# Olmstead v. United States

Olmstead v. United States, 277 U.S. 438 (1928), was a decision of the Supreme Court of the United States, in which the Court reviewed whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights provided by the Fourth and Fifth Amendments. In a 5–4 decision, the Court held that neither the Fourth Amendment nor the Fifth Amendment rights of the defendant were violated. This decision was overturned by Katz v. United States, 389 U.S. 347 (1967). Warning: template has been deprecated.
Supreme Court of the United States
277 U.S. 438
OLMSTEAD ET AL. v. UNITED STATES
Certiorari to the Circuit Court of Appeals for the Ninth Circuit
No. 493, 532, and 533. Argued: Feb. 20, 21, 1928 --- Decided: June 4, 1928

## Dissenting Opinions

    Holmes
    Brandeis
    Butler
    Stone
1. Use in evidence in a criminal trial in a federal court of an incriminating telephone conversation voluntarily conducted by the accused and secretly overheard from a tapped wire by a government officer, does not compel the accused to be a witness against himself in violation of the Fifth Amendment. P. 462.
2. Evidence of a conspiracy to violate the Prohibition Act was obtained by government officers by secretly tapping the lines of a telephone company connected with the chief office and some of the residences of the conspirators, and thus clandestinely overhearing and recording their telephonic conversations concerning the conspiracy and in aid of its execution. The tapping connections were made in the basement of a large office building and on public streets, and no trespass was committed upon any property of the defendants. Held, that the obtaining of the evidence and its use at the trial did not violate the Fourth Amendment. Pp. 457–466.
3. The principle of liberal construction applied to the Amendment to effect its purpose in the interest of liberty, wil not justify enlarging it beyond the possible practical meaning of "persons, houses, papers, and effects," or so applying "searches and seizures" as to forbid hearing or sight. P. 465.
4. The policy of protecting the secrecy of telephone messages by making them, when intercepted, inadmissible as evidence in federal criminal trials, may be adopted by Congress through legislation; but it is not for the courts to adopt it by attributing an enlarged and unusual meaning to the Fourth Amendment. P. 465.
5. A provision in an order granting certiorari limiting the review to a single specific question, does not deprive the Court of jurisdiction to decide other questions presented by the record. P. 466.
6. The common law of evidence having prevailed in the State of Washington since a time antedating her transformation from a [p439] Territory to a State, those rules apply in the trials of criminal cases in the federal courts sitting in that State. P. 466.
7. Under the common law, the admissibility of evidence is not affected by the fact of its having been obtained illegally. P. 467.
8. The rule excluding from the federal courts evidence of crime procured by government officers by methods forbidden by the Fourth and Fifth Amendments, is an exception to the common law rule. Id.
9. Without the sanction of an Act of Congress, federal courts have no discretion to exclude evidence, the admission of which is not unconstitutional, because it was unethically procured. P. 468.
10. The statute of Washington, adopted in 1909, making the interception of telephone messages a misdemeanor, cannot affect the rules of evidence applicable in federal courts in criminal cases. Id.
19 F. (2d) 842, 848, 850, affirmed.
Certiorari, 276 U.S. 609, to judgments of the Circuit Court of Appeals affirming convictions of conspiracy to violate the Prohibition Act. See 5 F. (2d) 712; 7 F. (2d) 756, 760. The order granting certiorari confined the hearing to the question whether the use in evidence of private telephone conversations, intercepted by means of wire tapping, violated the Fourth and Fifth Amendments.

