Petitioners
Roy Olmstead, et al.
Respondent
United States
Petitioners' Claim
That the government's use of evidence obtained through illegal wiretaps violated his Fourth Amendment protection against illegal search and seizure and his right under the Fifth Amendment not to incriminate himself.
Chief Lawyer for Petitioners
John F. Dore
Chief Lawyers for Respondent
John G. Sargent, U.S. Attorney General; Michael J. Doherty
Justices for the Court
James Clark McReynolds, Edward Terry Sanford, George Sutherland, William Howard Taft (writing for the Court), Willis Van Devanter
Justices Dissenting
Pierce Butler, Louis D. Brandeis, Oliver Wendell Holmes, Harlan Fiske Stone
Place
Washington, D.C.
Date of Decision
4 June 1928
Decision
The Supreme Court upheld the use of wiretaps.
Significance
In this, the first Supreme Court case to consider the legality of wiretaps, the Court found that because they did not involve private property, they did not violate the ban on illegal search and seizure. Later the Court would overrule Olmstead.
In January of 1919, the states ratified the Eighteenth Amendment to the Constitution, which instituted a nationwide prohibition on alcoholic beverages. Later that year, Congress passed the National Prohibition Enforcement Act, alsocalled the Volstead Act, which prohibited the manufacture and distribution of intoxicating beverages. Roy Olmstead, along with two others, was accused ofviolating the Volstead Act by conspiring to transport and sell liquor. The U.S. District Court for the Western District of Washington allowed the government to introduce evidence obtained through use of wiretaps placed in the defendants' homes and offices. This evidence proved convincing, and the defendants were convicted. After appeals to the Ninth Circuit Court of Appeals failed,they applied to the U.S. Supreme Court for review of their convictions.
Olmstead and his co-conspirators charged that the evidence used to convict them had been illegally obtained and therefore should not have been admitted attrial. They claimed that the government had violated their Fourth Amendmentprotection from illegal search and seizure and their Fifth Amendment protection against compelled self-incrimination.
Court Rules that Wiretapping Does Not Constitute Illegal Search and Seizure
Writing for the Court, Chief Justice Taft addressed both of Olmstead's constitutional claims. The Fifth Amendment argument was dismissed outright:
The Fourth Amendment, Taft maintained, did not apply in this case either. Thegovernment agents investigating the case did not actually invade Olmstead'shome, so there could be no question of illegal search and seizure. Somewhat disingenuously, Taft added: "the courts [do not] have a discretion to excludeevidence, the admission of which is not unconstitutional, because unethicallyobtained."
Writing in dissent, Brandeis argued that, to the contrary, the Fourth and Fifth Amendments, working together, served to protect an implicit right to privacy. It was not necessary for federal agents to trespass physically on the petitioners' property to violate their constitutional rights. Further, Brandeisstated, letting in evidence obtained by wiretapping sanctions criminal behavior on the part of the government.
Later Supreme Court decisions would uphold Brandeis's point of view. The so-called exclusionary rule, prohibiting introduction in criminal trials of illegally obtained evidence, was extended to federal criminal prosecutions in Nardone v. United States (1937). In Katz v. United States (1967), the Court overruled Olmstead outright. Congress, too, passed legislation that outlawed government wiretapping. The 1934 Federal Communications Act prohibited interception of communications, and the Crime Control and Safe Street Act of 1968 permitted the use of wiretaps only when authorized by a federal judge under certain specific circumstances.
Brandeis's advocacy for a right to privacy began with an 1890 law review article in which he and coauthor Samuel Warren posited that although such a rightappears nowhere in the Constitution, the nation's foundation document nevertheless supports it. The Supreme Court has rejected the notion Brandeis advanced in Olmstead that invasion of privacy can be a defense in criminal prosecutions. But the Court has endorsed a right to privacy in other areas ofthe law, most notably with regard to contraception and abortion.
Related Cases
Wiretapping in America
In 1991 and 1992, there were 1,078 state-authorized wiretaps around the United States, according to Wiretap Report 1991 and 1992, issued by the Administrative Office of the U.S. Courts. This was in addition to 696 wiretaps authorized by the federal government.
Of the 50 states, 13 have no statute authorizing wiretaps. Twelve others, despite existing wiretap legislation, had no documented wiretapping cases during1991 and 1992. Among these 12 states are Illinois, Louisiana, Hawaii, and Ohio, all of which are populous, thus making the absence of wiretaps surprising--unlike, for instance, in the case of North and South Dakota, which are alsoamong the 12. In addition, the District of Columbia had no wiretaps, although Washington, D.C., Mayor Marion Barry was convicted on drug charges in 1991after federal agents videotaped him smoking crack cocaine.
The states in the bottom half of the "top ten" had only a handful of wiretaps, ranging from 14 in Texas to 26 in Georgia. Maryland, at No. 5 on the list,had 41. But the vast majority of all state-authorized wiretaps--nearly 80 percent--took place in just four states. Pennsylvania had 153, and Florida 159.Fully half of all wiretaps took place in New Jersey (209) and New York (333),both leading areas of operation for organized crime.
Sources
Morgan, Kathleen O'Leary, et al., eds. Crime State Rankings 1994. Lawrence, KS: Morgan Quitno, 1994.
Roy Olmstead, et al.
Respondent
United States
Petitioners' Claim
That the government's use of evidence obtained through illegal wiretaps violated his Fourth Amendment protection against illegal search and seizure and his right under the Fifth Amendment not to incriminate himself.
