Fourth Amendment Principles and Evidence Admissibility in Criminal Trials, Exercises of Law

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OCTOBER TERM, 1927.

Syllabus. 277 U. S.

OLMSTEAD ET AL. v. UNITED STATES

GREEN .T AL. v. SAME.

McINNIS v. SAME.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

Nos. 493, 532 and 533. Argued February 20, 21, 1928.--Decided June 4, 1928.

1. Use in evidence in a criminal trial in a federal court of an incrimi- nating 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 vio- lation of the Fifth Amendment. P. 462.

2. Evidence of a conspiracy to violate the Prohibition Act was ob- tained 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^ con- spiracy 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. 457-466. 3. The principle of^ liberal^ construction^ applied^ to the^ Amendment^ to effect its purpose in the interest of liberty, wil 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. 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.^ 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. 466. 6. The common law of^ evidence^ having^ prevailed^ in^ the^ State^ of Washington since a time antedating her transformation from a

OLMSTEAD v. UNITED STATES. (^438) Argument for Petitioners.

Territory to a State, (^) those rules apply in the trials of criminal cases in the (^) federal courts sitting in that State. P. 466.

7. Under the common law, the admissibility of evidence is not af- fected by the fact of its having been obtained illegally. P. 467.
8. The rule excluding from the federal courts evidence of crime pro- cured 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 uncon- stitutional, because it was unethically procured. P. 468.
10. The statute of Washington, adopted in 1909, making the inter- ception 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 wire tapping, violated the Fourth and Fifth Amend- ments.

Mr. John F. Dore, (^) with whom Messrs. F. C. Reagan and J. L. Finch were on the brief, for petitioners in No. 493. The principles controlling this case were first an- nounced by this Court in Boyd v. United States, 116 U. S.

616. They have never been deviated from, but have been reiterated again and again in a series of cases, the last of which is Byars (^) v. United States, 273 U. S. 28. See also Gouled v. United States, 255 U. S. 298. If incriminating evidence is secured by means of trick- ery, subterfuge, trespass or fraud, and, after it has been so secured, finds its way into the hands of government offi- cials, no legal ground can be urged against its introduction in evidence, for the reason that no constitutional question

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Argument for Petitioners. 277 U. S.

is involved. If, however, the fraud, subterfuge, (^) trespass or theft is perpetrated by government officials, (^) or if a gov- ernment official participates directly or indirectly therein, the evidence thus secured is (^) not admissible for the reason that it was secured in a manner which violates the provi- sions of the Fourth (^) and Fifth Amendments to the Consti- tution. Byars v. United States, supra; United States v. Mandel, 17 F. (2d) 270; Rudkin, J., in case at bar, dis- senting opinion. The Boyd case lays down search and seizure law, and nothing but search and seizure law, but it involved neither a search nor a seizure. Silverthorne Lumber Co. v. United States, 251 U. S. 385, was ruled by application of the Fourth Amendment, but it was not a search and seizure case either. Upon appeal to this Court, it was held that the proceedings were an attempt to do indirectly what the Government could not do directly. Gouled v. United States, (^) supra, did not involve a search and seizure as these words (^) are employed in legal parlance, but the case was ruled by search and seizure law and application of the Fourth and Fifth Amendments. It is not necessary that the act complained of be strictly a search or seizure, if its effect be to compel a man to fur- nish the evidence to convict himself of crime, and the act be one of governmental agency. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365. These principles apply to "all invasions (^) on the priva- cies of life." No exact definition of this term has been found, but obviously it is a comprehensive term and surely includes the right to be let alone. The right to (^) the exclusive enjoyment of a telephone free of (^) interference from anybody, is a right of privacy. No government agent has a right to interpose an earpiece upon it any more than he has a right to raise the curtain and peek through another's window. If two persons are

OLMSTEAD v. UNITED STATES.

438 Argument for Petitioners.

conversing in a room of one of them, an intrusion therein by a government agent secretly is an intrusion upon their right of privacy. Is it any the less so if they are in sep- arate rooms connected by a telephone and some interloper "listens in" by means of " tapping" the wire? Such con- duct constitutes an invasion of the privacies of life, and when done by a government agent, falls within the con- demnation of the Boyd case; and evidence thereby se- cured is inadmissible for the purpose of securing a convic- tion in a criminal case.

