 111. 1972). In United States Cheats, 422 F. Supp. 261 (CD. Cal. 1976), the court took a contrary vievv. While it recognized that a person?s expectation of privacy with respect to return addresses on mail is a limited one, the court concluded that a person justi?ably expects that the information will be used only for postal purposes and that records of it will not be kept. The court held a person did have a reasonable expectation that his mail would not be used for surveillance purposes. The holding in Ghosts may be questioned, however, in light of United totes V. ills-r, supra, where the Sn- preme Court held that disclosure of information, even on the assumption that it would be used for a limited purpose, negated any expectation of privacy with respect to that information. We hold that there is no constitutionally protected reasonable expectation of privacy in the. numbers dialed into a telephone system and hence no search Within the fourth amendments is implicated by the use of a pen register installed at the central of?ces of the telephone company. While the guarantees of the fourth amendment are broad, they are not boundless, State v. Siegei, 266 Md. 256, 292 A. 2d 86 (1972) not everything a person may want to be private is protected by the fourth amend- ment. As Kutz teaches, the fourth amendment does not afford our citizens ?a general constitutional right to privacy.? In not imposing Title restrictions on the use of pen registers, it is evident, as New York Tele- phone explicitly points out, that the Congress did not consider that such devices pose a threat to privacy of the same dimension as the interception of an oral com- munication. As the Supreme Court noted in that case, pen registers do not reveal Whether a communication existed and it recognized that such devices are regularly 23 used by the telephone company without a court order ?for the purposes of checking billing Operations, dc- tecting fraud, and preventing violations of law.? 98 S. Ct. at 373. The intrusion involved in pen register surveillance is minimal; no violation of the integrity of the communication system itself is entailed; and no conversation is overheard. Whether a telephone subscriber harbors an actual sub- jective expectation of privacy in the numbers which he dials is, of course, dif?cult to know. In all probability, he understands that his calls are placed through mechanical equipment and that some record is made. We think it unlikely that the telephone subscriber distinguishes be- tween local or toll calls with reSpect to an expectation of privacy in the numbers he dials. Even if he did harbor such an expectation, we are not prepared to say on the record before us that it is one that society would recog- nize as reasonable and constitutionally protected. Judgment- d?irmed; costs to be paid by appellant. Eldv-z'dg e, J., dissenting: Although I recognize that the issue is a close one, I do not share the majority?s view that there is no reason- able expectation of privacy in the numbers dialed into a telephone system. Consequently, I disagree with the majority?s conclusion that no search within the meaning of the Fourth Amendment is implicated by the police?s having a pen register installed to record the numbers dialed from the telephone at the defendant?s home. In Kate v. United States, 389 U.S. 347, 83 S. Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court held (339 U.S. at 353, emphasis supplied) ?The Government?s activities in electronically listen- ing to and recording the petitioner?s words violated the Mummy some which he justi?ably vetted white est-n9 the telephone booth and thus constituted a ?search and seizure? within the meaning of the Fourth Amendment.? I 24 'In my opinion, there similarly exists a privacy upon which one justi?ably relies with respect to the telephone numbers which he dials in his own home. Mr. Justice Harlan both joined the majority opinion in Kate and further explained the applicable principles in a concurring Opinion, stating (389 US at 361) ?As the Court?s opinion states, ?the Fourth Amendment protects people, not places.? The ques- tion, however, is what protection it affords to those people. Generally, as here, the answer to that ques- tion requires reference to a ?place.? My understand- ing of the rule that has emerged from prior decisions is that there is a twofold requirement, ?rst that a person have exhibited an actual (subjective) ex- pectation of privacy and, second, that the expectation be one that society is prepared to recognize as ?reasonable.? Thus a man?s home is, for most pur- poses, a place where he expects privacy, but objects, activities, or statements that he exposes to the I?plain view? of outsiders are not ?protected? because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.? As pointed out in the above quotation, ?for most pur- poses? a person expects privacy in his own home; I know of no sound basis for concluding that there is an excep- tion to this general proposition in regard to telephone numbers which a person dials on his home telephone. It is not like a conversation ?in the open.? When the average person dials a number in the privacy of his home, he does not contemplate, nor should he reasonably contemplate, that .he is exposing the information ?to the ?plain. view? of outsiders." The principles set forth by the majority and by Mr. Justice Harlan in Katz lead me to the conclusion that the Fourth Amendment does apply when the police have a pen register installed to record the numbers dialed from one?s telephone. The same conclusion has been reached 25 by several cases in the United States Court of Appeal. Application of United States For Order, Etc, 546 F. 2d 243, 245 (3th Cir. 1976), cert. denied, Southwestcm Belt Telephone Company v. United States, 434 US. 1008, 98 S. Ct. 716, 54 L.Ed.2d 750 (1978) Appticctimt of US. In Matter of Order, Etc, 538 F. 2d 956. 959 (2d Cir. 1976), reversed mt other grounds, United States v. New York: Tell. 00., 434 U.S. 149, 93 S. Ct. 364, 54 L.Ed.2d 376 (1977) United States v. Illinois Belt Tet. Co., 531 F. 2d 809, 813 (7th Cir. 1976) United States v. John, 508 F. 2d 1134, 1141 (8th Cir. 1975), cert. denied, 421 US. 962, 95 S. Ct. 1948, 44 L.Ed.2d 448 (1975) United States v. Falcons, 505 F. 2d 473, 482 n. 21 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S. Ct. 1339, 43 L.Ed.2d 432 (1975). The principal basis for the view that the use of a pen register does not constitute a search for purposes of the Fourth Amendment seems to be the conclusion of some judges that there is no justi?able expectation of privacy with respect to numbers dialed because elephone sub- scribers are fully aware that records will be made of their toll calls.? United States v. Booster, 492 F. 2d 150, 167 {9th Cir. 1973), cert. denied, 416 US. 940, 94 S. Ct. 1945, 40 L.Ed.2d 292 {1974). See also Hodge v. Mountain States Tet. do Tel. 00., 555 F. 2d 254, 256, 266 9th Cir. 1977) United States v. Ctegg, 509 F. 2d 605, 610 (5th Cir. 1975).. This theory is relied on by the majority in the instant case. However, the mere fact that a person who thinks about it would realize that the numbers dialed in completed long distance calls would have to be recorded for billing purposes, does not, in my judgment, warrant the con? clusion that no reasonable expectation of privacy exists generally with reSpect to telephone numbers dialed. Such calls represent only a small percentage of those made by the average individual. The overwhelming majority of calls made by the average person are local and do not involve toll charges. Moreover, as to calls outside of one?s local area, many are not answered or result in busy signals. Nevertheless, the pen register records even these. Because one?s expectation of privacy in a particular type 26 of situation may not be fully realized in a minority of instances does not necessarily make that expectation unreasonable. The majority?s attempted analogy between United States V. Miller, 425 US. 435, 443, 96 S. Ct. 1619, 48 L.Ed.2d 71 (1976). and the situation in the instant case is unpersuasive. In Miller, with regard to checks and deposit slips, the Supreme Court observed that the ?de- positor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the government.? But it was not the telephone company which instigated the installation of the pen register in the instant case. Miller is thus distinguishable by the fact that here, absent the government?s intrusion, the tele- phone company could not have revealed any information to the government regarding Smith?s calls. Normally the telephone company does not, in any meaningful sense, possess information about local telephone calls which it could pass on. The mere fact that machines (switching equipment) owned by the telephone company reSponded in certain ways to the