## [Argument for Petitioners]

Mr. John F. Dore, with whom Messrs. F. C. Reagan and J. L. Finch were on the brief, for petitioners in No. 493.
The principles controlling this case were first announced by this Court in Boyd v. United States, 116 U.S. 616. They have never been deviated from, but have been reiterated again and again in a series of cases, the last of which is Byars v. United States, 273 U.S. 28. See also Gouled v. United States, 255 U.S. 298.
If incriminating evidence is secured by means of trickery, subterfuge, trespass or fraud, and, after it has been so secured, finds its way into the hands of government officials, no legal ground can be urged against its introduction in evidence, for the reason that no constitutional question [p440] is involved. If, however, the fraud, subterfuge, trespass or theft is perpetrated by government officials, or if a government official participates directly or indirectly therein, the evidence thus secured is not admissible for the reason that it was secured in a manner which violates the provisions of the Fourth and Fifth Amendments to the Constitution. Byars v. United States, supra; United States v. Mandel, 17 F. (2d) 270; Rudkin, J., in case at bar, dissenting opinion.
The Boyd case lays down search and seizure law, and nothing but search and seizure law, but it involved neither a search nor a seizure. Silverthorne Lumber Co. v. United States, 251 U.S. 385, was ruled by application of the Fourth Amendment, but it was not a search and seizure case either. Upon appeal to this Court, it was held that the proceedings were an attempt to do indirectly what the Government could not do directly.
Gouled v. United States, supra, did not involve a search and seizure as these words are employed in legal parlance, but the case was ruled by search and seizure law and application of the Fourth and Fifth Amendments.
It is not necessary that the act complained of be strictly a search or seizure, if its effect be to compel a man to furnish the evidence to convict himself of crime, and the act be one of governmental agency. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365.
These principles apply to "all invasions on the privacies of life." No exact definition of this term has been found, but obviously it is a comprehensive term and surely includes the right to be let alone.
The right to the exclusive enjoyment of a telephone free of interference from anybody, is a right of privacy. No government agent has a right to interpose an earpiece upon it any more than he has a right to raise the curtain and peek through another's window. If two persons are [p441] conversing in a room of one of them, an intrusion therein by a government agent secretly is an intrusion upon their right of privacy. Is it any the less so if they are in separate rooms connected by a telephone and some interloper "listens in" by means of "tapping" the wire? Such conduct constitutes an invasion of the privacies of life, and when done by a government agent, falls within the condemnation of the Boyd case; and evidence thereby secured is inadmissible for the purpose of securing a conviction in a criminal case.
Mr. Frank R. Jeffery, for petitioner in No. 533, and some of the petitioners in No. 532.
This Court has held that the Fourth and Fifth Amendments were inspired by the same abuses, preceding the adoption of the Constitution, and they must be liberally construed in favor of the citizen and his liberty, and that stealthy eniroachments upon the rights guaranteed by them will not be tolerated. Boyd v. United States, 116 U.S. 616.
The majority opinion of the Circuit Court of Appeals for the Ninth Circuit places a narrow construction upon the rights protected by these Amendments, declaring that "the purpose of the Amendments is to prevent the invasion of homes and offices and seizure of incriminating evidence found therein."
The majority opinion concedes that the tapping of the defendants' telephone wires is an "unethical intrusion on the privacies of persons who are suspected of crime," but holds that "it is not an act which comes within the letter of the prohibition of constitutional provisions."
These declarations of the Circuit Court of Appeals are directly contrary to the holdings of this Court. In Ex parte Jackson, 96 U.S. 727, this Court did not limit the application of the Amendments to the "invasion of homes and offices." Neither has this Court limited the application [p442] of these Amendments to the "letter" of the same.
On the contrary, the underlying thought in each decision of this Court affecting these Amendments has been to apply the "spirit" of them. In the Boyd case this Court declares that these principles "apply to all invasions on the part of the Government and its employees of the security of a man's home and the privacies of life." In that case no search and seizure were involved, if the words "search and seizure" be given their literal meaning. The Court in its decision admitted, in effect, that no actual search and no actual seizure were involved, but held that the result was the same as if an actual search and an actual seizure were made.
It definitely established that it is not the mere form and substance of the acts of government agents which determine whether the search and seizure are in violation of the constitutional provisions, but it is the results accomplished by such acts. If such acts "effect the sole object and purpose of search and seizure," then they come within the inhibition of the Fourth and Fifth Amendments.
In the case at bar, the sole object of the government agents was to obtain evidence relating to transactions in liquor by the defendants. The conversations heard over the telephone were of evidential value only. It is no crime to exchange messages relating to the possession and sale of liquor. The crime is to possess and sell liquor, and conversations concerning the possession or sale are only admissible when the liquor which is possessed or sold is seized. Suppose that the messages relating to the possession and sale of the liquor had been sent by letter. No warrant to search the homes, offices or persons of the defendants for such letter could have been obtained. Gouled v. United States, 255 U.S. 298. Likewise, no valid search warrant could be obtained by government agents to tap the telephone lines of the defendants for [p443] the purpose of securing evidence of the private messages and conversations relating to the possession or sale of liquor.
Furthermore, the admission of the evidence of government agents as to the messages transmitted over the telephone wires compelled the defendants to give evidence against themselves just as effectively as if they had been forced to take the witness stand and themselves testify as to the messages sent over the telephone; yea, just as effectively as if the defendants had been required to produce in court private messages sent by letter of exactly the same import as the messages sent by 'phone. The result is to compel the defendants to become the unwilling source of evidence to convict them of crime, which this Court in the Boyd case held to be a violation of the defendants' right under the Fifth Amendment.
