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Citation[]

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

Factual Background[]

Olmstead was a Seattle, Washington bootlegger whose Prohibition Act conviction was the product of a federal wiretap. He challenged his conviction on three grounds, arguing unsuccessfully that the wiretap evidence should have been suppressed as a violation of either his Fourth Amendment rights, his Fifth Amendment privilege against self-incrimination, or the rights implicit in the Washington state statute that outlawed wiretapping.

Supreme Court Proceedings[]

For a majority of the Court, writing through Chief Justice Taft, Olmstead’s Fourth Amendment challenge was doomed by the absence of “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 purposes of making a seizure.”[1]

The language of the amendment cannot be . . . 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.[2]

Olmstead had not been compelled to use his phone and so the Court rejected his Fifth Amendment challenge.[3] Any violation of the Washington state wiretap statute was thought insufficient to warrant the exclusion of evidence.[4]

Chief Justice Taft pointed out that Congress was free to provide protection which the U.S. Constitution did not. “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.”[5] Congress did so by enacting the 1934 Communications Act.

Dissenting Opinions[]

Justice Holmes in his dissent tersely characterized the conduct of federal wiretappers as “dirty business.”[6]

Justice Brandeis argued that the "Fourth Amendment must adapt to a changing world."[7] He noted that when the amendment was adopted:

[force was] the only means known to man by which a government could directly effect self-incrimination . . . . It could secure . . . papers and other articles . . . by breaking and entry. . . . But "time works changes, brings into existence new conditions and purposes." Subtler and more far-reaching means of invading privacy have become available to the government. . . . the progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. 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. . . . Can it be that the Constitution affords no protection against such invasions of individual security?[8]

He observed that the drafters of the Constitution “conferred as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government against privacy of the individual whatever the means employed, must be deemed in violation of the Fourth Amendment.” [9]

Comments[]

Public reaction to the decision was negative; bills were introduced in Congress, but none passed.

Olmstead is remembered most today for the dissents of Holmes and Brandeis, but for four decades it stood for the view that the Fourth Amendment’s search and seizure commands did not apply to government wiretapping accomplished without a trespass onto private property.

References[]

  1. 277 U.S. at 466.
  2. Id. at 465.
  3. Id. at 462.
  4. Id. at 466-68.
  5. Id. at 465.
  6. Id. at 470.
  7. Id. at 474.
  8. Id. at 473-74.
  9. Id. at 478-79.
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