Olmstead v. United States: 

The Constitutional Challenges of 

Prohibition Enforcement

by

Richard F. Hamm

University at Albany, SUNY

Edited by the Federal Judicial Center for inclusion in the project

Federal Trials and Great Debates in United States History

Federal Judicial Center

Federal Judicial History Offi ce

2010

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of the judicial branch 

of the United States government.” The views expressed are those of the author and not necessarily 

those of the Federal Judicial Center.

iii

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Contents

Olmstead v. United States: A Short Narrative, 1

Introduction, 1

National Prohibition and its enforcement, 2

Prohibition in Seattle: The Olmstead ring, 3

Federal enforcement of Prohibition in Washington State, 3

Wiretapping the bootlegger, 4

From indictment to trial, 5

The trial, 6

The appeals, 7

Prohibition in the Supreme Court, 8

The aftermath, 10

The Federal Courts and Their Jurisdiction, 13

United States District Court for the Western District of Washington, 13

United States Circuit Court of Appeals for the Ninth Circuit, 13

Supreme Court of the United States, 14

The Judicial Process: A Chronology, 15

Legal Questions Before the Federal Courts, 19

Did the use of evidence gained from wiretaps and confi scated papers violate the Fourth 

Amendment protection against unreasonable searches and seizures? 19

Did the use of evidence gained from wiretaps and confi scated papers violate the Fifth 

Amendment protection against self-incrimination? 19

What was the authority of the Washington state law prohibiting wiretaps and did it 

apply to federal prosecutions? 20

Was the evidence presented to the grand jury suffi cient to justify an indictment on 

conspiracy charges? 20 

Was the indictment invalid because of improper infl uence and pressure on the grand 

jury? 21

What was the impact of the Olmstead case on the law? 22

What did the federal courts decide in related cases? 22

Boyd v. United States, 116 U.S. 616 (1886), 22

Weeks v. United States, 232 U.S. 383 (1914), 23

Carroll v. United States, 267 U.S. 132 (1925), 24

Katz v. United States, 389 U.S. 347 (1967), 24

Legal Arguments in Court, 27

The defense attorneys, 27

The government attorneys, 27 
iv

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Biographies, 29

Roy Olmstead, 29

Thomas P. Revelle, 30

Jerry L. Finch, 31

George Francis Vanderveer, 32

Jeremiah Neterer, 33

William Ball Gilbert, 34

Frank H. Rudkin, 35

Louis Dembitz Brandeis, 35

William Howard Taft, 36

Media Coverage and Public Debates, 39

“Police Protection for Bootleggers” 40

“A Judicial Farce” 40

“The Occasion Has Passed” 41

Historical Documents Related to the Olmstead Case, 43

The Fourth Amendment to the U.S. Constitution, 43

The Fifth Amendment to the U.S. Constitution, 43

The Eighteenth Amendment to the U.S. Constitution, 44

The Twenty-First Amendment to the U.S. Constitution, 45

The National Prohibition Act (the Volstead Act), 45

Judge Jeremiah Neterer’s decision on defendants’ plea in abatement, U.S. District Court 

for the Western District of Washington, 47

Majority opinion on the appeal of the Olmstead defendants, U.S. Circuit Court of 

Appeals for the Ninth Circuit, 49

Minority opinion on the appeal of the Olmstead defendants, U.S. Circuit Court of 

Appeals for the Ninth Circuit, 50

Appellants’ brief to the U.S. Supreme Court, Olmstead v. United States, 52

Brief of Frank Jeffrey for the appellants, submitted to the Supreme Court in Olmstead v. 

United States, 53

George Vanderveer’s brief for appellants, submitted to the Supreme Court in Olmstead 

v. United States, 54

Government’s brief submitted to the Supreme Court in Olmstead v. United States, 55

Amicus curiae brief of telephone companies submitted to the Supreme Court in 

Olmstead v. United States, 57

Opinion of the Supreme Court of the United States, Olmstead v. United States, 59

Dissenting opinion of Justice Louis D. Brandeis in Olmstead v. United States, 62

Dissenting opinion of Justice Pierce Butler in Olmstead v. United States, 66

Dissenting opinion of Justice Oliver W. Holmes in Olmstead v. United States, 67

“An Unusual Prohibition Victory” 68

Editorial by H.L. Mencken, 70

Report of the President’s Commission on Law Observance and Enforcement, 71

Bibliography, 73
1

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Olmstead v. United States: A Short Narrative

Introduction

In the 1920s, the national Prohibition of alcoholic beverages led to a vast increase 

in the federal government’s crime-fi ghting role and in the workload of the federal 

courts. The Eighteenth Amendment, ratifi ed on January 16, 1919, prohibited the 

manufacture, transportation, and sale of “intoxicating liquors,” and the amendment 

granted Congress and the states “concurrent power to enforce this article.” The architects of national Prohibition anticipated that the states would assume the burden 

of enforcement, but, in practice, much of the responsibility fell on federal offi cials. 