Mr. Frank R. Jeffery, for petitioner in No. 533, and some of the petitioners in No. 532. This Court has held that the Fourth and Fifth Amend- ments were inspired by the same abuses, preceding the adoption of the Constitution, and they must be liberally construed in favor of the citizen and his liberty, and that stealthy eniroachments upon the rights guaranteed by them will not be tolerated. Boyd v. United States, 116 U. S. 616. The majority opinion of the Circuit Court of Appeals for the Ninth Circuit places a narrow construction upon the rights protected by these Amendments, declaring that "the purpose of the Amendments is to prevent the inva- sion of homes and offices and seizure of incriminating evidence found therein." The majority opinion concedes that the tapping of the defendants' telephone wires is an "unethical intrusion on the privacies of persons who are suspected of crime," but holds that "it is not an act which comes within the letter of the prohibition of constitutional provisions." These declarations of the Circuit Court of Appeals are directly contrary to the holdings of this Court. In Ex parte Jackson, 96 U. S. 727, this Court 'did not limit the application of the Amendments to the "invasion of homes and offices." Neither has this Court limited the applica,

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Argument for Petitioners. 277 U. S.

tion of these Amendments to the "letter" of the same. On the contrary, the underlying thought in^ each^ decision of this Court affecting these Amendments has^ been^ to apply the "spirit" of them. In the Boyd case this Court declares that these principles "apply to all invasions on the part of the Government and its employees of the se- curity of a man's home and the privacies of life." In that case no search and seizure were involved, if the words "search and (^) seizure" be (^) given their (^) literal meaning. The Court in its decision admitted, in effect, that no ac- tual search and no actual seizure were involved, but held that the result was the same as if an actual search and an actual seizure were made. It definitely established that it is not the mere form and substance of the acts of government agents which determine whether the search and seizure are in violation of the constitutional provisions, but it is the results ac- complished by such^ acts.^ If^ such^ acts^ "effect^ the^ sole object and purpose of search and seizure," then they come within the inhibition of the Fourth and Fifth Amend- ments. In the case at bar, the sole object of the government agents was to obtain evidence relating to transactions in liquor by the defendants. The conversations heard over the telephone were of evidential value only. It is no crime to exchange messages relating to the possession and sale of liquor. The crime is to possess and sell liquor, and conversations concerning the possession or sale are only admissible when the liquor which is possessed or sold is seized. Suppose that the messages relating to the pos- session and sale of the liquor had been sent by letter. No warrant to search the homes, offices or persons of the de- fendants for such letter could have been obtained. Gouled v. United States, 255 U. S. 298. Likewise, no valid search warrant could be obtained by government agents to tap the telephone lines of the defendants for

OLMSTEAD v. UNITED STATES. 438 Argument for Petitioners.

the purpose of securing evidence of the private messages and (^) conversations relating to the possession or sale of liquor. Furthermore, the admission (^) of the evidence of govern- ment agents as to the messages transmitted over the tele- phone wires compelled (^) the defendants to give evidence against themselves just as effectively as if they had (^) been forced to take the witness stand and themselves (^) testify as to the messages sent over the telephone; yea, just as effectively as if the (^) defendants had been required •to produce in court private messages sent (^) by letter of exactly the same import (^) as the messages sent by 'phone. The result is to compel the defendants to become the un- willing source of evidence to convict them of crime, which this Court in the Boyd case held to be a violation of the defendants' right under the Fifth Amendment. It would. indeed be difficult to attempt to enumerate all of those things coming within the phrase (^) "the priva- cies of life," but it would be equally difficult to suggest any more sacred or any greater (^) privacy of life under present conditions than that of using a private telephone line for transmitting private and confidential communica- tions (^) to one's family and business associates. What greater invasion of this privacy (^) of life could be contem- plated than to have one's private and confidential (^) com- munications (^) intercepted and overheard by promiscuous government agents (^) by means of secretly tapping one's telephone? The telephone as a means of communication was not known to the world at the time of Lord Camden's judgment, or at the time of the adoption of the Fourth and Fifth Amendments, or even at the time of the deci- sion of this Court in the Boyd case. The only means of communication (^) at that time was by letter, and the right to transmit a secret message in a letter without having it intercepted (^) and read by government agents was de-

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Argument for Petitioners. 277 U. S.

clared by this Court in no uncertain language in the case of Ex parte Jackson, 96 U. S. 727. It is not the paper which (^) is protected by the constitu- tional inhibitions, but it is the message contained in the letter. In the same manner, any message transmitted by telephone or telegraph should be protected. The (^) inter- pretation of the language of the Amendments should (^) be sufficiently liberal and elastic to apply the principles laid down (^) in the Boyd case to the conditions of to-day. That this is the true criterion is declared by this Court in Village of Euclid v. Ambler Realty Co., 272 U. S. 365. The telephones used by the defendants were theirs against all the world, even against the telephone company while their (^) tolls were paid. The telephone lines leading to the defendants' houses and offices, as well as the tele- phone equipment in the houses and (^) offices, were the pri- vate property of the defendants. They had the right to the exclusive use and enjoyment of them, except (^) the license given by them to (^) connect other lines with their lines for the purpose of receiving incoming calls. When the government agents tapped the defendants' telephone lines they (^) committed a trespass upon the property rights of the defendants. The effect of this trespass was (^) to pro- ject themselves into the houses and offices of (^) the defend- ants, with the same result as if they had broken (^) through the windows or doors and secretly seized (^) letters contain- ing the identical messages that were transmitted (^) over the 'phones. (^) The result (^) was not only (^) an unlawful (^) search for evidence, but an unlawful seizure by means of which the defendants, in effect, were compelled to testify against themselves. As stated by Judge Rudkin, (^) those who use the telephone are not broadcasting (^) to the world. Under modem conditions the telephone (^) has, to a large extent, supplanted (^) the mails as a means of transmitting private messages. It has become indispensable to every home and office. If the stamp of approval is put upon the ac-