Chief Lawyer for Petitioners
John F. Dore
Chief Lawyers for Respondent
John G. Sargent, U.S. Attorney General; Michael J. Doherty
Justices for the Court
James Clark McReynolds, Edward Terry Sanford, George Sutherland, William Howard Taft (writing for the Court), Willis Van Devanter
Justices Dissenting
Pierce Butler, Louis D. Brandeis, Oliver Wendell Holmes, Harlan Fiske Stone
Place
Washington, D.C.
Date of Decision
4 June 1928
Decision
The Supreme Court upheld the use of wiretaps.
Significance
In this, the first Supreme Court case to consider the legality of wiretaps, the Court found that because they did not involve private property, they did not violate the ban on illegal search and seizure. Later the Court would overrule Olmstead.
In January of 1919, the states ratified the Eighteenth Amendment to the Constitution, which instituted a nationwide prohibition on alcoholic beverages. Later that year, Congress passed the National Prohibition Enforcement Act, alsocalled the Volstead Act, which prohibited the manufacture and distribution of intoxicating beverages. Roy Olmstead, along with two others, was accused ofviolating the Volstead Act by conspiring to transport and sell liquor. The U.S. District Court for the Western District of Washington allowed the government to introduce evidence obtained through use of wiretaps placed in the defendants' homes and offices. This evidence proved convincing, and the defendants were convicted. After appeals to the Ninth Circuit Court of Appeals failed,they applied to the U.S. Supreme Court for review of their convictions.
Olmstead and his co-conspirators charged that the evidence used to convict them had been illegally obtained and therefore should not have been admitted attrial. They claimed that the government had violated their Fourth Amendmentprotection from illegal search and seizure and their Fifth Amendment protection against compelled self-incrimination.
Court Rules that Wiretapping Does Not Constitute Illegal Search and Seizure
Writing for the Court, Chief Justice Taft addressed both of Olmstead's constitutional claims. The Fifth Amendment argument was dismissed outright:
There is no room in the present case for applying the Fifth Amendment, unless the Fourth Amendment was first violated. There was no evidence of compulsion to induce the defendants to talk over their many telephones. They were continually and voluntarily transacting business without knowledge of the interception. Our consideration must be confined to the Fourth Amendment.
The Fourth Amendment, Taft maintained, did not apply in this case either. Thegovernment agents investigating the case did not actually invade Olmstead'shome, so there could be no question of illegal search and seizure. Somewhat disingenuously, Taft added: "the courts [do not] have a discretion to excludeevidence, the admission of which is not unconstitutional, because unethicallyobtained."
Writing in dissent, Brandeis argued that, to the contrary, the Fourth and Fifth Amendments, working together, served to protect an implicit right to privacy. It was not necessary for federal agents to trespass physically on the petitioners' property to violate their constitutional rights. Further, Brandeisstated, letting in evidence obtained by wiretapping sanctions criminal behavior on the part of the government.
Later Supreme Court decisions would uphold Brandeis's point of view. The so-called exclusionary rule, prohibiting introduction in criminal trials of illegally obtained evidence, was extended to federal criminal prosecutions in Nardone v. United States (1937). In Katz v. United States (1967), the Court overruled Olmstead outright. Congress, too, passed legislation that outlawed government wiretapping. The 1934 Federal Communications Act prohibited interception of communications, and the Crime Control and Safe Street Act of 1968 permitted the use of wiretaps only when authorized by a federal judge under certain specific circumstances.
Brandeis's advocacy for a right to privacy began with an 1890 law review article in which he and coauthor Samuel Warren posited that although such a rightappears nowhere in the Constitution, the nation's foundation document nevertheless supports it. The Supreme Court has rejected the notion Brandeis advanced in Olmstead that invasion of privacy can be a defense in criminal prosecutions. But the Court has endorsed a right to privacy in other areas ofthe law, most notably with regard to contraception and abortion.
Related Cases
- Weeks v. United States, 232 U.S. 383 (1918).
- Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
- Buck v. Bell, 274 U.S. 200 (1927).
- Katz v. United States, 389 U.S. 347 (1967).
Wiretapping in America
In 1991 and 1992, there were 1,078 state-authorized wiretaps around the United States, according to Wiretap Report 1991 and 1992, issued by the Administrative Office of the U.S. Courts. This was in addition to 696 wiretaps authorized by the federal government.
Of the 50 states, 13 have no statute authorizing wiretaps. Twelve others, despite existing wiretap legislation, had no documented wiretapping cases during1991 and 1992. Among these 12 states are Illinois, Louisiana, Hawaii, and Ohio, all of which are populous, thus making the absence of wiretaps surprising--unlike, for instance, in the case of North and South Dakota, which are alsoamong the 12. In addition, the District of Columbia had no wiretaps, although Washington, D.C., Mayor Marion Barry was convicted on drug charges in 1991after federal agents videotaped him smoking crack cocaine.
The states in the bottom half of the "top ten" had only a handful of wiretaps, ranging from 14 in Texas to 26 in Georgia. Maryland, at No. 5 on the list,had 41. But the vast majority of all state-authorized wiretaps--nearly 80 percent--took place in just four states. Pennsylvania had 153, and Florida 159.Fully half of all wiretaps took place in New Jersey (209) and New York (333),both leading areas of operation for organized crime.
Sources
Morgan, Kathleen O'Leary, et al., eds. Crime State Rankings 1994. Lawrence, KS: Morgan Quitno, 1994.
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