The opinion of the court was delivered by: Campbell, Chief Judge.
Defendants in a motion to suppress have placed in issue here a
telephone company "pen register" system, by alleging that in the
investigation and detection of the crime charged in this case,
use of such a pen register constituted a violation of § 605 of
the Federal Communications Act (Title 47, U.S.C.).
The facts related to this issue are for the most part
The pen register is a mechanical device attached on occasion to
a given telephone line, usually at central telephone offices. A
pulsation of the dial on a line to which the pen register is
attached records on a paper tape dashes equal to the number
dialed. The paper tape then becomes a permanent and complete
record of outgoing calls as well as the numbers called on the
particular line. Immediately after the number is dialed and
before the line called has had an opportunity to answer (actually
the pen register has no way of determining or recording whether
or not the calls are answered) the pen register mechanically and
automatically is disconnected. There is neither recording nor
monitoring of the conversation.
In this case the Illinois Bell Telephone Company at the request
of agents of the Internal Revenue Service installed a pen
register on the lines used by the defendants. (The indictment
alleges defendants were engaged in the business of accepting
wagers.) Neither the defendants nor the parties called knew of or
acquiesced in this Internal Revenue Service request.
Pen register tapes which recorded the calls from defendants'
lines were turned over by the Illinois Bell Telephone Company to
the Internal Revenue Service agents who in turn used these
records to further develop leads and to conduct gambling
investigations resulting in the obtaining of the search warrants
which produced the instant indictments.
§ 605 of Title 47, U.S.C. reads in pertinent part as follows:
"No person receiving or assisting in receiving, or
transmitting, or assisting in transmitting, any
interstate or foreign communication by wire or radio
shall divulge or publish the existence, contents,
substance, purport, effect, or meaning thereof,
except through authorized channels of transmission or
reception, to any person other than the addressee,
his agent, or attorney, or to a person employed or
authorized to forward such communication to its
destination, or to proper accounting or distributing
officers of the various communicating centers over
which the communication may be passed, or to the
master of a ship under whom he is serving, or in
response to a subpena issued by a court of competent
jurisdiction, or on demand of other lawful authority;
and no person not being authorized by the sender
shall intercept any communication and divulge or
existence, contents, substance, purport, effect, or
meaning of such intercepted communication to any
person; and no person not being entitled thereto
shall receive or assist in receiving any interstate
or foreign communication by wire or radio and use the
same or any information therein contained for his own
benefit or for the benefit of another not entitled
thereto; and no person having received such
intercepted communication or having become acquainted
with the contents, substance, purport, effect, or
meaning of the same or any part thereof, knowing that
such information was so obtained, shall divulge or
publish the existence, contents, substance, purport,
effect, or meaning of the same or any part thereof,
or use the same or any information therein contained
for his own benefit or for the benefit of another not
entitled thereto: Provided, That this section shall
not apply to the receiving, divulging, publishing, or
utilizing the contents of any radio communication
broadcast, or transmitted by amateurs or others for
the use of the general public, or relating to ships
in distress. June 19, 1934, c. 652, Title VI, §
605, 48 Stat. 1103."
Applied to the facts recited above, this language of the
statute is clear and unequivocal. The existence of a
communication was divulged without the consent of the sender or
other party to the call.
In an attempt to avoid the scope of § 605 the government seeks
to analogize the present factual circumstances with those in
People v. Schneider, 45 Misc.2d 680, 257 N.Y.S.2d 876, and
Schmukler v. Ohio Bell Telephone Co., Ohio Com.Pl.,
116 N.E.2d 819. Although both Schneider and Schmukler involved the same pen
register system as here, substantial factual distinctions render
In Schneider the party subscriber called authorized the
divulging of the fact that he was called.
In Schmukler, the divulging was not only of pen register
recordation but also the actual monitoring of calls. Furthermore
it was made not by the Ohio Bell Telephone Company but by the
subscriber whose calls were recorded and monitored. The court's
rationale, inappropriate here, was that § 605 does not proscribe
an interception or wire tapping as such but only forbids the
publishing or divulging of such information. (In this regard see
Benanti v. United States, 355 U.S. 96, 100 n. 5, 78 S.Ct. 155, 2
The government's claim that the pen register recordation here
was consented to is unsupported by the facts. Neither the
defendant callers nor their intended receivers (both considered
"senders" within the meaning of the statute, Rathbun v. United
States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134) consented to
having their calls recorded. Nor can consent be inferred from the
fact that defendants requested installation of phone service.
Recording calls by use of the pen register is only an occasional
service of Illinois Bell Telephone Company and not a practice
generally known to and accepted by its subscribers or published
in its tariffs. (See: United States v. Gallo, 2 Cir.,
123 F.2d 229, 231).
It is obvious from the facts, that the instant unconsented use
of a pen register violated the integrity of telephone
communications and the clear prohibition of § 605. The fruits of
such a violation are, of course, inadmissible in evidence, much
as proper investigation and alert detection of crime should be
encouraged. (Nardone v. United States, 308 U.S. 338, 60 S.Ct.
266, 84 L.Ed. 307).
Since it is clear that but for the above described violation of
§ 605 no warrant would have issued and no indictment would have
been returned, the indictments against the defendants tied
ineluctably with the illegal wire tapping, must be and
accordingly are ...