defendant?s dialing numbers can- not reasonably be construed as a transfer of information by the defendant to the telephone company. There is no indication in this case that the telephone company?s machinery preserved a record of the numbers dialed, nor that any telephone company employee did or could be espected to observe the process. The defendant, by the simple act of dialing local numbers, did not reasonably intend to reveal information; he merely made use of machinery in particular ways which, without the police intrusion, would have remained fully private. In sum, I agree with the position suggested by Mr. Justice Powell, dissenting in part in United States v. Giordano, 416 US. 505, 548.. 553-554, 94 1820, 1842, 1845, 40 L.Ed.2d 341 (1974), that the permissibility of law enforcement of?cials using a pen register depends upon compliance with the requirements of the Fourth Amendment. Judge Diggens has authorized me to state that he concurs with the views expressed herein. 27 Cole, J., dissenting: Today no one perhaps notices because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman?s master. Mr. Justice Douglass, dissenting in United States v. White, 401 U.S. 745, 757, 91 S. Ct. 1122, 23 L.Ed.2d 453 (1971). The majority holds today that the installation of a pen register, by the telephone company, at the request of the police and without the authorization of a warrant, at is central of?ce to record all numbers dialed from the defendant?s telephone, does not constitute a search under the fourth amendment because ?there is no constitu? tionally protected reasonable expectation of privacy in the numbers dialed into a telephone system.? I disagree and I respectfully dissent. The issue of whether the use of a pen register is a search and must therefore comply with the standards of the fourth amendment is one of ?rst impression in this jurisdiction. Heretofore, this Court has only ad- dressed the question of whether government electronic interception of a conversation is a search. Carter v. State, 274 Md. 411, 337 A. 2d 415 (1975); Siege! v. State, 266 Md. 256, 292 A. 2d 86 (1972); Trooiager v. State, 34 Md. App. 357, 367 A. 2d 543 (1977) Penning- ton. v. State, 19 Md. App. 253, 310 A. 2d 317 (1973), cert. denied, 419 U.S. 1019 (1974) State v. Graeiano, 17 Md. App. 276, 301 A. 2d 36 (1973). The pen register alone does not record ?conversations,? nor whether a call was completed; it only records the fact that certain num- bers were dialed from a telephone. The question actually before us, then, is whether police interception of the in- formation from Smith's telephone (certain numbers dialed) by means of a pen register, was a ?search.? 1 Two federal circuits have held that use of a pen register con- stitutes a search. See United States v. Southwestern Bell Telephone Company. 546 F.2d 243 (3th Cir. 1976); Application of US. in Matter of Order, 533 F.2d 956 (2d Cir. 1976), rev'd on other -- 28 A ?search? in the constitutional sense has three com- ponents: it is (1) an invasion into otherwise private or concealed areas or matters (2) by the government (3) exploring for evidence of guilt in a criminal prosecution. See eon Lasoh V. State, 39 Md. App. 517 387 A. 2d 306 (1978) V. State, 4 Md. App. 81, 241 A. 2d 153 (1968) Ktetnbart V. State, 2 Md. App. 183, 234 A. 2d 288 (1967). Other courts have adopted similar definitions of the term ?search.? See, United. States v. Ltsk, 522 F. 2d 228 (7th Cir. 1975), cert. dented, 423 US. 1078 (1976) United States V. Davis, 482 F. 2d 893 (9th Cir. 1973) arshalt V. United States, 422 F. 2d 185 (5th Cir. 1970) State V. Tall-y, 166 Conn. 126, 348 A. 2d 603 (1974) State V. Ashbi 245 So. 2d 225 (Fla. 1971) Aleorn V. State, 255 Ind. 491, 265 413 (1970) State V. Person, 34 Ohio Misc. 97, 298 NE. 2d 922 (1973) State V. Candy, 201 236 (SD. 1972), cert. dented, 412 US. 928 (1973) Long V. State, 532 591 (Tex. Crim. App. 1975), cert. dented, 425 US. 937 (1976). Especially concise is the de?nition in Darts, supra; at'896?97: ?[S]earch is a functional, not mereij,r a physical, process.? V. United StatesCt. 