Warren E. Burger: We'll hear arguments next in Smith against Maryland. Mr. Cardin, you may proceed whenever you're ready.
Howard L. Cardin: Thank you. Mr. Chief Justice and may it please the Court. As modern technology brings to society an improved standard of living and new conveniences, it also presents a serious challenge to the personal rights of an individual. This was anticipated many years ago by this Court in dissent when, in a homestead, it was stated that solar and formal reaching means of invading privacy have become available to the government.
William H. Rehnquist: Well, actually, your client will be a lot better off if we still had the system where the operator answered when you picked up the phone and said “number please,” wouldn't it-- wouldn't he?
Howard L. Cardin: If we had that system, then I believe that the government, they staged comparison to voluntarily giving over information might well be founded. I don't believe it's founded under circumstances here which I do in so many--
William H. Rehnquist: So, modern technology is actually improving the position of your client in this case?
Howard L. Cardin: No, sir, I don't believe so. Modern technology has now permitted the telephone company to give a better service. In so doing, it has also permitted the police department to use more sophisticated means of invading privacy, if you will.
William H. Rehnquist: But isn't one of your arguments that under mo-- under the modern technology, whereby local calls simply are not monitored by the telephone company, there is an expectation of privacy because nobody except the caller knows and under the old technology, whereby the telephone company operator asked you for your number, you knew that you were telling the third party what the number was.
Howard L. Cardin: Yes, sir. I'm sorry. I do agree with that. That is correct. As the dissent said, the progress--
John Paul Stevens: Mr. Cardin, in agreeing with Mr. Justice Rehnquist, are you saying in effect that you would agree there would've been no search in the olden days, let's call it, my kids like to refer to it, when-- if it sat-- if a police officer had sat to the operator and broke down all the numbers that from a-- when a particular-- it said, “every time number so-and-so calls, I'd like to know who they're calling,” and he just sat there and wrote down the numbers they would call. There'd be no search there.
Howard L. Cardin: No, I'm not agreeing that there would be no search. What I am saying is that there may not have been an expectation at that point because one is voluntarily turning over.
John Paul Stevens: Then, if there's no expectation of privacy, there's no-- well, at least there's no-- at least, no Fourth Amendment question.
Howard L. Cardin: Yes, sir.
John Paul Stevens: Alright.
Howard L. Cardin: That is correct.
John Paul Stevens: Okay.
Howard L. Cardin: I think there's the search. I just don't think there's the expectation of privacy. We don't know, at least I don't know, maybe it's well-known, back in the olden days whether the operator knew what the originating number was?
Howard L. Cardin: I'm sorry. I don't know that either.
Potter Stewart: And a good-- and the answer to this question would depend upon--
Howard L. Cardin: Certainly.
Potter Stewart: What she did.
Howard L. Cardin: Yes. As I was indicating, the progress of science and furnishing the government with means of espionage is not likely to stop at that point with wiretapping. I think we will see many more advances in our day. The case of Michael Smith presents an example of the modern technology, if you will. Using the telephone and the privacy of his residence, he took an action to exclude what has been known as the curious ear. He certainly did not expect that the police department, acting through its agent, the telephone company, would seize the number that he dialed. And so, we come to the first important factor that has to be considered with the use of pen register devices and similar type of devices.
Warren E. Burger: You're not-- are you suggesting this couldn't be done without a warrant?
Howard L. Cardin: I'm suggesting--
Warren E. Burger: It couldn't be done under any circumstances?
Howard L. Cardin: No, I believe that with a warrant it can properly be done. I agree it does not fall under Title 3 as we conceded in our brief and I think it has well been decided, but we believe it does require a warrant. The important factor in these type of cases, that is the Michael Smith type of cases, is that the action of recording these numbers was initiated by the police department, not by the telephone company as part of its housekeeping functions. Several months ago, this Court in the New York Telephone Company case alluded to the fact that the telephone company admits that it uses pen registers to check bills, detect fraud, and prevent violations of the law. In each of these instances, they were housekeeping type functions. I would ask to compare the situation.
Thurgood Marshall: Well, wouldn't the average subscribers due to know that?
Howard L. Cardin: Yes, sir. Again, but these are instances that he is aware of. That is, when he makes the long distance phone calls--
Thurgood Marshall: Even if it's not asked, it's not private.
Howard L. Cardin: He knows it's not private when he makes the long distance phone call.
Thurgood Marshall: No, he knows it's not private locally that, at the time, the phone company will cut in.
Howard L. Cardin: In those instances where he has made a complaint about a bill and they were checking his bill, that is correct.
Thurgood Marshall: But there are occasions?
Howard L. Cardin: Very, very few in number. There are other occasions.
Thurgood Marshall: Right.
Howard L. Cardin: There are other occasions. They are very, very few in number. The typical piece of apparatus used by the telephone company is not the pen register. It is a tracing device which is placed on someone else's phone or the subscriber's phone and used to find out where a call is coming from. The pen register is used only in a very limited number of cases by the telephone company.
John Paul Stevens: Mr. Cardin, do you think the police need a warrant to use a tracing device?
Howard L. Cardin: No, sir, because if I am the person whose--
John Paul Stevens: Yes, but you're going to find out where-- you're going to find out where the call came from and invade that person's privacy, aren't you?
Howard L. Cardin: I disagree because in the function of the tracing device, the device is placed on the subscriber's phone who has made the complaint. Thereafter, the tracing goes through the telephone company itself and does not actually reach the other end of the line. It stops right before it gets to the other end of the line. That is--
John Paul Stevens: But it obtains information about the other end of the line without the knowledge of the person at the other end of the line.
Howard L. Cardin: I think we're in a matter of semantics. It does not find out information about the other end of the line, and that is the reason why--
John Paul Stevens: Certainly and it defines, say, A calls B. You put the device in B's phone.
Howard L. Cardin: Yes, sir.
John Paul Stevens: You find out that A made the call and A didn't expect you to find that out. Why isn't that a precisely the same invasion of A's privacy as if you put it on A's phone?
