dissenting:
I respectfully dissent.
In my view, the Colorado Constitution does not require law enforcement officers to obtain a search warrant supported by probable cause prior to the installation of a pen register. Subscribers to telephone services have no legitimate expectation that information relating to telephone numbers dialed on a home telephone will remain private. I would therefore reverse the order of the Boulder District Court.
I.
We have held that warrantless searches into areas in which an individual has a reasonable expectation of privacy are forbidden absent exigent circumstances. People v. Edmonds, 195 Colo. 358, 578 P.2d 655 (1978); People v. Weisenberger, 183 Colo. 353, 516 P.2d 1128 (1973). Our expectation of privacy analysis is based on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1976), and its progeny. The United States Supreme Court has analyzed the principles of Katz as requiring a two part inquiry:
“Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action. This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy,’ whether, in the words of the Katz majority, the individual has shown that ‘he seeks to preserve [something] as private.’ The second question is whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as “reasonable,” ’ whether, in the words of the Katz majority, the individu*145als expectation, viewed objectively, is ‘justifiable’ under the circumstances.”
Smith v. Maryland, 442 U.S. 735, 740-741, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citations and footnote omitted). See also United States v. Knotts,-U.S.-, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (concurring opinion); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (plurality opinion). The Supreme Court applied the reasoning of Katz to the records obtained through the use of a pen register in Smith v. Maryland, supra, finding that a pen register does not constitute a search for purposes of the Fourth Amendment to the United States Constitution.
In Smith, the police had asked a telephone company to install a pen register at the company’s central offices to record numbers dialed from a certain telephone. The telephone company acceded to the request even though the police had not obtained a warrant or court order. Evidence gathered through use of the pen register enabled the police to obtain a search warrant which led to the arrest and conviction of a person making obscene phone calls.
The United States Supreme Court held that individuals do not have a legitimate expectation of privacy regarding the numbers they dial. According to the Court, telephone users voluntarily transmit the number they dial to the phone company. Subscribers realize that some phone numbers are preserved by the telephone company for long distance billing or for special rates billing. Users are aware that the company can use special equipment to trace fraudulently placed calls, to check for over-billing or defective equipment, and to identify persons making obscene or annoying calls. 442 U.S. at 742, 99 S.Ct. at 2581. The Supreme Court went on to state that:
“Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”
Id. at 743, 99 S.Ct. at 2581.
The United States Supreme Court also found that even if a subjective expectation of privacy existed, that expectation was not reasonable:
“[The] petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.
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“Under petitioner’s theory, Fourth Amendment protection would exist, or not, depending on how the telephone company chose to define local-dialing zones, and depending on how it chose to bill its customers for local calls. Calls placed across town, or dialed directly, would be protected; calls placed across the river, or dialed with operator assistance, might not be. We are not inclined to make a crazy quilt of the Fourth Amendment, especially in circumstances where (as here) the pattern of protection would be dictated by billing practices of a private corporation.”
442 U.S. at 744 — 45, 99 S.Ct. at 2582 (citation omitted).
*146I would agree with the Court in Smith v. Maryland, supra, that telephone users do not have a legitimate expectation of privacy in the numbers they dial. While the telephone plays an important role in modern life, that fact does not elevate the service purchased from private telephone companies into a privileged position of privacy. Users willingly and voluntarily convey dialing information to the company in return for connection to the number dialed. The limited capability of a pen register for recording information and the relative innocuousness of a telephone number render the intrusion into privacy interests insubstantial. Smith v. Maryland, 442 U.S. at 744, 99 S.Ct. at 2582. See also People v. DiRaffaele, 55 N.Y.2d 234, 448 N.Y.S.2d 448, 433 N.E.2d 513 (1982).
The information obtained by a pen register is analogous to the addressing information found on the outside of an envelope or package — the information is related to routing directions and not to the content of the communication. Service people routinely handle mail and packages, limiting legitimate expectations that addresses and postmarks are private. Courts in other jurisdictions have upheld the use of information found on envelopes and packages (the so-called “mail cover”). See, e.g., United States v. Huie, 593 F.2d 14 (5th Cir.1979) (relying on Choate); United States v. Choate, 576 F.2d 165 (9th Cir.1978) (information on envelopes foreseeably available to postal employees). Just as the post office can check the outside of an envelope when it suspects a person of using counterfeit stamps, a phone company can check the numbers dialed by a person suspected of placing harassing or obscene phone calls.