It would indeed be difficult to attempt to enumerate all of those things coming within the phrase "the privacies of life," but it would be equally difficult to suggest any more sacred or any greater privacy of life under present conditions than that of using a private telephone line for transmitting private and confidential communications to one's family and business associates. What greater invasion of this privacy of life could be contemplated than to have one's private and confidential communications intercepted and overheard by promiscuous government agents by means of secretly tapping one's telephone? The telephone as a means of communication was not known to the world at the time of Lord Camden's judgment, or at the time of the adoption of the Fourth and Fifth Amendments, or even at the time of the decision of this Court in the Boyd case. The only means of communication at that time was by letter, and the right to transmit a secret message in a letter without having it intercepted and read by government agents was declared [p444] by this Court in no uncertain language in the case of Ex parte Jackson, 96 U.S. 727.
It is not the paper which is protected by the constitutional inhibitions, but it is the message contained in the letter. In the same manner, any message transmitted by telephone or telegraph should be protected. The interpretation of the language of the Amendments should be sufficiently liberal and elastic to apply the principles laid down in the Boyd case to the conditions of to-day. That this is the true criterion is declared by this Court in Village of Euclid v. Ambler Realty Co., 272 U.S. 365.
The telephones used by the defendants were theirs against all the world, even against the telephone company while their tolls were paid. The telephone lines leading to the defendants' houses and offices, as well as the telephone equipment in the houses and offices, were the private property of the defendants. They had the right to the exclusive use and enjoyment of them, except the license given by them to connect other lines with their lines for the purpose of receiving incoming calls. When the government agents tapped the defendants' telephone lines they committed a trespass upon the property rights of the defendants. The effect of this trespass was to project themselves into the houses and offices of the defendants, with the same result as if they had broken through the windows or doors and secretly seized letters containing the identical messages that were transmitted over the 'phones. The result was not only an unlawful search for evidence, but an unlawful seizure by means of which the defendants, in effect, were compelled to testify against themselves. As stated by Judge Rudkin, those who use the telephone are not broadcasting to the world. Under modern conditions the telephone has, to a large extent, supplanted the mails as a means of transmitting private messages. It has become indispensable to every home and office. If the stamp of approval is put upon the action [p445] of government agents in seeking and obtaining evidence against those suspected of crime by means of tapping private telephone lines, the door is opened wide for the great mass of citizens using the telephone for lawful purposes to have their private and confidential communications relating to business and family subjected to the scrutiny of government agents. Such a system of espionage would become deplorable and unbearable. It would deprive the citizenship of the country of the personal security and the enjoyment of the privacies of life guaranteed by the Constitution, and subject them to an espionage unequalled by the conditions prevailing under the King's officers prior to the Revolution.
Messrs. Arthur E. Griffin, George F. Vanderveer, and Samuei B. Bassett, on a brief for petitioners in No. 532.
The right to use the telephone, and the right of privacy in its enjoyment, are property rights which the courts have repeatedly upheld. It was precisely this right of privacy or secrecy in business matters which this Court protected in the Boyd case. The same was true in Weeks v. United States, 232 U.S. 383, where the article involved was a canceled lottery ticket having no pecuniary value whatever and which had been seized by government agents solely for evidential purposes. In both of these cases this Court said that each of these Amendments threw much light upon the other because they were designed to remedy the same abuses. And it has always been held that any search and seizure was unreasonable under the provisions of the Fourth Amendment which had for its purpose the compulsory extortion of evidence, no matter what the form of the evidence, to be used in violation of the Fifth Amendment.
In the Gouled case it was held immaterial whether the seizure of a man's papers was accompanied by force or threat of force, or whether it was accomplished by stealth. [p446] Ex parte Jackson condemned the "bare inspection" of letters in the mail, entirely without reference to the question whether the owner was thereby deprived of his papers or not. It was the violation of their privacy that was obnoxious to the law. See Cooley, Const. Lim., 7th ed., p. 424; Ex parte Brown, 7 Mo. App. 484; Silverthorne Lumber Co. v. United States, 251 U.S. 385. None of these decisions can be reconciled with the narrow interpretation which the Solicitor General would place upon these Amendments.
It is doubtless true that a message transmitted by telephone is in no sense a paper. But it is also true that privacy is as essential to the conduct of business by telephone or telegraph as by mail, and the courts have always been as ready to protect privacy in the one case as in the other. The Constitution was not written for a day or a year, nor can it be re-written to meet every changing circumstance of our lives. For this reason Constitutions deal with principles.
The Government suggests that the case can not be distinguished from a case where a federal officer on a public street overhears conversations within a citizen's private residence, or where a federal officer joins a band of conspirators and listens from day to day tp conversations in their homes and elsewhere. But it seems to us that both these cases are clearly distinguishable from the case at bar on the precise basis that in neither of them was there any wrongful invasion of any right of privacy, but on the contrary in both hypothetical cases the conspirators had themselves thrown privacy to the four winds and, of course, could not be heard to complain of the results of their own folly. Here it is appropriate to call attention to the statute of Washington forbidding the intercepting of telephone or telegraph messages, Remington's Comp. Stats., § 2656, Subdiv. 18, and to a federal statute passed by Congress in 1912 to protect the privacy of the radio.
[p447] The abuses of which we complain in this case are identical in kind with those to which the English people were subjected during the latter half of the Eighteenth Century, 6nd the speeches of Lord Chatham and James Otis, and the letters of Thomas Jefferson and John Adams, leave no doubt in our minds as to how they would have felt on the subject of having government agents tap their private telephone wires. Burdeau v. McDowell, 256 U.S. 465.

