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Smith v. Maryland, 442 U.S. 735 (1979)
Smith v. Maryland, 442 U.S. 735 (1979)
735
99 S.Ct. 2577
61 L.Ed.2d 220
Syllabus
The telephone company, at police request, installed at its central offices a
pen register to record the numbers dialed from the telephone at petitioner's
home. Prior to his robbery trial, petitioner moved to suppress "all fruits
derived from" the pen register. The Maryland trial court denied this
motion, holding that the warrantless installation of the pen register did not
violate the Fourth Amendment. Petitioner was convicted, and the
Maryland Court of Appeals affirmed.
Held: The installation and use of the pen register was not a "search"
within the meaning of the Fourth Amendment, and hence no warrant was
required. Pp. 739-746.
(a) Application of the Fourth Amendment depends on whether the person
invoking its protection can claim a "legitimate expectation of privacy" that
has been invaded by government action. This inquiry normally embraces
two questions: first, whether the individual has exhibited an actual
(subjective) expectation of privacy; and second, whether his expectation is
one that society is prepared to recognize as "reasonable." Katz v. United
States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Pp. 2579-2580.
(b) Petitioner in all probability entertained no actual expectation of
privacy in the phone numbers he dialed, and even if he did, his
expectation was not "legitimate." First, it is doubtful that telephone users
in general have any expectation of privacy regarding the numbers they
dial, since they typically know that they must convey phone numbers to
the telephone company and that the company has facilities for recording
this information and does in fact record it for various legitimate business
purposes. And petitioner did not demonstrate an expectation of privacy
merely by using his home phone rather than some other phone, since his
conduct, although perhaps calculated to keep the contents of his
conversation private, was not calculated to preserve the privacy of the
number he dialed. Second, even if petitioner did harbor some subjective
expectation of privacy, this expectation was not one that society is
prepared to recognize as "reasonable." When petitioner voluntarily
conveyed numerical information to the phone company and "exposed"
that information to its equipment in the normal course of business, he
assumed the risk that the company would reveal the information to the
police, cf. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48
L.Ed.2d 71. Pp. 741-746.
283 Md. 156, 389 A.2d 858, affirmed.
Howard L. Cardin, Baltimore, Md., for petitioner.
Stephen H. Sachs, Baltimore, Md., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
This case presents the question whether the installation and use of a pen
register1 constitutes a "search" within the meaning of the Fourth Amendment, 2
made applicable to the States through the Fourteenth Amendment. Mapp v.
Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
The next day, the telephone company, at police request, installed a pen register
at its central offices to record the numbers dialed from the telephone at
petitioner's home. Id., at 73, 75. The police did not get a warrant or court order
before having the pen register installed. The register revealed that on March 17
a call was placed from petitioner's home to McDonough's phone. Id., at 74. On
the basis of this and other evidence, the police obtained a warrant to search
petitioner's residence. Id., at 75. The search revealed that a page in petitioner's
phone book was turned down to the name and number of Patricia McDonough;
the phone book was seized. Ibid. Petitioner was arrested, and a six-man lineup
was held on March 19. McDonough identified petitioner as the man who had
robbed her. Id., at 70-71.
4
The Court of Appeals affirmed the judgment of conviction, holding 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
amendment is implicated by the use of a pen register installed at the central
offices of the telephone company." Id., at 173, 389 A.2d, at 867. Because there
was no "search," the court concluded, no warrant was needed. Three judges
dissented, expressing the view that individuals do have a legitimate expectation
of privacy regarding the phone numbers they dial from their homes; that the
installation of a pen register thus constitutes a "search"; and that, in the absence
of exigent circumstances, the failure of police to secure a warrant mandated that
the pen register evidence here be excluded. Id., at 174, 178, 389 A.2d, at 868,
870. Certiorari was granted in order to resolve indications of conflict in the
decided cases as to the restrictions imposed by the Fourth Amendment on the
use of pen registers.3 439 U.S. 1001, 99 S.Ct. 609, 58 L.Ed.2d 676 (1978).
II
A.
6
Consistently with Katz, this Court uniformly has held that the application of the
Fourth Amendment 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. E. g., Rakas v. Illinois, 439 U.S.