OLMSTEAD v. UNITED STATES. 438 Argument for Petitioners.

tion of government agents in seeking and obtaining evi- dence against those suspected of crime by means of tap- ping private telephone lines, the door is opened wide for the great mass of citizens using the telephone for lawful purposes to have their private and confidential communi- cations relating to business and family subjected to the scrutiny of government agents. Such a system of espion- age would become deplorable and unbearable. It would deprive the citizenship of the country of the personal se- curity and the enjoyment of the privacies of life guaran- teed by the Constitution, and subject them to an espion- age unequalled by the conditions prevailing under the King's officers prior to the Revolution.

Messrs. Arthur E. Griffin, George F. Vanderveer, and Samuei B. Bassett, on a brief for petitioners in No. 532. The right to use the telephone, and the right of privacy in its enjoyment, are property rights which the courts have repeatedly upheld. It was precisely this right of privacy or secrecy in business matters which this Court protected in the Boyd case. The same was true in Weeks v. United States, 232 U. S. 383, where the article involved was a canceled lottery ticket having no pecuniary value what- ever and which had been seized by government agents solely for evidential purposes. In both of these cases this Court said that each of these Amendments threw much light upon the other because they were designed to remedy the same abuses. And it has always been held that any search and seizure was unreasonable under the provisions of the Fourth Amendment which had for its purpose the compulsory extortion of evidence, no matter what the form of the evidence, to be used in violation of the Fifth Amendment. In the Gouled case it was held immaterial whether the seizure of a man's papers was accompanied by force or threat of force, or whether it was accomplished by stealth.

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Argument for Petitioners. 277 U. S.

Ex parte Jackson condemned the "bare inspection" of letters in the mail, entirely without reference to the ques- tion whether the owner was thereby deprived of his papers or not. It was the violation of their privacy that was obnoxious to the law. See Cooley, Const. Lim., 7th ed., p. 424; Ex parte Brown, 7 Mo. App. 484; Silver- thorne Lumber Co. v. United States, 251 U. S. 385. None of these decisions can be reconciled with the narrow in- terpretation which the Solicitor General would place upon these Amendments. It is doubtless true that a message transmitted by telephone is in no sense a paper. But it is also true that privacy is as essential to the conduct of business by tele- phone or telegraph as by mail, and the courts have always been as ready to protect privacy in the one case as in the other. The Constitution was not written for a day or a year, nor can it be re-written to meet every changing cir- cumstance of our lives. For this reason Constitutions deal with principles. The Government suggests that the case can not be dis- tinguished from a case where a federal officer on a public street overhears conversations within a citizen's private residence, or where a federal officer joins a band of con- spirators and listens from day to day tp conversations in their homes and elsewhere. But it seems to us that both these cases are clearly distinguishable from the case at bar on the precise basis that in neither of them was there any wrongful invasion of any right of privacy, but on the contrary in both hypothetical cases the conspirators had themselves thrown privacy to the four winds and, of course, could not be heard to complain of the results of their own folly. Here it is appropriate to call attention to the statute of Washington forbidding the intercepting of telephone or telegraph messages, Remington's Comp. Stats., § 2656, Subdiv. 18, and to a federal statute passed by Congress in 1912 to protect the privacy of the radio.

OLMSTEAD v. UNITED STATES. 438 Argument for the United States.

The abuses of which'we complain in this case are iden- tical in kind with those to which the English people were subjected during the latter half of the Eighteenth Cen- tury, 6nd the speeches of Lord Chatham and James Otis, and the letters of Thomas Jefferson and John Adams, leave no doubt in our minds as to how they would have felt on the subject of having government agents tap their private telephone wires. Burdeau v. McDowell, 256 U. S. 465.

Mr. Michael J. Doherty, Special Assistant to the At- torney General, with whom Solicitor General Mitchell was on the brief, for the United States. The Fifth Amendment can only be invoked by first showing that there has been a violation of the Fourth Amendment. The third clause of the Fifth Amendment "nor shall (^) be compelled (^) in any criminal (^) case (^) to be a wit- ness against himself" merely gave constitutional sanc- tion to a rule of common law well established at the time fhe Constitution was adopted. 6 Jones on Evidence, 2d ed., § 2474; Twining v. New Jersey, 211 U. S. 78. Obviously the case has nothing to do with the provi- sion against self-incrimination in its original and primary sense, that is, the compulsion of the accused by legal process to produce in court evidence either testimonial or physical. Ordinarily evidence of incriminating oral statements made by the accused before, during, or after the commission of a crime, overheard by a witness and testified to by him in court, is always competent. The only inhibition against evidence in this form is that which forbids evidence of extorted confessions. Here there was neither extortion nor confession. There was no coercion, threat or promise. Moreover, the conversations were not in the .nature of confessions. They were a part and parcel of the criminal transaction. The prohibition officers, relating in court what they overheard, were testi-

