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District Attorney




TELEPHONE RECORDS

From the Summer 1998 Edition of Point of View

"[I]t is virtually impossible for an individual or business entity to function in the modern economy without a telephone, and a record of telephone calls provides a virtual current biography."(1)

Officers who are conducting a criminal investigation will often want to know who a suspect has talked with on the telephone. Such information may, for example, help establish a link between two or more suspects or lead to the identification of the suspect's accomplices or co-conspirators. It may also furnish information that is necessary to obtain a wiretap order.

Officers may also want to know who the victim of a crime has communicated with over the phone. This is obviously necessary in cases where the victim has received annoying or threatening calls, and in some kidnaping and extortion cases. It may also be helpful in murder cases where investigators sometimes obtain leads by determining who the victim phoned before he was murdered or who recently phoned the victim.

Although Pacific Bell and other telephone companies are usually quite willing to cooperate with law enforcement in furnishing such information, they are not free to do so. This is because this type of information it is regarded as confidential under California law.(2) Consequently, it may be released to officers only under certain circumstances. The purpose of this article is to discuss those circumstances and explain what kinds of telephone records may be available to investigators.

It should be noted that after officers have obtained a phone number through one of the procedures discussed in this article, they will often want to learn the name, address, and other information relating to that number in Pacific Bell business records. If the number is unlisted, however, such information can be released only by way of court order, search warrant, subpoena, or a declaration that the information is needed to secure an emergency.(3)

Also note that the purpose of the procedures discussed in this article is to obtain numerical data, primarily phone numbers and the dates and times calls were made to or from a certain phone. An entirely different set of rules applies if officers want to determine the content of telephone conversations on a certain phone through a wiretap operation.(4)

AVAILABLE INFORMATION

There are essentially two types of telephone records available to criminal investigators. First, officers can obtain records of calls that were made in the past. This is accomplished through "Number Searches," "Line History Block Checks," and "Star 69 traces." Second, telephone company equipment can provide an ongoing record of calls made and received on a certain phone. This is accomplished through the installation of "Dialed Number Recorders" and "Phone Traps."

number searches: A so-called "Number Search" is a search of Pacific Bell billing tapes for telephone call activity to and from a certain phone for a specific period of time.(5) A number search will usually be conducted by computer and will provide the following information: the telephone numbers that were dialed on the phone, the telephone numbers from which incoming calls were made, the date the calls were made, the time the connections were made, whether the calls were completed or unanswered,(6) and the length of the calls that were completed. Note that because number searches are based on billing records, they will not show calls that were not billed by Pacific Bell, such as local calls or calls routed through a long distance company that does its own billing.

dialed number recorders: A "Dialed Number Recorder"--commonly known as a

"DNR" or "pen register"(7)--is a device that records the telephone numbers that are dialed on a particular phone as the call is being made. For example, installation of a DNR on a drug dealer's phone line may provide investigators with leads as to the dealer's suppliers and customers.

A DNR is installed by Pacific Bell technical personnel at PacBell facilities. When a call is dialed on the phone, the DNR will record the telephone number that was dialed (whether by touch-tone or rotary phone), the date and time the call was made, and the length of the call. It will also record the time of day that incoming ringing signals were received but it will not display the number of the telephone from which the call was made.

Under federal law, a law enforcement agency that requests a dialed number report will be required to compensate the phone company for its expenses in furnishing the equipment and providing technical assistance.(8)

phone traps: A so-called "Phone Trap" or "Trap and Trace Device" is an instrument that compiles a record of the telephone numbers of the phones from which calls to a certain phone were made.(9) For example, if officers expect that an extortionist or kidnaper will make a demand over the telephone, a phone trap will identify the number of the phone from which the call was made.