Telephone companies routinely record dialing information as a part of their normal business practices. Toll records of long distance calls are a familiar part of the billing process; most users are aware that such information is gathered by phone companies. See Hastetter v. Behan, 639 P.2d 510 (Mont.1982) (billing records not a private matter). Many subscribers can now obtain service where each call is billed separately, whether or not it is long distance or local. The deregulation of the communications industry may also change billing practices of local phone companies. The many changes in the business practices of public and private entities engaged in the trans-ferral of information undercut claims that a legitimate and reasonable expectation of privacy exists as to the information relinquished when dialing a telephone. It is the content of a conversation which the Constitution protects and not the information necessary to make the telephone connection.
Other types of information transferred by telephone are routinely gathered. A company has a legitimate need to protect its service from being misused. As in any other business, fraud is a constant problem against which a telephone company must protect itself. Use of the pen register to investigate fraud, nuisance, or abuse will occur within the “ordinary course of the company’s business” and is a “necessary incident to the rendition of service and protection of company property.” J. Carr, Electronic Surveillance 84 (1977); see also Report of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance 118-20 (1976). One court, in upholding the use of evidence obtained by pen register, followed that reasoning, stating that the “dominant purpose behind the [use of the pen register] by the company is the protection of its lines and the rendition of quality service, and the resulting criminal prosecution was merely incident to that company purpose.” District Attorney v. Coffey, 386 Mass. 218, 434 N.E.2d 1276 (1982). Some courts have held that a telephone company has a duty to investigate subscribers suspected of making harassing calls. See, e.g., People v. Stewart, 73 Misc.2d 399, 342 N.Y.S.2d 127 (N.Y.Cr.Ct.1973). A telephone company therefore has a substantial business interest in satisfying its customers who are subject to harassment and in discontinuing the service of those who abuse their telephone privileges. These factors underscore my view that telephone users have no reasonable expectation of privacy in the numbers dialed and that society is not pre*147pared to recognize those expectations as reasonable.
I do not believe that our decision in Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980), where we held that an individual has a reasonable expectation of privacy in the content of his bank records, dictates a different result. The pen register does not record the content of any conversation; it only records the number dialed. We emphasized in Chames that the substance of the bank records sought was a protected interest, not the fact that there may or may not have been a financial transaction. The intrusion in Chames into the substance of a person’s economic life is much greater than the recording of telephone numbers which have been dialed. Moreover, a telephone company has a legitimate business interest in protecting its customers from abuse while a bank would have no similar interest to protect by searching its customers’ records.
The expectation of privacy which Katz and its progeny have made the polestar in determining whether a search has occurred is an amorphous concept which can be given nearly boundless content. While I sympathize with arguments which insist that all information about an individual’s relationships and movements is protected by a privacy interest, I view the expectation of privacy as attaching to the content of a telephone conversation and not to the particular number which has been dialed. See Hodge v. Mountain States Telephone & Telegraph Co., supra. Accordingly, I would conclude that an individual has no reasonable expectation of privacy in the numbers dialed on a telephone.
II.
The majority reaches the merits of the case after determining that the governmental involvement in the installation of the pen register was so substantial as to rise to the level of state action. The majority notes that the pen register was installed in conjunction with an ongoing joint investigation by the Boulder County district attorney’s office and Mountain Bell; that the prosecution disavowed reliance on state action requirements at the suppression hearing; and that Mountain Bell complied with a request by the district attorney’s investigator to relinquish the pen register record for the county’s criminal prosecution of the defendant. In my view, this case should be remanded for factual findings on the state action issue before the court reaches the merits of the important and unresolved constitutional issues presented on appeal.1 Furthermore, I believe the majority has improperly upheld the ability of the government to waive state action issues that should not be waivable except in the most clear circumstances.