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Argument for the United States. 277 U. S.

fying as immediate witnesses of the crime, as much so as would be (^) a witness who testified to having seen liquor delivered and the price paid. Aside from the rule against duress of legal process and extorted confessions, it was a fundamental and time- honored rule of common law that evidence was not ren- dered inadmissible in a criminal case by illegality of the means by which It was obtained. This rule of the com- mon law is still in force in England and Canada and in a majority of the States. The illegality dealt with in many of the state cases was the violation of the constitutional rights under provisions of state constitutions substan- tially identical with the Fourth Amendment. 5 Jones on Evidence, c. 22; Blakemore on Prohibition, 2d. ed., p. 519; Cornelius on Search and Seizure, p. 45; Search and Seizure, 8 Am. Bar. Ass'n Journal, p. 479; State v. Aime, 62 Utah 4-76; State v. Owens, 302 Mo. 348. In the light of Boyd v. United States, 116 U. S. 616; Adams v. New York, 192 U. S. 585; Weeks v: United States, 232 U. S. 383; Silverthorne Lumber Co. v. United States, 251 U. S. 385; Gouled v. United States, 255 U. S. 298; Agnello v. United States, 269 U. S. 20; Amos v. United States, 255 U. S. 313; Byars v. United States, 273 U. S. 28; and Marron v. United States, 275 U. S. 192, it is not open to question that evidence obtained by federal officers in violation of the Fourth Amendment is inadmis- sible as evidence in criminal trials in federal courts. To that extent the common law rule and anything said to the contrary in the Adams case has been abandoned. The limits of this departure from the common law rule are, however, definite. The reason for it appears to be the cl9se interrelation that is conceived to exist between the Fourth and the Fifth Amendments. It has never been extended to evidence obtained illegally in the (^) gen- eral sense, but only where the illegality (^) amounts to a violation of the Fourth Amenadment. (^) Evidence obtained

OLMSTEAD v. UNITED STATES. 438 Argument for the United States.

by trespass, fraud, unethical or even criminal methods, is

admissible if the Fourth Amendment be not violated.

5 Jones on Evidence, §§ 2075 et seq.; Adams v. New York,

supra; Hester v. United States, 265 U. S. 57; McGuire v.

United States, 273 U. S. 95; Koths v. United States, 16

F. (2d) 59; United States v. Mandel, 17 F. (2d) 270.

The Fifth Amendment therefore is not involved in this

case, unless it^ can^ be^ invoked^ as^ a^ result^ of^ a^ violation^ of

the Fourth Amendment.

The Fourth Amendment was^ the^ direct^ consequence^ of

two abuses practiced by the English Government-the

use of general warrants and the use of writs of assistance.

The Wilkes and Entick cases, in their criminal and civil

aspects, attracted universal attention and aroused tre-

mendous opposition to the use of general warrants, re-

sulting in their condemnation by^ the^ courts^ and^ a^ decla-

ration of their illegality by the House of Commons.

May, Const. Hist. of England, p. 110 et seq ; 1 Cooley,

Const. Lim., 8th ed., p. 612; Boyd v.^ United^ States,^ supra;

19 How. State Trials, 1029, 1153.

The use of writs of assistance in the American^ Colonies

was authorized by the Act of Parliament of 1767, 7 Geo.

III, c. 46. The use of the writs soon led to great public

agitation and opposition, -particularly in Massachusetts,

led by James Otis, but their use continued to the out-

break of the Revolution. 3 Channing, Hist. of U. S.,

pp. 1-5 and 114. Knowledge and apprehension of these

avuses-warrants and writs--was fresh in the^ minds^ of

the colonial statesmen^ when^ it^ came^ to^ framing^ the

Constitution.

The Virginia Constitution^ had^ already^ adopted^ a^ bill

of rights, of which § 10 was as follows:

"That general warrants, whereby^ an^ officer^ or^ messen-

ger may be commanded to search suspected places with-

out evidence of a fact committed, or to seize any person

or persons not named, or -whose offense is not particu-

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Argument for the United States. 277 U. S.

larly described and supported by evidence, are grievous and oppressive, and ought not to be granted." An (^) amendment to the Federal Constitution similar to this was proposed by the Virginia ratification convention. Journal of the Convention of Virginia, p. 34. (^) As intro- duced by James Madison at the first session of Congress it read:. "The right of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be vio- lated by warrants issued without probable cause, sup- ported by oath or affirmation, or not particularly describ- ing the (^) places to be searched, or the persons or things to be seized." Annals (^) of Congress, Vol. I, col. 434. A committee of one member from each State was ap- pointed to consider and report such amendments as (^) ought to be proposed by Congress to the legislatures (^) of the States. (^) In the report of this committee was piroposed an amendment (^) differing but slightly from that originally proposed by Madison. The word (^) "effects" was substi- tuted for the words "other property." Mr. Gerry, saying that he presumed there was (^) a mistake in the wording of the clause, moved that it be (^) amended to read: "The right of the people to be secured in their persons, houses, papers, and effects against unreasonable seizures and searches.. ." Annals of Congress, Vol. (^) I, col. 754. The amendment came out of conference committee in its present form, and we have no light as to (^) the reason for the further change in phraseology. It (^) is quite apparent that the principal, if not the sole, peril (^) in the minds of those who advocated the amendment and against which its protection was intended was the use of general war- rants and the writs of assistance. In Boyd v. United States, supra, the Court said that the judgment (^) of Lord Camden in Entick v..Carrington might be considered as sufficiently explanatory of what (^) was