Howard L. Cardin: The tracing device is not in actuality find that A made the call. That is the reason why, in this particular set of facts, after the tracer was used, a pen register was put on the residence of Michael Smith.
John Paul Stevens: But not until after they found out that a call originated from Michael Smith's phone, which they found out by putting a tracing device on B's phone and finding out that A called and originated from A's phone. Isn't that right?
Howard L. Cardin: Well, in the Smith case, the tracing device does not go to Smith's home. That's the point that I make. It went to a payphone and, from there, other investiga--
John Paul Stevens: Well, but for purposes of my question, couldn't a-- if it had gone directly to A's home and you, thereafter, put it. Why isn't the tracing device just as much an invasion of privacy as the pen register?
Howard L. Cardin: There are many persons that would argue that it is. I suggest that I see a difference between the two, but there are many cases and many persons--
John Paul Stevens: And in terms of expectation of privacy, is there a difference?
Howard L. Cardin: Yes, I believe so. I believe so because, in this instance, the viewing eye or the listening ear is not coming from that particular person's phone, apparatus. It is coming from someplace else in a similar, as I will get to more of the situation of the mail covers and making the deposit of appellee. I would suggest, if--
Thurgood Marshall: Is there anything in the record about all these different things?
Howard L. Cardin: I'm sorry, I did not hear it.
Thurgood Marshall: Is there anything in the record about tracing and all of these different things?
Howard L. Cardin: Tracing backwards?
Thurgood Marshall: Yes.
Howard L. Cardin: No, there is nothing in the record about that.
Thurgood Marshall: Yes, because you're wrong on your facts about the eye spring.
Howard L. Cardin: I'm sorry, I'm wrong in my facts about tracing? I was cert--
Thurgood Marshall: You pause up to the form and you get back the exact number of the phone that was called, where it's located, who it's register to, etcetera.
Howard L. Cardin: I would only submit to Your Honor that the information--
Thurgood Marshall: Would you stick with the record on it?
Howard L. Cardin: The information that I have come from the investigation department, that's the CMP Telephone Company in Baltimore. The point that we make is that this was an action that was precipitated by the police department, not by the telephone company. We compare it to the situation of a housekeeper coming into a hotel room. On the one instance, if she's coming in, performing her duties, and comes across something, that is one situation. On the other hand, if she is contacted by the police department and said “why don't you go into that room for us and see what is there because we suspect something maybe going on,” then she is operating as the agent of the police department and is not properly on the premises at that time. And, we believe that analogy is much closer than the analogies that have been submitted or suggested by the state. The comparison, if you will, to mail covers and deposits are not similar to the pen register situation. It is suggested that there is a voluntary turning over of information to third persons when one turns over a letter to a clerk or when one makes a deposit in a bank. That may be true, but there is not a voluntary turning over of information when one dials his phone. As you well know, going back to the long distance call, in order to make that long distance call, we, the dialer, press 1. That activates--
William H. Rehnquist: That depends on what state you're in, doesn't it? I mean, in the State of Virginia, for example, you don't. You have to dial the area code, but you don't dial 1.
Howard L. Cardin: Well, the point is you dial-- let me change that. You dial something to activate the pen register type of device. So, that one who is dialing a local call assumes that there is a pen register device working. Whereas, one who dials the long distance call knows that he is putting into operation, maybe not a pen register, he may not know the term, but some type of device that's going to record the number that he is dialing so that he will, one, be charged for it and, number two, can check the accuracy of the phone company's bill. These are-- there is a substantial difference between that local calla and that long distance call. When one then dials the 1 or the area code, he is then voluntarily turning over the information similar to the deposit or to the mailing of an envelope or mailing of a letter or where a person is in the room and he is talking supposedly confidentially to a third person. But, before he activates that type of device, he is not voluntarily turning over information. I would like to get again to Mr. Justice Rehnquist's question about the operator. If the person were to call the operator for assistance in making that call, then he is obviously voluntarily turning over that information to the operator and takes the chance, as been expressed, that that information may later be conveyed to someone else. But, until he does that, it cannot be said in a realistic way that he has voluntarily turned over that information. Thus, it might be foreseeable that in the situation with a mail cover or a deposit that the information could be revealed to law enforcement officers. It might be foreseeable that one who dials a long distance call, by activating the pen register type of device, takes the chance that the information will be turned over, but not until he activates that device is there any reasonable expectation that that information will be turned over to anyone. The question as to why--
Byron R. White: Unless this callee happens to be a police informant.
Howard L. Cardin: Even at that stage, you wouldn't know who-- where the number came from or emanated from.
Byron R. White: I know, but the person who answers the phone though is-- knows the that the other person called him.
Howard L. Cardin: If I dial, Your Honor--
Byron R. White: I certainly know that you called me.
Howard L. Cardin: Yes, the fact that the call was made, but you don't know the number that it emanated from.
Byron R. White: No.
Howard L. Cardin: Unless you know me or assume where I came from or where I'm going from.
Byron R. White: Well, I-- if you say who you are, I know you called me.
Howard L. Cardin: Yes, I agree with that, but I'm saying, unless there is that type of situation, there's no reason to believe that anyone is recording the number that you dial or I dial, a local situation. Now, the third pertinent part of the factual situation is why should I stand here and ask this Court to require a search warrant or a similar type of Court order prior to the installation of such a device. We start out with the premise, that search warrants and Court orders are preferred in any situation where there is a search and seizure. As we review every c--
William H. Rehnquist: That's not true in the case of an arrest, is it?
Howard L. Cardin: No, we're talking here about--
William H. Rehnquist: I thought it's search or seizure.
Howard L. Cardin: I'm sorry, per a search and seizure not following a valid arrest, yes. Every case that was submitted to this Court for its consideration-- I take that back. Every federal case that was submitted to this Court for its consideration had, in fact, a Court order involved in it. And, I believe that I can state fairly to this Court that it is the practice in the federal system to require a Court order or a search and seizure warrant before a pen register is attached. There is, in fact, a statement by Professor Carr in his book on electronic surveillance that this is the practice in the federal system and that there is, certainly, a great many of the states that have followed the precedent of the federal system. The reason, of course, is that, with a warrant we avoid, first, a general search. There is a particularity as to what is seized. There is a--
John Paul Stevens: Mr. Cardin, how can there be particularity? You put the device on. It's on 24 hours a day, isn't it?