Note that by using both a Phone Trap and a DNR, officers can obtain an on-going record of all calls to and from a particular phone. As with DNR's, federal law provides that the phone company be compensated for furnishing phone trap equipment and providing technical assistance.(10)

A relatively new version of a phone trap is the so-called "Caller ID" device. It is an instrument that is physically attached to a subscriber's telephone and which is activated the moment the phone receives ringing impulses. Almost immediately, the screen on the instrument displays the telephone number of the phone from which the incoming call was placed. Because "Caller ID" devices are installed by, or at the request of, the subscriber, their use is lawful under federal and state law.(11)

line history block checks: Pacific Bell equipment automatically stores in its memory, (1) the last phone number dialed on each phone, and (2) the number of the phone from which the last incoming call was placed. To obtain such information, officers must request a so-called "Line History Block Check."

It is important to understand that this information is stored temporarily and will be lost as soon as a new number is dialed from the phone or when someone places a call to the phone. This will happen even if the subscriber or officers unplug the phone or take it off the hook to prevent a call from being completed. It is, therefore, critical that officers request a Line History Block Check as soon as they determine such information will be needed.

For example, officers who have arrived at a home or business where the body of a murder victim has been discovered may want to know the identity of the person who phoned the victim last or who the victim phoned last. If so, they may be able to obtain such information by immediately using an outside phone to request an immediate Line History Block Check.

star 69 trace: Pacific Bell's "Star 69" service permits a customer to automatically re-dial the last incoming call to the customer's phone by pressing 69. The number that is automatically dialed will be temporarily stored by Pacific Bell equipment until another call is received on the phone. If officers notify Pacific Bell that they need to know the phone number that is now being stored, Pacific Bell can retain the number and hold it for officers pending receipt of legal process or a declaration that it is needed to secure an emergency.

PROCEDURE TO OBTAIN INFORMATION

Most information that investigators may need from a telephone company is regarded as confidential. This includes information obtained by way of a Number Search, Dialed Number Recorder, Phone Trap, Line History Block Check, and Star 69 trace. Consequently, to obtain such information, officers will usually need a search warrant, court order, consent, or a declaration that the information is needed to secure an emergency.

Court orders and search warrants

The most common method of obtaining confidential information from a phone company is by way of a court order or search warrant.(12) When considering whether to seek a court order or search warrant, officers should keep the following in mind:

A search warrant requires probable cause;(13) a court order requires only that the information being sought "is relevant to an ongoing criminal investigation."(14)

A search warrant may authorize a DNR or phone trap operation for only ten days(15); a court order may authorize such operations for 60 days, and may be extended.(16)

A court order requires that phone company employees obtain the information;(17) a search warrant is technically an order requiring law enforcement officers to obtain it.(18)

For these reasons, it is usually preferable to seek a court order. An example of such an order appears at the end of this article.

the affidavit: To obtain a court order, officers must prepare a sworn affidavit demonstrating that the information that is sought "is relevant to an ongoing criminal investigation."(19) To obtain a search warrant, the affidavit must show there is probable cause--that is, a "fair probability"--that the information being sought constitutes evidence of a felony or tends to show that a particular person committed a felony.(20) These requirements would probably be met, for example, by establishing that the telephone is being used to carry out or facilitate a crime, such as gambling, prostitution, drug sales, or a conspiracy; and that the phone numbers that are dialed on the telephone would be relevant in the criminal investigation by, for example, enabling officers to identify the people who are taking part in the criminal activity.(21)

serving the court order or search warrant: Serving a court order or search warrant on a phone company is fairly easy. Because most phone companies are willing to cooperate with law enforcement, officers can usually just mail, deliver, or fax the court order or search warrant to the company's security division or law enforcement liaison. The company will then locate the records, make a copy, and arrange to have them delivered to the investigating officer.

turnaround time: Number search records can usually be obtained within 48 hours after the request is made.

nondisclosure orders: Pursuant to California Public Utility Commission regulations, a phone company may be required to immediately notify a customer that it has received legal authorization to release certain information to a law enforcement agency.(22) If, as is often the case, the release of such information to the customer would compromise an ongoing criminal investigation, officers may seek a so-called "nondisclosure order" at the time application is made for a court order or search warrant.(23) To obtain a nondisclosure order, the affiant should explain in the affidavit why the disclosure would impede the criminal investigation.(24)

