Smith v. Maryland:   
US Supreme Court, 1979. 

Statement of the Case:

      State is prosecuting a robber, Smith, for robbery when Smith made a threatening phone call from his house to the victim after robbing the victim, and the telephone company installed a pen register to catch the ? upon the police’s request.

Procedure:

      Trial court denied the ?’s motion to suppress the “fruits” of the pen register, citing the 4^th Amendment was not violated by the pen register.  ? was convicted to 6 years.

Facts:

      Woman, McDonough, was robbed.  She then began getting threatening and obscene phone calls from someone identifying himself as the robber. 

Issue:

      Whether the installation of a “pen register” constitutes a “search” within the meaning of the 4^th Amendment when the ? made a threatening phone call from his house and the telephone company installed a pen register to catch the ? upon the police’s request (Whether the ? had a reasonable expectation that the number he dialed would be kept private.).

Procedural Result:

      Judgment affirmed for the State.

Holding:

      The installation of a “pen register” does not constitute a “search” within the meaning of the 4^th Amendment when the ? made a threatening phone call from his house and the telephone company installed a pen register to catch the ? upon the police’s request.

Reasoning:

• 4^th Amendment guards against unreasonable searches and seizures.
• Rule:  A “Search” takes place within the meaning of the 4^th Amendment when:

1. An individual has exhibited an actual subjective expectation of privacy (whether he has shown that he wants to preserve something as private), and

1. 1. No, because the number was made public, since a phone user knows that the phone company can get access to the numbers dialed.  They are regularly used to track long distance, etc.
   2. He may have expected to keep the content of his call private, but not the number dialed.

2. Whether the individual’s subjective expectation of privacy is some that society is prepared to recognize as reasonable (Whether the individual’s expectation, viewed objectively, is justifiable under the circumstances).

1. 1. It is firmly held that a ? can not expect for information he turns over to a 3rd party to be secretly held.
   2. ? “assumed the risk of disclosure.”

• This Case differs from Katz:  Pen registers do not acquire the contents of conversations, or even tell if a conversation took place.

Dissent (Stewart):

• He called from his home, and has important content that should thus not be divulged.

Dissent (Marshall):

• One who assumes that his phone company will get private information about him has an expectation that this will not be divulged to 3^rd parties for other purposes.
• How could you assume the risk of disclosure when you have no control over the taking of your number by the phone company?
• This threat of getting numbers without a warrant will extend to discovering reporters’ secret sources and other sensitive areas.
• Law enforcement should thus be required to get a warrant.