Smith v. Maryland
U.S. Supreme Court
442 U.S. 735 (1979)
ISSUE: Was the installation of a pen register on D's phone line which recorded only the numbers dialed on the phone line without a warrant a search against which D was protected by the 4th Amdt.?
HOLDING: No, D had no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate."
- V (McDonough) was robbed and began receiving suspicious phone calls at her residence, and she saw a Monte Carlo rolling by her house outside
- Police traced a Monte Carlo to D, so they had a pen register installed on D's phone line w/o a warrant to see if D was making the calls to V
- One such call to V was then made on D's line, so D was arrested
- Trial Ct. held that the warrantless installation of the pen register did not violate D's 4th Amdt. rights
- D convicted of robbery
- 4th Amdt.: Guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
- Katz: Application of the 4th Amdt. depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action
- Whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy - whether the individual has shown that he seeks to preserve something as private
- Whether the individual's subjective expectation of privacy is one that society is prepared to recognize as "reasonable" - whether it is justifiable under the circumstances
- Miller: No legitimate expectation of privacy in information one voluntarily turns over to third parties that is then revealed to police
- Obviously no physical invasion of D's property or a constitutionally protected area because pen register was installed at the phone company
- Pen register different than listening device used inKatz because the register does not acquire thecontents of the communications, just the numbers
- Cannot even determine that a communication actually existed from the pen register
- No "legitimate expectation of privacy": General public does not have an actual expectation that numbers they dial on their phone lines will be kept secret
- People know that the numbers they dial may be recorded by the phone company because they show up on long-distance bills
- People know that pen registers may be used to identify people making annoying or obscene calls
- Site of dialing immaterial: While D contends that he demonstrated his expectation of privacy by making the call in his own home, the site of the call in a private place only goes to show that D wanted to keep thecontents of the call private, not the numbers dialed
- Even if D entertained a subjective expectation that the numbers dialed would be kept private, such expectation is not one that society is prepared to recognize as "reasonable"
- Voluntarily conveyed phone numbers: Since D voluntarily conveyed the phone numbers to the phone company, he has no legitimate expectation of privacy
- Immaterial that automatic switching equipment was used and not a human operator