I concur in the result.
I do not believe this is the type of wire tapping proscribed by our section 716.8, Code, 1966. Further it would seem that a telephone user is bound to know the company is allowed to keep track of the destination and frequency of his calls for rate making, rate charging, equipment demands determination, and other purposes. For this reason I do not believe the individual’s right of privacy is unreasonably invaded by use of a pen register.
It is respectfully submitted that Division II of the majority opinion cannot long remain the law. The majority says quite frankly that evidence illegally obtained by a private individual or corporation is not subject to the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081, and related cases.
This is a perpetuation of the silver platter doctrine. The only difference is that the evidence is furnished by private detectives, private corporations or private individuals as distinguished from public officials. I cannot believe this rationale will live in light of recent constitutional decisions.
The issue is examined in 16 American University Law Review, page 402, 408, Unreasonable Private Searches and Seizures and the Exclusionary Rule. The author concludes: “With the sophistication of our system of law enforcement has come the placing of responsibility for administration of the laws in the hands of government officers and a concomitant granting of greater rights and freedoms to the individual. These rights and freedoms should be protected, not only against the government but against other private individuals as well.”