Olmstead v. United States, 277 U.S.
438 (1928), was a decision of the Supreme papers, tangible material effects, or home - not their conversations. Finally, the Court
Court of the United States, in which the Court reviewed whether the use of wiretapped
private telephone conversations, obtained by federal agents without judicial approval
and subsequently used as evidence, constituted a violation of the defendant’s rights
provided by the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that
neither the Fourth Amendment nor the Fifth Amendment rights of the defendant were
violated. This decision was later overturned by Katz v. United States in 1967.
Facts of the case
Roy Olmstead was a suspected bootlegger. Without judicial approval, federal agents
installed wiretaps in the basement of Olmstead's building (where he maintained an
office) and in the streets near his home. Olmstead was convicted with evidence
obtained from the wiretaps. This case was decided along with Green v. United States,
in which Green and several other defendants were similarly convicted, based on
illegally obtained wire-tapped conversations, for conspiracy to violate the National
Prohibition Act by importing, possessing, and selling illegal liquors. This case was
also decided with McInnis v. United States.
Question: Did the use of evidence disclosed in wiretapped private telephone
conversations, violate the recorded party's Fourth and Fifth Amendments?
Conclusion: 5–4 DECISION FOR UNITED STATES
MAJORITY OPINION BY WILLIAM HOWARD TAFT
Wiretapped private telephone conversations do not violate the Fourth or Fifth
Amendments
No. The Court held that neither the Fourth nor Fifth Amendment rights of the recorded
parties were violated. The use of wiretapped conversations as incriminating evidence
did not violate their Fifth Amendment protection against self incrimination because
they were not forcibly or illegally made to conduct those conversations. Instead, the
conversations were voluntarily made between the parties and their associates.
Moreover, the parties' Fourth Amendment rights were not infringed because mere
wiretapping does not constitute a search and seizure under the meaning of the Fourth
Amendment. These terms refer to an actual physical examination of one's person,
added that while wiretapping may be unethical no court may exclude evidence solely
for moral reasons. When criticized for his opinion, Justice Taft mocked his foes as he
wrote to a friend: "If they think we are going to be frightened in our effort to stand by
the law and give the public a chance to punish criminals, they are mistaken, even
though we are condemned for lack of high ideals." This case was reversed by Katz v.
U.S. (1967)
OVERVIEW.
The 1927 case of Olmstead v. United States proved to be an incredibly
important and influential decision. The case revolved around the
prosecution of Washington state resident Roy Olmstead for attempting to
smuggle and sell alcohol in violation of Prohibition. After suspecting
Olmstead for years, the government gathered evidence by wiretapping
Olmstead’s office phones without first obtaining a warrant. Olmstead
argued that the police had violated his Fourth and Fifth Amendment rights.
The Supreme Court, in a 5 – 4 decision, ruled that the government could
use the evidence obtained from wiretapping. The “Exclusionary Rule,”
which holds that illegally-obtained evidence may not be used against
defendants at trial, was in force at the time. However Chief Justice William
Taft cited previous decisions which characterized the Fourth Amendment
as only applying to physical search and seizure.
This case is notable not just for the immediate outcome, but also for the
important ideas in the dissent. Justice Louis Brandeis wrote an influential
dissent that was the foundation for future court decisions. In it, he
attacked the proposition that the government had the powe r to wiretap
phones without warrant, arguing that there is no difference between
listening to a phone call and reading a sealed letter. Brandeis argued that

the Founders had “conferred against the government, the right to be let
alone – the most comprehensive of rights and the right most favored by
civilized men.” Furthermore Brandeis advanced the idea that the ‘unclean
hands’ principle, which is the idea that courts should not aid a plaintiff
who has acted unethically with regards to the subject of the cas e, applies
to the federal government. The government should not violate the laws of
states to gather evidence (wiretapping was illegal in many states,
including Washington) and then use that evidence to prosecute people.
The Brandeis dissent was widely cited and came to prominence in later
Supreme Court decisions. The 1967 Katz v. U.S. case overturned the
Olmstead ruling, holding that warrants were in fact required to wiretap
payphones, with Brandeis’s dissent held as a primary influence. Its
description of the reasonable expectation of privacy citizens have has
been enshrined in law and constitutional interpretation, and has
implications for a range of issues, from abortion rights to the freedom of
the press.
_______________________________
Syllabus
1. Use in evidence in a criminal trial in a federal court of an incriminating telephone
conversation voluntarily conducted by the accused and secretly overheard from a
tapped wire by a government officer does not compel the accused to be a witness
against himself in violation of the Fifth Amendment. P. 277 U. S. 462.
