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IN RE UNITED STATES

October 19, 1978

Application of the UNITED STATES of America FOR AN ORDER AUTHORIZING the INSTALLATION OF a PEN REGISTER or a TOUCH-TONE DECODER and a TERMINATING TRAP


The opinion of the court was delivered by: ZIEGLER

I. History of Case

The instant matter involves the motion of Bell Telephone Company of Pennsylvania, pursuant to Rule 47 of the Federal Rules of Criminal Procedure, to modify the order of this court dated September 5, 1978. The order authorized the installation of a pen register, i. e., touch tone decoder, and a terminating trap to a subject telephone within the jurisdiction of this court.

 A pen register is a mechanical device attached to a telephone line which records on paper tape, or by digital readout, all numbers dialed from that line. The device does not monitor the call, nor does it indicate whether the outgoing call was completed. A terminating trap, on the other hand, records the number of the telephone from which an incoming call is made to the subject telephone. *fn1" Both devices are installed and monitored at the office of the public utility and therefore require no encroachment upon private property. *fn2"

 Bell Telephone also implores this court to vacate its amended order of September 8, 1978, directing the company to "install card drops and other mechanical or electrical devices" to the subject telephone for a ten-day period commencing on September 5, 1978. The data from all devices was ordered to be then delivered to special agents of the Federal Bureau of Investigation.

 After consideration of the briefs of the parties, and the evidence presented at the hearing, we conclude that the motion of Bell Telephone to modify or vacate the orders of September 5 and 8, 1978, must be denied.

 II. Discussion

 Bell Telephone's protestations are directed to those portions of the orders which require the company to trap and trace the telephone numbers of the incoming calls to the subject telephone. The company concedes that the Supreme Court has authorized the district courts, where appropriate, to order a public utility to install a pen register. United States v. New York Telephone Co., 434 U.S. 159, 98 S. Ct. 364, 54 L. Ed. 2d 376 (1977). Therefore, no objection is adduced to that portion of the order which requires installation of a pen register.

 Two issues are raised by the motion of Bell: (1) Does the district court have the authority under Rule 41, upon a showing of probable cause, to order Bell to install mechanical devices and perform manual tracing operations designed to trap and trace incoming telephone calls to a monitored telephone?; and (2) Does the district court have the authority under the All Writs Act, 28 U.S.C. § 1651(a), to compel Bell to provide the facilities and technical assistance to implement the order at the expense of the Government?

 (A). Authority to Issue Order Under Rule 41

 In United States v. New York Telephone Co., 434 U.S. 159, 98 S. Ct. 364, 54 L. Ed. 2d 376 (1977), the Supreme Court held that the authority of a district court to order installation of a pen register is governed by Rule 41 of the Federal Rules of Criminal Procedure and not by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. § 2510 et seq., Id. 434 U.S. at 166 and 168, 98 S. Ct. 364. The Court's reasoning with regard to pen registers is apposite to the devices designed to trap and trace the telephone numbers of the telephones from which the calls were made in the instant case.

 Title III is concerned with orders "authorizing or approving the interception of a wire or oral communication . . . ." 18 U.S.C. § 2518(1). Congress defined "intercept" to mean "the Aural acquisition of the Contents of any wire or oral communication . . . ." Id. at § 2510(4) (emphasis added). Since pen registers do not intercept the "contents" of communications, they are not controlled by Title III. United States v. New York Telephone, supra at 167, 98 S. Ct. 364. Inasmuch as the tracing of phone numbers similarly does not involve an "aural acquisition," in our judgment, traces, like pen registers, are without the ambit of Title III.

 Our conclusion is buttressed by the legislative history of Title III. A review of that history indicates Congress did not intend to subject traces to the rigorous procedures outlined in Title III. "The proposed legislation is not designed to prevent the tracing of phone calls. . . . The proposed legislation is intended to protect the privacy of the communication itself and not the means of communication." S.Rep. No. 1097, 90th Cong., 2d Sess. 90 (1968), U.S.Code Cong. & Admin.News 1968, pp. 2112, 2178. We hold that the power of a district court to order the installation of a terminating trap is controlled by Rule 41 of the Federal Rules of Criminal Procedure.

 Federal Rule 41 authorizes the issuance of search warrants for "property" which constitutes evidence of crime. The term "property" includes "documents, books, papers, and other tangible objects." Fed.R.Crim.P. 41(h). However, this definition is not all inclusive. In New York Telephone, the Court explicated that Rule 41 is sufficiently broad to encompass seizure of intangible items such as dial impulses. 434 U.S. at 170, 98 S. Ct. 364. Since the traps or tracing devices in the instant case also involve the seizure of impulses recorded by telephone equipment, we conclude that the orders of September 5 and 8, 1978, are within the scope of Rule 41 and New York Telephone.

 The Court of Appeals for the Sixth Circuit was also confronted with the question of a district court's authority to order tracers as opposed to pen registers. In Michigan Bell Tel. Co. v. United States, 565 F.2d 385 (6th Cir. 1977), the court reviewed an order of a district court which ...


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