The state action requirement acknowledges the sine qua non of constitutional interpretation. Governmental conduct, to which the limitations of article II, section 7 apply, cannot be restrained by constitutional provisions unless a showing is made that *148the state has proceeded against an individual. The constitutional prohibitions do not apply to private conduct. See, e.g., Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (right to sell property pursuant to a warehouseman’s lien which was authorized by state law does not constitute state action).
The state action requirement fulfills a role similar to that of subject matter jurisdiction. It has long been recognized that courts cannot adjudicate a dispute unless it has the power to act. See, e.g., Clinic Masters v. District Court, 192 Colo. 120, 556 P.2d 473 (1976). Courts receive their power to adjudicate from constitutional and statutory grants. See Colo. Const. art. VI, sec. 9. State district courts are courts of “general” jurisdiction, in that they have the power to adjudicate all types of disputes. Courts of “limited” jurisdiction, most notably the federal courts, can only resolve disputes over which they have been affirmatively granted the authority to adjudicate. Thus, a court cannot act unless the subject matter of the dispute is properly heard by that court. Similarly, before a court may resolve a matter against the state, it must be shown that the state has acted in such a way to bring it within constitutional proscriptions. The Colorado Constitution is simply not in issue if the state or its agents have not engaged in prohibited conduct.
Here, I believe that the majority improperly holds that the state action requirement was waived or otherwise lost by the failure of the government to raise it below. Like subject matter jurisdiction, the requirement is a prerequisite to judicial activity and should not be ignored unless the government has clearly lost its right to contest the issue.
I agree with the majority that the record circumstantially supports a finding of state action. Id. at 138 n. 3. Without factual findings by the trier of fact, however, I cannot conclude that the state was a party to the installation of the pen register or ordered a private agent to install the register in this case. Accordingly, I would remand the case to the district court for findings of fact on the state action issue.
III.
Alternatively, assuming that some privacy interest exists in the telephone number one dials, I would adopt a reasonable and articulable suspicion standard as sufficient to authorize the installation of a pen register at governmental request. I believe that the majority’s probable cause standard is overly restrictive in view of the interests protected.
The majority asserts that the information conveyed by knowing the numbers dialed on a private telephone is so laden with substantive content that the information cannot be gathered absent probable cause to believe a crime has been or is about to be committed. I believe that the information recorded by a pen register is substantially different in kind and quality from the content of the actual telephone conversation. Most people simply do not have the same expectation of privacy in the number they dial as they do in the content of their conversation.
At the very most then, I would consider the monitoring of the numbers dialed as a relatively insignificant intrusion against which legitimate law enforcement needs should be balanced. Law enforcement officers would be severely crippled in their efforts to prosecute persons who make obscene or harassing phone calls. The very nature of these crimes makes it difficult to obtain more leads than a general pattern of activity. It is questionable whether a pattern of phone calls implicating an individual could meet our standards for probable cause. Consequently, law enforcement efforts would be hampered dramatically for little apparent gain in protected privacy interests. Additionally, less effective enforcement of laws relating to illegal use of the telephone would lead to more individuals suffering from unwanted and frightening calls. The majority takes too lightly the privacy concerns of the recipients of abusive telephone calls. Accordingly, I would, at most, favor the adoption of a *149reasonable and articulable suspicion standard in authorizing pen register installation. Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (pat down search reasonable if supported by a reasonable and articulable suspicion of criminality); Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971) (investigatory stop permissible in certain situations even though full probable cause missing).
A standard less than probable cause would enable law enforcement officers to install a pen register when their investigation is reasonably focused on a particular individual. Arbitrary and discriminatory practices would be minimized by such a standard while at the same time recognizing legitimate law enforcement needs.
IV.
