Indiana Bell Telephone Co. v. State

402 N.E.2d 962, 273 Ind. 120, 1980 Ind. LEXIS 648
CourtIndiana Supreme Court
DecidedApril 7, 1980
DocketNo. 1079S297
StatusPublished
Cited by3 cases

This text of 402 N.E.2d 962 (Indiana Bell Telephone Co. v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Indiana Bell Telephone Co. v. State, 402 N.E.2d 962, 273 Ind. 120, 1980 Ind. LEXIS 648 (Ind. 1980).

Opinions

GIVAN, Chief Justice.

On October 4, 1979, pursuant to an investigation by the Indianapolis Police Department, the Marion County Prosecutor filed a petition in Marion Superior Court, Criminal Division IV, requesting the installation of a pen register device and the assistance of appellant, Indiana Bell Telephone Company, Inc. (hereinafter referred to as Indiana Bell) in the installation of the pen register. On October 11, 1979, the Court entered a final order which authorized the Marion County Prosecutor’s Office, through its designated agent, to install a pen register at the offices of Indiana Bell to record the telephone numbers of outgoing calls placed from certain specified telephones for a designated period of 30 days. The trial court overruled Indiana Bell’s Motion to Correct Errors and denied its Request for a Stay on October 15, 1979. The Indiana Court of Appeals granted a stay of the Order upon motion of Indiana Bell in Cause No. 2-1079-A-321. Under Appellate Rule 4(A)(10) this Court granted transfer which was requested on October 29, 1979, by way of a joint petition of Indiana Bell and the State of Indiana.

The trial court issued the order in question upon a finding that there was probable cause to believe that evidence of violations of the Indiana Code, specifically felonies, would be obtained through the use of a pen register which would be attached to particular telephones. The evidence in this case discloses that a pen register is a mechanical device attached to a given telephone line and usually installed at a central telephone facility. It records on 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. A pen register does not acquire the contents of the communication. It only prints the time and date of the transmission, the number dialed and the duration, of time that the circuit remained open.

Appellant asserts the Marion Superi- or Court lacks the authority to authorize the use of a pen register to acquire evidence of the commission of a crime or the continuing commission of specific crimes. Appellee, on the other hand, argues that the installation and use of a pen register does not constitute a “search” within the meaning of the Fourth Amendment to the United States Constitution; that therefore no search warrant is required; and that Indiana Courts of general jurisdiction have the inherent authority to order the installation and use of these surveillance devices. Although the United States Supreme Court has recently held that the installation and use of a pen register is not a “search” and that no search warrant is required, Smith v. Maryland (1979) 442 U.S. 735, 745-46, 99 S.Ct. 2577, 2582-2583, 61 L.Ed.2d 220 at 230, it is unnecessary for us to address that question in this case since the Order herein was based on probable cause, supported by an affidavit, and therefore constituted a valid search warrant. It is necessary, however, to examine the source of the authority of Indiana courts with general jurisdiction to issue such a search warrant.

In United States v. New York Telephone Co. (1977) 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376, the Supreme Court found that a District Court had the power to authorize the installation of pen registers. The Court relied upon Fed.Rule Crim.Proc. 41(b) which authorizes the issuance of a warrant to:

search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise crimi[964]*964nally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense. 434 U.S. at 169, 98 S.Ct. at 370, 54 L.Ed.2d at 387.

The Court specifically held that this rule was “broad enough to encompass a ‘search’ designed to ascertain the use which is being made of a telephone suspected of being employed as a means of facilitating a criminal venture and the ‘seizure’ of evidence which the ‘search’ of the telephone produces.” United States v. New York Telephone Co., supra, 434 U.S. at 169, 98 S.Ct. at 370, 54 L.Ed.2d at 387.

The “search” in New York Telephone involved the installation of a pen register where there was probable cause to believe that certain telephones were being used to facilitate an illegal gambling operation in violation of 18 U.S.C. § 1952 (use of any facility in interstate or foreign commerce in aid of racketeering enterprise) and 18 U.S.C. § 371 (conspiracy to commit an offense). It follows that the telephone could be a means of facilitating a criminal venture such as a conspiracy to possess and sell stolen merchandise or to possess and distribute drugs in violation of Indiana law.

The Sixth Circuit in 1977 concluded that the impulses recorded by telephone “trapping devices” which trace the numbers of incoming calls and are similar to pen registers, fall within the scope of Rule 41. Michigan Bell Tel. Co. v. United States (1977) 565 F.2d 385 at 389. Other courts have found Rule 41 is by analogy supportive of the conclusion that Federal courts do have the authority to issue pen register orders. See Application of the U. S. In Matter of Order Etc. (2d Cir. 1976) 538 F.2d 956, rev’d on other grounds 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376; United States v. Southwestern Bell Tel. Co. (8th Cir. 1976) 546 F.2d 243 (court has inherent authority to order assistance of public utility).

Indiana’s counterpart to Fed.R.Crim.Proc. 41, IC § 35-1-6-1 [Burns 1978], is very similar to the Federal Rule. IC § 35-1-6-1 provides:

(a) A court may issue warrants upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, to search any place for any of the following:
* * * * * *
(3) Property used or possessed with intent to be used as the means of committing an offense or concealed to prevent an offense from being discovered.
(4) Property constituting evidence of an offense or tending to show that a particular person committed an offense.

We believe that the Indiana search warrant statute is broad enough to encompass a court order, predicated upon a finding of probable cause, to install and use a pen register device to obtain evidence of crimes which are being committed.

Our decision is in accord with United States v. New York Telephone Co., supra, which held that Rule 41 “is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause.” 434 U.S. at 169, 98 S.Ct. at 371, 54 L.Ed.2d at 388.

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402 N.E.2d 962, 273 Ind. 120, 1980 Ind. LEXIS 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indiana-bell-telephone-co-v-state-ind-1980.