OLMSTEAD v. UNITED STATES. 438 Argument for the United States.

meant by (^) unreasonable searches and seizures; and Chief Justice Taft in the Carroll case said that the Fourth Amendment is to be construed in the light (^) of what' was deemed an unreasonable search and seizure (^) when it was adopted. This Court has frequently said that the Fourth and Fifth Amendments (^) should be construed liberally; but it is submitted (^) that by no liberality of construction can a conversation passing over a telephone wire (^) become a "house," no^ more^ can^ it^ become^ a^ "person,"^ a^ "paper,") or an "effect." "Effects" is the least definite of the four words. This Court has said of (^) "effects" that-- "when the word is used alone, (^) or simpliciter, it means all kinds (^) of personal estate.. .. But if there be some word (^) used with it, restraining its meaning, then it is gov- erned by that, or means (^) something ejusdem generis." Planters Bank (^) v. Sharp, 6 How. 301, .321. Giving to the word its literal import, the sense in which it is generally understood, its natural significance taken in connection (^) with the context in which it appears, it does not seem possible to include (^) within its meaning anything other than tangible personal property, or to extend it to include a telephone conversation or any intangible right of privacy of the parties (^) with respect to such conversation. Petitioners are urging the extension of the Fourth Amendment into a new field, (^) the limits of which are difficult to define. If evidence obtained by tapping (^) tele- phone wires at points not in private dwellings is (^) excluded on constitutional grounds, on the same principle (^) would not all manner (^) of evidence gathered by ruse or entrap- ment have to (^) be excluded? Suppose -an officer obtains access to a telephone (^) on a party line and listens to in- criminating conversations of other parties having tele- phones on (^) the line; suppose that, instead of tapping a wire, he goes to the telephone exchange and, wih or without permission of the operator, plugs in (^) on a private

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Argument for Telephone Companies. 277 U. S.

line and listens; suppose he^ leases^ an^ office^ and^ puts^ a dictaphone in the wall of^ the^ adjoining^ office^ and^ listens; suppose without trespassing he is^ able^ to^ put^ his ear^ to the keyhole of the door of an office or house^ and^ listens; suppose he pretends to join a conspiracy and^ thereby gains access to the inner councils of the conspirators and hears the hatching of their criminal^ schemes.^ These^ ex- amples, varying into slight shades of distinction, might be multiplied indefinitely to show the^ extremes^ to^ which the principle contended for would lead. Once^ cut^ loose from the fair literal import^ of^ the^ language^ of^ the^ Amend- ment, apd^ there^ is^ no^ place^ to^ anchor. In the construction of the Amendment a balance should be sought between that which will preserve the^ funda- mental safeguard which the Amendment was designed to secure, and at the same time not unduly fetter the arm of the Government in the enforcement of^ law.^ The^ prac- tical aspect^ of^ the^ problem^ is^ forcibly^ expressed^ in People v. Mayen, 188 Cal. 237. If, in any circumstances, obtaining evidence by tapping wires is deemed an objectionable governmental practice, it may be regulated or forbidden by statute, or avoided by officers of the law, but clearly the Constitution does not forbid it unless it involves actual unlawful entry into a house.

Messrs. Otto B. Rupp, Charles M. Bracelen, Robert H. Strahan, and Clarence B. Randall on behalf of The Pacific Telephone and^ Telegraph^ Company,^ American^ Telephone and Telegraph Company, United States Independent Telephone Association, and the Tri-State Telephone^ and Telegraph Company, as amici curiae, filed a^ brief^ by special leave of Court. The petitioners were using the telephone lines and facilities of^ the^ local^ telephone^ company,^ such^ as^ were available to everyone without discrimination. The^ func-

OLMSTEAD v. UNITED STATES. 438 Argument for Telephone Companies.