2. Evidence of a conspiracy to violate the Prohibition Act was obtained by government
officers by secretly tapping the lines of a telephone company connected with the chief
office and some of the residences of the conspirators, and thus clandestinely
overhearing and recording their telephonic conversations concerning the conspiracy
and in aid of its execution. The tapping connections were made in the basement of a
large office building and on public streets, and no trespass was committed upon any
property of the defendants.Held, that the obtaining of the evidence and its use at the
trial did not violate the Fourth Amendment. Pp. 457- 277 U. S. 466.
3. The principle of liberal construction applied to the Amendment to effect its purpose
in the interest of liberty will not justify enlarging it beyond the possible practical
meaning of "persons, houses, papers, and effects," or so applying "searches and
seizures" as to forbid hearing or sight. P. 277 U. S. 465.
4. The policy of protecting the secrecy of telephone messages by making them, when
intercepted, inadmissible as evidence in federal criminal trials may be adopted by
Congress through legislation, but it is not for the courts to adopt it by attributing an
enlarged and unusual meaning to the Fourth Amendment. P.277 U. S. 465.
5. A provision in an order granting certiorari limiting the review to a single specific
question does not deprive the Court of jurisdiction to decide other questions presented
by the record. P. 277 U. S. 466.
6. The common law of evidence having prevailed in the State of Washington since a
time antedating her transformation from a
Page 277 U. S. 439
Territory to a State, those rule apply in the trials of criminal cases in the federal courts
sitting in that State. P.277 U. S. 466.
7. Under the common law, the admissibility of evidence is not affected by the fact of
its having been obtained illegally. P. 277 U. S. 467.
8. The rule excluding from the federal Courts evidence of crime procured by
government officers by methods forbidden by the Fourth and Fifth Amendments is an
exception to the common law rule. Id.
9. Without the sanction of an Act of Congress, federal courts have no discretion to
exclude evidence, the admission of which is not unconstitutional, because it was
unethically procured. P. 277 U. S. 468.
10. The statute of Washington, adopted in 1909, making the interception of telephone
messages a misdemeanor cannot affect the rules of evidence applicable in federal
courts in criminal cases. Id.
19 F. (2d) 842, 848, 850, affirmed.
CERTIORARI, 276 U.S. 609, to judgments of the Circuit Court of Appeals affirming
convictions of conspiracy to violate the Prohibition Act. See 5 F.2d 712; 7 F.2d 756,
760. The order granting certiorari confined the hearing to the question whether the
use in evidence of private telephone conversations, intercepted by means of
wiretapping, violated the Fourth and Fifth Amendments.
Page 277 U. S. 455
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KATS VS US
Facts of the case
Acting on a suspicion that Katz was transmitting gambling information over the phone
to clients in other states, Federal agents attached an eavesdropping device to the
outside of a public phone booth used by Katz. Based on recordings of his end of the
conversations, Katz was convicted under an eight-count indictment for the illegal
transmission of wagering information from Los Angeles to Boston and Miami. On
appeal, Katz challenged his conviction arguing that the recordings could not be used
as evidence against him. The Court of Appeals rejected this point, noting the absence
of a physical intrusion into the phone booth itself. The Court granted certiorari.
Question
Does the Fourth Amendment protection against unreasonable searches and seizures
require the police to obtain a search warrant in order to wiretap a public pay phone?
Ruling - 7 and 1 decision
Yes. The Court ruled that Katz was entitled to Fourth Amendment protection for his
conversations and that a physical intrusion into the area he occupied was
unnecessary to bring the Amendment into play. "The Fourth Amendment protects
people, not places," wrote Justice Potter Stewart for the Court. A concurring opinion
by John Marshall Harlan introduced the idea of a 'reasonable' expectation of Fourth
Amendment protection.
 Decision
 Katz v. United States extended the Fourth Amendment's "unreasonable
searches and seizures" protection to include recordings of conversations,
not just personal effects. The Court held that wiretapping violated the
privacy of the criminal defendant, Charles Katz -- privacy that he expected
to have once entering a phone booth and closing the door.
 Charles Katz was charged with placing illegal bets across state lines using
a public telephone booth. Katz was able to be convicted after FBI agents
placed a wire-tap on top of the public phone booth he was using without
first obtaining a warrant. During his trial, Katz argued that the evidence
presented against him was obtained illegally and that it violated his Fourth
Amendment rights – "the right of the people to be secure in their persons,
houses … against unreasonable searches and seizures."
 After the case made its way to the Supreme Court, the Justices concluded
that Katz's conversation was protected under the Fourth Amendment,
meaning the FBI had indeed violated his rights in collecting its evidence
against him. In delivering the opinion, Justice Potter Stewart wrote that the
Fourth Amendment, "protects people, not places."
Decision
Syllabus
Petitioner was convicted under an indictment charging him with transmitting
wagering information by telephone across state lines in violation of 18 U.S.C. §
1084. Evidence of petitioner's end of the conversations, overheard by FBI agents
who had attached an electronic listening and recording device to the outside of the
telephone booth from which the calls were made, was introduced at the trial. The
Court of Appeals affirmed the conviction, finding that there was no Fourth
Amendment violation, since there was "no physical entrance into the area occupied
by" petitioner.