Howard L. Cardin: Well, the-- we talk about average situations. They are the abnormal situations also. In other words, if we have an address and this address happens to be a high rise apartment house, then you may have a pen register device placed on hundreds of phones, hundreds of numbers. So that, I believe that there would be a requirement, at least--
John Paul Stevens: That's what grants the probable-- on basis of probable cause, find that hundreds of numbers are probable engaged in violation of the law and, therefore, they're all subject to penalty?
Howard L. Cardin: No, I think it will require the officer, at least at that point, or whoever the law enforcement officer is, to proceed with an investigation to limit to at least a specific phone for a particular phone that which he believes and has probable cause to believe is the phone number involved.
John Paul Stevens: Your particularity then means limited to one phone, not to what can be done to that phone.
Howard L. Cardin: Yes.
John Paul Stevens: I see.
Howard L. Cardin: I agree that every number will be recorded. I'm talking about particularity as to where we're going, not what is being--
Thurgood Marshall: You're not talking about hundreds of phones.
Potter Stewart: One phone.
Howard L. Cardin: I'm talking about one phone.
Thurgood Marshall: Yes, we thought a tall building with hundreds of phones.
Potter Stewart: One phone.
Thurgood Marshall: If you know the cost to that, you--
Howard L. Cardin: The warrant would provide a duration as to how long the pen register device would be permitted on the phone. A return requirement for a warrant causes the officer to lose some of that discretion as to how he will later use that information that is obtained, that innocent information, if you will. The requirement that there'd be a crime that either has been committed or is about to be committed. I think it's very important. In other words, without some type of warrant requirement, that device can be placed on a phone for any reason for intelligence information, whereas, as this Court stated in Burger versus New York, there should be at least the belief that a crime is about to be committed or it has been committed. There is no such requirement under the circumstances as it presently exists.
William H. Rehnquist: Well, Mr. Cardin, did your Court of Appeals hold that this was a search and seizure but didn't require a warrant or that it was not a search and seizure?
Howard L. Cardin: I believe they held that it was not a search and seizure.
William H. Rehnquist: You're not talking about-- if you're comparing the necessity of a warrant to doing it simply on probable cause without a warrant, I take it, that has no applicability here.
Howard L. Cardin: Yes, sir. Without a warrant or Court order, there is no placing or pinpointing of responsibility. Not so long ago, out of the State of Maryland, this Court dealt with the Giordano case and noted that it was important that application be made by certain persons who were designated so that there could be responsibility, there could be supervision as to the actions taken without--
William H. Rehnquist: Well, they were designated by statute.
Howard L. Cardin: I understand that and I believe that the statute contained that specific point, as this Court stated, in order to assure that we knew who was responsible for the application, who was--
William H. Rehnquist: Well, the State of Maryland could provide by similar statute that warrants could only issue under terms of that statute. It hasn't done so here, I take it.
Howard L. Cardin: There is no litigation-- I'm sorry, there is no statutory authority for--
William H. Rehnquist: So, what's Giordano got to do with its statutory requirements about the-- with this case?
Howard L. Cardin: The fact that the Court held that that particular provision, the Wire Tap statute, had to be complied with strictly would indicate that this was a very important part of that statute and one which could not be accomplished by substantial compliance. What we're saying here is to allow an officer on his own, we don't even know who the officer might be, whether he has investigative background, whether he is high or low within the police department, but to allow anyone just to go ahead and place the pen register would be wrong. That there should be some pinpointing of responsibility, and the only way we can do it is to require that there'd be a Court order. As such, there is an accountability, there is supervision. Without it, there is complete decentralization, and decentralization leads to abuse. The failure to require that a warrant or Court order be obtained prior to the installation of a pen register can also have a far-reaching effect in destroying one's personal rights. As indicated in the brief, as we describe it as a chewing effect on freedom of speech and association, one cannot necessarily speak for another as to why or why not he does things but the fact that it would be common knowledge or could be common knowledge to any investigating officer whom we spoke to, whom he dialed may well place a chewing effect on one's freedom of speech and, as an adjunct to that, freedom of association. There is a strong possibility of abuse by law enforcement officers of this type of device. The fact and the possibility of illegal wire taps, as a simple adjunct to this device, is-- has been discussed and is discussed in the brief. The use of the information by an irresponsible officer can cause the innocent to suffer. It can cause intimidation of persons. It can be used for ver-- many, many purposes not consistent with the investigation.
Potter Stewart: Mr. Cardin, was-- what was introduced into evidence against your client as a result of the attachment of the pen register?
Howard L. Cardin: Photograph.
Potter Stewart: What?
Howard L. Cardin: A photograph, as a matter of fact. If I might-- I'm sorry. Let me go back a little bit. After the pen register was affixed and a call to the robbery victim's home was found to be at the same time as the number to the robbery victim's home was punched out on the pen register, the police department or the police officer went to-- upon receipt of police department files, obtained a photograph of Smith, took that photograph along with others to the victim who identified that photograph.
Potter Stewart: But-- and then, was the photograph admitted into evidence-- At the trial?
Howard L. Cardin: Yes, it was. And, there was a stipulation that without the first step, that is the attachment of the pen register, and obtaining of Michael Lee Smith that way, that the photograph would never have been obtained and, as such, he would never have been identified.
Potter Stewart: He would never have been arrested--
Howard L. Cardin: Yes.
