Minority opinion on the appeal of the Olmstead defendants, U.S. Circuit Court of Appeals for the Ninth Circuit
Judge Frank H. Rudkin’s dissenting opinion focused exclusively on the use of the wiretapped evidence in the Olmstead trial. Rudkin expressed strong concern over the loss of protection from government intrusions into private life. He differed sharply from William Gilbert, who wrote the majority opinion in the case. That he quoted at length the third judge who heard the case suggests that Rudkin had perhaps hoped that his views would have formed the basis for the court’s ruling.
[Document Source: Olmstead v. United States, 19 F.2d 842 (U.S. Cir. Ct. of App., 9th Cir., May 9, 1927).]
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
RUDKIN, Circuit Judge (dissenting): . . . There is little doubt that at least a considerable number of the plaintiffs in error are guilty of the crimes charged, and whether the indictment should be quashed because there was no competent testimony before the grand jury, or because of unlawful threats made against the foreman of the grand jury by one of the prohibition agents, if such threats are established, are questions of minor importance, in which the general public are little concerned. The same is true in large measure as to the use made by government witnesses of the compilation of telephone messages under the pretense of refreshing their recollections, although I am clearly of opinion that in this latter respect the rulings of the court below were plainly erroneous.
. . . In the present case, witness after witness, day after day, testified to names, dates, and events, so numerous and with such unerring accuracy, that it becomes at once apparent that the book, and not the witnesses, was speaking. A better opportunity to color or fabricate testimony could not well be devised by the wit of man . . . .
But my dissent is based upon much broader grounds. I do not think that testimony thus obtained by federal officers or federal agents is admissible in any event, however the conversations may be proved. Of course, I agree with the majority that courts will not ordinarily inquire into the manner in which a witness gains his information, but there are exceptions to the rule, as well established as the rule itself. For illustration I need only refer to the many decisions of the Supreme Court, of this court, and of the courts of other circuits, excluding evidence obtained by federal officers and federal agents in raiding private dwellings without search warrants, while the like evidence, obtained in the like manner by private individuals and by municipal and state officers, is universally admitted. . . .
Here we are concerned with neither eavesdroppers nor thieves. Nor are we concerned with the acts of private individuals, or the acts of municipal or state officers. We are concerned only with the acts of federal agents, whose powers are limited and controlled by the Constitution of the United States. It is a matter of common knowledge that the protection of the Fourth and Fifth Amendments to the Constitution has been invoked more often and more successfully during the past 10 years [than] during the entire previous history of the republic. I think it is also matter of common knowledge that there is a growing tendency to encroach upon and ignore constitutional rights. For this there is no excuse. . . .
What is the distinction between a message sent by letter and a message sent by telegraph or by telephone? True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed, and the other unsealed; but these are distinctions without a difference. A person using the telegraph or telephone is not broadcasting to the world. His conversation is sealed from the public as completely as the nature of the instrumentalities employed will permit, and no federal officer or federal agent has a right to take his message from the wires, in order that it may be used against him. Such a situation would be deplorable and intolerable, to say the least. Must the millions of people who use the telephone every day for lawful purposes have their messages interrupted and intercepted in this way? Must their personal, private, and confidential communications to family, friends, and business associates pass through any such scrutiny on the part of agents, in whose selection they have no choice, and for the faithful performance of whose duties they have no security? Agents, whose very names and official stations are in many instances concealed and kept from them. If ills such as these must be borne, our forefathers signally failed in their desire to ordain and establish a government to secure the blessings of liberty to themselves and their posterity.
The judgment should be reversed.