128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, and n. 12 (1978); id., at 150, 151,
99 S.Ct., at 434, 435 (concurring opinion); id., at 164, 99 S.Ct., at 441
(dissenting opinion); United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476,
2481, 53 L.Ed.2d 538 (1977); United States v. Miller, 425 U.S. 435, 442, 96
S.Ct. 1619, 1623, 48 L.Ed.2d 71 (1976); United States v. Dionisio, 410 U.S. 1,
14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973); Couch v. United States, 409 U.S.
322, 335-336, 93 S.Ct. 611, 619-620, 34 L.Ed.2d 548 (1973); United States v.
White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971)
(plurality opinion); Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120,
2123, 20 L.Ed.2d 1154 (1968); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868,
1873, 20 L.Ed.2d 889 (1968). This inquiry, as Mr. Justice Harlan aptly noted in
his Katz concurrence, normally embraces two discrete questions. The first is
whether the individual, by his conduct, has "exhibited an actual (subjective)
expectation of privacy," 389 U.S., at 361, 88 S.Ct., at 516 whether, in the words
of the Katz majority, the individual has shown that "he seeks to preserve
[something] as private." Id., at 351, 88 S.Ct., at 511. The second question is
whether the individual's subjective expectation of privacy is "one that society is
prepared to recognize as 'reasonable,' " id., at 361, 88 S.Ct., at 516whether, in
the words of the Katz majority, the individual's expectation, viewed objectively,
is "justifiable" under the circumstances. Id., at 353, 88 S.Ct., at 512. 5 See Rakas
v. Illinois, 439 U.S., at 143-144 n. 12, 99 S.Ct., at 430; id., at 151, 99 S.Ct., at
434 (concurring opinion); United States v. White, 401 U.S., at 752, 91 S.Ct., at
1126 (plurality opinion).
B
8
"Indeed, a law enforcement official could not even determine from the use of a
pen register whether a communication existed. These devices do not hear
sound. They disclose only the telephone numbers that have been dialeda
means of establishing communication. Neither the purport of any
communication between the caller and the recipient of the call, their identities,
nor whether the call was even completed is disclosed by pen registers." United
States v. New York Tel. Co., 434 U.S. 159, 167, 98 S.Ct. 364, 369, 54 L.Ed.2d
376 (1977).
10
11
This claim must be rejected. First, we doubt that people in general entertain any
actual expectation of privacy in the numbers they dial. All telephone users
realize that they must "convey" phone numbers to the telephone company,
since it is through telephone company switching equipment that their calls are
completed. All subscribers realize, moreover, that the phone company has
facilities for making permanent records of the numbers they dial, for they see a
list of their long-distance (toll) calls on their monthly bills. In fact, pen registers
and similar devices are routinely used by telephone companies "for the
purposes of checking billing operations, detecting fraud and preventing
violations of law." United States v. New York Tel. Co., 434 U.S., at 174-175, 98
S.Ct., at 373. Electronic equipment is used not only to keep billing records of
toll calls, but also "to keep a record of all calls dialed from a telephone which is
subject to a special rate structure." Hodge v. Mountain States Tel. & Tel. Co.,
555 F.2d 254, 266 (CA9 1977) (concurring opinion). Pen registers are regularly
employed "to determine whether a home phone is being used to conduct a
business, to check for a defective dial, or to check for overbilling." Note, The
Legal Constraints upon the Use of the Pen Register as a Law Enforcement
Tool, 60 Cornell L.Rev. 1028, 1029 (1975) (footnotes omitted). Although most
people may be oblivious to a pen register's esoteric functions, they presumably
have some awareness of one common use: to aid in the identification of persons
making annoying or obscene calls. See, e. g., Von Lusch v. C & P Telephone
Co., 457 F.Supp. 814, 816 (Md.1978); Note, 60 Cornell L.Rev., at 1029-1030,
n. 11; Claerhout, The Pen Register, 20 Drake L.Rev. 108, 110-111 (1970).
Most phone books tell subscribers, on a page entitled "Consumer Information,"
that the company "can frequently help in identifying to the authorities the
origin of unwelcome and troublesome calls." E. g., Baltimore Telephone
Directory 21 (1978); District of Columbia Telephone Directory 13 (1978).
Telephone users, in sum, typically know that they must convey numerical
information to the phone company; that the phone company has facilities for
recording this information; and that the phone company does in fact record this
information for a variety of legitimate business purposes. Although subjective
expectations cannot be scientifically gauged, it is too much to believe that
telephone subscribers, under these circumstances, harbor any general
expectation that the numbers they dial will remain secret.
