U.S. Supreme Court OLMSTEAD v. U.S., 277 U.S. 438 (1928)

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Moreover, 'in the application of a Constitution, our contemplation cannot be only of what has been, but of what may be.' The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of every man in the hands of every petty officer' was said by James Otis of much lesser intrusions than these. 1 To Lord Camden a far slighter intrusion seemed 'subversive of all the comforts of society.' [Footnote 2] Can it be that the Constitution affords no protection against such invasions of individual security?

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fraud,9 or in the orderly process of a court's procedure. [Footnote 10] From these decisions, it follows necessarily that the amendment is violated by the officer's reading the paper without a physical seizure, without his even touching it, and that use, in any criminal proceeding, of the contents of the paper so examined-as where they are testified to by a federal officer who thus saw the document or where, through knowledge so obtained, a copy has been procured elsewhere11-any such use constitutes a violation of the Fifth Amendment.

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in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

Applying to the Fourth and Fifth Amendments the established rule of construction, the defendants' objections to the evidence obtained by wire tapping must, in my opinion, be sustained. It is, of course, immaterial where the physical connection with the telephone wires leading into the defendants' premises was made. And it is also immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. [Footnote 12]

Independently of the constitutional question, I am of opinion that the judgment should be reversed. By the laws of Washington, wire tapping is a crime. [Footnote 13] Pierce's

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federal prosecution. Here the evidence obtained by crime was obtained at the government's expense, by its officers, while acting on its behalf; the officers who committed these crimes are the same officers who were charged with the enforcement of the Prohibition Act; the crimes of these officers were committed for the purpose of securing evidence with which to obtain an indictment and to secure a conviction. The evidence so obtained constitutes the warp and woof of the government's case. The aggregate of the government evidence occupies 306 pages of the printed record. More than 210 of them are filled by recitals of the details of the wire tapping and of facts ascertained thereby. [Footnote 14] There is literally no other evidence of guilt on the part of some of the defendants except that illegally obtained by these officers. As to nearly all the defendants (except those who admitted guilt), the evidence relied upon to secure a conviction consisted mainly of that which these officers had so obtained by violating the state law.

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crime on behalf of the United States. It may be assumed that the Attorney General of the United States did not give any such instruction. [Footnote 15]

When these unlawful acts were committed they were crimes only of the officers individually. The government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the government, having full knowledge, sought, through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers' crimes. Compare the Paquete Habana, 189 U.S. 453, 465, 23 S. Ct. 593; O'Reilly de Camara v. Brooke, 209 U.S. 45, 52, 28 S. Ct. 439; Dodge v. United States, 272 U.S. 530, 532, 47 S. Ct. 191; Gambino v. United States, , 48 S. Ct. 137, and if this court should permit the government, by means of its officers' crimes, to effect its purpose of punishing the defendants, there would seem to be present all the elements of a ratification. If so, the government itself would become a lawbreaker.

Will this court, by sustaining the judgment below, sanction such conduct on the part of the executive? The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. [Footnote 16] The maxim of unclean hands comes

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spoken of as a rule of substantive law. But it extends to matters of procedure as well. [Footnote 20] A defense may be waived. It is waived when not pleaded. But the objection that the plaintiff comes with unclean hands will be taken by the court itself. [Footnote 21] It will be taken despite the wish to the contrary of all the parties to the litigation. The court protects itself.

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The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words. That construction is consonant with sound reason and in full accord with the course of decisions since McCulloch v. Maryland. That is the principle directly applied in the Boyd Case.

When the facts in these cases are truly estimated, a fair application of that principle decides the constitutional question in favor of the petitioners. With great deference, I think they should be given a new trial.

Mr. Justice STONE (dissenting).

I concur in the opinions of Mr. Justice HOLMES and Mr. Justice BRANDEIS. I agree also with that of Mr. Justice BUTLER so far as it deals with the merits. The effect of the order granting certiorari was to limit the argument to a single question, but I do not understand that it restrains the court from a consideration of any question which we find to be presented by the record, for, under Judicial Code, 240(a), 28 USCA 347(a), this court determines a case here on certiorari 'with the same power and authority, and with like effect, as if the cause had been brought (here) by unrestricted writ of error or appeal.' Footnotes

Footnote 1 Otis' argument against Writs of Assistance. See Tudor, James Otis, p. 66; John Adams' Works, vol. II, p. 524; Minot, Continuation of the History of Massachusetts Bay, vol. II, p. 95.

