Olmstead v. United States, 277 U.S. 438, was a decision of the Supreme Court of
the United States, in which the Court reviewed whether the use of wiretapped
private telephone conversations, obtained by federal agents without
judicial approval and subsequently used as evidence, constituted a violation of
the defendant’s rights provided by the Fourth and Fifth Amendments. In a 5-4
decision, the Court held that neither the Fourth Amendment nor the Fifth
Amendment rights of the defendant were violated. This decision was later
overturned by Katz v. United States in 1967.
The case = Background information =
Until 1914, the American judicial system, including the Supreme Court of
the United States, largely followed the precepts of English common law when it
came to matters dealing with the validity of introducing evidence in
criminal trials. In most cases, the general philosophy was that the process
by which the evidence was obtained had little, if anything to do with the
permissibility of its use in court. The only limiting factor was that the police
agents could not break the law to seize the evidence; however, since what is now
illegal seizure was then permitted by the courts, it rarely presented a
significant challenge. In 1914, however, in the landmark case
of Weeks v. United States, the Court held unanimously that illegal seizure of
items from a private residence was a violation of the Fourth Amendment, and
established the exclusionary rule that prohibits admission of illegally
obtained evidence in federal courts. Because the Bill of Rights did not at
the time extend to cover states, such a prohibition extended only to federal
agents and covered only federal trials. It was not until the case of Mapp v.
Ohio that the exclusionary rule was extended to state courts as well.
The question here, then, was whether the recordings of wiretapped private
telephone conversations constituted impermissibly-seized evidence and thus
constituted a violation of the federal exclusionary rule.
= Case details = The case concerned several petitioners,
including Roy Olmstead, who challenged their convictions, arguing that the use
of evidence of wiretapped private telephone conversations amounted to a
violation of the Fourth and Fifth Amendments.
The petitioners were convicted for alleged conspiracy to violate the
National Prohibition Act by unlawfully possessing, transporting, and selling
alcohol. Seventy-two additional persons, aside from the petitioners, were
indicted. The evidence provided by the wiretapped telephone conversations
disclosed "a conspiracy of amazing magnitude" to engage in bootlegging,
involving the employment of some fifty persons, use of sea vessels for
transportation, an underground storage facility in Seattle, and the maintenance
of a central office fully equipped with executives, bookkeepers, salesmen, and
an attorney. According to the record, even in a bad month, the sales amounted
to some $176,000; the grand total for a year probably came out to some $2
million. Olmstead was the general manager of this
business, receiving fifty percent of all the profits. The information that led to
the discovery of his involvement and the conspiracy itself was largely obtained
by four federal Prohibition officers who were able to intercept messages on his
and other conspirators' telephones. No laws were violated in installing the
wiretapping equipment, as the officers did not trespass upon either the homes
or the offices of the defendants; instead, the equipment was placed in the
streets near the houses and in the basement of the large office building.
The wiretapping went on for several months, and the records revealed
significant details on the business transactions of the petitioners and
their employees. Stenographic notes were made of the conversations, and their
accuracy was testified to by the government witnesses. The evidence
disclosed full details of the operations of the bootlegging business; in
addition, it showed the relationship between Olmstead with members of the
Seattle police, which resulted in prompt release of some of the arrested members
of the conspiracy and promises to officers of payment.
= Opinions = Chief Justice William Howard Taft
delivered the opinion of the Court. Chief Justice Taft
Writing for the Court, Chief Justice Taft was joined by Justices McReynolds,
Sanford, Sutherland, and Van Devanter. After outlining the factual and
procedural history of the case, Chief Justice Taft lists the relevant
amendments – the Fourth and Fifth – and proceeds to examine the legal matters
and precedents in question. Boyd v. United States concerned the Act
of June 22, 1874, which provided per section 5, a United States attorney with
the power to use a marshal to obtain evidence that the defendant had refused
to provide, in cases that were not criminal under the revenue laws. The
Court held that Act of 1874 was a violation of the Fourth and Fifth
Amendment, even though it did not constitute a clear case of search and
seizure. Chief Justice Taft next examines
"perhaps the most important" case, Weeks v. United States, which involved a
conviction for using the mail to transport lottery tickets. The defendant
was arrested by a police officer without a warrant, and subsequent to the arrest,
the defendant’s house was searched and a number of papers and articles was seized
despite the lack of a search warrant. Although the defendant applied for and
successfully obtained a court order directing the return of his property, he
was denied return of relevant evidence. He appealed; the Court held that such
taking of papers was in violation of the constitutional rights of the defendant,
and that the trial court could not permit their use at trial.