Other procedures to obtain information

consent: A telephone subscriber may give written consent to a phone company to release to officers a list of the numbers dialed on the subscriber's phone, or install a pen register or trap on the subscriber's phone.(25) The subscriber may not, however, effectively consent to the release of a list of phone numbers from which incoming calls originated.(26)

emergencies: If necessary in order to secure an emergency, a phone company may disclose to a law enforcement agency information concerning calls made to or from a certain phone.(27) In an emergency situation, a phone company may also temporarily install and monitor a Dialed Number Recorder (pen register) or Trap and Trace Device.(28) An "emergency" will be deemed to exist if there is an immediate danger of death or serious bodily injury to any person or "conspiratorial activities characteristic of organized crime."(29)

judicial subpoena: Officers may receive telephone company billing records by way of subpoena duces tecum.(30) Subpoenas are not, however, used often because California courts have ruled that when phone company records are obtained by subpoena, the phone company must deliver the records to the court--not the investigating officers or prosecutor.(31) Although officers may eventually be able to obtain the records from the court, it is much simpler to seek a court order or search warrant.

Example of DNR and Phone Trap court order:

IN THE _____________________________SUPERIOR COURT

COUNTY OF _________________________, STATE OF CALIFORNIA

RE: ORDER AUTHORIZING [TELEPHONE TRAP] [NUMBER SEARCH] [DIALED NUMBER RECORDER] [LINE HISTORY BLOCK CHECK] [STAR 69 TRACE]

No. __________________

ORDER

Having considered the affidavit of [name of affiant], hereinafter "affiant" of the [name of law enforcement agency], this court finds that the information ordered disclosed herein is relevant to an ongoing criminal investigation, and that Pacific Bell, a telephone corporation as defined in California Public Utilities Code 234, has received notice that this order was being sought. It is hereby ordered that Pacific Bell, through its employees and agents, shall take the following action:

RE DIALED NUMBER RECORDER: Install, provide facilities required for installation, and provide technical assistance required for installation of equipment commonly known as a "dialed number recorder" which will detect and record the numbers dialed or pulsed by the telephone(s) connected to telephone number [insert target phone number]. Furthermore, Pacific Bell shall furnish affiant with a record of such calls and, upon request of affiant shall furnish it with the name and address of the subscriber of record, whether published or nonpublished, of each telephone number recorded by the dialed number recorder.

RE PHONE TRAP: Install, provide facilities required for installation, and provide technical assistance required for installation of equipment commonly known as a "phone trap" which will detect and record the numbers of the telephones from which calls to [insert target telephone number] are made. Furthermore, Pacific Bell shall furnish affiant with a record of such calls and furnish affiant with the name and address of the subscriber of record, whether published or nonpublished, of each telephone number recorded by the phone trap.

RE NUMBER SEARCH: Program a number search to check calls as they are processed by Pacific Bell's billing system to identify the telephone number of persons placing calls to [insert target phone number] and identify the telephone number of calls placed from [insert target phone number].

RELEASE OF INFORMATION: Pacific Bell shall furnish affiant with all information gathered pursuant to this order at reasonable intervals while this order is in effect.

COMPENSATION: Affiant's employer shall compensate and/or reimburse Pacific Bell for all charges and expenses incurred in complying with this order.

NONDISCLOSURE: Having determined there is probable cause to believe that disclosure of the existence or execution of this court order would impede a criminal investigation, it is ordered that Pacific Bell, and its officers, employees, and agents shall not disclose to any person any information regarding the existence or execution of this court order or any information obtained pursuant to this order unless ordered to do so by this court.

DURATION OF ORDER: Pacific Bell shall begin the [dialed number recorder operation][phone trap] operation required by this order on [insert date] and terminate such operation on [insert date] unless a written extension is granted.

JURISDICTION: This court has jurisdiction to issue this order pursuant to California Penal Code 1523 et seq which gives magistrates jurisdiction to issue search warrants, and California Code of Civil Procedure 128, 187 which give the courts authority to carry their jurisdiction into effect.