Potter Stewart: Without the pen register, but that's even assuming a gross violation in his arrest, can he-- even assuming you're right and that his arrest was a result of a gross violation or a vio-- a very conceded violation of the Fourth and Fourteenth Amendment, does it follow that his conviction gets set aside? I'm thinking of cases like Frisbie against Collins, of which you may be familiar with, where the defendant was kidnapped and abducted from one state to another to stand trial and this Court held a non-constant. That has nothing to do. He got a fair trial and we don't disturb his conviction, even conceding this was a gross terrible violation of his--
Howard L. Cardin: Mr. Justice Stewart, my--
Potter Stewart: Fourteenth Amendment rights prior to trial.
Howard L. Cardin: At the trial of the case it was stipulated, as I say, that he, that is the accused, Michael Lee Smith, would never have been identified unless this device was used. That is the derivative use of this particular device was to identify my client.
Potter Stewart: It resulted in his arrest.
Howard L. Cardin: And then it resulted his being identified. Otherwise, he would never have been identified. There would never have been a warrant for his arrest. Without that, there would never been a pinpointing of Michael Lee Smith to be charged with this particular common law robbery. Failure to require the Court order or warrant may lead to an indiscriminant use of the pen register. As I indicated, anyone, any law enforcement officer could obtain this device. The state, in its brief on page 14, suggests that a pen register should be allowed in cases where suppression-- I'm sorry, where suspicion exists. What suspicion? Whose suspicion? A search and seizure based on suspicion is contrary to our constitution. It is this, that theory, which we seek to avoid. I'll ask to reserve the few moments that I have left for rebuttal.
Warren E. Burger: Very well. Mr. Attorney General.
Stephen H. Sachs: Mr. Chief Justice and may it please the Court. I'd like to begin, if I may, by indicating to the Court what the pen register is not. I think, Mr. Justice Marshall, we know something about that from this Court's definition in Giordano and New York Telephone. We know something about it from the Court's fairly Dote discussion in the Ninth Circuit in the Hodge case. We know about it from a various lower view articles that have appeared in the-- cited in the briefs. We know even on this sparse record, that the telephone company representative who testified at the-- at a hearing in these proceedings referred to the pen register as a normal and-- normal telephone equipment is what he called it. But, the point I'd like to make, Your Honors, is that it hears no sound. It captures no words uttered into the mouth piece, as this Court phrased it in Katz. It captures no content. It achieves no communication, other than the limited communication between the user and the phone company itself. It has been defined by Congress, indeed, by its exclusion from the requirements of Title 3 as not to be a communication. It doesn't disclose if the call is completed. It doesn't reveal who the caller is. It doesn't say if the number was busy. It doesn't say who the parties are and it doesn't tell the duration of the call.
Warren E. Burger: Well, don't you-- are you suggesting there is no right of privacy or no expectation of privacy as to what calls are being made, it is to whom they are being made, if they're calling from your home or your office?
Stephen H. Sachs: That is precisely what we're contending, Your Honor. There is no reasonable expectation of privacy and I would go so far as to say that, in a great many cases, although it's improvable, inherently, there is frequently not a subjective expectation of privacy. The user of a telephone knows to go back to the days, however long ago they may be, to go back to the days when this was not done mechanically but done by human communication. One said to the operator Millie, “Millie, get me George” or “get me Sam, down at the grocery store.” All that's done now, Your Honor, is that we communicate and impart that information, the number we wish to achieve, to a phone company who has-- who is not statutory barred from disclosing that information to third parties, unlike communication between the party calling and the party called.
Thurgood Marshall: Do you mean the phone company wouldn't be subject to suit if they were-- gave that information to a third party?
Stephen H. Sachs: In the Hodge case in the Ninth Circuit, Your Honor, I think it was held not to be subject to suit. The phone company is at liberty to give that information to a third party, at least a lawful authority which is all I need to contend for in this case. Well, all I need to contend in this case, Your Honor, is that lawful authority without warrant, but police officers inquiring are at liberty to achieve from the phone company and the phone company would be, and has been so held--
Thurgood Marshall: The phone company-- the police officer is going to also get unlisted phones, too.
Stephen H. Sachs: That raises perhaps a different question, Your Honor. It's certainly a different question--
Thurgood Marshall: I don't see why that makes it legal just because the police officer can do it.
Stephen H. Sachs: But the question I'm addressing myself to, Mr. Justice Marshall, is whether--
Thurgood Marshall: I don't think you need all of this for your argument. Excuse me, I couldn't--
Stephen H. Sachs: I was trying to respond to the Chief Justice, but--
Thurgood Marshall: I'm sorry. I apologize.
Stephen H. Sachs: My point, sir, is that the user of a telephone has no reasonable expectation that the information he imparts to the company as to the number he wishes to achieve will not be imparted to other persons. He knows that every month he gets the long distance calls he dials. He knows that, in many parts of the country, telephones are subject to separate racially structures so that, for billing purposes, the phone company needs to know how many calls on a certain-- for certain purposes are used. He knows that the telephone companies in the business of protecting its own tariffs and its own customers by investigating complaints of annoying and obscene telephone calls. He knows all those things. He has code in his phonebook, may it please the Court. In every phonebook in this nation, he knows. And, I have-- I don't think I stray very far from the record in this case in reading to you what the phonebook says and what it says, at least in Washington, D.C., is that we have employees who are trained to assist and advice you and who can frequently help in identifying to the authorities the origin of unwelcomed and troublesome calls. So, for all those reasons, we suggest to the Court that the average telephone user probably ought not have a subjective expectation of privacy as to the number called but, in any case, it's not an expectation that will be recognized for purposes of the Fourth Amendment.
Warren E. Burger: Well, let me see that a minute, Mr. Attorney General. Suppose you have a very distinguished physician, lawyer, public servant, whatever but he has the vice of being fascinated with horse races and he is everyday calling and placing bets. Perhaps he's an elective officer and doesn't want that known. Wouldn't you think he would have some expectation that the fact he's calling the bookie once or twice a day to place bets would be an entirely private matter? It's his own private vice.
Stephen H. Sachs: Your Honor, in almost every case in which evidence that has been obtained surreptitiously, whether within the warrant requirement or without the warrant requirement, there has been a subjective expectation by the defendant who arrives in the case having had his confidence betrayed. So, in that sense, the answer to your question is, yes, everyone who gets caught took a risk and lost.
