Olmstead v. United States, 277 U.S. 438; 48 S. Ct. 564; 72 L. Ed. 944 (1928)

Facts—Olmstead, who was the general manager of a business, was convicted of a conspiracy to violate the National Prohibition Act by unlawfully possessing, transporting, and importing intoxicating liquors and maintaining nuisances, and by selling intoxicating liquors. The information that led to the discovery of the conspiracy and its nature and intent was largely obtained by intercepting messages on the telephones of the conspirators by four federal prohibition officers. However, the wiretapping was done outside the residence, and not in the offices but in the basement of the building housing the offices. All conversations were recorded, and the evidence of the wiretapping was used in court against the conspirators.

Question—Does the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wiretapping, violate the Fourth and Fifth Amendments?

Decision—No.

Reasons—C.J. Taft (5–4). There is no room for applying the Fifth Amendment unless the Fourth Amendment was first violated. Therefore, the Court limited its consideration to the Fourth Amendment. The amendment does not forbid what was done in this case. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants. By invention of the telephone and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant’s house or office any more than to the highways along which they are stretched.

“A standard which would forbid the reception of evidence if obtained by other than nice ethical conduct by government officials would make society suffer and give criminals greater immunity than has been known heretofore. In the absence of controlling legislation by Congress, those who realize the difficulties in bringing offenders to justice may well deem it wise that the exclusion of evidence should be confined to cases where rights under the Constitution would be violated by admitting it.”

J. Holmes authored a dissent that described governmental participation in wiretapping as “dirty business.” J. Brandeis’s dissent focused on broader dangers to privacy rights.