OLMSTEAD V. UNITED STATES

Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), was the first case dealing with the issue of whether messages passing over telephone wires are within the constitutional protection against unreasonable searches and seizures.

In Olmstead, several individuals were convicted of a conspiracy to violate the National Prohibition Act (41 Stat. 305) by illegally possessing, transporting, and importing intoxicating liquors, maintaining nuisances, and selling intoxicating liquors. The information leading to the discovery of the conspiracy was, for the most part, obtained through the interception of messages on the telephones of the conspirators by four federal prohibition officers. Wires were placed along the ordinary telephone wires from the homes of four of the defendants and along the wires that led to their main office of operation. The insertion of the wires was made without any trespass having been committed on any of the defendants' property since it was done in the basement of the large office building and in the streets near the residences.

The Supreme Court held that messages passing over telephone wires were not within the protection against unreasonable searches and seizures. The eavesdropper had to have physically trespassed in order for evidence procured by wiretapping to be regarded as having been obtained unconstitutionally. The Court reasoned that, since there was no entry of the homes or offices of the defendants, there was no physical trespass. In addition, in spite of the fact that the evidence leading to the conviction was obtained in violation of a state statute that made it a misdemeanor to intercept telegraphic or telephonic messages, the Court indicated that the statute did not declare that evidence obtained in such manner would be inadmissible, and it was not inadmissible under common law.

Subsequently the Olmstead case was over-ruled, the physical trespass doctrine abandoned, and the holding in Olmstead is no longer the law. Under current law, in order for electronic surveillance to be constitutionally permissible, it must be done pursuant to the prior authorization by a court.

Olmstead v. United States, 277 U.S. 438 (1928), argued 20–21 Feb. 1928, decided 4 June 1928 by vote of 5 to 4; Taft for the Court, Holmes, Brandeis, Butler, and Stone in dissent. Olmstead was convicted of unlawfully transporting and selling liquor under the National Prohibition Act. His petition from the court of appeals provided the Supreme Court with its first opportunity to consider whether the use of evidence obtained by an illegal wiretap in a federal court criminal trial violated the defendant's Fourth and Fifth Amendment rights. Chief Justice William H. Taft held that it did not, finding that conversations are not protected by the Fourth Amendment and that no invasion of the defendant's house was involved in the wiretapping. In dissent, Justice Louis D. Brandeis argued that the Fourth and Fifth Amendments confer a general right to individual privacy rather than mere protection of material things and that allowing the introduction of evidence illegally acquired by federal officers makes government a lawbreaker. In the 1934 Federal Communications Act, Congress prohibited the interception of any communication and the divulgence of the contents of intercepted communications. The Court extended the exclusionary rule to wiretapping in federal prosecutions in Nardone v. United States (1937); it overruled Olmstead in Berger v. New York (1967) and Katz v. United States (1967). In Title III of the Crime Control and Safe Street Act of 1968, Congress prohibited wiretapping for domestic purposes except when authorized by a federal judge following the specific requirements of the act.

Susan E. Lawrence