Legal Questions before the Federal Courts
Did the use of evidence gained from wiretaps and confiscated papers violate the Fourth Amendment protection against unreasonable searches and seizures?
Each of the federal courts to consider the question held that the use of wiretaps in the Olmstead trial did not violate the Fourth Amendment. The Supreme Court decision in Ex Parte Jackson, 96 U.S. 727 (1876), had extended the Fourth Amendment to cover sealed letters in the United States mails. The government was prohibited from searching such letters, and the Olmstead defendants asked the courts to treat phone conversations like letters. The courts refused to see phone conversations as the equivalent to a letter and ruled the Fourth Amendment did not apply. In a pretrial ruling, Judge Neterer held that “it would not violate any constitutional right of the defendants to receive the [wiretap] evidence. The conversation is not a property right.” The U.S. court of appeals agreed, stating that “whatever may be said of the tapping of telephone wires as an unethical intrusion upon the privacy of persons who are suspected of crime, it is not an act which comes within the letter of the Prohibition of constitutional provisions.” In dissent, Judge Rudkin on the court of appeals found that the attempt to establish separate rules for letters and telephone conversations created “distinctions without a difference.” Telephone conversations are “sealed from the public as completely as the nature of the instrumentalities employed will permit,” and no federal agent had a right to use the conversations against the caller. The Supreme Court divided along similar arguments, with the majority upholding the distinction between letters and phone conversations.
Did the use of evidence gained from wiretaps and confiscated papers violate the Fifth Amendment protection against self-incrimination?
In a pretrial motion, Olmstead and Finch asked the district court to exclude evidence obtained in the searches of their homes and offices and in the taps of telephone lines, arguing that use of this evidence would be a form of self-incrimination and therefore prohibited by the Fifth Amendment. The Supreme Court, in Boyd v. United States, 116 U.S. 616 (1886), had linked the protections of the Fourth and Fifth Amendments, holding that a warrantless seizure of evidence compelled a defendant to be a witness against himself. Judge Neterer found that the wiretaps had not violated the Fourth Amendment since conversations were not a property right, and therefore use of the wiretap evidence would not violate the defendants’ Fifth Amendment rights. Neterer, however, did find that the warrants had authorized searches only for contraband liquor, not papers, and therefore the papers seized from Olmstead could not be used against him, and the papers seized from Finch’s office could not be used against Finch. Neterer said it would need to be decided at trial whether or not the seized papers could be used against other defendants.
At the two stages of appeals in the Olmstead case, the courts’ majorities found that the wiretaps had not violated the defendants’ Fourth Amendment rights, and consequently there was no violation of the Fifth Amendment’s protection against self-incrimination. In the Supreme Court opinion, Chief Justice Taft said “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.”
What was the authority of the Washington state law prohibiting wiretaps and did it apply to federal prosecutions?
Washington law prohibited the interception or reading of communications through tapping into telephone or telegraph lines, and the defendants argued that this law should have made the wiretap evidence inadmissible. Each court that heard this question decided that, even though the federal agents broke state law, the evidence was admissible. The Supreme Court’s grant of certiorari had limited arguments to the constitutional questions, but in his opinion for the majority, Chief Justice Taft responded to Oliver Wendell Holmes’ dissent, which had stated that the illegally obtained evidence should not have been permitted in the trial. Taft pointed out that English and American common law held that illegally obtained evidence was admissible on the grounds of necessity. He also held that common law prevailed in Washington State and that the federal courts in that state followed the local rules of evidence. If the evidence had been obtained in violation of the Fourth and Fifth Amendments, the Supreme Court precedent in Weeks v. United States, 232 U.S. 383 (1914), would have made the evidence inadmissible at trial in federal courts, but Taft had already decided that the wiretaps in Olmstead did not violate the Fourth Amendment.
Was the evidence presented to the grand jury sufficient to justify an indictment on conspiracy charges?
Each Olmstead trial defendant was charged under four different counts of conspiracy to transport intoxicating liquors, to sell intoxicating liquors, to import liquor into the United States contrary to Prohibition, and to import goods into the country contrary to national tariff acts. Conspiracy was a crime that existed in all state laws and in the federal code. The crime of conspiracy consisted of two or more people agreeing to commit a crime and one member of the group taking some action toward carrying out the plan. All members of the conspiracy are equally liable for the actions of any members, but it must be proved that those involved in the conspiracy knew of the plan and intended to break the law. In demurrers—challenges to the indictment—many of the defendants asked Judge Neterer to weigh the sufficiency of the evidence brought against them and to dismiss the indictment because it did not charge particular defendants with particular acts. Judge Neterer rejected the motions, stating that the indictment set out all of the required elements of a conspiracy, including the criminal purpose of the conspirators, their agreement to work together, and the overt acts committed by one or more of the defendants toward accomplishments of the conspiracy’s goal. The indictment, Neterer found, included every element of the crime of conspiracy and sufficiently apprised the defendants of the charges against them. The U.S. Court of Appeals for the Ninth Circuit affirmed Neterer’s decision, stating that the indictment “furnished sufficient information of the nature and cause of the accusation, in order that the accused might prepare for trial.” The court of appeals also noted that the details required for indictment on a substantive offense were not required for indictment for conspiracy.
