Indiana Bell Telephone Co. v. State

PRENTICE, Justice,

dissenting.

The majority opinion impresses me as an “end justifies the means” approach, an approach that invariably creates more problems than it solves. Unquestionably the Marion County Prosecutor is in need of assistance that the Telephone Company has the capability to provide. In my view, the Company should, as a public spirited citizen, render such assistance, if it can do so without violating the protected rights of others, thereby exposing itself to liability. I see no risk to the Company in this regard, and such opinion is shared by six of the Justices of the Supreme Court of the United States, which recently held that the installation and use of the pen register did not constitute a “search” requiring a warrant under the Fourth and Fourteenth Amendments. (Stewart, Marshall and Powell dissenting.) Smith v. Maryland, (1979) 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 at 230. In that case, the party offended by the procedure challenged the admissibility of the resulting evidence in his criminal trial. The Telephone Company had assisted the police, at their request, without the benefit of a warrant. The Court held that there was no legitimate expectation of privacy in the phone numbers that Smith had dialed. (Emphasis added.) I see no basis for any other conclusion under the Constitution of Indiana.

The majority premises its decision upon the existence of a valid search warrant and an inherent power in the Court to compel assistance. I disagree with both postulates.

The majority opinion sets forth only a portion of our search warrant statute and determines that the statute is broad enough to encompass evidence of the type produced by pen registers. Considering the obvious legislative purposes of the enactment, I have no difficulty in accepting this conclusion. However, another section of the statute, Ind.Code 35-1-6-2 makes it clear that only property (or evidence) in existence at the time of the filing of the probable cause affidavit may be searched for.

“ * * * No warrant * * * shall be issued until there is filed * * * an affidavit * * * alleging * * * that the affiant believes * * * that such things as are to be searched for are there concealed * * *.” (Emphasis added.)

A subsequent provision of the statute provides for a showing of the same facts by sworn testimony. It is agreed in this case that there is not presently any information in the possession of the Telephone Company upon which a warrant could operate. There is only an expectancy that helpful information will come into existence and be captured if it does. As I do not see the surveillance sought as a search, however, I perceive no constitutional impediment to legislative enactment requiring the type of monitoring and disclosure sought by the Prosecutor, as a proper exercise of the police power.

“The police power which belongs to the states is generally vested in and exercised by the legislative branch of the state government in accordance with immemorial governmental usage. The power of the legislature is extremely broad, and is subject only to the requirements of reasonableness and appropriateness of the means and to the limitations of the Federal and state constitutions.” 16A Am. Jur.2d, Courts, § 79.

*969The majority has determined that the Marion County Superior Court, under its inherent powers, could properly order the Telephone Company to carry out the desired surveillance. I find no case purporting to hold that courts have any inherent powers, other than such as are incidental and reasonably necessary to the accomplishment of their mission.

“The inherent powers of a court do not increase its jurisdiction; they are limited to such powers as' are essential to the existence of the court and necessary to the orderly and efficient exercise of its jurisdiction.”
20 Am.Jur.2d, Courts, § 78.
“Courts have inherent power to do all things that are reasonably necessary for the administration of justice within the scope of their jurisdiction. It has been said that courts have inherent power to summon witnesses and compel their appearance in court, to administer oaths, to issue or to honor letters rogatory, to prevent abuse of process, to provide counsel for the indigent, to have errors in the records corrected, to relieve a party in default, to discipline attorneys at law, to take appropriate action in cases of contempt, and to do various other things to maintain order and to function properly as a court.”
20 Am.Jur.2d, Courts, § 79.

Criminal investigations are not within the mission of our courts, except to the extent that the Legislature has provided. Control over the issuance of search warrants has been provided for by statute. But no provision has been made for the issuance of general writs in aid of the Prosecutor’s power and duty to investigate crime. The jurisdiction of the Marion Superior Court is fixed by statute, and in general, is coextensive with the Circuit Courts. Ind.Code § 33-5-35.1-4. Jurisdiction of the Circuit Courts is fixed by the Constitution, and is as follows: “The Circuit Courts shall have such civil and criminal jurisdiction as may be prescribed by law.” Constitution of Indiana, Article VII, Section 8.

It is my view that until such time as an indictment or information has been filed, the Marion Superior Court has only such jurisdiction concerning crimes as has been conferred by statute. Once a case is before it, it is enjoined to do justice and has all powers, expressed, implied and inherent, necessary to that end. Inherent power, however, does not encompass a grant of authority to do all that has not been expressly provided for. We may not enlarge our jurisdiction merely by alluding to “inherent power,” and to call upon such power to supply a missing gear in the mechanism for detecting and prosecuting criminals, which is not an area of our responsibility, is an abuse of our power and an encroachment upon that of the Legislature.

The majority has quoted from Babington v. Yellow Taxi Corp., (1928) 250 N.Y. 14, 17, 164 N.E. 726, 727 regarding a citizen’s duty to assist in law enforcement, but that case, as well as the Early English law therein cited was concerned with arrest and hot pursuit. I agree that a police officer faced with the need for assistance in keeping the peace, effecting an arrest or in retaking an escapee may commandeer my property or services. I do not agree, however, that he can compel my services or take my property as an incident of his surveillance or search for evidence of suspected criminal activity. Neither do I agree that a utility company, by reason of its protected status may have its obligation to serve the public enlarged by judicial order, beyond the requirements of the statutes and regulations under which it is incorporated and franchised.

I would reverse the judgment of the Superior Court and direct that the order in question be vacated.

HUNTER, J., concurs.