Olmstead v. United States, 277 U.S. 438 (1928)

Roy Olmstead was a suspected bootlegger, selling alcoholic beverages in violation of the National Prohibition Act. U.S. government agents installed telephone wiretaps on the homes and offices of Olmstead and others. The wires were inserted along the telephone wires and accomplished without trespass on the property of the defendants. Evidence collected over five months, resulting in 775 typewritten pages of transcripts, demonstrated that Olmstead and his co-defendants employed at least fifty people, owned two sea-going vessels in addition to a number of smaller coastal boats, and had a large inventory of illegal liquor. Their business was thriving, with annual sales of more than two million dollars.

Olmstead and his co-defendant claimed that the wiretaps violated the Fourth Amendment’s protection against unreasonable searches and seizures and the Fifth Amendment’s guarantee against selfincrimination. Chief Justice William Howard Taft wrote the majority opinion, narrowly interpreting the reach of the Fourth Amendment to ‘‘material things— the person, the house, his papers or his effects.’’ Even though the chief justice recognized that the Fourth Amendment also extends to sealed letters, he rejected the suggestion that a letter and a telephone conversation are similar; sealed letters, he noted, are in the custody of the Post Office Department, which is forbidden to open them. It is, according to the chief justice, ‘‘a paper, an effect’’ that is in the custody of the government. Telephone conversations are not, he asserted, in the custody of the government and there was no searching or seizing, just ‘‘hearing and that only.’’ Therefore, he concluded, that the Fourth Amendment could not be extended to include telephone wires. Should Congress wish to secure the privacy of telephone conversations, it could have done so through legislation, as it had done for sealed letters. Since Congress had not done so, wiretapping in this case was not covered by the Fourth Amendment’s protection against unlawful searches and seizures.

Even though the evidence was obtained in a way that violated laws of the State of Washington, which made intercepting telegraph or telephone messages a misdemeanor, Justice Taft argued that under common law rules, the admissibility of evidence is not affected by the illegality of the means by which it was obtained. There was, at that time, no case that could sustain the proposition that evidence could not be admitted in a trial because it was unethically secured. The Chief Justice argued that, if the Fourth Amendment had not been violated—and he asserted that it had not—then the Fifth Amendment was not relevant to the Court’s decision.

Only five justices joined Taft in the majority, and over the years, Olmstead v. United States has become best known for the dissent written by Justice Louis Brandeis. The famous dissent by Brandeis began by emphasizing that the words of the Constitution must adapt to a changing world and conditions that the authors had not known. He drew on Chief Justice John Marshall’s words in McCulloch v. Maryland (1819) that constitutions are ‘‘designed to approach immortality as nearly as human institutions can approach it.’’ At the time that the Constitution and its first ten amendments were written, Brandeis explained, force and violence were the only means available for coercing a confession and force and entry were the only ways to search and seize. Wiretaps constituted a more sophisticated approach to achieve both confessions and searches, and he predicted that even newer methods would undoubtedly be found for government espionage.

Brandeis relied heavily on Boyd v. United States (1886) to argue that the essence of the Fourth and Fifth Amendments was to protect against all invasions by the government into the ‘‘sanctities of a man’s home and the privacies of life ... and of his indefeasible right of personal security, personal liberty and private property.’’ Whereas the chief justice had distinguished between the postal service and the telephone service, Brandeis asserted that both were public services furnished by the government and, quoting the appeals court judge below, said that there was no difference between a sealed letter and a telephone conversation: ‘‘[O]ne is visible, the other invisible; the one is tangible, the other intangible; the one is sealed, and the other unsealed; but these are distinctions without a difference.’’ Indeed, Brandeis continued, the invasion of one’s privacy through wiretaps is far greater, because the people at both ends of the line are affected. A confession can be compelled through wiretapped conversations, because the accused believes that he is having a private conversation.

Central to Brandeis’s thesis is that the Fourth and Fifth Amendments have at their bases the broad intention ‘‘to secure conditions favorable to the pursuit of happiness’’; ‘‘they conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.’’ Intrusions by the government into a person’s right to privacy violates the Fourth Amendment, and when it is used in a criminal proceeding, the information obtained violates the Fifth Amendment’s protection against self-incrimination. To solidify his argument, Brandeis noted that the federal officers who authorized the wiretaps themselves violated the laws of the State of Washington: ‘‘[T]he crimes of these officers were committed for the purpose of securing evidence with which to obtain an indictment and to secure a conviction.’’ The Eighteenth Amendment that authorized prohibition did not authorize anyone to violate the laws of a state. ‘‘A court will not,’’ he continued, ‘‘redress a wrong when he who invokes it has unclean hands.’’ Justices Holmes, Stone, and Butler also dissented.

Olmstead was extended in 1942 to the use of dictaphones, the wires of which led to an adjacent office, and to detectaphones, devices that would enable one to hear a conversation on the other side of a wall, in the case of Goldman v. United States (1942). There was no trespass and, therefore, no illegal search or seizure. Finally, however, in Katz v. United States in 1967, the requirement that a warrant must be obtained prior to installing a wiretap was imposed and recognized ‘‘reasonable expectations of privacy’’ in the course of telephone conversations. Olmstead was overruled, and Brandeis’s arguments from forty years earlier prevailed.

MARY L. VOLCANSEK

Cases and Statutes Cited

• Boyd v. United States, 116 U.S. 616 (1886)
• Goldman v. United States, 316 U.S. 129 (1942)
• Katz v. United States, 389 U.S. 347 (1967)
• McCulloch v. Maryland, 17 U.S. 316 (1819)