William H. Rehnquist: It's true of a distinguished physician who commits statutory rape, too, I suppose with the implicit assumption that his victim would not inform on it.
Stephen H. Sachs: It was true of Mr. Hoffa. It was true of Mr. Osborne. It was true of Mr. Lewis. It was true of Mr. Lopez. It was true of Lee. It was true of White. It has been true in all the misplaced confidence cases. It was true presumably of the user of the bank in Miller. It is true of someone who corresponds to the mails who doesn't expect mail covers to be used. It is true of people who have marijuana in their suitcases but dogs smell it and he's apprehended that way. It is true in people who--
Warren E. Burger: Those are unlawful. You're speaking of a lot of unlawful things. There's nothing unlawful about calling a bookie. At least in Maryland I guess there isn't, is there?
Stephen H. Sachs: Well, I think, Your Honor, that the answer to that question is it is, the last time I looked, unlawful.
Warren E. Burger: Let's assume, the state-- I thought Maryland-- gambling was legal in Maryland because you have horse racing and I didn't think horse racing survived except by gambling, but let's suppose you've got a state--
Stephen H. Sachs: There's a difference, if I may say so, Mr. Chief Justice, perhaps between the bookie who is not regulated by the state and, thus, unlawful and the lottery location which is regulated by the state and is lawful. Aside from that, there may not be any difference.
Warren E. Burger: Well, the governor of the state probably in a-- let's take Utah now and he's placing telephone calls to a bookie. He certainly hopes that's not going to be made known to a predominantly Mormon population in the State of Utah, isn't he?
Stephen H. Sachs: I'm sure that's true, Your Honor, but one--
Warren E. Burger: But you say there's no reasonable or legitimate expectation of privacy. This is a risk he takes.
Stephen H. Sachs: I'm saying, Your Honor, that it's a risk that he takes and it's the kind of risk that this Court has sanctioned in a great many cases. This Court sanctioned the risk in all the cases that I've already mentioned that when you confide in a friend, a trusted confidant, you run the risk that person either will later go to the authorities or has been an undercover agent all the time. Among the balances or-- I shouldn't say balances, but among the list of tests to test the one legal question worth asking in this case, namely, is there a reasonable expectation of privacy in the communication of the numbers dialed, among them is, as this Court has recognized, the assumption of the risk. Among them is the extent of the intrusion. Among them is whether thought, words, communication, in the normal sense, is captured. And, it's our-- it's the state's position in this case, Mr. Chief Justice and members of the Court, that both factually and legally this case falls well on the safe side of the frontiers of the Fourth Amendment. I don't blush to say to the Court that there's a sense in which this case, both doctrinally and factually, has already been decided by this Court. It's a kind of a backwater factually and legally. If I may echo what Mr. Justice Rehnquist said a few moments ago, it is really ironic that what we're testing here is a-- is something as to which, over the years, there has been increased factual privacy because the average phone user probably does have in fact more privacy than he or she did 50 years ago when the phone was first used. And, the specter of electronic surveillance that is injected into the case by the petitioner, seems to me, is misplaced because what we have here is really a phone company mechanism that is very much a part of their normal and routine operations which people understand and know are likely to be at any given moment, for lots of different reasons, breached by the phone company or the phone company which may then go to lawful authorities. It's the state's position, Mr. Chief Justice and members of the Court, that the communication made here to the phone company of the numbers dialed is a business communication to a company which has every reason in the world to record and, on occasion, reveal that information. And, it is no kind of communication nor the circumstances-- the kind of circumstances, that this Court in any of its prior rulings has said it has faced against.
John Paul Stevens: Mr.-- General Sachs.
Stephen H. Sachs: Yes?
John Paul Stevens: What do you do with your opponent's example of a maid in a hotel room? You certainly have an anticipation that a third party will be in the room which don't expect the police to come in.
Stephen H. Sachs: That's true, Your Honor. The Stoner case, I think, this Court distinguishes the hotel situation and I think the answer to that is that, in a hotel situation, the hiring of the hotel room does not expect that the full search from police officers without a warrant will take place. It is very different, we suggest, than the communication out from that hotel room or from one's home on leased lines of a company which is not your own, on equipment which is not your own, of a communication much like calling the plumber and saying “I have water in my cellar, please come.” That plumber can, if he wishes, tell the police “Sachs has water in his cellar.” The call out from your hotel room to the butcher that says “I want three pork chops” could be revealed to the police, “Sachs want three pork chops.” In the same sense, when I say “I want 4666187” to the phone company, I run the risk, we say the legitimate risk, that that information may be communicated to the police.
Thurgood Marshall: And used to convict me and put me in jail?
Stephen H. Sachs: Yes, Your Honor.
Thurgood Marshall: That's a lot different from a pork chop.
Stephen H. Sachs: Your Honor-- [Attempt to Laughter]]
Warren E. Burger: Going back--
Stephen H. Sachs: The answer to that is, yes, Your Honor. You're right.
Warren E. Burger: Going back, Mr. Attorney General, to the hotel room, I would assume everyone takes the risk that if he leaves a 45-automatic on the top of the dresser in a hotel room or a package of marijuana, that the hotel maid is under instructions and is very likely to report that to the housekeeper who'll report it to the manager who will report it to the police.
Stephen H. Sachs: Yes, Your Honor, I certainly agree with that. There are some cases-- to return to Mr. Justice Stevens' inquiry, there are some cases which do recognize a limited kind of privilege here. That taxicab-- Rios, I think, was a taxicab case which recognizes that, for some time and for some purposes-- you may relinquish your privacy for some purposes but not for all. And, I'm-- I certainly concede it as-- concede I must, that the hotel room may well fall into that category, but it is an intrusion by the police into the room. It has the general aspects of a generalized search of everything in that room and I think, as we know from Rakas and as we know from other recent cases of this Court, we have not abandoned property concepts altogether when we analyze the Katz expectation test. So, I think that's the distinction, Mr. Justice, that I would draw between that and this. In some--Mr. Chief Justice and members of the Court, I would like to say that, as three circuits have recognized: the Ninth, the Fifth, and the First, the-- as the Congress of the United States has recognized by not including into Title 3 the pen register and as this Court has come very close already to recognizing by recognizing in New York Telephone that the pen register is a far lesser intrusion than the wiretap, for those reasons and the sound application of the Fourth Amendment, we respectfully urge the Court to affirm the decision of the Maryland Court of Appeals. Thank very much, Mr. Chief Justice.
