United States v. Olmstead

Federal Trials and Great Debates 

in United States History

Case Summary:

• United States v. Olmstead was a criminal case involving violations of federal prohibition laws.

• The defendant, Roy Olmstead, challenged the use of evidence obtained through wiretaps of 

incriminating phone conversations.

• The Supreme Court upheld the use of the wiretaps under the Fourth and Fifth Amendments, 

although the Court later rejected this precedent.

• Today, the case is viewed as an important step in the evolution of privacy rights.

History of the Case:

Ratified in 1919 and taking effect the next year, the Eighteenth Amendment outlawed the manufacture, 

sale, importation, and transportation of alcoholic beverages. Though the amendment authorized both 

state and federal governments to implement this prohibition, in practice much of the work of detecting and 

punishing alcohol-related offenses was taken up by the federal government. The National Prohibition Act, 

also known as the Volstead Act, imposed a stringent set of criminal penalties for prohibition violations. 

This greatly enhanced the jurisdiction and workload of both national law enforcement agencies and the 

federal courts, as criminals and gangs proved willing to risk the legal repercussions to make vast sums 

supplying illicit alcohol.

Roy Olmstead was one such criminal. A former Seattle police officer (he left the force after 

pleading guilty to bootlegging in 1920), Olmstead led a successful criminal enterprise that illegally 

imported alcohol from Canada in ships supposedly bound for Mexico. Using his connections with the local 

police, Olmstead built a large criminal network that was difficult for federal authorities to break using 

traditional law enforcement techniques. In 1924, federal investigators resorted to wiretaps of telephones 

at Olmstead’s home and office to capture incriminating information. Olmstead apparently knew the

authorities were listening in on some of his conversations, but continued to use the phone lines in the 

belief that any evidence obtained through that surveillance would be inadmissible in court since 

Washington state law forbade wiretapping. In combination with evidence obtained through Canadian 

police, the wiretapped information eventually led to the seizure of records that supported charges for 

conspiracy to violate the Volstead Act against Olmstead and dozens of other defendants. 

At trial, the transcripts of the wiretapped conversations were not themselves admitted into 

evidence, though witnesses used them to refresh their recollections while testifying. District Judge 

Jeremiah Neterer also permitted the admission of records and of other incriminating evidence obtained as 

a result of the wiretaps. Olmstead was convicted and sentenced to four years imprisonment and an

$8,000 fine. On appeal to the U.S. Court of Appeals for the Ninth Circuit, Olmstead’s lawyers argued that 

the wiretaps, and the use of any evidence obtained through them, violated the Fourth Amendment’s 

prohibition on unreasonable searches and seizures. In an opinion written by Judge William Ball Gilbert, 

the court rejected this argument, reasoning that the purpose of the Amendment was to protect individuals 

from having their homes invaded by the government, rather than to immunize all private conversations 

from detection. Judge Frank Rudkin dissented from the court’s decision, arguing that both the Fourth 

Amendment and the Fifth Amendment, which protects against self-incrimination, did not simply bar

physical intrusions by the police, they were designed to preserve a broader right to privacy that 

encompassed phone conversations. 

Olmstead appealed to the Supreme Court of the United States and, again, a divided Court ruled 

against him. Chief Justice William Howard Taft emphasized that government agents had not physically 

entered Olmstead’s home or office and reasoned that the Fourth Amendment “can not be extended and 
expanded to include telephone wires reaching to the whole world from the defendant’s house or office. 

The . . . wires are not part of his house or office any more than are the highways along which they are 

stretched.” Taft’s rationale also drew support from the text of the amendment, which protected the “right 

of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches 

and seizures,” and did not reference either conversations or a right to privacy. 

Nonetheless, four justices dissented from Taft’s opinion. Justice Louis Brandeis wrote the most 

famous and legally significant of these dissents. The Fourth and Fifth Amendments, Brandeis argued, 

should not be interpreted too narrowly or too literally. The purpose of the Constitution was to create broad 

rules that would adapt to changing circumstances. The Fourth and Fifth Amendments reflected a wideranging concern with excessive government intrusion against privacy that was not confined to officials 

trespassing in one’s home or rifling through one’s papers. It was misguided, he argued, to expect the 

authors of these amendments to have anticipated modern innovations like the telephone. Similarly, he 

reasoned that while the only way the government could extract a confession when the Constitution was 

founded was by physical force or threats, the Fifth Amendment was not limited to those forms of coercion. 

Modern technology had opened up new means, including phone taps, for the government to procure selfincriminating evidence against an individual’s will. Finally, Brandeis and Justice Oliver Wendell Holmes 

argued that, even if the wiretaps did not violate the Fourth or Fifth Amendments, the evidence obtained 

through them should have been excluded at trial because the wiretaps violated Washington law and the 

government should not commit one criminal act to investigate and punish another.

Although Brandeis was in the minority in Olmstead, his view of the right to privacy eventually won 

over a majority of the Supreme Court. In Katz v. United States (1967), the Court ruled warrantless 

wiretaps unconstitutional. In Katz, the Court rejected the Olmstead majority’s logic that the Fourth 

Amendment merely forbade the government from trespassing on someone’s property. Individuals using 

the phone, the Court reasoned, have a reasonable expectation of privacy. 

Legal Issues:

• Did the wiretaps violate the Fourth Amendment’s prohibition on unreasonable searches and 

seizures?

• Did the wiretaps violate the Fifth Amendment’s prohibition on compelled testimony against 

oneself?

• Should the evidence obtained through the use of the wiretaps be inadmissible because it was 

illegal under state law?

Questions for Discussion:

• The telephone was invented approximately fifty years before Olmstead, but had only come into 

widespread use more recently. What difference might this have made to the Court’s decision? 

What new technologies might cause difficulties for modern courts attempting to protect privacy?

• Fourth and Fifth Amendment challenges are usually brought by individuals, like Olmstead, who 

are guilty of the crimes with which they are charged. How might the knowledge of this guilt affect 

the courts hearing such appeals? Should guilt or innocence have mattered in Olmstead’s appeal?

• Most modern cellular phones record information (such as the phone’s location at a given point in 

time) that can be more useful to investigators than a conversation. Should the government have 

access to this information? Can the places an individual travelled on public streets or 

transportation networks really be considered “private” in the way Justice Brandeis used that term?