tion of a telephone system in our modern economy is, so far as reasonably practicable, to enable any two persons. at a distance to converse privately with each other as they might do if both were personally present in the privacy of the home or office of either one. When the lines of two" parties" are connected at the central office, they are intended to be devoted to their exclusive use, and in that sense to be turned over to their exclusive posses- sion. A third person who taps the lines violates the property rights of both persons then using the telephone, and of the telephone company as well. Internat'l News Service v. Associated Press, 248 U. S. 215. It is of the very nature of the telephone service that it shall be private; and hence it is that wire tapping has been made an offense punishable either as a felony or misdemeanor by the legislatures of twenty-eight States, and that in thirty-five States there are statutes in some form intended to prevent the disclosure of telephone or telegraph messages, either by connivance with agents, of the companies or otherwise. The wire tapper destroys this privacy. He (^) invades the :'personi*" of the citizen, (^) and his "house," secretly and without warrant. Having regard to the substance of things, he would not do this more truly if he secreted himself in the home of the citizen. In view of what this Court has held as to the intent and scope of the Fourth and Fifth Amendments, it would not seem necessary to enter into any meticulous exami- nation of their precise words. But if that be done, does not wire tapping involve an " unreasonable search," of the "house" and of the "person "? There is of course no search warrant, as in the nature of the case there could not be. If the agent should secrete himself in the house or office to examine documents, w6uld not that constitute a "search "? Is the case any different in the eyes of the law if from a distance the agent physically

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Argument for Telephone Companies. 277 U. S.

enters upon the property of the citizen, as he does when he taps the wire, and^ from^ that^ point^ projects^ himself into the house? Certainly in its practical aspect the latter case is worse than the first, because the citizen is utterly helpless to detect the^ espionage^ to^ which^ he^ is subjected. If it be said that, in any event, there is no "seizure," that an oral conversation cannot be seized, we answer, in the first place, that this is a purely superficial view, which puts the letter above the spirit and intent of the law. The "privacy of life" and the liberty of the citizen have been invaded. And, in the second place, we do not understand that seizure is a necessary element to consti- tute the offense. An unreasonable search alone violates the Fourth Amendment. It is enough that the federal officer has made an unreasonable search, within the mean- ing of the Fourth Amendment, and has thereby unlaw- fully obtained evidence. The evidence so obtained is excluded under the provisions of^ the^ Fifth^ Amendment. The Government itself provides the mail service, a public service, and the Government authorizes the tele- phone company to provide the telephone service, also a public service. It is settled that the communication in the mail is protected. Upon what reason, then, can it be said that the communication by telephone^ is^ not protected? The telephone^ has^ become^ part^ and^ parcel^ of^ the^ social and business intercourse of the people of the United States, and the telephone system^ offers^ a^ means^ of espio- nage compared to which general^ warrants^ and^ writs^ of assistance were the puniest instruments of^ tyranny^ and oppression. The telephone companies deplore the use of their facili- ties in furtherance of any criminal or wrongful enterprise. But it^ was^ not^ solicitude^ for^ law^ breakers^ that^ caused^ the people of the United States to ordain the Fourth and

OLMSTEAD v. UNITED STATES.

438 Opinion^ of^ the^ Court.

Fifth Amendments as part of the Constitution. Crimi-

nals will not escape detection and conviction merely be- cause evidence obtained by tapping^ wires^ of^ a^ public^ tele- phone system is inadmissible, if it should be so held; but, in any event, it is^ better^ that^ a^ few^ criminals^ escape^ than that the privacies of life of^ all^ the^ people^ be^ exposed^ to the agents of the Government, who will act at their own discretion, the honest and the dishonest, unauthorized and unrestrained by the courts. Legislation^ making^ wire tapping a crime will not suffice if the courts nevertheless hold the evidence to be lawful. Writs^ of^ assistance^ might have been abolished by statute, but the people were wise to abolish them by the Bill of Rights.

MR. GumF JUSTICE TAFT delivered the^ opinion^ of^ the

Court.

These cases are here^ by^ certiorari^ from^ the^ Circuit Court of Appeals for the Ninth Circuit. 19 F. (2d) 842 and 850. The petition.in No. 493 was filed August 30, 1927; in Nos. 532 and 533, September 9,^ 1927.^ They were granted with the distinct limitation that^ the^ hear- ing should^ be^ confined^ to^ the^ single^ question^ whether^ the use of evidence^ of^ private^ telephone^ conversations^ be- tween the defendants and others, intercepted by^ means of wire tapping, amounted^ to^ a^ violation^ of^ the^ Fourth and Fifth Amendments. The petitioners were convicted in the District Court for the Western District of^ Washington^ of^ a^ conspiracy to violate the National Prohibition Act by unlawfully possessing, transporting and importing, intoxicating liquors and maintaining nuisances, and by selling in- toxicating liquors. Seventy-two others in addition to the petitioners were indicted. Some were not apprehended, some were acquitted and others pleaded guilty. The evidence in the records discloses a conspiracy of amazing magnitude to import, possess^ and^ sell^ liquor^ ui-

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Opinion of the Court. 277 U. S.

