State v. Gubitosi , 152 N.H. 673 ( 2005 )

Broderick, C.J.,

concurring specially. I agree with the lead opinion that the defendant’s conviction for stalking should be affirmed. I write separately, however, because I continue to believe that State v. Goss, 150 N.H. 46 (2003), which the lead opinion attempts to distinguish and upon which the dissent in part relies, was wrongly decided. In my judgment, the defendant in Goss had no objectively reasonable expectation of privacy in his trash, no matter what it contained, when left for pick-up adjacent to a public thoroughfare. While the defendant in Goss might have understandably wished that his trash would remain off-limits to third parties, including law enforcement, that did not transform his desire into a reasonable, real-world expectation entitled to constitutional protection. When confronted with this same issue, the United States Supreme Court agreed. See California v. Greenwood, 486 U.S. 35, 41 (1988).

Here, the defendant seeks to cloak telephone billing records, possessed and maintained by U.S. Cellular in the regular course of its business, in a reasonable expectation of privacy that can only be breached by a warrant based upon probable cause. As much as I share the defendant’s desire for privacy, I am not persuaded that such business records are so shielded. I believe that a real difference in expectations exists between the content of a phone call and the mechanical recording of numbers dialed for billing purposes for use by the telephone company. The United States Supreme Court described this distinction in United States v. New York Telephone Co., 434 U.S. 159, 167 (1977):

Pen registers do not “intercept” because they do not acquire the “contents” of communications____Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed — a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers.

Although the telephone numbers disclosed in Mr. Gubitosi’s case were obtained through his billing records, as opposed to a pen register, and an inference could be made from the billing records that a conversation may-have ensued, the analysis is the same — in neither case is the call’s content revealed.

In my judgment, the disclosure of telephone numbers here is comparable to the viewing of addresses on letters deposited in the mails. In Ex parte Jackson, the Supreme Court held that law enforcement could not, absent a warrant, open letters to search for contraband. “Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.” Ex parte Jackson, 96 U.S. 727, 733 (1877) (emphasis added).

Indeed, in United States v. Miller, 425 U.S. 435 (1976), the Supreme Court held that cleared checks and deposit slips in the possession of financial institutions were subject to subpoena without either a probable cause determination, or even notification to the account holders. Justice Powell, writing for the majority, stated:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government____This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

Id. at 443 (citing United States v. White, 401 U.S. 745 (1971); Hoffa v. United States, 385 U.S. 293 (1966); and Lopez v. United States, 373 U.S. 427 (1963)). This same conclusion was reached by the Maine Supreme Judicial Court under its State Constitution. State v. Fredette, 411 A.2d 65, 66-67 (Me. 1979).

Other States have refused to find reasonable expectations of privacy for telephone records absent statutory protections. After a lengthy explanation of criticisms of the Supreme Court’s holdings in Miller and Smith v. Maryland, 442 U.S. 735 (1979), the Kansas Supreme Court stated, “There is no more expectation of privacy in bank and telephone records than there is, for example, in a confession to a minister or in conducting legal business with a lawyer, both of which have statutes guaranteeing privacy____” State v. Schultz, 850 P.2d 818, 829-30 (Kan. 1993) (emphasis added); see also People v. Di Raffaele, 433 N.E.2d 513, 516 (N.Y. 1982) (“There is no merit to his arguments that the telephone toll-billing records should have been suppressed. Defendant had no legitimate expectation of privacy in the records maintained by the telephone company with respect to either his own telephone or that of his friend----”); Yarbrough v. State, 473 So. 2d 766, 767 (Fla. Dist. Ct. App. 1985) (“We find that the rationale expressed in Smith likewise delineates the parameters of the constitutional protection in Florida, and in accordance with Smith we conclude that... an individual does not have a legitimate expectation of privacy, which society would recognize as reasonable, with regard to numbers dialed into a commercial telephone system.”); State ex rel. Ohio Bell Tel. Co. v. Williams, 407 N.E.2d 2, 3 (Ohio 1980) (“Furthermore, a pen register is not a "wiretap, and any questions concerning violations of the judicially recognized expectations of privacy and violations of Fourth Amendment protections are not applicable to pen registers.”).