Was the indictment invalid because of improper influence and pressure on the grand jury?
Attorneys for Olmstead and thirty-two other defendants filed motions to dismiss the indictment because it was based on improperly obtained or insufficient evidence and because William Whitney allegedly threatened the grand jury foreman with prosecution for purchasing liquor from Olmstead. The defendants claimed that prosecutors had relied on transcripts of wiretaps without establishing the reliability of the source, and that they presented evidence obtained from the search of Olmstead’s house and office, even though the warrant for those searches had been issued without probable cause. Judge Neterer could find no precedent for setting aside an indictment on the basis of insufficient evidence. The findings of the grand jury were not final, and the grand jurors needed only to establish a reasonable basis for the defendants guilt. For the court to assume a review of the evidence would make it “an indicting, as well as a trying tribunal,” and would improperly interfere with the secrecy that was essential to the grand jury’s consideration of the evidence. Neterer also ruled that even if Whitney had threatened the foreman, the foreman would have been unable to sway the majority of the grand jury who voted to indict the Olmstead gang members. If Whitney had improperly influenced the jury, Neterer added, separate charges should be brought against him.
The charge of conspiracy allowed the government to try all defendants together and to use the evidence seized from Olmstead and Finch to establish the conspiracy, even though the Fourth and Fifth Amendments protected those two individuals from conviction based solely on that seized evidence.
What was the impact of the Olmstead case on the law?
Some in Congress responded to the Olmstead decision by proposing bills to forbid wiretapping by federal agents, but the proposed bills did not pass. In the Federal Communications Act of 1934, Congress declared that “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, [or] substance.” In a 1937 case, Nardone v. United States, the Supreme Court held that this provision prohibited wiretapping by federal agents and excluded such evidence from trial. A second Nardone v. United States decision in 1939 excluded from federal court proceedings even evidence generated from following leads from such taps, applying what was later called the “fruit of the forbidden tree” rule (302 U.S. 379 and 308 U.S. 338). Indeed, these later cases followed a trend in the Supreme Court that started right after the Olmstead case of limiting the powers of the federal government to search.
What did the federal courts decide in related cases?
Boyd v. United States, 116 U.S. 616 (1886)
In 1886, the Supreme Court established for the first time a direct relationship between the Fourth and Fifth Amendments to the Constitution when it held that evidence gathered in violation of the Fourth Amendment would, if admitted in a court proceeding, violate a defendant’s Fifth Amendment protection against self-incrimination. In 1884, the U.S. attorney for the Southern District of New York sued E.A. Boyd and Sons for failing to pay the required duty on plate glass that the company imported from England. Under the authority of an 1874 act of Congress, the U.S. district court ordered Boyd and Sons to provide the court with the invoice for the glass. Under the terms of the act, failure to produce the required evidence would be considered admission of the charges alleged by the U.S. attorney. The importers delivered the document but protested that the act of 1874 was an unconstitutional infringement of their protection from unreasonable searches and seizures. After a jury in the district court and the circuit court judges on appeal found the merchants liable for the customs duty, the Supreme Court agreed to hear arguments on Boyd’s claim that their Fourth and Fifth Amendment rights had been violated.
The Supreme Court, in an opinion written by Justice Joseph Bradley, held that the Fourth Amendment offered protection against any government action that demanded private papers to establish a criminal charge or a forfeiture of property, such as a fine in a civil case. Bradley wrote that the Fourth Amendment must be understood in the context of Revolutionary debates on searches and seizures in both the Colonies and Great Britain. Citing a well-known opinion of Great Britain’s Lord Camden, Bradley emphasized the founding generation’s intention to protect “the sanctity of a man’s home and the privacies of life.” The Supreme Court also held that the order for the delivery of the merchants’ papers violated the Fifth Amendment by forcing the merchants to be witnesses against themselves. According to Bradley, the two amendments in question “throw great light on each other. For the ‘unreasonable searches and seizures’ condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, . . . And we have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.”