lawfully. It involved the employment (^) of not less than fifty persons, of two seagoing vessels for the transporta- tion of liquor to British Columbia, of smaller vessels (^) for coastwise (^) transportation to the State of Washington, the purchase (^) and use of a ranch beyond ,the suburban limits of Seattle, with a large underground cache for storage and (^) a number of smaller caches in that city, the main- tenance of a central (^) office manned with operators, the em- ployment of executives, salesmen, deliverymen, (^) dispatch- ers, scouts, bookkeepers, collectors (^) and an attorney. In a bad month sales amounted to $176,000; (^) the aggregate for a year must have exceeded (^) two millions of dollars. Olmstead was the leading conspirator and the general manager of the business. He made a contribution (^) of $10,000 to the capital; eleven others contributed $1, each. The profits were divided one-half (^) to Olnstead and the remainder to the (^) other eleven. Of the several offices in Seattle the chief one was in a large office building. In this there were three telephones (^) on three different lines. There were telephones in an office of the manager in his own home, at (^) the homes of his associates, and at other places (^) in the city. Communication was had frequently with Vancouver, British (^) Columbia. Times were fixed for the deliveries of the "stuff," (^) to places along Puget Sound near Seattle and (^) from there the liquor was re- moved and deposited in the (^) caches already referred to. One of the chief men was (^) always on duty at the main office to receive orders by telephones (^) and to direct their filling by (^) a corps of men stationed in another room-the "bull pen." The call numbers of the (^) telephones were given to those known to be likely customers. At times the sales amounted to 200 cases of liquor per day. The information which led to the discovery (^) of the conspiracy and its nature and extent was largely obtained by intercepting messages on the telephones (^) of the con- spirators (^) by four federal prohibition officers. Small

OLMSTEAD v. UNITED STATES.

438 Opinion of the Court.

wires were inserted along the ordinary telephone wires from the residences of four of the petitioners and those leading from the chief office. The insertions were made without trespass upon any property of the defendants. They were made in the basement of the large office build- ing. The taps from house lines were made in the streets near the houses. The gathering of evidence continued for many months. Conversations of the conspirators of which refreshing stenographic notes were currently made, were testified to by the government witnesses. They revealed the large business transactions of the partners and their subor- dinates. Men at the wires heard the orders given (^) for liquor by customers and the acceptances; they (^) became auditors of the conversations between (^) the partners. All this disclosed the conspiracy charged in the indictment. Many of the intercepted (^) conversations were not merely reports but parts of the criminal acts. The evidence also disclosed the difficulties to which the conspirators were subjected, the reported news of the capture (^) of vessels, the arrest of their men and the seizure of cases of liquor in garages and other (^) places. It showed the dealing by Olm- stead, (^) the chief conspirator, with members of the Seattle police, the messages to them which secured the release of arrested members of the conspiracy, and also direct prom- ises to. officers of payments as soon as opportunity offered. The Fourth Amendment provides--" The right of the people to be secure in (^) their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon prob- able cause, supported by oath or affirmation and par- ticularly describing the place to be searched (^) and the persons or things to be (^) seized." And the Fifth: "No person. (^) shall be compelled, in any criminal case, to be a witness against himself."

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Opinion of the Court. 277 U. S.

It will be helpful to consider the chief cases in this Court which bear upon the construction of these Amend- ments. Boyd v. United States, 116 U. S. 616, was an informa- tion filed by the District Attorney in the federal court in a cause of seizure and forfeiture against thirty-five cases of plate glass, which charged that the owner and importer, with intent to defraud the revenue, made an entry of the imported merchandise by means of a fraudulent or false invoice. It became important to show the quantity and value of glass contained in twenty-nine cases previously imported. The fifth section of the Act of June 22, 1874, provided that in cases not criminal under the revenue laws, the United States Attorney, whenever he thought an invoice, belonging to the defendant, would tend to prove any allegation made by the United States, might by a written motion describing the invoice and setting forth the allegation which he expected to prove, secure a notice from the court to the defendant to produce the invoice, and if the defendant refused to produce it, the allegations stated in the motion should be taken as confessed, but if produced, the United States Attorney should be permitted, under the direction of the court, to make an examination of the invoice, and might offer the same i 1 evidence. This Act had succeeded the Act of 1867, which provided that in such cases the District Judge, pn affidavit of any person interested, might issue a warrant to the marshal to enter the premises where the invoice was and take possession of it and hold it subject to the order of the judge. This had been preceded by the Act of 1863 of a similar tenor, except that it directed the warrant to the collector instead of the marshal. The United States Attorney followed the Act of 1874 and compelled the production of the invoice. The court held the Act of 1874 repugnant to the Fourth and Fifth Amendments. As to the Fourth Amendment, Justice Bradley said (page 621):

OLMSTEAD v.^ UNITED^ STATES.

438 Opinion of the Court.

"But, in regard to the Fourth Amendment, it is^ con- tended that, whatever might have been alleged against the constitutionality of the acts of 1863 and 1867, that of 1874, under which the order in the present case was made, is free from constitutional objection because it does not authorize the search and seizure of books and papers, but only re- quires the defendant or claimant to produce them. That is so; but it declares that if he does not produce them, the allegations which it is affiried they will prove shall be taken as confessed. This is tantamount to compelling their production; for the prosecuting attorney will always be sure to state the evidence expected to be derived from them as strongly as the case will admit of. , It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man's house and gearching amongst his papers, are wanting, and to this extent the proceeding under the Act of 1874 is a mitigation of that which was authorized by the former acts; but it accom- plishes the substantial object of those acts in forcing from a party evidence against himself. It is our opinion, there- fore, that a compulsory production of a man's private papers to establish a criminal charge against him, (^) or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure would be; because it is a material in- gredient, and effects the sole object and purpose of search and seizure."