The majority’s use of the Colorado Constitution to avoid the analysis of Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), raises delicate issues of constitutional interpretation. While I am firmly convinced that ultimately the Colorado Constitution must be interpreted by the Supreme Court of Colorado, I am uneasy with decisions which reach a different result than the United States Supreme Court’s interpretation of nearly identical language in the Federal Constitution. The United States Supreme Court may err in its interpretation of the Constitution and should not be followed blindly by courts which disagree with the high Court’s analysis. See, e.g., Jaffree v. Board of School Commissioners of Mobile County, 554 F.Supp. 1104 (D.Ala.1982) (2426), rev’d sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983) (federal district judge questioning United States Supreme Court’s holding in area of school prayer). See Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (United States Supreme Court reversing the doctrine of separate but equal adopted in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896)). Lower courts, however, should explain their divergences from the interpretation of higher appellate courts in reaching different conclusions. Courts which fail to explain important divergences from precedent run the risk of being accused of making policy decisions based on subjective result-oriented reasons. See, e.g., People v. Ramey, 16 Cal.3d 263, 545 P.2d 1333, 127 Cal.Rptr. 629 (1976) (Clark, J., dissenting) (deference to United States Supreme Court precedent becoming a “shell game”); People v. Disbrow, 16 Cal.3d 101, 545 P.2d 272, 127 Cal.Rptr. 360 (1976) (Richardson, J., dissenting) (courts should not diverge from federal precedent interpreting identical language unless conditions peculiar to state mandate a different meaning; otherwise, uncertainty and complexity in rules encouraged).
I would therefore approach the United States Supreme Court’s decision in Smith v. Maryland, supra, with deference. Smith interpreted the Fourth Amendment to the United States Constitution, which reads,
“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ... but upon probable cause ...,”
as not guaranteeing a privacy interest in pen register records. The language of the Colorado Constitution, which the majority reads to guarantee a protected privacy interest, reads substantially the same:
“The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures.... ”
The language is slightly different and reflects the preferences of the framers of the Colorado Constitution in 1876. While Smith v. Maryland should not be dispositive in reading the language of the Colorado Constitution, I am concerned with the majority’s failure to demonstrate effectively an intent on the part of Colorado’s framers opposite to that of the framers of the Federal Constitution. The test which this court has adopted in past cases and now applies in its privacy analysis is also substantially similar to the federally-derived Katz test used by the United States Supreme Court in Smith v. Maryland. I would therefore prefer that the majority more solidly ground *150its interpretation in the intention of the framers of the Colorado Constitution or expose more fully the faultiness of Smith’s interpretation of the United States Constitution.
I do not believe the United States Supreme Court is infallible or that state constitutions do not provide needed flexibility in the protection of individual rights. See Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977); Note, The New Federalism: Towards a Principled Interpretation of the State Constitution, 29 Stan.L.Rev. 297 (1977). I do believe, however, that courts should be hesitant in interpreting identical language in state constitutions differently in their efforts to reach conclusions which differ from the United States Supreme Court. Principled differences between the state and federal constituions are a necessary and important aspect of our system of federalism. Differences exist and should be applied when appropriate.2 Here, I see no reason for departing from the rationale of Smith v. Maryland; accordingly, I would be less quick than the majority in applying the Colorado Constitution to situations where there is no significant textual difference from its federal counterpart.
V.
Lastly, I would find inappropriate the district court’s application of the exclusionary rule in the context of this case. None of the purposes for which the exclusionary rule was designed — deterrence of police misconduct and protection of the integrity of the judicial process — is advanced by the application of the rule in this case. I would therefore permit the evidence to be used against Mrs. Sporleder at trial as a consequence of a “good faith” exception to the exclusionary rule.
For years courts have been grappling with the proper scope and contours of the exclusionary rule in their efforts to apply the rule rationally to instances of constitutionally impermissible conduct by law enforcement officials. A good faith exception to the exclusionary rule recognizes that the policies supporting the rule are not always furthered by its indiscriminate application. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Williams, 622 F.2d 830 (5th Cir.1980); compare Wilkey, Enforcing the Fourth Amendment by Alternatives to the Exclusionary rule (National Legál Center for the Public Interest, July 1982) (arguing in favor of various exceptions to the exclusionary rule) with Mertens & Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo.L.J. 365 (1981) (arguing that a good faith exception is unwise); see also People v. Hogan, 649 P.2d 326 (Colo.1982) (Rovira, J., dissenting); People v. Spies, 200 Colo. 434, 615 P.2d 710 (Colo.1980) (Erickson, J., dissenting).