Chief Justice Taft cites several other cases, and concludes that there is no
permissible way to apply the Fifth Amendment to this case unless it could
be shown that the Fourth Amendment was first violated. In this instance, there
is no evidence that the defendants were in any way compelled to talk over their
telephones, and were voluntarily engaging in business. Thus, “our
consideration must be confined to the Fourth Amendment.”
Taft writes that the aggregate outcome of the Weeks case and those that
followed it was that the Fourth Amendment forbade the introduction of
evidence in court if it had been obtained in violation of the amendment.
This is in compliance with the historical purpose of the Fourth
Amendment, as it was in part intended to prevent the use of governmental force to
search and seize a man’s personal property and effects.
While it may seem that the language of Justice Field in ex parte Jackson could
be viewed as an analogy to the interpretation of the Fourth Amendment
qua wiretapping, Taft believes that the analogy fails. The Fourth Amendment
applies to sealed letters in the mail because there exists a constitutional
provision for the federal postal office and the relationship between the
government and those “who pay to secure protection of their sealed letters.”
However, the United States does not take such care with telegraphic and
telephonic messages as it applies to mailed sealed letters, and Taft is quite
emphatic in drawing the distinction: "The amendment does not forbid what was
done here. There was no searching. There was no seizure. The evidence was secured
by the use of the sense of hearing and that only. There was no entry of the
houses or offices of the defendants." He points out that one can talk with
another at a great distance via telephone, and suggests that because the
connecting wires were not a part of either the petitioners’ houses or
offices, they cannot be held subject to the protections of the Fourth Amendment.
Taft, in keeping with his personal judicial philosophy, suggests that
Congress may "of course" extend such protections to telephone conversations
by passing direct legislation that would prohibit their use in federal criminal
trials. Until such legislation is passed, however, "the courts may not
adopt such a policy by attributing an enlarged and unusual meaning to the
Fourth Amendment," as there are no precedents that permit the Fourth
Amendment to apply as a viable defense in cases where there had been no
official search and seizure of the person, his papers, tangible material
effects, or an actual physical invasion of property.
He concludes that such wiretapping as occurred in this case did not amount to
a search or seizure within the meaning of the Fourth Amendment.
Associate Justice Brandeis Associate Justice Louis Brandeis wrote a
dissenting opinion that in subsequent years became very famous.
The government made no attempt to defend the methods employed by federal agents,
and, in fact, conceded that if wiretapping could be deemed a search or
seizure, such wiretapping as took place in this case would be unreasonable
search and seizure and thus inadmissible in court. However, it claimed that the
protections of the amendment do not extend to telephone conversations.
Brandeis attacks the proposition that expanding the Fourth Amendment to
include protection of telephone conversations was inappropriate. At the
time of the adoption of the Fourth and Fifth Amendments, he writes, “force and
violence” were the only means by which the government could compel
self-incrimination. Thus, the protections offered by these Amendments
were necessarily limited to address only imaginable forms of such force and
violence. However, with the technological
advances, the government has received the ability to invade privacy in more
subtle ways; further, there is no reason to think that the rate of such
technological advances will slow down. “Can it be that the Constitution affords
no protection against such invasions of individual security?”, Brandeis asks. He
answers that a clear negative answer is evident in Boyd v. United States.
Brandeis argues that the mail is a public service furnished by the
government, and the telephone is "a public service furnished by its
authority." He concludes that there is no difference between a private
telephone conversation and a sealed letter. In fact, he writes, "the evil
incident to invasion of the privacy of the telephone is far greater than that
involved in tampering with the mails." In its past rulings, the Court has
refused to read a literal construction of the Fourth Amendment, most notably in
the Boyd case. Unjustified search and seizure violate the Fourth Amendment,
and it does not matter what type of papers were seized, whether the papers
were in an office or a home, whether the papers were seized by force, etc. The
protection guaranteed by the Fourth and Fifth Amendments are broad in scope. The
framers of the Constitution sought "to protect Americans in their beliefs,
their thoughts, their emotions, and their sensations." It is for this reason
that they established, as against the government, the right to be let alone as
"the most comprehensive of rights and the right most valued by civilized men.