Warren E. Burger: Very well, Mr. Attorney General. Do you have anything further, Mr. Cardin?
Howard L. Cardin: I would only point out, going back to where example of the hotel room, that in the instance where the housekeeper turns over information, and we accept that as being proper, we don't have that situation here where the pen register is attached not by the telephone company for its housekeeping purposes but by the police department for its investigative purposes.
William H. Rehnquist: But it's attached to telephone company property, isn't it? It isn't attached to the defendant's property. It's attached to the telephone company's lines.
Howard L. Cardin: That is correct. The lines are owned by the company. I believe that it is suggested that the-- a portion of the lines are, in effect, lease to the subscriber. That is his use is, in a sense, a lease or a renting of the line.
Potter Stewart: In Katz, the surveillance was on telephone company property.
Howard L. Cardin: Yes.
Potter Stewart: A payphone booth.
Howard L. Cardin: I would close by stating, briefly from Burger, this is no formality that we require today but a fundamental role that has long been recognized as basic to the privacy of every home in America while the requirements of the Fourth Amendment are not inflexible or obtusely unyielding to the legitimate needs of law enforcement. It is not asking too much that officers be required to comply with the basic command of the Fourth Commandment before the innermost secrets of one's home or office are invaded. The--
Byron R. White: What would you say if the telephone company sent a letter to all its subscribers and says “from here on, we are publishing the list of-- or available in our office on demand or on request is the list of all the calls from any telephone in the city. We just--
Warren E. Burger: Under the Freedom of Information Act.
Byron R. White: “We just-- they are ju-- we're just-- anybody who wants them can have them.”
Howard L. Cardin: If the telephone-- let me respond by saying this. I think the telephone company has in fact done that as far as long distance calls are concerned. I think we all recognize that--
Byron R. White: So, you have no complaints about that then.
Howard L. Cardin: Then there is no expectation of the privacy but, now, the way that it is done, I believe that one expects when he dials that local number--
Byron R. White: So, you're just-- you're relying on somebody else for confidentiality.
Howard L. Cardin: I'm suggesting that there's really nobody listening to that local line. There's nobody listening to that number that is being dialed unless and until that--
Byron R. White: You're relying on the telephone company though not to-- not itself to keep track of the calls that you're making and publishing them.
Howard L. Cardin: It certainly doesn't do it now, at least to my knowledge.
Byron R. White: So you are.
Howard L. Cardin: Yes, sir.
Byron R. White: Your answer is yes.
Howard L. Cardin: Yes.
Warren E. Burger: Under Mr. Justice White's question, when the telephone company announced it, you'd be in the same situation on local calls as you would on long distance calls, wouldn't you?
Howard L. Cardin: I would agree with that.
Thurgood Marshall: And there's no intrusion.
Howard L. Cardin: No intrusion, physical intrusion.
Thurgood Marshall: Or any kind, because it's what comes out of the house not what goes in the house.
Howard L. Cardin: Well, there's no intrusion as such, right. After the telephone company announces what it is going to do--
Thurgood Marshall: No, what-- when the telephone company puts the pen register on, all that monitor is what comes out.
Howard L. Cardin: That is absolutely correct.
Thurgood Marshall: And the only thing it monitor is the dig-dig-dig-dig. That's all, nothing else.
Howard L. Cardin: And the time, I believe it punches out the time.
Thurgood Marshall: That's the number called, the dig-dig-dig-dig.
Howard L. Cardin: The number called and the time that the call was made.
Thurgood Marshall: And, now, is there anything in the record who pays for this? The government pays for it, doesn't it?
Howard L. Cardin: I believe that in--
Thurgood Marshall: Or if the for--
Howard L. Cardin: The New York Telephone Company case, it was indicated that the government pays for the attachment of the device, yes. And so, I would submit to the Court in conclusion that I personally see no reason why this officer in this case could not and should not have applied for a Court order, and I believe that the precedent has been set in the Federal Courts of following that precedent is one that should be adopted. Thank you.
Warren E. Burger: Thank you, Gentlemen. The case is submitted.
Speaker: The Honorable Court is now adjourned until Monday next at 10:00.


Frederick Bernays Wiener: -- that the 1790s or perhaps referred top those cases, the persons tried were not shown to have any kind of connection with the military. And of course these instances make understandable what is recorded in the chronicles of the times, the state of endemic conflict between the civil authorities and the military. Then between 1798 and 1858, we get from that 60-year mountain, mouse of seven trials of civilians. In five of those seven instances, the Civil Courts were open in the vicinity so that I say that was flagrant disregard of proper boundaries and his history, not the kind of history infused in the Constitution, but the kind of history which consists of the recital of past abuses. We then come to the Civil War. Judge Advocate General Holt, whose peculiarly genius gave us the military commission for political opponents which was disposed of in the Milligan case and also that sad monument to passion the trial of the Lincoln conspirators which nobody really likes to mention. And then with the war over and Holt retired, the question arose in 1877 and then when the Attorney General momentarily lapsed and said “Civilian employees could be trailed by Court Martial,” it was the Judge Advocate General who rushed into the breach and reminded the civil power of the limitations on military authority. All those opinions are set forth in Appendix C and that same paradox, if the Court please, continues today. The strongest statement of the unconstitutionality of military trials of civilians in time of peace is in the pages of Winthrop, a man for -- who always a mature life was a professional soldier. And the most vehement arguments in favor of that jurisdiction are presented here in this Court (Inaudible) cases are the civil rights, division of the Department of Justice. In other words, the military man is anti-militarist and the civil rights division is anti-civil rights.
