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

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OLMSTEAD v. UNITED STATES 277 U.S. 438 (1928)

Federal agents installed wiretaps in the basement of a building where Roy Olmstead, a suspected bootlegger, had his office and in streets near his home. None of Olmstead's property was trespassed upon. A sharply divided Supreme Court admitted the wiretap evidence in an opinion that virtually exempted electronic eavesdropping from constitutional controls for forty years. The dissents by Justices oliver wendell holmes and louis d. brandeis are classic statements of the government's obligation to obey the law.

Olmstead argued that because the prosecution's evidence came entirely from the wiretaps, it could not be used against him; wiretapping, he claimed, was a search and seizure under the fourth amendment, and because the amendment's warrant and other requirements had not been met, the wiretap evidence was illegally obtained. He also claimed that use of the wiretap evidence violated his right against self-incrimination under the Fifth Amendment; further, that because the agents had violated a state statute prohibiting wiretapping, the evidence was inadmissible, apart from the Fourth and Fifth Amendments.

Chief Justice william howard taft, writing for a five-Justice majority, rejected all Olmstead's contentions. The self-incrimination claim was dismissed first: the defendants had not been compelled to talk over the telephone but had done so voluntarily. This aspect of Olmstead has survived to be applied in cases such as hoffa v. united states (1966). As to the Fourth Amendment claims: first, the Court ruled that the amendment was violated only if officials trespassed onto the property of the person overheard, and no such trespass had taken place—the agents had tapped Olmstead's telephones without going onto his property. Second, the Court limited Fourth Amendment protection to "material things," not intangibles like conversations. Third, the Court seemed to deny any protection for the voice if projected outside the house. As to the claim that the agents' violation of the state statute required excluding the evidence, the Chief Justice found no authority for such exclusion.

Justice Holmes wrote a short dissent, condemning the agents' conduct as "dirty business." Justice Brandeis wrote the main dissent in which he disagreed with the majority's reading of the precedents, its very narrow view of the Fourth Amendment, and its willingness to countenance criminal activity by the government. For him, the Fourth Amendment was designed to protect individual privacy, and he warned that the "progress of science in furnishing the Government with means of espionage" called for a flexible reading of the amendment to "protect the right of personal security." He stressed that because a tap reaches all who use the telephone, including all those who either call the target or are called, " writs of assistance or general warrants are but puny instruments of tyranny and oppression when compared with wiretapping." Responding to the argument that law enforcement justified both a narrow reading of the amendment and indifference to the agents' violation of state law, he wrote: "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent.… The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.… Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example."

Although the decision was harshly criticized, it endured. In Goldman v. United States (1942), Olmstead was read to allow police to place a microphone against the outside of a wall, because no trespass onto the property was involved. Wiretapping itself remained outside constitutional controls, though section 605 of the communications act of 1934 was construed by the Supreme Court in nardone v. united states (1937) to bar unauthorized interception and divulgence of telephone messages.

In 1954, however, Olmstead began to be undermined. In irvine v. california (1954), the Court indicated that intangible conversations were protected by the Fourth Amendment. The Court found a trespass when the physical penetration was only a few inches into a party wall as in silverman v. united states (1961) or by a thumbtack as in Clinton v. Virginia (1964). Finally, in katz v. united states (1967), the Supreme Court overruled Olmstead, holding that a trespass was unnecessary for a violation of the Fourth Amendment and that the amendment protects intangibles, including conversations.

Herman Schwartz


Murphy, Walter F. 1966 Wiretapping on Trial: A Case Study in the Judicial Process. New York: Random House.