1372, 1374, 93 L. Ed. 1819 (1949). A search begins with the planning of the invasion and continues ?until effective apprOpriation? of the fruits of the search .?for subsequent proof of an offense.? Id. The. Fourth Amendment applies to a search whenever the . government participates in any sig- ni?cant wayr in this total .course of conduct. ?The decisive factor . . .is the actuality of a share by a[n] grounds, sub nom. United States v. New York Telephone Co. U.S. 98 S. Ct. 364, 54 L.Ed.2d 376 (1977). Dicta from other circuits endorse the views of Mr. Justice Powell in United States v. Giordano, 416 U.S. 505; 94 S. Ct. 1820, 40 L.Ed.2d 341 (1974) (concurring and dissenting opinion). See United States v. Illinois Bell Tel. 531 F.2d 809 (7th Cir. 1976); United States v. John, 508 F.2d 1134 (8th Gin). cert. denied, 421 U.S. 962 (1975); United States v. Falcone. 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. .955 (1975). 29 .. of?cial in the toe] enterprise of securing and selecting evidence by other than sactioned means.? A ?search,? therefore, is a step in a criminal investiga- tion by the government which focuses on the gathering of infoawzation or clues relevant to prosecution. Information is not restricted to the contents of oral communication. In many situations non-verbal action may be more explicit and highly relevant to a criminal investigation. Such signals may be a command to bet or not to bet, to print or not to print, to preserve or to destroy, or indeed, to stay or flee. It is only left to the investigator to understand the question being answered. I agree with the majority that conversation is protected under the teachings of United States v. Kate, 389 U.S. 347, 38 S. Ct. 507, 19 L.Ed.2d 576 (1967). However, information received from monitoring Smith?s telephone is also entitled to protection. Technologically, a distinc- tion between verbal and digital transmissions is absurd. There can be no doubt that the fact that Smith made certain calls from his home telephone is highly relevant information in a criminal prosecution for obscene or an- noying phone calls. The ?government action? part of the de?nition of a ?search? is satis?ed in Smith?s case because the telephone company attached the pen register to Smith?s line at the request of the police and was not ordered to do so by a court or acting under compulsion of a warrant. In essence, the telephone company, not conducting an in- dependent investigation of its own, assumed the role of an agent of the government in conducting a warrantless search. The majority cites cases which on this point are inapposite. The surveillance of the defendants? tele- phones in Hodge v. Mountain States Tel. Tet. 555 F. 2d 254, 256 n. 3 {9th Cir. 1977) United States v. Harvey, 540 F. 2d 1345 (8th Cir. 1976) United States v. Ciegg, 509 F. 2d 605 (5th Cir. 1975); Nolan v. United States, 423 F. 2d 1031 10th Cir. 1969] cert. denied, 400 U.S. 848 (1970) and Brandon v. United States, 382 F. 2d 607 (10th Cir. 1967) was conducted solely by the telephone companies, independent of gov- 3O ernment agencies.2 Furthermore, in United States v. Banter, 492 F. 2d 150 (9th Cir.), cert. dis-missed, 414 US 801 (1973} DiPia-zaa V. United States, 415 F. 2d 99 (6th Cir. 1969), cert. denied, 402 U.S. 949 (1971) and United States v. Co-veito, 410 F. 2d 536 (2d Cir.l, cert. denied, 396 U.S. 879 (1969}, no pen registers or blue bones were ever used; government agencies merely subpoenaed the toll or long distance billing records rouv tinely kept by the telephone company. United States V. ithian, 452 F. 2d 505 l9th Cir. 1971}, also involved the exercise of governmental power to subpoena tele? phone company records rather than governmental or telephone company surveillance of the making of calls, although the opinion is unclear as to whether the docu? ments recorded local or toll calls, or both.3 The ?invasion of privacy? prong of the de?nition of a ?search? is also met in this case. While telephone com- panies routinely maintain records of toll and long dis- tance calls for billing purposes, or monitor a telephone line to correct problems with services, or deal with customer complaints, local calls made by Smith on his home phone are a private matter. Routine telephone company activities do not include the monitoring of local calls because customers usually pay for basic use of equipment at a flat rate. Nor would the government routinely be privy to information concerning Smith?s private local calls absent a warrant. ?5 Although not cited by the majority in this case, two other recent Ninth Circuit decisions speci?cally excluded fourth amendment considerations because monitoring activities were conducted by telephone companies, independent of the government. See United States v. Bowler. 