Footnote 2 Entick v. Carrington, 19 Howell's State Trials, 1030, 1066.

Footnote 3 In Interstate Commerce Commission v. Brimson, 154 U.S. 447, 479, 155 U.S. 3, 14 S. Ct. 1125, 15 S. Ct. 19, the statement made in the Boyd Case was repeated, and the court quoted the statement of Mr. Justice Field in Re Pacific Railway Commission (C. C.) 32 F. 241, 250: 'Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all other rights would lose half their value.' The Boyd Case has been recently reaffirmed in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, in Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, and in Byars v. United States, 273 U.S. 28, 47 S. Ct. 248.

Footnote 4 Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261.

Footnote 5 Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Amos v. United States, 255 U.S. 313, 41 S. Ct. 266; Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4; Byars v. United States, 273 U.S. 28, 47 S. Ct. 248.

Footnote 6 Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524; Hale v. Henkel, 201 U.S. 43, 70, 26 S. Ct. 370; Silverthorne Lumber Co. v. United States, , 40 S. Ct. 182; Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261; Marron v. United States, 275 U.S. 192, 48 S. Ct. 74.

Footnote 7 Ex parte Jackson, 96 U.S. 727, 733; Carroll v. United States, 267 U.S. 132, 156, 45 S. Ct. 280, 39 A. L. R. 790; Gambino v. United States, , 48 S. Ct. 137, 52 A. L. R. 1381.

Footnote 8 Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182; Amos v. United States, 255 U.S. 313, 41 S. Ct. 266; Carroll v. United States, 267 U.S. 132, 156, 45 S. Ct. 280, 39 A. L. R. 790; Agnello v. United States, , 46 S. Ct. 4; Gambino v. United States, 275 U.S. 310, 48 S. Ct. 137, 52 A. L. R. 1381.

Footnote 9 Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261.

Footnote 10 Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524; Hale v. Henkel, 201 U.S. 43, 70, 26 S. Ct. 370. See Gouled v. United States, , 41 S. Ct. 261; Byars v. United States, 273 U.S. 28, 47 S. Ct. 248; Marron v. United States, 275 U.S. 192, 48 S. Ct. 74.

Footnote 11 Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182. Compare Gouled v. United States, 255 U.S. 298, 307, 41 S. Ct. 261. In Stroud v. United States, , 40 S. Ct. 50, and Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, the letter and articles admitted were not obtained by unlawful search and seizure. They were voluntary disclosures by the defendant. Compare Smith v. United States (C. C. A.) 2 F.(2d) 715; United States v. Lee, 274 U.S. 559, 47 S. Ct. 746.

Footnote 12 The point is thus stated by counsel for the telephone companies, who have filed a brief as amici curiae: 'Criminals will not escape detection and conviction merely because evidence obtained by tapping wires of a public telephone 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.'

Footnote 13 In the following states it is a criminal offense to intercept a message sent by telegraph and/or telephone: Alabama, Code 1923, 5256; Arizona, Revised Statutes 1913, Penal Code, 692; Arkansas, Crawford & Moses' Digest, 1921, 10246; California, Deering's Penal Code 1927, 640; Colorado, Compiled Laws 1921, 6969; Connecticut, General Statutes 1918, 6292; Idaho, Compiled Statutes 1919, 8574, 8586; Illinois, Revsied Statutes 1927, c. 134, 16; Iowa, Code 1927, 13121; Kansas, Revised Statutes 1923, c. 17, 1908; Michigan Compiled Laws 1915, 15403; Montana, Penal

Code 1921, 11518; Nebraska, Compiled Statutes 1922, 7115; Nevada, Revised Laws 1912, 4608, 6752(18); New York, Consolidated Laws, c. 40, 1423(6); North Dakota, Compiled Laws 1913, 10231; Ohio, Page's General Code 1926, 13402; Oklahoma, Session Laws 1923, c. 46; Oregon, Olson's Laws 1920, 2265; South Dakota, Revised Code 1919, 4312; Tennessee, Shannon's Code 1917, 1839, 1840; Utah, Compiled Laws 1917, 8433; Virginia, Code 1924, 4477(2), (3); Washington, Pierce's Code 1921, 8976(18); Wisconsin, Statutes 1927, 348.37; Wyoming, Compiled Statutes 1920, 7148. Compare State v. Behringer, 19 Ariz. 502, 172 P. 660; State v. Nordskog, 76 Wash. 472, 136 P. 694, 50 L. R. A. (N. S.) 1216.