12
13
Second, even if petitioner did harbor some subjective expectation that the
phone numbers he dialed would remain private, this expectation is not "one that
society is prepared to recognize as 'reasonable.' " Katz v. United States, 389
U.S., at 361, 88 S.Ct., at 516. This Court consistently has held that a person has
"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 information revealed to a third party and conveyed by him to Government
authorities, even if the information is revealed on the assumption that it will be
used only for a limited purpose and the confidence placed in the third party will
not be betrayed." Id., at 443, 96 S.Ct., at 1624.
15
Because the depositor "assumed the risk" of disclosure, the Court held that it
would be unreasonable for him to expect his financial records to remain private.
16
17
would be "legitimate."
18
This argument does not withstand scrutiny. The fortuity of whether or not the
phone company in fact elects to make a quasi-permanent record of a particular
number dialed does not in our view, make any constitutional difference.
Regardless of the phone company's election, petitioner voluntarily conveyed to
it information that it had facilities for recording and that it was free to record. In
these circumstances, petitioner assumed the risk that the information would be
divulged to police. Under petitioner's theory, Fourth Amendment protection
would exist, or not, depending on how the telephone company chose to define
local-dialing zones, and depending on how it chose to bill its customers for
local calls. Calls placed across town, or dialed directly, would be protected;
calls placed across the river, or dialed with operator assistance, might not be.
We are not inclined to make a crazy quilt of the Fourth Amendment, especially
in circumstances where (as here) the pattern of protection would be dictated by
billing practices of a private corporation.
19
20
It is so ordered.
21
Mr. Justice POWELL took no part in the consideration or decision of this case.
22
Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, dissenting.
23
I am not persuaded that the numbers dialed from a private telephone fall outside
the constitutional protection of the Fourth and Fourteenth Amendments.
24
In Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 512, 19 L.Ed.2d 576,
the Court acknowledged the "vital role that the public telephone has come to
play in private communication[s]." The role played by a private telephone is
even more vital, and since Katz it has been abundantly clear that telephone
conversations carried on by people in their homes or offices are fully protected
by the Fourth and Fourteenth Amendments. As the Court said in United States
v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2135, 32
L.Ed.2d 752, "the broad and unsuspected governmental incursions into
conversational privacy which electronic surveillance entails necessitate the
Nevertheless, the Court today says that those safeguards do not extend to the
numbers dialed from a private telephone, apparently because when a caller dials
a number the digits may be recorded by the telephone company for billing
purposes. But that observation no more than describes the basic nature of
telephone calls. A telephone call simply cannot be made without the use of
telephone company property and without payment to the company for the
service. The telephone conversation itself must be electronically transmitted by
telephone company equipment, and may be recorded or overheard by the use of
other company equipment. Yet we have squarely held that the user of even a
public telephone is entitled "to assume that the words he utters into the
mouthpiece will not be broadcast to the world." Katz v. United States, supra,
389 U.S., at 352, 88 S.Ct., at 512.
26
The central question in this case is whether a person who makes telephone calls
from his home is entitled to make a similar assumption about the numbers he
dials. What the telephone company does or might do with those numbers is no
more relevant to this inquiry than it would be in a case involving the
conversation itself. It is simply not enough to say, after Katz, that there is no
legitimate expectation of privacy in the numbers dialed because the caller
assumes the risk that the telephone company will disclose them to the police.
27
I think that the numbers dialed from a private telephonelike the conversations
that occur during a callare within the constitutional protection recognized in
Katz.1 It seems clear to me that information obtained by pen register
surveillance of a private telephone is information in which the telephone
subscriber has a legitimate expectation of privacy.2 The information captured
by such surveillance emanates from private conduct within a person's home or
officelocations that without question are entitled to Fourth and Fourteenth
Amendment protection. Further, that information is an integral part of the
telephonic communication that under Katz is entitled to constitutional
protection, whether or not it is captured by a trespass into such an area.
28
29
I respectfully dissent.