561 F.2d 1323 (9th Cir. 1977); United States v. Glanser, 521 F.2d 11 (9th Cir. 1975) (per curiam). 3 In the case sub indies the police obtained information about all of Smith's outgoing calls. not just long-distance or toll calls, as in Baxter, DiPiazza, and Covello, supra. The majority attempts to minimise the signi?cance of these factual distinctions by quoting a portion of Hodge. supra, in which, without citing any authority other than its own opinion, the Ninth Circuit stated that the differ? ence between a pen register's recording of all attempted outgoing telephone calls and a telephone company?s routine records of com~ pleted toll and long distance calls is not of constitutional dimension. See Hodge. supra, 555 F.2d at 256-57 and n. 6. 31 The majority contends that a legal distinction between telephone customer expectations regarding local calls and toll calls cannot be made because subscribers have no real knowledge as to the geographic boundaries of their local calling area. This amounts to mere speculation as to what the average telephone customer knows. In ad- dition, in Maryland, a person using the telephone must have some knowledge of his local calling zone because a special number pre?x, must be dialed in order just to complete in-state calls which are made to telephones outside one?s local calling zone. It is also di?icult to agree with this argument because it assumes that tele- phone subscribers are so unconcerned about the amount of their bilis that they pay no attention to whether they are making toll calls. Second, the majority suggests that since all telephone calls must pass through equipment owned by the tele- phone company, the telephone company will have knowl- edge of the fact that calls were made. The majority then attempts to construct an analogy between the facts in this case and prior cases holding that transfer of information to the government by a ?wired? informant, United States v. White, supra, or by a bank, United. States v. Mitter, 425 U.S. 435, 96 1619, 48 L.Ed.2d 71 (1976), or by means of ?mail covers? 3.9., United States v. Leoimrd, 524 F. 2d 1076 (2d Cir. 1975), cert. denied, 425 U.S. 958 (1976), or by observation in a public area, United States v. Ha?ord, 539 F. 2d 32 (9th Cir.), cert. denied, 429 US. 1002 (1976) did not violate the fourth amendment because those defendants had no constitutionally protected expectations of privacy when they gave information to the person(s} who ulti- mately turned the information over to the government. This analogy just does not hold water. In White, supra, a conversation between the defendant and an in- formant was relayed by the informant to the police by means of an electronic transmitter that the informant was wearing. The majority opinion in White stressed that because the revelation to the government was made by a ?party? to conversation with the defendant, the 32 defendant had no justi?able or constitutionally protected expectation of privacy concerning the conversation. 401 US. 745 at 749. I cannot agree that the telephone com? pany in this case was a ?party? to Smith?s calls in the same sense as the informant in White. Smith did not speak to the telephone company in the direct manner that White spoke to the informant. The telephone company was ?neutral? in the telephone call. See California Bankers Association v. Shatter, 416 U.S. 21,? 48-49, 94 S. Ct. 1494, 39 L.Ed.2d 812 (1974). Smith was leasing the telephone in order to make private calls from his home. If Smith had known that a pen register would be attached to his phone merely at the request of the police, without a warrant, he would have little reason to lease a ?private? home phone. A home phone would afford him little more privacy than a public phone. Similarly, in Miller, supra, the Supreme Court held that because the defendant?s bank' was a ?party? to the instruments negotiated by the defendant, the bank?s reve- lation of information about the defendant?s accounts upon government subpoena did not implicate the fourth amend- ment. 425 US. 435 at 440. According to the Court, the defendant had no reasonable expectation of privacy in that situation. Once again, I cannot agree that the tele- phone company is a ?party? .to its customers' telephone conversations in the same sense in which a bank operates with regard to its customers? negotiable instruments, so as to render unreasonable