Roy Olmstead v. United States of America

277 U.S. 438

June 4, 1928

Opinion written by Mr. Chief Justice Taft

(Justices Holmes, Brandeis, Butler and Stone dissenting)



Article [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.

Article [V]

                No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.



Olmstead ran a large bootlegging operation out of the State of Washington during the Prohibition era. He employed between 50-75 people, and took large numbers of orders over the telephone.

Government agents, ignoring the laws of Washington State prohibiting wiretaps, placed 8 such illegal wiretaps on the phones of Olmstead and his employees. Nearly 800 pages of evidence obtained thereby was duly transcribed, and admitted in evidence, over the timely objections of the defendant.

Olmstead was convicted, and the appeal went to the Supreme Court. The petitioners stated that the wiretaps constituted an "unreasonable search and seizure" within the meaning of the 4th Amendment, and that the evidence obtained amounted to a compelling of the defendants to be witnesses against themselves, in violation of the 5th Amendment.

While it was not disputed, by the Court, that the "mode of obtaining [the evidence] was unethical and a misdemeanor under the law of Washington" (Olmstead v. United States, 277 U.S. 438 at 466), the opinion of the Court was nevertheless stated as follows:

"...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 with the protection of the 4th Amendment...." (Olmstead v. United States, 277 U.S. 438 at 466).

            "While a territory, the English common law prevailed in Washington, and thus continued after her admission in 1889. The rules of evidence in criminal cases in courts of the United States sitting there, consequently, are those of the common law....

            The common-law rule is that the admissibility of evidence is not affected by the illegality of the means by which it was obtained..." (Olmstead v. United States, 277 U.S. 438 at 467).




Mr. Justice Holmes, dissenting:


.. "While I do not deny it, I am not prepared to say that the penumbra of the 4th and 5th Amendments covers the defendant, although I fully agree that courts are apt to err by sticking too closely to the words of a law** where those words import a policy that goes beyond them [ref’s cited]. But I think, as Mr. Justice Brandeis says, that, apart from the Constitution, the government ought not to use evidence obtained, and only obtainable, by a criminal act." (Olmstead v. United States, 277 U.S. 438 at 469-470)

**He means that the 4th and 5th Amendments do not have the phrase "wire tap".


... "I am aware of the often repeated statement that in a criminal proceeding the court will not take notice of the manner in which papers offered in eidence have been obtained. But that somewhat rudimentary mode of disposing of the question has been overthrown by Weeks v. United States, 232 U.S. 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177, and the cases that have followed it. I have said that we are free to choose between two principles of policy. But if we are to confine ourselves to precedent and logic, the reason for excluding evidence obtained by violating the Constitution seems to me logically to lead to excluding evidence obtained by a crime of the officers of the law." (Olmstead v. United States, 277 U.S. 438 at 470-471).


Mr. Justice Brandeis:


            "Moreover, ‘in the application of a constitution, our contemplation cannot be only of what has been, but of what may be.’** The progress of science in furnishing the government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. ‘That places the liberty of every man in the hands of every petty officer,’ was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed ‘subversive of all the comforts of society.’ Can it be that the Constitution affords no protection against such invasions of individual security?" (Olmstead v. United States, 277 U.S. 438 at 474)

**Although not explicitly stated, this is presumably a quote from Boyd v. United States, 116 U.S. 616, 630, 29 L. ed. 746, 751, 6 Sup. Ct. Rep. 524.


            "In Ex parte Jackson, 96 U.S. 727, 24 L. ed. 877, it was held that a sealed letter intrusted to the mail is protected by the Amendments. The mail is a public service furnished by the government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said below: "True, the one 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." [53 A.L.R. 1484, 19 F. (2d) 842.] The evil incident to invasion of privacy of the telephone is far greater than that involved in tampering with the mails. Wherever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance** and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping." (Olmstead v. United States, 277 U.S. 438 at 475-476).

**WRIT OF ASSISTANCE at common law, a general warrant under which an officer of the crown, such as a customs official, had blanket authority to search where he or she pleased for goods imported in violation of the British tax laws. Writs of assistance were greatly abused and hated in this country prior to the American Revolution, and ultimately resulted in the adoption of the constitutional ban against unreasonable searches and seizure and especially the requirement of particularization. 379 U.S. 476, 481-485.

(Note: there is a modern "writ of assistance" which relates to property transfer).


            "Will this court, by sustaining the judgment below, sanction such conduct on the part of the Executive? The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. The maxim of unclean hands comes from courts of equity. But the principle prevails also in courts of law. Its common application is in civil actions between private parties. Where the government is the actor, the reasons for applying it are even more persuasive. Where the remedies invoked are those of the criminal law, the reasons are compelling." (Olmstead v. United States, 277 U.S. 438 at 483-484).


            "Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent, teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, 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." (Olmstead v. United States, 277 U.S. 438 at 485).


Mr. Justice Butler, dissenting:

            "I sincerely regret that I cannot support the opinion and judgments of the court in these cases." ... (Olmstead v. United States, 277 U.S. 438 at 485)

            "This court has always construed the Constitution in the light of the principles upon which it was founded. The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this court, the 4th Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words..."

            When the facts in these cases are truly estimated, a fair application of that principle decides the constitutional question in favor of the petitioners. With great deference, I think they should be given a new trial." (Olmstead v. United States, 277 U.S. 438 at 487-488).


Mr. Justice Stone, dissenting:

I concur in the opinions of Mr. Justice Holmes and Mr. Justice Brandeis. I agree also with that of Mr. Justice Butler, so far as it deals with the merits...." (Olmstead v. United States, 277 U.S. 438 at 488).