## [Argument for the United States]

Mr. Michael J. Doherty, Special Assistant to the Attorney General, with whom Solicitor General Mitchell was on the brief, for the United States.
The Fifth Amendment can only be invoked by first showing that there has been a violation of the Fourth Amendment. The third clause of the Fifth Amendment "nor shall be compelled in any criminal case to be a witness against himself" merely gave constitutional sanction to a rule of common law well established at the time the Constitution was adopted. 6 Jones on Evidence, 2d ed., § 2474; Twining v. New Jersey, 211 U.S. 78.
Obviously the case has nothing to do with the provision against self-incrimination in its original and primary sense, that is, the compulsion of the accused by legal process to produce in court evidence either testimonial or physical. Ordinarily evidence of incriminating oral statements made by the accused before, during, or after the commission of a crime, overheard by a witness and testified to by him in court, is always competent.
The only inhibition against evidence in this form is that which forbids evidence of extorted confessions. Here there was neither extortion nor confession. There was no coercion, threat or promise. Moreover, the conversations were not in the nature of confessions. They were a part and parcel of the criminal transaction. The prohibition officers, relating in court what they overheard, were testifying [p448] as immediate witnesses of the crime, as much so as would be a witness who testified to having seen liquor delivered and the price paid.
Aside from the rule against duress of legal process and extorted confessions, it was a fundamental and timehonored rule of common law that evidence was not rendered inadmissible in a criminal case by illegality of the means by which It was obtained. This rule of the common law is still in force in England and Canada and in a majority of the States. The illegality dealt with in many of the state cases was the violation of the constitutional rights under provisions of state constitutions substantially identical with the Fourth Amendment. 5 Jones on Evidence, c. 22; Blakemore on Prohibition, 2d. ed., p. 519; Cornelius on Search and Seizure, p. 45; Search and Seizure, 8 Am. Bar. Ass'n Journal, p. 479; State v. Aime, 62 Utah 476; State v. Owens, 302 Mo. 348.
In the light of Boyd v. United States, 116 U.S. 616; Adams v. New York, 192 U.S. 585; Weeks v. United States, 232 U.S. 383; Silverthorne Lumber Co. v. United States, 251 U.S. 385; Gouled v. United States, 255 U.S. 298; Agnello v. United States, 269 U.S. 20; Amos v. United States, 255 U.S. 313; Byars v. United States, 273 U.S. 28; and Marron v. United States, 275 U.S. 192, it is not open to question that evidence obtained by federal officers in violation of the Fourth Amendment is inadmissible as evidence in criminal trials in federal courts. To that extent the common law rule and anything said to the contrary in the Adams case has been abandoned.
The limits of this departure from the common law rule are, however, definite. The reason for it appears to be the cl9se interrelation that is conceived to exist between the Fourth and the Fifth Amendments. It has never been extended to evidence obtained illegally in the general sense, but only where the illegality amounts to a violation of the Fourth Amendment. Evidence obtained [p449] by trespass, fraud, unethical or even criminal methods, is admissible if the Fourth Amendment be not violated. 5 Jones on Evidence, §§ 2075 et seq.; Adams v. New York, supra; Hester v. United States, 265 U.S. 57; McGuire v. United States, 273 U.S. 95; Koths v. United States, 16 F. (2d) 59; United States v. Mandel, 17 F. (2d) 270.
The Fifth Amendment therefore is not involved in this case, unless it can be invoked as a result of a violation of the Fourth Amendment.
The Fourth Amendment was the direct consequence of two abuses practiced by the English Government—the use of general warrants and the use of writs of assistance. The Wilkes and Entick cases, in their criminal and civil aspects, attracted universal attention and aroused tremendous opposition to the use of general warrants, resulting in their condemnation by the courts and a declaration of their illegality by the House of Commons. May, Const. Hist. of England, p. 110 et seq ; 1 Cooley, Const. Lim., 8th ed., p. 612; Boyd v. United States, supra; 19 How. State Trials, 1029, 1153.
The use of writs of assistance in the American Colonies was authorized by the Act of Parliament of 1767, 7 Geo. III, c. 46. The use of the writs soon led to great public agitation and opposition, particularly in Massachusetts, led by James Otis, but their use continued to the outbreak of the Revolution. 3 Channing, Hist. of U. S., pp. 1-5 and 114. Knowledge and apprehension of these abuses—warrants and writs—was fresh in the minds of the colonial statesmen when it came to framing the Constitution.