Hugo L. Black: Is the brief -- special brief by the civil rights division --
Frederick Bernays Wiener: These briefs and these cases were prepared by and signed by the Assistant Attorney General and the Acting Assistant Attorney General of the civil rights division.
Tom C. Clark: (Inaudible)
Frederick Bernays Wiener: They were assigned to that division. What I think is the -- I -- I -- well, they got the --
Felix Frankfurter: Do you think the Attorney General should come in and say an act of Congress is unconstitutional?
Frederick Bernays Wiener: No, he's got the -- of course he's got to defend it, but it's -- it's a funny -- it's a funny kind of civil rights that instead of giving substance and content of the Fifteenth Amendment starts hacking away at the Sixth. Now, these discussions in 1877 are most interesting because they are really the most -- the first articulated and reasoned discussion of the constitutional problem and really they lasted for some time and they were followed shortly thereafter by the case of the post trader. Now, the post trader was the successor to the supplement. Winthrop who lived contemporaneously with both said so. The statutes providing for the post trader purported to make him subject to the articles of war. And so the question was asked if the Judge Advocate General, “Can the post trader be trailed by Court martial?” And he held in an opinion that was published in three successive additions, ”No, there is no military jurisdiction over the post trader except in time of war on the actual theatre of the Indian War.” Now that --
Potter Stewart: Was the post trader employed by the Arm Forces?
Frederick Bernays Wiener: No, no more than was the Sutler. He was an independent contractor who made his living selling goods to the soldiers. In other words, he is the -- he is the direct successor of the Sutler who was mentioned in the articles way back. Now, that ruling was first mentioned three-and-a-half years ago and finally -- finally three -- now, in the reply brief, the Government admits its acceptance and then you can see why it took him three-and-a-half years to formulate an answer. There isn't any answer and even what they say is directed not to what was published for three successive additions in print, but to an abstract in the archives. And that is why basically I have said that I cannot take too seriously as an historical text they rather selective presentation made by my brother.
Felix Frankfurter: Mr. Wiener, does this matter come up at all during the regime of the general Crowder?
Frederick Bernays Wiener: Judge Advocate General Crowder went to Congress in 1916, and asked for the 2d jurisdiction and it's one of the great mysteries of that 1916 revision why he never mentioned Winthrop's opinion which had been on the books for 20 years saying it was on unconstitutional. Why he never mentioned the opinions in the 1912 digest of opinions that it just been issued under his own supervision. That to me is the great mystery. Now, looking at, he apparently proceeded on one articulated premise, namely this thieving quarter master clerk who got away on the second occupation of Kilburn. That's what he had on his mind. Insofar as I tried to extract these legal premises, he thought first that the Constitution stopped at the water's edge, that there were no constitutional protections overseas, which of course is law. He also thought that the Fifth Amendment cases arising in the land of Naval forces was a source of military jurisdiction and while that did had judicial support at that time, it was of course exploded by talk. And the -- the mystery of the Sixteenth Revision is why didn't -- if Crowder had said, “Well, I've looked into this gentlemen. I think that my distinguished predecessor Colonel Winthrop was wrong, I think this is alright for such and such reasons” then we'd be in a different situation, but it was never discussed. So then we come back to our starting point, namely that military jurisdiction is a question of status. Without military status, there is no military jurisdiction in time of peace. Without military status, there is jurisdiction in time of war only in areas in the field. Now, on practical necessities, here again I think the Government's arguments would carry more weight if there were fewer omissions. I think it's pretty well admitted that there hasn't been any attempt to restudy this problem beyond -- well, let's see if we can't get read the Covert limited and future litigations. They haven't even plugged the very obvious gap which is that the espionage chapter of Title 18 of the code would not apply to a civilian employee in an overseas military headquarters committing espionage violations, that very obvious gap for which it could be thrown back and tried in a District Court in the First District in which he was found or brought, the espionage act would not cover, an act of espionage by an American civilian in an overseas military headquarters. They haven't even plugged that yet and they haven't explained why it is that these civilians haven't been militarized. Well, the Court of hearing show and the appropriation here is a budgetary reason and then take -- take this petitioner and his connection and the connection of his offences with the military. He was found guilty he was charged with. He pleaded guilty to the substance of seven sex offences. If they'd been in the District of Columbia, the only area where Congress legislates the order of -- had a hearing under the Sexual Psychopath Act, he would be placed in Saint Elizabeth. Instead of which, he is trailed by Court Martial. He is sentenced to five years confinement. It isn't going to cure him and it isn't going to protect society and here was an employee who are -- an auditor who offered to resign. Now, what is an auditor so significantly got to do with our military mission? Again, the Gerard case, if it was proper to turn Gerard over to the Japanese, why isn't so improper to turn this person over to the German Courts in Berlin? We certainly trust the German Courts and we could have authorized them to handle this. Now, I don't have to spend time on the proposition that necessity is not a constitutional argument, but here they haven't even made a showing of necessity. It is expediency and it's the expediency of doing things on the cheap, because it would cost less money to have these persons as civilians when they have them in the service. And I submit that is not a sound ground for cutting down constitutional protections or for watering down the scope the Sixth Amendment. And from this it follows, if the Court please, that the judgment below refusing to release this petitioner to be reversed.
Oscar H. Davis: I have just one point, if it please Court. Colonel Wiener stated that the offense itself, the substantive offences would be or might be different if charged under the law of war than charged under the uniform code. I don't think that's quite true. The law of war recognizes as offences all those acts which are condemned as criminal by all -- by civilized nations generally. Now, these particular offences fall in that category because all 50 states of the union and about 15 or 20 countries that -- that we have researched condemn this type of conduct. So, it's clear the offence is one under the law of war. Now how the offence would be charged is -- is a procedural question. It can be charged in one or three ways under the law of nations. It can be charged either particularized in terms of the local criminal code or it can be particularized the (Voice Overlap) --
Felix Frankfurter: The local meaning?