Several of the briefs for the defendants’ appeal in Olmstead cited Boyd in support of the defendants’ argument that the Fourth Amendment protected telephone conversations from government intrusion, but Taft said the defendants’ voluntarily participated in telephone conversations and had not been subject to the kind of court order that had been found unconstitutional in Boyd. In his Olmstead dissent, Justice Brandeis referred to Boyd as “a case that will be remembered as long as civil liberty lives in the United States,” and cited the decision as evidence that the Supreme Court has repeatedly “refused to place an unduly literal construction” upon the Fourth Amendment.
Weeks v. United States, 232 U.S. 383 (1914)
In 1914, the Supreme Court established what became known as the “exclusionary rule,” which holds that evidence obtained by unconstitutional means cannot be used against a defendant. Fremont Weeks of Kansas City, Missouri, was convicted in the U.S. District Court for the Western District of Missouri on charges related to his involvement in an interstate lottery business. Weeks was convicted in part on the basis of evidence obtained from his house during a search by local police accompanied by a federal marshal. Following his conviction, Weeks appealed to the Supreme Court on the grounds that the district court was in error when it denied his petition for the return of the seized materials and his motion to exclude the use of any evidence obtained without a warrant, in violation of the Fourth Amendment.
A unanimous Supreme Court, in an opinion authored by Justice William Rufus Day, held that the Fourth Amendment protected “the people, their persons, houses, papers and effects against all unreasonable searches and seizures” conducted by federal officials or ordered by the federal courts. The marshal could have searched Weeks’ house only “when armed with a warrant issued as required by the Constitution, upon sworn information and describing with reasonable particularity the thing for which the search was to be made.” If federal officials could seize private letters and documents as they did in the Weeks case, Bradley said that the Fourth Amendment was of “no value, and, . . . might as well be stricken from the Constitution.”
In the majority’s opinion in Olmstead, Chief Justice Taft held that nothing in Weeks challenged his finding that Fourth Amendment protections were limited to warrantless searches of a person’s home and private papers.
In 1961, in its decision in Mapp v. Ohio, the Supreme Court extended the exclusionary rule to state court proceedings.
Carroll v. United States, 267 U.S. 132 (1925)
George Carroll and John Kiro were convicted in the U.S. District Court for the Western District of Michigan on charges of transporting liquor in an automobile, in violation of the Volstead Act. They appealed their conviction on the grounds that Prohibition agents and a state policeman had stopped and searched the automobile without a warrant, thus violating the defendants’ rights under the Fourth Amendment. Chief Justice William Howard Taft, writing for the majority of the Supreme Court, held that warrantless searches and seizures of contraband goods in the process of transportation were not governed by the same rules prohibiting warrantless searches of private dwellings, and he cited cases in which the federal courts had approved warrantless searches of ships and vehicles suspected of carrying contraband. According to Taft, the agents making the seizure needed only to demonstrate probable cause to believe the car contained liquor intended for sale. Chief Justice Taft added that the Fourth Amendment must be interpreted “in a manner which will conserve public interests as well as the interests and rights of individual citizens.” In the Carroll case, the arresting agents claimed they had reason to believe the defendants were transporting liquor in the automobile because of an attempted undercover purchase of liquor from the defendants more than two months earlier.
Justice James McReynolds, with the concurrence of Justice George Sutherland, dissented from the majority’s opinion. McReynolds held that nothing in the Volstead Act displaced the common-law rule prohibiting arrests without warrant for a misdemeanor. McReynolds also reasoned that the defendants’ previous and unfulfilled offer to sell liquor was not reasonable grounds for stopping their car more than two months later.
Katz v. United States, 389 U.S. 347 (1967)
Charles Katz was convicted on charges of sending wagering information across state lines by means of a telephone. At the trial in the U.S. District Court for the Southern District of California, the FBI produced transcripts of conversations it had recorded through a device affixed to the outside of a public telephone booth used by Katz. The trial judge rejected the defendant’s objection to the evidence, and the U.S. Court of Appeals for the Ninth Circuit also rejected arguments that the defendant’s Fourth Amendment rights had been violated. The Supreme Court, with an opinion written by Justice Potter Stewart, overturned Katz’s conviction and held that the listening device had violated Katz’s constitutional rights. Stewart specifically rejected the holding in Olmstead and subsequent decisions that held that physical penetration of tangible property was required for a Fourth Amendment violation. Subsequent developments, including “the vital role that the public telephone has come to play in private communication,” had, according to Stewart, undermined the notion of trespass relied on in Olmstead. “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.”
Justice Hugo Black dissented, arguing that the Fourth Amendment words protecting “persons, houses, papers, and effects” connoted “tangible things with size, form, and weight, things capable of being searched, seized, or both.” Black denied that the Fourth Amendment gave the Supreme Court “unlimited power to declare unconstitutional everything which affects privacy,” although Stewart had written in the majority opinion that “the Fourth Amendment cannot be translated into a general constitutional ‘right to privacy’.”
Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement — Historical Background and Documents