The Virginia Constitution had already adopted a bill of rights, of which § 10 was as follows:
"That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly [p450] described and supported by evidence, are grievous and oppressive, and ought not to be granted."
An amendment to the Federal Constitution similar to this was proposed by the Virginia ratification convention. Journal of the Convention of Virginia, p. 34. As introduced by James Madison at the first session of Congress it read:
"The right of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized." Annals of Congress, Vol. I, col. 434.
A committee of one member from each State was appointed to consider and report such amendments as ought to be proposed by Congress to the legislatures of the States. In the report of this committee was piroposed an amendment differing but slightly from that originally proposed by Madison. The word "effects" was substituted for the words "other property." Mr. Gerry, saying that he presumed there was a mistake in the wording of the clause, moved that it be amended to read: "The right of the people to be secured in their persons, houses, papers, and effects against unreasonable seizures and searches . . ." Annals of Congress, Vol. I, col. 754.
The amendment came out of conference committee in its present form, and we have no light as to the reason for the further change in phraseology. It is quite apparent that the principal, if not the sole, peril in the minds of those who advocated the amendment and against which its protection was intended was the use of general warrants and the writs of assistance.
In Boyd v. United States, supra, the Court said that the judgment of Lord Camden in Entick v. Carrington might be considered as sufficiently explanatory of what was [p451] meant by unreasonable searches and seizures; and Chief Justice Taft in the Carroll case said that the Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted.
This Court has frequently said that the Fourth and Fifth Amendments should be construed liberally; but it is submitted that by no liberality of construction can a conversation passing over a telephone wire become a "house," no more can it become a "person," a "paper," or an "effect." "Effects" is the least definite of the four words. This Court has said of "effects" that—
"when the word is used alone, or simpliciter, it means all kinds of personal estate. . . . But if there be some word used with it, restraining its meaning, then it is governed by that, or means something ejusdem generis." Planters Bank v. Sharp, 6 How. 301, 321.
Giving to the word its literal import, the sense in which it is generally understood, its natural significance taken in connection with the context in which it appears, it does not seem possible to include within its meaning anything other than tangible personal property, or to extend it to include a telephone conversation or any intangible right of privacy of the parties with respect to such conversation.
Petitioners are urging the extension of the Fourth Amendment into a new field, the limits of which are difficult to define. If evidence obtained by tapping telephone wires at points not in private dwellings is excluded on constitutional grounds, on the same principle would not all manner of evidence gathered by ruse or entrapment have to be excluded? Suppose an officer obtains access to a telephone on a party line and listens to incriminating conversations of other parties having telephones on the line; suppose that, instead of tapping a wire, he goes to the telephone exchange and, with or without permission of the operator, plugs in on a private [p452] line and listens; suppose he leases an office and puts a dictaphone in the wall of the adjoining office and listens; suppose without trespassing he is able to put his ear to the keyhole of the door of an office or house and listens; suppose he pretends to join a conspiracy and thereby gains access to the inner councils of the conspirators and hears the hatching of their criminal schemes. These examples, varying into slight shades of distinction, might be multiplied indefinitely to show the extremes to which the principle contended for would lead. Once cut loose from the fair literal import of the language of the Amendment, apd there is no place to anchor.
In the construction of the Amendment a balance should be sought between that which will preserve the fundamental safeguard which the Amendment was designed to secure, and at the same time not unduly fetter the arm of the Government in the enforcement of law. The practical aspect of the problem is forcibly expressed in People v. Mayen, 188 Cal. 237.
If, in any circumstances, obtaining evidence by tapping wires is deemed an objectionable governmental practice, it may be regulated or forbidden by statute, or avoided by officers of the law, but clearly the Constitution does not forbid it unless it involves actual unlawful entry into a house.