__________________________ _________________________________

Date Judge of the Superior Court

1. People v. Blair (1979) 25 Cal.3d 640, 653.

2. NOTE: Although the United States Supreme Court has ruled such information is not confidential in the context of the Fourth Amendment (see Smith v. Maryland (1979) 442 US 735, 743-5), California law and a federal statute concerning pen registers and phone traps provide otherwise. See 18 USCS 3121 et seq; Public Utilities Code 2891; People v. Blair (1979) 25 Cal.3d 640, 654; People v. Chapman (1984) 36 Cal.3d 98. In light of Proposition 8, telephone records cannot be suppressed on grounds they were obtained in violation of California law or federal statute. See In re Lance W. (1985) 37 Cal.3d 873; People v. Bencomo (1985) 171 Cal.App.3d 1005, 1014; People v. Larkin (1987) 194 Cal.App.3d 650, 657. However, because a telephone company that violates California law may be subject to a civil lawsuit (see Public Utilities Code 2891(e)), telephone companies will not usually furnish such information unless officers comply with California law. Note that a telephone company has a complete defense to such a lawsuit if it furnished the records to officers "in good faith compliance with the terms of a state or federal court warrant or order or administrative subpoena issued at the request of a law enforcement official or other federal, state, or local governmental agency for law enforcement purposes." See Public Utilities Code 2894.

3. See People v. Chapman (1984) 36 Cal.3d 98. NOTE: Unlisted phone subscriber information is not confidential under federal constitutional law and may, therefore, not be suppressed in California on grounds it was obtained in violation of state law. See People v. Bencomo (1985) 171 Cal.App.3d 1005, 1015; People v. Rooney (1985) 175 Cal.App.3d 634, 648; People v. Lissauer (1985) 169 Cal.App.3d 413, 419; Smith v. Maryland (1979) 442 US 736744-5.

4. NOTE: Because the telephone records discussed in this article do not disclose the nature of the conversations that are carried on over the phone, a search for these records does not constitute a wiretap. See Smith v. Maryland (1979) 442 US 735, 741-2; United States v. New York Telephone Co. (1977) 434 US 159, 167; People v. Suite (1980) 101 Cal.App.3d 680, 685-6. For information on wiretaps, see the Summer 1994 edition of Point of View ("Electronic Surveillance") and California Criminal Investigation.

5. See People v. Larkin (1987) 194 Cal.App.3d 650, 656, fn.9.

6. NOTE: In murder cases where the victim was killed at home, such records may help fix the time of death by showing when calls to the victim's phone went unanswered.

7. See 18 USCS 3124(a), 3127(3); Smith v. Maryland (1979) 442 US 735, 736, fn.1; United States v. New York Telephone Co. (1977) 434 US 159, 161, fn.1, 167; People v. Blair (1979) 25 Cal.3d 640, 654, fn.11; People v. Larkin (1987) 194 Cal.App.3d 650, 653; People v. Andrino (1989) 210 Cal.App.3d 1395, 1399, fn.2.

8. See 18 USCS 3124(c), 3125(d).

9. See 18 USCS 3127(4).

10. See 18 USCS 3124(c).

11. See Public Utilities Code 2891(a)(1); United States v. Fregoso (1995 CA8 Neb) 60 F3d 1314.

12. NOTE: Re Number Searches: See People v. Blair (1979) 25 Cal.3d 640, 655 which indicates that the release of such information is permitted when there is "a judicial determination that law enforcement officials were entitled thereto." Also see People v. Larkin (1987) 194 Cal.App.3d 650, 654. The authority for the release of such information by court order is found in Penal Code 1523-4 (which give the courts jurisdiction to issue search warrants) and Code of Civil Procedure 128 and 187 (which authorize the courts to utilize all lawful means to carry out its jurisdiction). Re Pen Registers: See 69 Ops.Cal.Atty.Gen55 [magistrate may authorize installation of pen register by the issuance of a search warrant]. Such a warrant is similar to an anticipatory search warrant; it is settled that a court may issue an anticipatory search warrant. Id. at p.64; People v. Sousa (1993) 18 Cal.App.4th 549. Re Line History Block Checks and Star 69 traces: Although Title III of the Omnibus Crime Control Act (18 USCS 3121 et seq) does not specifically authorize a court order for a Line History Block Check or Star 69 trace, these types of searches are so akin to a DNR search, that the requirements would likely be the same. For details on obtaining such a court order, see 18 USCS 3121 et seq.