In the following states it is a criminal offense for a company engaged in the transmission of messages by telegraph and/or telephone, or its employees, or, in many instances, persons conniving with them, to disclose or to assist in the disclosure of any message: Alabama, Code 1923 , 5543, 5545; Arizona, Revised Statutes 1913, Penal Code, 621, 623, 691; Arkansas, Crawford & Moses' Digest 1921, 10250; California, Deering's Penal Code 1927, 619, 621, 639, 641; Colorado, Compiled Laws 1921, 6966, 6968, 6970; Connecticut, General Statutes 1918, 6292; Florida, Revised General Statutes 1920, 5754, 5755; Idaho, Compiled Statutes 1919, 8568, 8570; Illinois, Revised Statutes 1927, c. 134, 7, 7a; Indiana, Burns' Revised Statutes 1926, 2862; Iowa, Code 1924, 8305; Louisiana, Acts 1918, c. 134, p. 228; Maine, Revised Statutes 1916, c. 60, 24; Maryland, Bagby's Code 1926, art. 27, 489; Michigan, Compiled Statutes 1915, 15104; Minnesota, General Statutes 1923, 10423, 10424; Mississippi, Hemingway's Code 1927, 1174; Missouri, Revised Statutes 1919, 3605; Montana, Penal Code 1921, 11494; Nebraska, Compiled Statutes 1922, 7088; Nevada, Revised Laws 1912, 4603, 4605, 4609, 4631; New Jersey, Compiled Statutes 1910, p. 5319; New York, Consolidated Laws, c. 40, 552, 553; North Carolina, Consolidated Statutes 1919, 4497, 4498, 4499; North Dakota, Compiled Laws 1913, 10078; Ohio, Page's General Code 1926, 13388, 13419; Oklahoma, Session Laws 1923, c. 46; Oregon, Olson's Laws 1920, 2260, 2262, 2266; Pennsylvania. Statutes 1920, 6306,

6308, 6309; Rhode Island, General Laws, 1923, 6104; South Dakota, Revised Code 1919, 4346, 9801; Tennessee, Shannon's Code 1917, 1837, 1838; Utah, Compiled Laws 1917, 8403, 8405, 8434; Washington, Pierce's Code 1921, 8982, 8983; Wisconsin, Statutes 1927, 348.36.

The Alaska Penal Code, Act of March 3, 1899, c. 429, 30 Stat. 1253, 1278, provides that, 'if any officer, agent, operator, clerk, or employee of any telegraph company, or any other person, shall wilfully divulge to any other person than the party from whom the same was received, or to whom the same was addressed, or his agent or attorney, any message received or sent, or intended to be sent, over any telegraph line, or the contents, substance, purport, effect, or meaning of such message, or any part thereof, ... the person so offending shall be deemed guilty of a misdemeanor, and shall be punished by a fine not to exceed one thousand dollars or imprisonment not to exceed one year, or by both such fine and imprisonment, in the discretion of the court.'

The Act of October 29, 1918, c. 197, 40 Stat. 1017 (Comp. St. 3115 3/4 xx), provided: 'That whoever during the period of governmental operation of the telephone and telegraph systems of the United States ... shall, without authority and without the knowledge and consent of the other users thereof, except as may be necessary for operation of the service, tap any telegraph or telephone line, or wilfully interfere with the operation of such telephone and telegraph systems or with the transmission of any telephone or telegraph message, or with the delivery of any such message, or whoever being employed in any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any person not duly authorized or entitled to receive the same, shall be fined not exceeding $1,000 or imprisoned for not more than one year, or both.'

The Radio Act of February 23, 1927, c. 169, 27. 44 Stat. 1162, 1172 ( 47 USCA 107), provides that 'no person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purport, effect, or meaning of such intercepted message to any person.'

Footnote 14 The above figures relate to case No. 493. In Nos. 532, 533, the government evidence fills 278 pages, of which 140 are recitals of the evidence obtained by wire tapping.

Footnote 15 According to the government's brief, p. 41, 'The Prohibition Unit of the Treasury disclaims it (wire tapping) and the Department of Justice has frowned on it.' See, also, 'Prohibition Enforcement,' 69th Congress, 2d Session, Senate Doc. No. 198, pp. iv, v, 13, 15, referred to committee, January 25, 1927; also same, part 2.