Held:
1. The Government's eavesdropping activities violated the privacy upon which
petitioner justifiably relied while using the telephone booth, and thus constituted a
"search and seizure" within the meaning of the Fourth Amendment. Pp. 389 U. S.
350-353.
(a) The Fourth Amendment governs not only the seizure of tangible items, but
extends as well to the recording of oral statements. Silverman v. United States, 365
U. S. 505, 365 U. S. 511. P. 389 U. S. 353.
(b) Because the Fourth Amendment protects people, rather than places, its reach
cannot turn on the presence or absence of a physical intrusion into any given
enclosure. The "trespass" doctrine of Olmstead v. United States, 277 U. S. 438,
and Goldman v. United States, 316 U. S. 129, is no longer controlling. Pp. 389 U. S.
351, 389 U. S. 353.
2. Although the surveillance in this case may have been so narrowly circumscribed
that it could constitutionally have been authorized in advance, it was not in fact
conducted pursuant to the warrant procedure which is a constitutional precondition
of such electronic surveillance. Pp. 389 U. S. 354-359.
369 F.2d 130, reversed.
--------------------------------
Charles Katz lived in Los Angeles and was one of the leading basketball
handicappers in the country in the 1960s. He made his money placing bets for
interstate gamblers and keeping a share of the winnings. However, interstate
gambling was illegal under federal law, so to avoid detection and prison, he used
public telephone booths along Sunset Boulevard to conduct his business.
Unfortunately for Katz, the Federal Bureau of Investigation caught on to his
activities in February 1965 and moved quickly to collect evidence. The FBI identified
the three phone booths Katz used on a regular basis and worked with the telephone
company to take one out of service. The other booths were bugged and agents
were stationed outside Katz’s nearby apartment. Based on the recorded
conversations—“Give me Duquesne minus seven for a nickel!”—the FBI arrested
Katz and charged him with an eight-count indictment.
The deck was stacked against Katz. After all, the evidence was damning—his coded
language was easily identified as the chatter of a consummate gambler, so it would
be difficult to avoid conviction. And his alternate claim that the FBI’s surveillance of
the phone booths was unconstitutional ran up against decades of Supreme Court
precedent, most notably Olmstead v. United States.
In that famous case, the ambitious bootlegger Ray Olmstead was brought down by
a federal investigation that used a phone wiretapping system to track his calls for
months. On June 4, 1928, a 5-4 majority led by Chief Justice William Howard Taft
ruled that the wiretaps were permissible. Private telephone communications, the
Court determined, were no different from casual conversations overheard in a public
place. Plus, the wiretaps involved no physical intrusion or seizure of private
property. Thus, the Fourth Amendment simply did not apply.
Nearly 40 years later, Katz found a more receptive audience at the nation’s high
court. The Court’s 7-1 majority overturned the “trespass doctrine” established
in Olmstead, with Justice Potter Stewart writing that the Fourth Amendment
“protects people, not places” and is not dependent on intrusion into physical spaces.
The Court also held that the Fourth Amendment applies to oral statements just as it
does to tangible objects.
In arguing against Katz, the government had pointed to the fact that the phone
booth was made partly of glass, thereby leaving Katz visible to the outside world.
But the Court unequivocally rejected that argument as missing the point:
What [Katz] sought to exclude when he entered the booth was not the intruding
eye—it was the uninvited ear. He did not shed his right to do so simply because he
made his calls from a place where he might be seen. No less than an individual in a
business office, in a friend's apartment, or in a taxicab, a person in a telephone
booth may rely upon the protection of the Fourth Amendment. One who occupies it,
shuts the door behind him, and pays the toll that permits him to place a call is surely
entitled to assume that the words he utters into the mouthpiece will not be broadcast
to the world. To read the Constitution more narrowly is to ignore the vital role that
the public telephone has come to play in private communication.
In a separate concurrence, Justice John Marshall Harlan, Jr. fleshed out a test for
identifying a “reasonable expectation of privacy”—one that is both subjectively
understood by the individual and objectively recognized by society at large. In his
concurrence, Justice Byron White argued for a “national security” exception to the
Court’s decision, with Justices William Douglas and William Brennan responding
forcefully in their joint concurrence.
And in his lone dissent, Justice Hugo Black, ever the faithful textualist,
echoed Olmstead in arguing that the Fourth Amendment did not cover electronic
surveillance under the plain text of the amendment. “No general right is created by
the Amendment so as to give this Court the unlimited power to hold unconstitutional
everything which affects privacy,” he wrote. “The history of governments proves that
it is dangerous to freedom to repose such powers in courts.”