Oscar H. Davis: The German Criminal Code in this case or it can be particularized in terms of the common law of war as such by taking the conglomeration of all the -- all the offences and all of the civilized nations or it can be particularized in terms of the regulation of the occupying power. And that was done in this case and that was certainly proper since the person who was involved was with the occupying power.
Felix Frankfurter: Regulation meaning the Article (Inaudible) also?
Oscar H. Davis: That's correct. The articles would be applicable there too, but I think beyond that, the offence will be the same whether they would be charged under the Uniform Code or under the German Criminal Code or under the law of war generally. The offence, is the type of offence where the -- where the code has very little room for particularization beyond what was done here.
Felix Frankfurter: Are you telling us that -- do you tell us that the soldiers maybe would -- would out of his (Inaudible), a soldier maybe charge as for a violation of the law of war in that he violated any particular Section of the Articles of War?
Oscar H. Davis: Yes, that's correct.
Felix Frankfurter: And there are -- there are laws of war that are not particularized in the Articles of War aren't they?
Oscar H. Davis: That's right?
Felix Frankfurter: Are you saying the articles of the laws of war violates or obedient to the laws of war means, the obedience to the special aspects of conduct that pertain to war and also obedient to the articles of war unrelated to the actual conduct of war?
Oscar H. Davis: No, that's -- that's what I'm -- I'm trying to say.
Felix Frankfurter: What are -- what did you say?
Oscar H. Davis: Now, I'm trying to say is you have to establish first that the offence is one which is cognizable under the law of war.
Felix Frankfurter: And either cognizable because it's one of the articles of war?
Oscar H. Davis: No, it's not cognizable because --
Felix Frankfurter: And how do you know which to pick and which not pick?
Oscar H. Davis: That has to be established independently depending on what is condemned under the criminal codes of civilized nations generally and once that is determined then it becomes merely a matter under which --
Felix Frankfurter: But it condemned by a civilize nation as a matter of civil law to --
Oscar H. Davis: No, I would -- I would say not, because it would not.
Felix Frankfurter: That if anything that it's so-called civilized nations of world condemn as criminal conduct would that be prosecuted for -- as a violation of the laws of war?
Oscar H. Davis: That is correct.
Hugo L. Black: Is there an article of war that says that?
Oscar H. Davis: Well, Article 18 is the one we depend on. It states that a Court Martial should have jurisdiction to prosecute offence under the law of war.
Felix Frankfurter: What is contained (Inaudible) --
Oscar H. Davis: What is contained --
Felix Frankfurter: -- is -- is this amorphous body of a prohibition?
Oscar H. Davis: The law of war is -- is like the common law and the Court was dealing with that.
Hugo L. Black: But is doesn't quite say that. The difficulty at a rather early date it was held that common law (Inaudible)
Oscar H. Davis: Well, it is like the common law used to be. It is not -- it is not -- in other words, it doesn't have a written code. It is -- it is a common law which has grown out of experience and out of the practices of the nation of the civilizations.
William J. Brennan, Jr.: (Inaudible) particular offences in many places are (Inaudible)
Oscar H. Davis: I think that's -- that's incorrect. All those -- all those places that we have been able to find that is all 50 states of the union, the District of Columbia, Puerto Rico the Virgin Islands, many of the nations of the world, Italy, German, France, England, Canada, India, and Republic of China, all of them treat this as a criminal. Now, it's true in the District of Columbia they have a Sexual Psychopath Act and persons can be put in the mental -- at the hospital under the Sexual Psychopath Act, but that is not in lieu of criminal punishment for these types of offences. The charges for those offences remain pending and technically, the person can be prosecuted after his -- if -- if -- after he is cured in the mental hospital, but all of the states and all of the countries, we have been able to find condemn these practices as a violation of their criminal laws and punish accordingly.
Felix Frankfurter: Did Winthrop say what you said that laws of war include not merely conduct related to the conduct of war and in relation to war such as the offences for which the Nurnberg trial which tried the Nazi members but also that which in the acceptance of the civilized war of this Criminal Act. They're unrelated having those special relationships with or significance toward to the war.
Oscar H. Davis: It -- it definitely says -- yes Mr. Justice.
Hugo L. Black: Is it your argument -- I want to be sure that I understand your argument on this point is based on the fact that there is no prohibition written by Congress in the articles of war. No statute against this saying as a crime, but that you say that the Court you should look to the civilized nations of the world in order to sustain a conviction to this man for a crime which Congress have not described.
Oscar H. Davis: That has traditionally been --
Hugo L. Black: I mean is that --
Oscar H. Davis: Yes. That's --
Hugo L. Black: -- is that the argument?
Oscar H. Davis: Yes sir.
Felix Frankfurter: And you say that because Congress has made it an offence, it had given Court-Martial jurisdiction, which one is it, 18?
Oscar H. Davis: Article 18.
Felix Frankfurter: Eighteen as -- as proscribed any person by law are subject to trial to by law of war. In other words law of war absorbs all this undefined and on particularized misconduct.
Oscar H. Davis: That's what this Court said in the Quirin case. The Court said in the Quirin case that that Congress could crystalize all these offences by cognizance of under law of war or it could simply adopt the law of war as it exists and that's what they have done then and that's what -- has done by virtue of (Voice Overlap) --
Hugo L. Black: I think that the Court has held that both admiralty and as to the common law of crime while there is an admiralty, a body of law, I have understood it to say that the mere fact that there was an intimation of body of law, could not -- could not be enforced in this country unless it had been adapted in this country as a statute, as law.
Oscar H. Davis: Well --
Hugo L. Black: I didn't say that. That just means to say that that is a law, either by the Court under the definition of the rule (Inaudible)
Oscar H. Davis: As I understand it by the adapting the law of war as such, Congress has in effect adapted all of -- all of the offences which are properly cognizable under the law of war as offences against the United States.
Hugo L. Black: Which are not codified in the words.
Oscar H. Davis: Which are not?
Hugo L. Black: Not codified anyway.
Oscar H. Davis: Which are not codified --