Caseflicks

Supreme Court of the United States • 1979

Smith v. Maryland

442 U.S. 735 | 99 S. Ct. 2577 | 61 L. Ed. 2d 220 | 1979 U.S. LEXIS 134

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Takeaway

In short, Smith v. Maryland established that, under the Fourth Amendment, people generally lack a reasonable expectation of privacy in phone numbers they voluntarily convey to a telephone company—a central formulation of the third-party doctrine.

Background

After Patricia McDonough was robbed in Baltimore, she received threatening and obscene calls from a man claiming to be the robber. She saw a 1975 Monte Carlo near her home during one call, and police later located Michael Lee Smith, who matched her description, driving a car of that model registered in his name.

At police request, the telephone company installed a pen register at its central office, without a warrant or court order, to record numbers dialed from Smith's home telephone. The device showed that Smith's phone had called McDonough. Police used that information and other evidence to obtain a warrant to search Smith's home, where they found his phone book opened to McDonough's listing. McDonough later identified Smith in a lineup.

Smith moved to suppress the pen-register evidence and its fruits, arguing that the warrantless installation violated the Fourth Amendment. The trial court denied the motion, and Smith was convicted of robbery. The Maryland Court of Appeals affirmed, holding that a person has no constitutionally protected reasonable expectation of privacy in numbers dialed into the telephone system. The Supreme Court granted review to resolve disagreement among lower courts over whether pen-register surveillance is a Fourth Amendment search.

Issues

Issue #1

Whether the warrantless installation and use of a pen register to record telephone numbers dialed from Smith's home telephone was a Fourth Amendment search.

Holding

No. Recording the numbers Smith dialed was not a search because he had no legitimate expectation of privacy in that information; therefore, no warrant was required.

Reasoning

The Court applied Katz v. United States, under which a Fourth Amendment search occurs when the government intrudes on a person's legitimate expectation of privacy. The inquiry ordinarily asks both whether the person actually expected privacy and whether society is prepared to recognize that expectation as reasonable. Because the pen register was installed at the telephone company's central office rather than on Smith's property, Smith's claim depended entirely on an asserted privacy interest in the numbers he dialed.

A pen register records only dialing information, not the contents of a call. It does not hear speech, reveal the substance of a conversation, establish the caller's or recipient's identity, or even show whether the call was completed. That limited function distinguished the device from the listening equipment in Katz, which intercepted the content of a telephone conversation.

The Court doubted that telephone users generally expect the numbers they dial to remain secret. A caller necessarily conveys dialing information to the telephone company so that its switching equipment can complete the call. Subscribers also commonly know that telephone companies keep records of at least some calls for billing and use recording equipment for such purposes as detecting fraud, correcting billing problems, and tracing unwanted calls.

Smith's use of a telephone in his home did not create a privacy interest in the number he dialed. Although using a home phone may reflect an effort to keep the conversation private, the caller must still transmit the destination number to the telephone company. The place from which the call was made therefore did not alter the relevant disclosure.

Even assuming Smith personally expected privacy in the numbers, that expectation was not objectively reasonable. Under the Court's third-party doctrine, a person generally has no legitimate expectation of privacy in information voluntarily conveyed to a third party in the ordinary course of business. Like the bank records at issue in United States v. Miller, the dialed numbers were information Smith exposed to a business intermediary and thus carried the risk of disclosure to the government.

The fact that the call to McDonough was local and ordinarily might not have been permanently recorded for billing did not change the constitutional result. Smith still voluntarily conveyed the number to equipment that could record it, and the Court declined to make Fourth Amendment protection turn on a telephone company's local-calling zones or private billing practices.

Dissents

Justice Stewart

Reasoning

Justice Stewart argued that the numbers dialed from a private telephone should receive Fourth Amendment protection just as the contents of a telephone conversation do under Katz. The unavoidable involvement of telephone-company equipment in transmitting a call does not eliminate privacy in the conversation itself, and it should not eliminate privacy in the numbers needed to place that call.

In his view, dialed numbers are meaningful communicative information, not mere neutral routing data. A list of the numbers a person calls can reveal the identities of contacts and the places contacted, exposing highly intimate details of private life. Because pen-register surveillance acquires that information from conduct occurring in a home or office, he would treat it as a search.

Justice Marshall

Reasoning

Justice Marshall rejected the majority's conclusion that phone subscribers lack either an actual or a legitimate expectation of privacy in their dialed numbers. Knowledge that a company may collect information for limited internal business purposes does not logically mean that customers expect or accept its disclosure to the government. Privacy, he explained, is not an all-or-nothing commodity surrendered whenever information is shared for a restricted purpose.

He also argued that the majority misused the idea of assumed risk. Assumption of risk implies a meaningful choice, but people often cannot realistically avoid telephone service, which has become a personal and professional necessity. A person who must use the telephone to participate in ordinary life cannot fairly be said to have chosen unrestricted governmental access to dialing information.

More fundamentally, Justice Marshall maintained that courts must make a normative judgment about which risks citizens should be forced to bear in a free society; the government cannot define away Fourth Amendment protections simply by making surveillance known or commonplace. Unregulated access to call records can chill political association, confidential journalism, and other lawful activities. He would require police to obtain a warrant before asking a telephone company to collect dialing information for law-enforcement purposes.