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Case Title Case# 90 Olmstead v.

United States
G.R. no. 277 U.S. 438
Main Topic Section 3 – Privacy of Communication and Correspondence
Other Related Topic
Date: June 4, 1928

DOCTRINES
Brief Fact Summary. The conversations of various individuals involved in illegal liquor sales
were tapped.

Synopsis of Rule of Law. “A standard which would forbid the reception of evidence, if obtained
by other than nice ethical conduct by government officials, would make society suffer and give
criminals greater immunity than has been known heretofore. In the absence of controlling
legislation by Congress, those who realize the difficulties in bringing offenders to justice may
well deem it wise that the exclusion of evidence should be confined to cases where rights under
the Constitution would be violated by admitting it.”

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

FACTS:
• Various individuals were convicted of liquor related crimes, including conspiracy. The
operation grossed a substantial amount of money. The leading conspirator and the general
manager of the business was one of the Petitioners, Olmstead (the “Petitioner”).

• The main office of the business was in Seattle and there were three telephones in the
office, each on a different line. There were also telephones in an office the Petitioner had
in his own home, at the home of his associates and various other places in Seattle.

• A lot of communication occurred between Seattle and Vancouver, British Columbia.


“The information which led to the discovery of the conspiracy and its nature and extent
was largely obtained by intercepting messages on the telephones of the conspirators by
four federal prohibition officers.

• Small wires were inserted along the ordinary telephone wires from the residences of four
of the [suspects] and those leading from the chief office. The insertions were made
without trespass upon any property of the defendants. They were made in the basement of
the large office building. The taps from house lines were made in the streets near the
houses.”

• Various conversations were taped and testified to by government witnesses.


ISSUE:
1. Whether the use of evidence of private telephone conversations between the defendants
and others, intercepted by means of wire tapping, amounted to a violation of the Fourth
and Fifth Amendments?
HELD:
“The [Fourth] 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. By the
invention of the telephone 50 years ago, and its application for the purpose of extending
communications, one can talk with another at a far distant place. The language of the
amendment cannot be extended and expanded to include telephone wires, reaching to
the whole world from the defendant’s house or office. The intervening wires are not part
of his house or office, any more than are the highways along which they are stretched.”
“Congress may, of course, protect the secrecy of telephone messages by making them,
when intercepted, inadmissible in evidence in federal criminal trials, by direct legislation,
and thus depart from the common law of evidence. But the courts may not adopt such a
policy by attributing an enlarged and unusual meaning to the Fourth Amendment. The
reasonable view is that one who installs in his house a telephone instrument with
connecting wires intends to project his voice to those quite outside, and that the wires
beyond his house, and messages while passing over them, are not within the protection
of the Fourth Amendment. Here those who intercepted the projected voices were not in
the house of either party to the conversation.”

“Neither the cases we have cited nor any of the many federal decisions brought to our
attention hold the Fourth Amendment to have been violated as against a defendant,
unless there has been an official search and seizure of his person or such a seizure of
his papers or his tangible material effects or an actual physical invasion of his house ‘or
curtilage’ for the purpose of making a seizure. [The court thought], therefore, that the
wire tapping here disclosed did not amount to a search or seizure within the meaning of
the Fourth Amendment.”

Additionally, “[t]he common-law rule is that the admissibility of evidence is not affected
by the illegality of the means by which it was obtained.”

“A standard which would forbid the reception of evidence, if obtained by other than nice
ethical conduct by government officials, would make society suffer and give criminals
greater immunity than has been known heretofore. In the absence of controlling
legislation by Congress, those who realize the difficulties in bringing offenders to justice
may well deem it wise that the exclusion of evidence should be confined to cases where
rights under the Constitution would be violated by admitting it.”
Dissent. Justice Holmes filed a dissenting opinion and argued “that apart from the
Constitution the government ought not to use evidence obtained and only obtainable by
a criminal act. There is no body of precedents by which we are bound, and which
confines us to logical deduction from established rules. Therefore [the Court] must
consider the two objects of desire both of which [the Court] cannot have and make up
our minds which to choose. It is desirable that criminals should be detected, and to that
end that all available evidence should be used. It also is desirable that the government
should not itself foster and pay for other crimes, when they are the means by which the
evidence is to be obtained. If it pays its officers for having got evidence by crime I do not
see why it may not as well pay them for getting it in the same way, and I can attach no
importance to protestations of disapproval if it knowingly accepts and pays and
announces that in future it will pay for the fruits. [The Court has] to choose, and for my
part I think it a less evil that some criminals should escape than that the government
should play an ignoble part.”

Dissent. Justice Brandeis filed a dissenting opinion and argued “[a]pplying to the Fourth
and Fifth Amendments the established rule of construction, the defendants’ objections
to the evidence obtained by wire tapping must, in my opinion, be sustained. It is, of
course, immaterial where the physical connection with the telephone wires leading into
the defendants’ premises was made. And it is also immaterial that the intrusion was in
aid of law enforcement. Experience should teach us to be most on our guard to protect
liberty when the government’s purposes are beneficent. Men born to freedom are
naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest
dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but
without understanding.”

“When the government, having full knowledge, sought, through the Department of
Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it
assumed moral responsibility for the officers’ crimes and if this court should permit the
government, by means of its officers’ crimes, to effect its purpose of punishing the
defendants, there would seem to be present all the elements of a ratification. If so, the
government itself would become a lawbreaker.”