Wiretapping, electronic eavesdropping, hidden videotaping, and even more complex means of gathering evidence are often used in criminal investigations. As technology has improved, so have the tools of police work. The Framers of the Constitution could hardly have anticipated these technological advances two centuries ago when they wrote the Bill of Rights. Determining how the principles they laid down should be applied to new problems generated by technology is a duty that has fallen to the courts.
By the 1920s, most homes and businesses had a telephone. Business and personal conversations were conducted from the privacy of the office or residence. Law-abiding citizens and criminals alike had access to instant contact with persons hundreds of miles away. As it did for people of many occupations, the telephone helped to make communication and the coordination of activity more convenient for those who made their living through crime.
In 1919, the people of the United States approved the 18th Amendment, voting to outlaw alcohol in America and begin the era of Prohibition. The Volstead Act, which was passed by Congress in 1919, prohibited the manufacturing and importing of alcohol, and also provided a means to enforce the ban on the consumption of alcohol. Widespread—if illegal—alcohol sales made a mockery of the law and formed the basis for rapid expansion of organized crime. Law enforcement officials at both the State and federal level sought to check this expansion and obtained new tools for surveillance to use against the underworld.
Chief Justice William Howard Taft presided over the case of Olmstead v. United States. Sitting with Taft were Willis Van Devanter, James C. McReynolds, George Sutherland, Pierce Butler, Edward T. Sanford, Harlan Fiske Stone, Oliver Wendell Holmes, and Louis D. Brandeis. As was true in many cases during their tenures, Holmes and Brandeis allied in dissent.
For a number of months, State and federal law enforcement agents conducted an investigation of a Seattle-based bootlegging operation which smuggled alcoholic beverages into the United States over the Canadian border a hundred miles away. Olmstead was engaged in the illegal sale of these goods, prohibited by the Volstead Act. Much of the case against Olmstead was based on information gathered by a wiretap on his home telephone, placed without prior issue of a warrant on the telephone lines outside. Olmstead was arrested and convicted of violations of the Volstead Act.
The case involved the 4th Amendment's prohibition of unreasonable searches and seizures. Does the 4th Amendment protect only property, such as a person's home, against searches for documents and papers? Was a wiretap, which did not actually enter a person's home or office, a legal means for gaining evidence? Were wiretaps not subject to the 4th Amendment requirement for a search warrant based on probable cause? Was the evidence gained by a wiretap admissible and was Olmstead's conviction constitutional?
For Olmstead: During his trial Olmstead argued that the evidence against him was gained without a warrant and by an illegal intrusion into his home. He had a "reasonable expectation of privacy" there; therefore, the evidence was inadmissible under the Weeks doctrine (1914) which excluded evidence gained by extra-legal means from admission in federal court cases. During the appeal, Olmstead's attorneys argued for a broad reading of the 4th Amendment to include protection of all his activities in his home, including telephone calls. The calls were between Olmstead and the other person on the line; they were private, and law enforcement agents had intruded upon Olmstead's privacy without regard for his 4th Amendment rights.
For the United States: Attorneys for the United States objected to the "extension" of 4th Amendment protections, claiming that the telephone messages were carried by a franchised public carrier—the telephone company—and, therefore, were not private. The evidence was not subject to the Weeks rule because agents never entered Olmstead's home. The wiretap was not a "physical trespass," and was therefore permissible without a warrant.
By a vote of 5–4, the court upheld Olmstead's conviction and sanctioned a narrow reading of 4th Amendment protections. Chief Justice Taft delivered the opinion of the slim majority, while Justices Brandeis and Holmes issued ringing dissents.
The majority of the Court ruled that placing a telephone tap outside the premises of the defendant did not constitute an unreasonable search and seizure. The Court ruled that "Since the wiretap itself had not been made on Olmstead's premises, there was no physical trespass," and no warrant was required. On the broader issue concerning the right to privacy, Taft wrote that "Olmstead had not intended that his voice should only reach the ears of those present in the room—he had intended to project his voice to those quite outside." In short, no invasion of privacy had occurred.
Justice Brandeis dissented, arguing that the government itself should obey the spirit of its laws, and that the spirit of the 4th Amendment had been violated in this case. Justice Holmes added, "We have to choose, and for my part I think it a lesser evil that some criminals should escape than that the government should play an ignoble part." A common theme united the dissents: Both Brandeis and Holmes argued that a court which makes use of illegally or unconstitutionally obtained evidence shares in the original crime.
In this decision, the Court decided that 4th Amendment protections extended only to tangible items such as a person's papers and property and not to spoken words. Because no actual entry was involved in the wiretap, Olmstead's rights had not been violated. In 1934 the United States Congress enacted legislation forbidding the introduction in federal court of wiretap evidence gained without warrants, using Brandeis's reasoning as a basis for the law. In Katz v. United States, 1967, the decision reached in Olmstead was reversed.