## [Argument for Telephone Companies]

Messrs. Otto B. Rupp, Charles M. Bracelen, Robert H. Strahan, and Clarence B. Randall on behalf of The Pacific Telephone and Telegraph Company, American Telephone and Telegraph Company, United States Independent Telephone Association, and the Tri-State Telephone and Telegraph Company, as amici curiae, filed a brief by special leave of Court.
The petitioners were using the telephone lines and facilities of the local telephone company, such as were available to everyone without discrimination. The function [p453] of a telephone system in our modern economy is, so far as reasonably practicable, to enable any two persons at a distance to converse privately with each other as they might do if both were personally present in the privacy of the home or office of either one. When the lines of two "parties" are connected at the central office, they are intended to be devoted to their exclusive use, and in that sense to be turned over to their exclusive possession. A third person who taps the lines violates the property rights of both persons then using the telephone, and of the telephone company as well. Internat'l News Service v. Associated Press, 248 U.S. 215.
It is of the very nature of the telephone service that it shall be private; and hence it is that wire tapping has been made an offense punishable either as a felony or misdemeanor by the legislatures of twenty-eight States, and that in thirty-five States there are statutes in some form intended to prevent the disclosure of telephone or telegraph messages, either by connivance with agents, of the companies or otherwise.
The wire tapper destroys this privacy. He invades the "person" of the citizen, and his "house," secretly and without warrant. Having regard to the substance of things, he would not do this more truly if he secreted himself in the home of the citizen.
In view of what this Court has held as to the intent and scope of the Fourth and Fifth Amendments, it would not seem necessary to enter into any meticulous examination of their precise words. But if that be done, does not wire tapping involve an "unreasonable search," of the "house" and of the "person"? There is of course no search warrant, as in the nature of the case there could not be. If the agent should secrete himself in the house or office to examine documents, would not that constitute a "search"? Is the case any different in the eyes of the law if from a distance the agent physically [p454] enters upon the property of the citizen, as he does when he taps the wire, and from that point projects himself into the house? Certainly in its practical aspect the latter case is worse than the first, because the citizen is utterly helpless to detect the espionage to which he is subjected.
If it be said that, in any event, there is no "seizure," that an oral conversation cannot be seized, we answer, in the first place, that this is a purely superficial view, which puts the letter above the spirit and intent of the law. The "privacy of life" and the liberty of the citizen have been invaded. And, in the second place, we do not understand that seizure is a necessary element to constitute the offense. An unreasonable search alone violates the Fourth Amendment. It is enough that the federal officer has made an unreasonable search, within the meaning of the Fourth Amendment, and has thereby unlawfully obtained evidence. The evidence so obtained is excluded under the provisions of the Fifth Amendment.
The Government itself provides the mail service, a public service, and the Government authorizes the telephone company to provide the telephone service, also a public service. It is settled that the communication in the mail is protected. Upon what reason, then, can it be said that the communication by telephone is not protected?
The telephone has become part and parcel of the social and business intercourse of the people of the United States, and the telephone system offers a means of espionage compared to which general warrants and writs of assistance were the puniest instruments of tyranny and oppression.
The telephone companies deplore the use of their facilities in furtherance of any criminal or wrongful enterprise. But it was not solicitude for law breakers that caused the people of the United States to ordain the Fourth and [p455] Fifth Amendments as part of the Constitution. 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. Writs of assistance might have been abolished by statute, but the people were wise to abolish them by the Bill of Rights.

## Notes

[*] ↑ [Together with Green et al. v. United States and McInnis v. United States.]
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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