Smith?s expectation of privacy in the use of his home phone. Even if the majority?s analogy to Miller is valid; (and I do not agree) and Smith should have expected that the telephone company could itself monitor his phone for billing purposes, to improve service to its customers, or to verify complaints, Smith nevertheless had a reasonable expectation that the telephone company would not, without the safeguards of appropriate legal process, act for the government in collecting information relevant to a criminal prosecution. See California Bankers Association v. Shaitz, supra, 416 US. 21 at 52. The majority?s analogy to .?mail covers? is also un- convincing. While use of the postal service involves es- 33 sentially public facilities where any writing on the out- side of an envelope or on a postcard can be easily read by postal employees, telephones are placed in the home to provide privacy regarding the parties to and content of a conversation. The Supreme Court has repeatedly acknowledged the aura of privacy which surrounds ac- tivities in the home, as contrasted with ?public" activi- ties. See, United States v. Martinez-Faerte, 428 US. 543, 561, 96 S. Ct. 3074, 49 L.Ed.2d 1116 (1976) (Fourth Amendment context). The decision in Miller, supra, does not preclude this type of analysis because the Court in Miller expressly based its decision on the as- sumption that the documents subpoenaed were not the respondent?s ?private papers.? Miller, supra, 425 US. 435 at 440. Unlike Miller, who voluntarily gave informa- tion to another ?party? to his commercial transactions, his bank, and never Operated on the assumption that the information was private, defendant Smith sought to maintain his privacy regarding his phone calls by plac- ing them in his home. In contrast to the majority, I believe that the use of ?mail covers? is less of an in- vasion of privacy than a pen register. The address and return address on an envelope are easily visible to any- one handling it, while use of a home phone is designed to make telephone communications a much more private matter. The same argument also shows the weakness of the majority?s reference to observations made on a public highway by the police. Smith placed these calls on his home teIEphone precisely to avoid ?knowingly exposing" information to the public, as did the defendants in Haf- ford, supra, and in United States v. Moore, 562 F. 2d 106 (1st Cir. 1977). The ultimate issue to be resolved is whether the war- rantless search through electronic detection placed upon Smith's telephone violated the Fourth Amendment. The test that must be applied is one of the reasonableness of the search: here is a twofold requirement, ?rst that a person have exhibited an actual (subjective) expectation of 34 privacy and, second, that the expectation be one that. society is prepared to recognize as ?reasonable.? Kata, supra, 389 US. 347 at 361; Venaer v. State949, cert. denied, 421 US. 932 (1977). While I would agree with the majority that it is dif- ?cult to know whether a telephone subscriber harbors an actual subjective expectation of privacy in the num- bers which he dials, I would contend that the facts in this case clearly sopport an inference that Smith had an expectation of privacy in the local calls he made. As previously stated, a phone call placed in the home would demonstrate an expectation of privacy, in contrast to one placed froma public phone or a private phone located in someone else?s home. In addition, the telephone company does not usually keep records of every local call for routine billing or service purposes. At the very least, Smith certainly had an expectation that the telephone company would not act as a government agent in moni- toring his calls for purposes of a criminal investigation without appropriate legal process. That such expecta- tion is reasonable seems undebatable. Finally, the majority dismisses Smith?s contention rather summarily by stating that ven if he did har- bor such an expectation, we are not prepared to say on the record before us that it is one that society would recognize as reasonable and constitutionally protected.? I emphatically disagree. Not only is society prepared to recognize this expecta- tion of privacy in the use of one?s home telephone but society would welcome the fact that this Court would declare its recognition of the right and protect it. Stated differently, I