13. See Illinois v. Gates (1983) 462 US 213; Penal Code 1525.

14. See 18 USCS 3122(b)(2).

15. See Penal Code 1534; People v. Larkin (1987) 194 Cal.App.3d 650, 656-7 [suppression not required for violation of the 10-day rule]..

16. See 18 USCS 3123(c).

17. See 18 USCS 3124; United States v. New York Telephone Co. (1977) 434 US 159, 172. Also see Id. at p.175-6 ["(W)ithout the [telephone company's] assistance there is no conceivable way in which the surveillance authorized by the District Court [i.e., pen register] could have been successfully accomplished."

18. NOTE: This is not a significant issue because, as a practical matter, phone company personnel who have been served with a valid search warrant are usually willing to conduct the search themselves, rather than have officers attempt to obtain it.

19. See 18 USCS 3122(b)(2).

20. See Illinois v. Gates (1983) 462 US 213, 238. NOTE: A application for a court order for the installation of a pen register or phone trap must simply demonstrate that the sought-after information would be "relevant to an ongoing criminal investigation." The order, itself, must specify the following: the identity, if known, of the person whose phone will be monitored; the identity, if known, of the suspect; the crime under investigation; the number and, if known, the "physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order. The court order may authorize the installation of a pen register or phone trap for up to 60 days, although extensions may be granted. See 18 USCS 3123. A court order or search warrant for billing records must particularly describe what records are to be seized; e.g., "All Pacific Bell business records that denote the calls billed to telephone number (510) 555-6251 from February 20, 1998 through March 20, 1998."

21. See, for example, People v. Andrino (1989) 210 Cal.App.3d 1395, 1400.

22. See, for example, 6 Cal. P.U.C. 2d 421-3; "Pacific Bell is required by law to notify the target of legal process that a request has been made for their records. To avoid this potentially dangerous and embarrassing situation, Pacific Bell must be ordered by the issuing court not to notify the target of your request." Tips for Pacific Bell Response to Legal Process Feb. 14, 1995.

23. See 18 USCS 3123(d).

24. NOTE: The following is an example of language that may be used to seek and obtain a nondisclosure order: request for nondisclosure order: The evidence to be seized pursuant to this court order includes phone company records that constitute evidence in an ongoing criminal investigation. I am aware that pursuant to 6 Cal.P.U.C. 2d 422-3, [name of phone company] must notify its customer that this court order has been received. Based on my training and experience, I believe there is probable cause that such notification would impede this criminal investigation by alerting the [person] [persons] who committed the crime of the progress and focus of this investigation. Therefore, I request an order directing [name of phone company] not to disclose to any person any information regarding the existence or execution of this court order. nondisclosure order: Having determined there is probable cause to believe that disclosure of the existence or execution of this court order would impede a criminal investigation, it is ordered that the [name of phone company] on whom this court order is served, and all of its officers, employees, and agents shall not disclose to any person any information regarding the existence or execution of this court order.

25. See 18 USCS 3121(a), 3121(b)(3); Public Utilities Code 2891.

26. See Public Utilities Code 2891(a)(1).

27. See Public Utilities Code 2891(d)(5).

28. See 18 USCS 3125. NOTE: Such operations must terminate when the information sought is obtained, when the application for a court order is denied, or when 48 hours have lapsed, whichever is earlier. See USCS 18 3125(b). A telephone company must be reasonably compensated for furnishing facilities or technical assistance for such an emergency installation of a pen register or phone trap. See 18 USCS 3125(d).

29. See 18 USCS 3125(a); Public Utilities Code 2891(d)(5).

30. See Public Utilities Code 2891(d)(6).

31. See People v. Blair (1979) 25 Cal.3d 640, 651; Carlson v. Superior Court (1976) 58 Cal.App.3d 13, 21.

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