The D.C. Circuit, in holding that individuals have no reasonable expectation of privacy in their telephone records, noted that business records are disclosed to third parties and are therefore not subject to protection:

Every individual must from time to time reach beyond his private enclave, draw other people into his activities, and expose his activities to public view. In any normal life, even in pursuing his most private purposes, the individual must occasionally transact business with other people. When he does so, he leaves behind, as evidence of his activity, the records and recollections of others. He cannot expect that these activities are his private affair. To the extent an individual knowingly exposes his activities to third parties, he surrenders Fourth Amendment protections, and, if the Government is subsequently called upon to investigate his activities for possible violations of the law, it is free to seek out these third parties, to inspect their records, and to probe their recollections for evidence.

Reporters Com. v. American Telephone & Telegraph, 593 F.2d 1030, 1043 (D.C. Cir. 1978) (emphasis omitted), cert. denied, 440 U.S. 949 (1979).

The dissent rightly laments the assault on privacy from the unparalleled advances in business practices and technology over the two decades since Valenzuela was decided. That extraordinary progress, however, makes Valenzuela less and not more invasive. Regrettably, more and more of our personal details are cast about in the near-boundless reaches of cyberspace through ever-more sophisticated technology. Businesses buy and sell personal information in an effort to create expansive databases of current and potential customers. While technology’s possibilities do not and should not control objectively reasonable expectations of privacy, it would be imprudent to suggest that they will not affect, and in some cases shape, what expectations of privacy are objectively reasonable. In those contests between privacy and technology where the constitutional expectations of privacy may not reasonably survive, it is increasingly important for the legislature to weigh invasiveness against personal desires for privacy and to strike the proper balance. Creating the constitutional rule proposed by the dissent would lead to undesirable outcomes in future cases.

State and federal legislative bodies have already drawn these kinds of lines. At one time, this court refused to recognize physician-patient and psychologist-patient privileges as protected under our common law. See State v. Davis, 108 N.H. 45, 50 (1967). These protections were subsequently added by statute in 1969 and 1957, respectively. See RSA 329:26 (2004); RSA 330-A:19 (Supp. 1959) (current version at RSA 330-A:32 (2004)); see also N.H. R. Ev. 503(a), 503(b). But even given these statutory protections, this court has construed the physician-patient privilege quite strictly, refusing to apply it to emergency medical technicians because they do not work “under the supervision of a physician or surgeon” as required by the statute. State v. LaRoche, 122 N.H. 231, 233 (1982).

The legislature has also seen fit to pass rape-shield laws to protect the privacy of rape victims after this court had refused to do so. For over one hundred years, evidence of “the general character of the prosecutrix for chastity” was admissible in rape cases. See State v. Forshner, 43 N.H. 89, 89 (1861); State v. Lemire, 115 N.H. 526, 532 (1975). It has only been within the last thirty years that the legislature has prohibited evidence of “[pjrior consensual sexual activity between the victim and any person other than the actor” as well as “[t]he victim’s manner of dress at the time of the sexual assault.” RSA 632-A:6, II (1996), :6, IH-a (Supp. 2004).

Additionally, in response to the Supreme Court’s holding in Miller, Congress stepped in to protect individuals’ financial information. It enacted the Right to Financial Privacy Act of 1978,12 U.S.C. §§ 3401-3421 (2000), permitting individuals to contest governmental access to their financial records held by banks and other institutions.

While objectively reasonable expectations of privacy must be shielded from warrantless intrusions, I do not find such expectations in the case before us. I would, however, encourage the legislature to examine whether telephone billing records should be protected from the reach of a prosecutor’s subpoena. For these reasons, I concur specially.