Footnote 16 See Hannay v. Eve, 3 Cranch, 242, 247; Bank of the United States v. Owens, 2 Pet. 527, 538; Bartle v. Nutt, 4 Pet. 184, 188; Kennett v. Chambers, 14 How. 38, 52; Marshall v. Baltimore & Ohio R. R. Co., 16 How. 314, 334; Tool Co. v. Norris, 2 Wall. 45, 54; The Ouachita Cotton, 6 Wall. 521, 532; Coppell v. Hall, 7 Wall. 542; Forsyth v. Woods, 11 Wall. 484, 486; Hanauer v. Doane, 12 Wall. 342, 349; Trist v. Child, 21 Wall. 441, 448; Meguire v. Corwine, 101 U.S. 108, 111; Oscanyan v. Arms Co., 103 U.S. 261; Irwin v. Williar, 110 U.S. 499, 510, 4 S. Ct. 160; Woodstock Iron Co. v. Richmond & Danville Extension Co., , 9 S. Ct. 402; Gibbs v. Consolidated Gas Co., 130 U.S. 396, 411, 9 S. Ct. 553; Embrey v. Jemison, 131 U.S. 336, 348, 9 S. Ct. 776; West v. Camden, 135 U.S. 507, 521, 10 S. Ct. 838; McMullen v. Hoffman, 174 U.S. 639, 654, 19 S. Ct. 839; Hazelton v. Sheckells, , 26 S. Ct. 567, 6 Ann. Cas. 217; Crocker v. United States, 240 U.S. 74, 78, 36 S. Ct. 245. Compare Holman v. Johnson, 1 Cowp. 341.

Footnote 17 See Creath's Administrator v. Sims, 5 How. 192, 204; Kennett v. Chambers, 14 How. 38, 49; Randall v. Howard, 2 Black, 585, 586; Wheeler v. Sage, 1 Wall. 518, 530; Dent v. Ferguson, 132 U.S. 50, 64, 10 S. Ct. 13; Pope Manufacturing Co. v. Gormully, 144 U.S. 224, 236, 12 S. Ct. 632; Miller v. Ammon, 145 U.S. 421, 425, 12 S. Ct. 884; Hazelton v. Sheckells, 202 U.S. 71, 79, 26 S. Ct. 567, 6 Ann. Cas. 217. Compare International News Service v. Associated Press, 248 U.S. 215, 245, 39 S. Ct. 68, 2 A. L. R. 293.

Footnote 18 Compare State v. Simmons, 39 Kan. 262, 264, 265, 18 P. 177; State v. Miller, 44 Mo. App. 159, 163, 164; In re Robinson, 29 Neb. 135, 45 N. W. 267, 8 L. R. A. 398, 26 Am. St. Rep. 378; Harris v. State, 15 Tex. App. 629, 634, 635, 639.

Footnote 19 See Armstrong v. Toler, 11 Wheat. 258; Brooks v. Martin, 2 Wall. 70; Planters' Bank v. Union Bank, 16 Wall. 483, 499, 500; Houston & Texas Central R. Co. v. Texas, 177 U.S. 66, 99, 20 S. Ct. 545; Bothwell v. Buckbee, Mears Co., , 48 S. Ct. 124.

Footnote 20 See Lutton v. Benin, 11 Mod. 50; Barlow v. Hall, 2 Anstr. 461; Wells v. Gurney, 8 Barn. & C. 769; Ilsley v. Nichols, 12 Pick. (Mass.) 270, 22 Am. Dec. 425; Carpenter v. Spooner, 4 N. Y. Super. Ct. (N. Y.) 717; Metcalf v. Clark, 41 Barb. (N. Y.) 45; Reed v. Williams, 29 N. J. Law, 385; Hill v. Goodrich, 32 Conn. 588; Townsend v. Smith, 47 Wis. 623, 3 N. W. 439, 32 Am. Rep. 793; Blandin v. Ostrander (C. C. A.) 239 F. 700; Harkin v. Brundage, 276 U.S. 36, 48 S. Ct. 268.

Footnote 21 Coppell v. Hall, 7 Wall. 542, 558; Oscanyan v. Arms Co., 103 U.S. 261, 267; Higgins v. McCrea, 116 U.S. 671, 685, 6 S. Ct. 557. Compare Evans v. Richardson, 3 Mer. 469; Norman v. Cole, 3 Esp. 253; Northwestern Salt Co. v. Electrolytic Alkali Co., (1913) 3 K. B. 422.

Footnote 22 Ex parte Jackson, ; Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524; Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 24 A. L. R. 1426; Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261; Amos v. United States, 255 U.S. 313, 41 S. Ct. 266.