United States v. Lewis, 902 F.2d 1176 (5th Cir. 1990), involved a telephone call, but one with an added dimension. The police arrested the defendant Lewis as a narcotics pusher and seized from him a pager or beeper.
When the pager began beeping, the police called the number displayed on it. The person on the other end of the line picked up the phone and asked, "Did you get the stuff?" The defendant interposed a hearsay objection, which the Fifth Circuit rejected:
The questions asked by the unknown caller, like most questions and inquiries, are not hearsay because they do not, and were not intended, to assert anything. 902 F.2d at 1179.
The Fifth Circuit went on to explain why implied assertions do not qualify as "statements" within the contemplation of the Rule Against Hearsay as that rule is now almost universally defined.
"Appellants argue that while the questions in this case are not direct assertions, there are certain assertions implicit in the questions. For example, they argue that implicit in the question "Did you get the stuff?" is an assertion that Lewis and/or Wade were expecting to receive some "stuff." However, Rule 801, through its definition of "statement," forecloses appellants' argument by removing implied assertions from the coverage of the hearsay rule." Id.