30
31
32
Applying the standards set forth in Katz v. United States, 389 U.S. 347, 361, 88
S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), the Court first
determines that telephone subscribers have no subjective expectations of
privacy concerning the numbers they dial. To reach this conclusion, the Court
posits that individuals somehow infer from the long-distance listings on their
phone bills, and from the cryptic assurances of "help" in tracing obscene calls
included in "most" phone books, that pen registers are regularly used for
recording local calls. See ante, at 742-743. But even assuming, as I do not, that
individuals "typically know" that a phone company monitors calls for internal
reasons, ante, at 743, 1 it does not follow that they expect this information to be
made available to the public in general or the government in particular. Privacy
is not a discrete commodity, possessed absolutely or not at all. Those who
disclose certain facts to a bank or phone company for a limited business
purpose need not assume that this information will be released to other persons
for other purposes. See California Bankers Assn. v. Shultz, supra, 416 U.S., at
95-96, 94 S.Ct., at 1534 (MARSHALL, J., dissenting).
33
34
35
36
significantly jeopardize [individuals'] sense of security . . . . more than selfrestraint by law enforcement officials is required." United States v. White,
supra, 401 U.S., at 786, 91 S.Ct., at 1143 (Harlan, J., dissenting).
37
38
Just as one who enters a public telephone booth is "entitled to assume that the
words he utters into the mouthpiece will not be broadcast to the world," Katz v.
United States, supra, 389 U.S., at 352, 88 S.Ct., at 512, so too, he should be
entitled to assume that the numbers he dials in the privacy of his home will be
recorded, if at all, solely for the phone company's business purposes.
Accordingly, I would require law enforcement officials to obtain a warrant
before they enlist telephone companies to secure information otherwise beyond
the government's reach.
"A pen register is a mechanical device that records the numbers dialed on a
telephone by monitoring the electrical impulses caused when the dial on the
telephone is released. It does not overhear oral communications and does not
indicate whether calls are actually completed." United States v. New York Tel.
Co., 434 U.S. 159, 161 n. 1, 98 S.Ct. 364, 366 n. 1, 54 L.Ed.2d 376 (1977). A
pen register is "usually installed at a central telephone facility [and] records on
a paper tape all numbers dialed from [the] line" to which it is attached. United
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized." U.S.Const., Amdt. 4.
See Application of United States for Order, 546 F.2d 243, 245 (CA8 1976),
cert. denied, sub nom. Southwestern Bell Tel. Co. v. United States, 434 U.S.
1008, 98 S.Ct. 716, 54 L.Ed.2d 750 (1978); Application of United States in
Matter of Order, etc., 538 F.2d 956, 959-960 (CA2 1976), rev'd on other
grounds sub nom. United States v. New York Tel. Co., 434 U.S. 159, 98 S.Ct.
364, 54 L.Ed.2d 376 (1977); United States v. Falcone, 505 F.2d 478, 482, and
n. 21 (CA3 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432
(1975); Hodge v. Mountain States Tel. & Tel. Co., 555 F.2d 254, 256 (CA9
1977); id., at 266 (concurring opinion); and United States v. Clegg, 509 F.2d
605, 610 (CA5 1975). In previous decisions, this Court has not found it
necessary to consider whether "pen register surveillance [is] subject to the
requirements of the Fourth Amendment." United States v. New York Tel. Co.,
434 U.S., at 165 n. 7, 98 S.Ct., at 369 n. 7. See United States v. Giordano, 416
U.S., at 554 n. 4, 94 S.Ct., at 1845 (opinion concurring in part and dissenting in
part).
In this case, the pen register was installed, and the numbers dialed were
recorded, by the telephone company. Tr. 73-74. The telephone company,
however, acted at police request. Id., at 73, 75. In view of this, respondent
appears to concede that the company is to be deemed an "agent" of the police
for purposes of this case, so as to render the installation and use of the pen
register "state action" under the Fourth and Fourteenth Amendments. We may
assume that "state action" was present here.
It is true, as the Court pointed out in United States v. New York Tel. Co., 434
U.S. 159, 166-167, 98 S.Ct. 364, 369, 54 L.Ed.2d 376, that under Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520,
pen registers are not considered "interceptions" because "they do not acquire
the 'contents' of communications," as that term is defined by Congress. We are
concerned in this case, however, not with the technical definitions of a statute,
but with the requirements of the Constitution.
See, e. g., Reporters Committee For Freedom of Press v. American Tel. & Tel.
Co., 192 U.S.App.D.C. 376, 593 F.2d 1030 (1978), cert. denied, 440 U.S. 949,
99 S.Ct. 1431, 59 L.Ed.2d 639 (1979); Halperin v. Kissinger, 434 F.Supp. 1193
(DC 1977); Socialist Workers Party v. Attorney General, 463 F.Supp. 515
(SDNY 1978).