Concurring, Mr. Justice Miller and Chief Justice Waite said that *they did not think the machinery used to get this evidencd amounted to a search and seizure, but they agreed that the Fifth Amendment had been violated. The statute provided an official demand for the pro- duction of a paper or document by the defindant for offi- cial search and use as evidence on penalty that by refusal he should be conclusively held to.admit the incriminat-

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Opinion of the Court.^277 U.^ S.

ing character of the document as charged. It was cer- tainly no straining of the^ language^ to^ construe^ the^ search and seizure under the Fourth Amendment to include such official procedure. The next case, and perhaps the most important, is Weeks v. United States, 232 U. S. 383,--a conviction for using the mails to transmit coupons or tickets in a lottery enterprise. The defendant was arrested by a police (^) offi- cer without a warrant. After his arrest other police officers and the United States marshal went to his house, got the key from a neighbor, entered the defendant's room and searched it, and took possession of various papers and articles. Neither the marshal nor the police officers had a search warrant. The defendant filed a petition in court asking the return of all his property. The court ordered the return of everything not pertinent to the charge, but denied return of relevant evidence. After the jury was sworn, the defendant again made objection, and on intro- duction of the papers (^) contended that the search without warrant was a violation (^) of the Fourth and Fifth Amend- ments and they were therefore inadmissible. This court held that such taking of papers by an official of the United States, acting under color of his office, was in violation of the constitutional rights of the defendant, and upon making seasonable application he was (^) entitled to have them restored, and that by permitting their use upon the trial, the trial court erred. The (^) opinion cited with approval language of Mr. Jus- tice (^) Field in Ex parte Jackson, 96 U. S. 727, 733, saying that the Fourth Amendment as a principle of protection was applicable to sealed letters and packages (^) in the mail and that, consistently with it, (^) such matter could only be opened and examined upon (^) warrants issued on oath or affirmation particularly (^) describing the thing to be seized. In Silverthorne Lumber Company v. United States, 251 U. S. 385, the defendants were arrested at their homes and

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438 Opinion^ of^ the^ Court.

detained in custody. While so detained, representatives of the Government without authority went to^ the^ office of their company and seized all the books,^ papers^ and documents found there. An application for^ return^ of^ the things was opposed by the District Attorney, who pro- duced a subpoena for certain documents relating to the charge in the indictment then on file. The court said: "Thus the case is not that of knowledge acquired through the wrongful act of a stranger, but it must be assumed that the Government planned or at all events ratified the whole performance." And it held that the illegal character of the original seizure characterized the entire proceeding and under the Weeks case the seized papers must be restored. In Amos v. United States, 255 U. S. 313, the defendant was convicted of concealing whiskey on which the tax had not been paid. At the trial he presented a petition ask- ing that private property seized in a search of his house and store "within his curtlage," without warrant should be returned. This was denied. A woman, who claimed to be his wife, was told by the revenue officers that they had come to search the premises for violation of the reve- nue law. She opened the door; they entered and found whiskey. Further searches in the house disclosed more. It was held that this action constituted a violation of the Fourth Amendment, and that the denial of the motion to restore the whiskey and to exclude the testimony was error. In Gouled v. The United States, 255 U. S. 298, the facts were these: Gouled and two others were charged with conspiracy to defraud the United States. One pleaded guilty and another was acquitted.- Gouled prosecuted error. The matter was presented here on questions pro- pounded by the lower court. The first related to the ad- mission in evidence of a paper surreptitiously taken from the office of the defendant by one acting under the direc-

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Opinion of the Court. 277 U. S.

tion of an officer of the Intelligence Department of the Army of the United States. Gouled was suspected of the crime. A private in the U. S. Army, pretending to make a friendly call on him, gained admission to his office and in his absence, without warrant of any character, seized and carried away several documents. One of these be- longing to Gouled, was delivered to the United States Attorney and by him introduced in evidence. When pro- duced, it was a surprise to the defendant. He had had no opportunity to make a previous^ motion^ to^ secure^ a return of it. The paper had no pecuniary value, but was relevant to the issue made on the trial. Admission of the paper was considered a violation of the^ Fourth Amendment. Agnello v. United States, 269 U. S. 20, held that the Fourth and^ Fifth^ Amendments^ were^ violated^ by^ admis- sion in evidence of contraband narcotics found in de- fendant's house, several blocks distant from the place of arrest, after his arrest, and seized there without a war-: rant. Under such circumstances the .seizure could not be justified as incidental' to the arrest. 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 busi- ness without knowledge of the interception. Our consid- eration must be confined to the Fourth Amendment. The striking outcome^ of^ the^ Weeks^ case^ and^ those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really^ forbade^ its^ introduc- tion if obtained by government officers through a viola,, tion of the Amendment. Theretofore many had supposed that under the ordinary common law rules, if the tendered evidence wag pertinent, the method of obtaining .it was