do not believe anyone in our society would be surprised to learn that the police were illegally tapping phones, examining mail or otherwise engaging in unlaw- ful snooping. However, they would be shocked to learn that this Court or any other court condoned, tolerated or put its stamp of approval on such practices. The majority fails to give due weight to the impact of Watergate and its progeny, the recent revelations of 35 illicit surveillance conducted by the F.B.I. upon activities of various civil rights, labor and political leaders, or indeed, the potential abuse to which the pen register may be put by police authorities} These factors and others have created an environment of distrust, fear and lack of con?dence. I believe society condemns any such unlawful practices and awaits the forces of good to restore the basic right of privacy which has been steadily eroded. I believe that each citizen still clings to the notion that while being deprived of his privacy, he still has the right to it and relies upon the courts to safeguard that privacy from warrantless intrusion. Lest we forget, the heart of the fourth amendment is to protect citizens against every unjusti?able intrusion by the state upon their privacy, whatever the means employed. For the fourth amendment to remain viable, it must adjust to the times and afford protection against new forms of invasions of privacy, however sophisticated and whether they are generated through electronics or even advances in the or related sciences. In the instant case, no such intrusion was legal with- out proper review of a magistrate. I would recognize Smith?s right of privacy and suppress the fruits of the warrant-less search. A pen register may be subject to abuse because it. may be easily converted into a wiretap by attaching headphones or a tape recorder to appropriate terminals on the pen register unit. Newer models of pen registers have automatic voice actuated switches which can automatically turn a tape recorder on and off as the telephone is used. See Note, Circumventing Title HI, The Use of Pen Register Surveillance in. Law Enforcement, 1977 Duke L.J. 75], 759. The pen register also has the potential of inhibiting freedom of associa- tion. If pen register data were fed into a central computer on a widespread basis, patterns of acquaintances and dealings among a substantial group of people would be available to the government. A. Miller, Assault on Privacy, supra. at 43. 36 MANDATE COURT OF APPEALS OF MARYLAND No. 98, September Term, 1977 MICHAEL LEE SMITH STATE or MARYLAND Appeal from the Criminal Court of Baltimore pursuant to certiorari to Court of Special Appeals. Filed: October 10, 1977. anuaryr 11, 1978: Order of Court ?led setting case for reargument, etc. July' 14, 1978: Judgement af?rmed, costs to be paid by appellant. Opinion by Murphy. C.J. Digges, E1- dridge and Cole, ., dissent. 1113; 14, 1978: Dissenting opinion by Eldridge, .. in which Digges, ., concurs. ulyr 14, 1978: Dissenting opinion by Cole, J. STATEMENT OF COSTS: In Circuit Court: Record 3; 30.00 Stenographer?s Costs 202.00 In Court of Appeals: Petition Filing Fee Printing Brief for Appellant Not supplied 37 Portion of Record Extract?Appellant . Replyr Brief (Supplemental) 13 Appearance Fee?Appellant 10.00 Filing Fee on Appeal (Court of Special Appeals) 30.00 Printing Brief for Appellee 30.00 Portion of Record Extract? Appellee (Supplemental) 30.00 Appearance Fee?Appellee 10.00 STATE OF MARYLAND, ss: I do herebyr certify that the foregoing is truly taken from the records and proceedings of the said Court of Appeals. In testimong,r whereof, I have hereunto set my hand as Clerk and a?ixed the seal of the Court of Appeals this fourteenth day of August, 1978. James H. Norris, Jr. Clerk of the Court of Appeals of Maryland Costs shown on this Mandate are to be settled between counsel and NOT THROUGH THIS OFFICE. 38 SUPREME COURT OF THE UNITED STATES NO. 78-5374 MICHAEL LEE SMITH, PETITIONER MARYLAND On PETITION FOR WRIT OF CERTIORARI To the Court of Appeals of the State of Maryland. ON CONSIDERATION Of the motion for leave to proceed herein in forma paupe?s and of the petition for writ of certiorari, it is Ordered by this Court that the motion to proceed in forma paupe?s be, and the same is hereby, granted; and that the petition for writ of certiorari be, and the same is hereby, granted. - December 4, 1978 11' u. I. IBTQ 235.445 235