The policy of deterrence3 is not furthered if the police believe in good faith that their conduct is lawful and reasonable. Good faith police misconduct cannot be deterred by post hoc judicial evaluations. The deterrence rationale is especially unconvincing in situations where, as here, the constitutionality of the conduct has never been addressed by a Colorado court. The other rationale for the exclusionary rule — to uphold the integrity of the judicial branch by not allowing illegally obtained evidence to be used at trial4 — is inapplicable in a borderline case where there are compelling arguments of constitutionality on both sides. The good faith exception permits evidence *151to be introduced when none of the exclusionary rule policies is furthered.
I would also note that the United States Supreme Court has yet to acknowledge the existence of a good faith exception, although it appears that the Court is close to allowing an exception. The Court declined to address the issue in Illinois v. Gates,-U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), after requesting briefs and oral arguments on the good faith issue. Justice White, however, in a lengthy concurrence sets forth many of the reasons supporting a good faith exception and he apparently reflects the views of a-near-majority of the Court.
I would not favor exceptions to the exclusionary rule which would encourage police negligence; a well-crafted exception, however, would not undercut any of the policies supporting the rule. Colorado’s General Assembly has recently expressed legislative support of a good faith or “technical violation” exception to the exclusionary rule. In section 16-3-308(2)(b), C.R.S.1973 (1982 Supp.), which was passed in 1981, after the events in this case, the General Assembly opined that evidence seized in good faith reliance on “court precedent which is later overruled” should be admitted at trial. I believe that such an exception to the exclusionary rule should be permitted here. A good faith exception is especially appropriate in cases of first impression where the police have no judicial guidance and no reason to believe that their conduct is constitutionally deficient. See generally Colorado’s Good Faith Exception to the Exclusionary Rule, 11 Colo.Law. 410 (1982); Good Faith Exception to the Exclusionary Rule: The Fourth Amendment is Not a Technicality, 11 Colo.Law. 704 (1982).
The facts of this case support admission of the pen register records at trial. The conduct held unconstitutional by the majority today had been explicitly approved by the United States Supreme Court in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). The Smith case was issued well-before the events of this case, which occurred in 1980, and the police would have acted reasonably in relying on the holding in that case. Nothing in the record indicates that the police acted arbitrarily and maliciously in investigating complaints against Mrs. Sporleder. I would therefore permit the evidence to be admitted at trial.
VI.
In my view, the majority has incorrectly held that telephone subscribers have a legitimate expectation of privacy in the records of telephone numbers dialed. I, therefore, respectfully dissent.
I am authorized to say that ROVIRA, J., joins me in the dissent.
. The majority is correct in characterizing the record, which is quite ambiguous, as tending to support a finding of state action. The facts, however, do not clearly support a finding of excessive governmental entanglement in Mountain Bell’s investigation of Mrs. Sporieder’s alleged misuse of her telephone. The majority’s finding of a waiver from the prosecution’s posture below is unconvincing without further findings of fact. The purported waiver is at best implicit, falling far short of what we should demand for the waiving of an important element of the case. I find the position of the district attorney at the suppression hearing as insufficient to answer the state action issue. In answer to the district court’s question of whether “governmental action” was involved in the case, the district attorney said:
“No, Your Honor. My argument is this was not initiated by a government agency and, therefore, the Court should consider that, especially in light of the Supreme Court decision that says this doesn’t fall into the Fourth Amendment guaranteed by the United States. My basic argument is that it has been decided in Smith v. Maryland, and they have determined no expectation of privacy exists.
“The mere fact that the telephone company put the Pen Register on the phone, and not an agency, of course, is not dispositive....”
(Emphasis added). The language quoted above indicates that the district attorney, albeit inart-fully, contested the existence of state action. The brief submitted on appeal to this court also contests state actions.
.I believe that our decision in Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) (finding a reasonable expectation of privacy in the content of bank records) presents a situation where Colorado’s interpretation of the constitutional language is more accurate on both the state and federal levels than the corresponding United States Supreme Court decision in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (finding no reasonable expectation of privacy in the contents of bank records).
. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
. See Illinois v. Gates,-U.S.-, 103 S.Ct. 2317 (1983).