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

AuthorHerman Schwartz
Pages1849-1850

Page 1849

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

Page 1850

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...

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