To protect that right, every unjustifiable intrusion by the
government upon the privacy of the individual, whatever the means employed,
must be deemed a violation of the Fourth Amendment. And the use, as evidence in a
criminal proceeding, of facts ascertained by such intrusion must be
deemed a violation of the Fifth." Brandeis argues further that even
independently of the constitutional question, the judgment should be
reversed. By the law of Washington, wiretapping is a crime, and a federal
court should not permit a prosecution that makes use of such crime to
continue. The Eighteenth Amendment did not empower Congress to authorize
anyone, federal agents or not, to violate the criminal laws of a state;
nor has Congress ever purported to do so. These unlawful acts were not
directed by the Attorney General or the Secretary of Treasury; they were
committed by individual officers. Thus, the government was innocent from a legal
point of view, since it did not direct its agents to commit a crime on its
behalf. However, when it sought to "avail itself of the fruits of these
acts" to convict the defendants, "it assumed moral responsibility for the
officers' crimes." If the Supreme Court were to permit the government to punish
the defendants by the sole means of its officers’ transgressions, it would
present all the elements of a ratification. "If so, the government
itself would become a lawbreaker." Brandeis cites an old maxim of unclean
hands, inherited from courts of equity, whereby a court will not redress a wrong
when he who has requested its aid has unclean hands. This principle, he
believes, is very much relevant here. The Court should deny its aid to
maintain respect for law to promote confidence in the administration of
justice and preserve the judicial process from contamination.
We must subject government officials to the same rules of conduct that we expect
of the citizen. The very existence of the government is imperiled if it fails
to observe the law scrupulously. As Brandeis puts it, "if the government
becomes a lawbreaker, it breeds contempt for law; it invites every man to become
a law unto himself; it invites anarchy. To declare that in the administration of
the criminal law the end justifies the means—to declare that the government may
commit crimes in order to secure the conviction of a private criminal—would
bring terrible retribution. Against that pernicious doctrine this court should
resolutely set its face." Justice Brandeis' opinion was quoted by
Timothy McVeigh at his trial for the bombing of the Federal Building in
Oklahoma City. After remaining silent throughout his trial, he was asked
before sentencing if he would like to make a statement. He responded "I wish
instead to use the words of Justice Brandeis dissenting in Olmstead to speak
for me. He wrote 'Our government is the potent, the omnipresent teacher. For
good or ill, it teaches the whole people by its example.'"
Associate Justice Holmes Citing the extensive dissent filed by
Brandeis, Holmes says that he need "add but a few words." While he is not ready
to say that the penumbra of the Fourth and Fifth Amendments covers the
defendant, he does concur that even apart from the Constitution, the
government should be prohibited to use evidence obtained by a criminal act.
Holmes writes that in his opinion, it would be a lesser evil that some
criminals should escape prosecution than that the government "should play an
ignoble part." Associate Justice Butler
Justice Butler begins his dissent by registering his regret for being unable
to support the opinion and judgments of the Court. Because the writ of
certiorari limited the counsel’s arguments only to the constitutional
question, he writes that it does not participate in the controversy of the
admissibility of evidence because "the mode of obtaining it was unethical and a
misdemeanor under state law." The sole question that he considers is
whether the government may direct its officers to engage in wiretapping
without violating the search and seizure clause of the Fourth Amendment.
Butler writes that though there was no direct search and seizure in Boyd v.
United States, the Court still found such exercise as occurred in that case
to be in violation of the constitutional protections afforded to the criminal
defendant. The Court does not limit its decisions to the literal meaning of the
words of the Constitution. "Under the principles established and applied by
this court, the Fourth Amendment safeguards against all evils that are
like and equivalent to those embraced within the ordinary meaning of its
words." Thus, when all these facts are evaluated, Butler concludes "with great
deference," that the petitioners should be given a new trial.
Associate Justice Stone Justice Stone concurs in the opinions of
Justice Holmes and Justice Brandeis, and also with that of Justice Butler insofar
as it deals with the merits. Though the order granting certiorari did indeed
limit the argument to a single question, Justice Stone does not believe that it
prevents the Court from considering any questions present in the record.
Aftermath Mr. Olmstead spent his 4 year prison
sentence at the McNeil Island Correctional Institute. He then became a
carpenter. On December 25, 1935, President Franklin Delano Roosevelt
granted him a full presidential pardon. Besides restoring his constitutional
rights, the pardon remitted him $10,300 dollars in costs. Eventually, Mr.
Olmstead became a well-known, full-time Christian Science practitioner, who also
worked with prison inmates on an anti-alcoholism agenda for decades until
his death in April 1966 at the age of 79—just over a year and a half before
the Supreme Court issued its decision in Katz reversing its holding against him.
See also Elkins v. United States
List of United States Supreme Court cases, volume 277
References External links
Text of Olmstead v. United States, 277 U.S. 438 is available from: Findlaw
Justia Brief case summary courtesy of
www.oyez.org