Decision: Olmstead v. United States (1928)
Search & Seizure and Privacy
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When it comes to interpreting the Constitution, are judges limited to the ways in which the text was originally understood by the authors? When it comes to the constitutional proection against "unreasonable serach and seizure," does that refer only to the sorts of things that could be searched and seized at the time that the Constitution was written?
Background Information
Olmstead was a leader in a conspiracy to violate the National Prohibition Act by illegally possessing, transporting, and importing alcohol that was to be later sold.
The information which led to the discovery of the conspiracy and its nature and intent was largely obtained by intercepting messages on the telephones of the conspirators by four federal prohibition officers. However, the wire tapping was done outside the residence, and not in the offices but in the basement of the building housing the offices. All conversations were recorded, and the evidence of the wiretapping was used in court against the conspirators.
Court Decision
Does the State have the power to intercept telephone conversations and use information gathered that way, or are such actions a violation of the Fourth and Fifth Amendments?
The Supreme Court ruled 5-4 against the plaintiffs and in favor of the government, holding that wire-tapping was not an unreasonable search and seizure within the meaning of the Fourth Amendment and was not compulsory self-incrimination within the meaning of the Fifth Amendment. According to Chief Justice Taft:
The amendment itself shows that the search is to be of material things - the person, the house, his papers or his effects. The amendment does not forbid what was done here for there was no seizure. The evidence was secured by the sense of hearing and that only. There was not entry of the houses. The language of the amendment cannot be extended and expanded.
Since the evidence was a conversation and no entry was made into Olmstead's home, there was therefore no violation of his rights against unreasonable search and seizure.
Particularly important in this case was Justice Brandeis' dissenting opinion, in which he laid the groundwork for understanding constitutional guarantees of liberty and privacy. I shall quote him at length, but the salient points of his dissent are: first, that the Constitutional language should not be limited to just the ideas in the minds of the authors and must instead be applied to modern issues; second, that the Court has a tradition of applying the words in the Constitution broadly rather than narrowly or literally, and third, that the language of the Constitution guarantees everyone basic rights to liberty and privacy which are inherent in, even if not expressed by, the actual words of the Constitution.
The Government makes no attempt to defend the methods employed by its officers. Indeed, it concedes that if wire-tapping can be deemed a search and seizure within the Fourth Amendment, such wire tapping as was practiced in the case at bar was an unreasonable search and seizure, and that the evidence thus obtained was inadmissible. But it relies on the language of the Amendment; and it claims that the protection given thereby cannot properly be held to include a telephone conversation.
'We must never forget,' said Mr. Chief Justice Marshall in McCulloch v. Maryland, 'that it is a Constitution we are expounding.' Since then this court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the fathers could not have dreamed. ...We have likewise held that general limitations on the powers of government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the states from meeting modern conditions by regulations which 'a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.' ...Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world.
Time and again this court, in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it. This was notably illustrated in the Boyd Case itself. Taking language in its ordinary meaning, there is no 'search' or 'seizure' when a defendant is required to produce a document in the orderly process of a court's procedure. 'The right of the people of be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,' would not be violated, under any ordinary construction of language, by compelling obedience to a subpoena. But this court holds the evidence inadmissible simply because the information leading to the issue of the subpoena has been unlawfully secured.
The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
Significance
In 1934 Congress enacted a statute which made wiretapping unlawful. However, the federal agency charged with enforcing federal law, the Federal Bureau of Investigation, made no attempt to enforce it. In 1968, domestic wiretapping was authorized, but only when permitted by a judge and under specific conditions.
Brandeis' dissent has formed the foundation for civil-libertarian arguments in all cases involving privacy since this decision was handed down.
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