Could This Be A Wire Tap Problem?

What Would You Do?

February 18, 1997

As a patrol officer, you make a traffic stop for erratic driving. After the driver performs poorly on your field sobriety tests, you arrest the young man for driving under the influence of alcohol. While performing a search incident to that arrest, you uncover an electronic pager inside the vehicle. Because you are familiar with the operation of the pager, you retrieve the numerical messages stored inside. During your review of those messages, you observe a telephone number that appears repeatedly along with the "911" emergency code.

Knowing that such coded messages are often used by drug dealers, you place a call to that number and speak to a young woman who insists on purchasing crack cocaine. Immediately after hanging up the telephone, you ask a detective to pose as a drug dealer in order to effect an arrest on the woman for trafficking in cocaine. Although the detective is willing to participate in your investigation, he questions your seiz ure of the pager, your retrieval of the numerical messages from the pager's memory without a wire tap warrant, and your use of the telephone number to contact the suspect. He notes that the woman may claim that she had a constitutionally protected expec tation of privacy in that number, and that any evidence obtained from the undercover transaction might be tainted if your recovery of the information stored in the pager is considered to be an illegal search and seizure.

The meeting with the woman is scheduled to take place in 30 minutes, and this may be your only opportunity to arrange this transaction. What do you do?

Answer in next month's issue.

The Answer To Last Month's Quiz

March 18, 1997

In last month's issue, we quizzed you on whether the "callback" numbers in the memory of a seized telephone pager could be retrieved and used to set up an undercover drug operation. Here is the answer:

The Ohio legislature has enacted a new wire tap law which conforms to federal guidelines. Under this new Ohio law, the interception of numerical or oral messages to a pager requires the issuance of a wire tap warrant by a judge. However, the retrieval of numerical or voice messages from within a pager's memory is not an interception of the communication. "Interception" is the acquisition of the contents of a wire communication through the use of any electronic, mechanical or other device. For example, if an officer uses a "clone pager" to intercept a communication transmitted to a pager, the officer must comply with federal and state wire tap procedures.

Those strict procedures do not apply when messages transmitted to a pager are accessed by activating the pager itself. Under those circumstances, there is no "interception" of the communication because the transmission of the communication ceases when the pager receives it. Also, when an officer seizes a pager and retrieves information from its memory, the officer does not "acquire the contents of a communication by electronic, mechanical or other device." Activating the pager itself is not subject to wire tap restrictions; those apply only to the use of another device to intercept a communication.

But is there a constitutional expectation of privacy in the contents of a pager? According to the courts, that depends on whether you are talking about the privacy interest of the sender of the communication, or the interests of the possessor of the pager. For the sender, there is no expectation of privacy protected by the U.S. Constitution. By transmitting a telephone number into a pager, the sender voluntarily exposes that information to others. The Fourth Amendment does not protect a wrongdoer's misplaced trust that the one who is intended to receive a communication is the one who will actually receive it.

And finally, what about the arrestee whose pager was seized? The United States Supreme Court has long recognized the authority of a law enforcement officer to conduct a warrantless search incident to arrest. A search of containers and other items of personal property is within the scope of that authority. That includes pagers and their contents. The warrantless search of a pager, seized incident to a lawful arrest, is permissible as long as the pager was part of the arrestee's personal property, and as long as the pager's memory was activated at the time of the arrest.

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