Prohibition enforcement required an unprecedented scale of federal policing, which 

soon produced an overwhelming number of criminal prosecutions in the federal 

courts. For the thirteen years of national Prohibition (1920–1933), cases arising from 

the violation of the federal Prohibition laws averaged close to two-thirds of all U.S 

district court cases. The number of criminal cases handled annually by the federal 

district courts grew from 54,487 in 1921 to 92,174 in 1932. These criminal trials also 

prompted appeals in every judicial circuit. By 1925, appeals of criminal convictions 

in the Ninth Circuit, prompted mostly by Prohibition, constituted nearly 40% of the 

appeals court’s work.

 The increased workload in the federal courts was one of the many unexpected 

demands placed on the federal government by Prohibition, which redefi ned the 

government’s role in the daily lives of citizens. Inadequate federal forces confronted 

popular disregard or opposition to the ban on liquor, and the nearly impossible task 

of enforcing major changes in personal behavior threatened to erode popular respect 

for federal authority and the judicial process. Federal enforcement also relied on 

new kinds of evidence gathering, such as wiretapping of phones, that prompted additional concerns about the role of the federal government and the costs of national 

Prohibition. The expansion of federal criminal prosecutions and the methods used by 

government agents presented the federal courts, including the Supreme Court, with 

new and diffi cult constitutional questions regarding entrapment, double jeopardy, 

property forfeiture, trial by jury, federalism, and, especially, search and seizure. 

 The case of Roy Olmstead refl ected many of the challenges confronting the federal 

judicial system during national Prohibition. Olmstead ran a large bootlegging operation, importing liquor from Canada and selling it throughout Seattle, Washington. His 

illegal business was protected by the local police and employed a workforce at least 

three times the size of the federal unit responsible for enforcing Prohibition in the 

area. In an effort to establish evidence of Olmstead’s criminal activity, federal offi cers 

tapped his phone. The testimony of what the federal offi cers overheard was central to 
2

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

the prosecution of Olmstead and the members of his gang, who were charged with 

conspiracy to violate the National Prohibition Act. The Olmstead case raised two 

important constitutional questions: Did the use of evidence gathered by the wiretap 

violate the defendants’ rights under the Fourth Amendment? And did the reliance 

on the wiretapped conversations to prove conspiracy violate the Fifth Amendment’s 

protection against self-incrimination? The case also raised questions about the use 

of evidence gathered in violation of Washington state law that prohibited wiretaps. 

Throughout the Olmstead proceedings, the federal courts confronted the impact of 

new technology and its effect on traditional legal defi nitions of privacy and personal 

liberty. The telephone and the accompanying revolution in communications required 

the courts to consider the application of the Bill of Rights to conditions unimagined 

by the framers, and the courts’ decisions about the Fourth and Fifth Amendments 

directly infl uenced popular opinion about the continuing experiment in national 

Prohibition.

National Prohibition and its enforcement

Congress approved the National Prohibition Act, better known as the Volstead Act, on 

October 18, 1919. Congress assigned the Act’s federal enforcement responsibilities to 

the Bureau of Internal Revenue, despite the protests of the bureau’s commissioner and 

the Secretary of the Treasury, who cited the lack of staff and institutional support for 

adequate enforcement. The Bureau of Internal Revenue created a small police force 

of Prohibition agents to help the states and other federal offi cers enforce Prohibition, 

and by 1921 federal directors of Prohibition enforcement were appointed in each of 

the forty-eight states. The federal enforcement agents were exempt from civil service 

regulations, salaries were low, and the resulting force was small, inexperienced, and 

frequently corrupt. The President’s commission on enforcement in 1931 reported that 

“a substantial number of Prohibition agents and employees actually were indicted 

and convicted of various crimes.” The federal agents, however, did arrest many liquor 

law violators, and the unmanageable number of resulting cases forced U.S. attorneys 

to rethink how they prosecuted crimes. 

 At the beginning of national Prohibition there was virtually no coordination 

between prosecutors and investigators of crimes. U.S. attorneys, who served in each 

U.S. judicial district, were presidential appointees under the authority of the Justice 

Department. U.S. attorneys took the cases that other federal offi cials, such as Prohibition agents, developed for them, and exercised wide latitude in deciding whether 

to prosecute fully or not. Between 1921 and 1929, Assistant Attorney General Mabel 

Walker Willebrandt led the Justice Department’s attempt to coordinate the prosecution of Prohibition crimes, and the Justice Department encouraged U.S. attorneys 

to bring conspiracy charges, which were easier to prove than were charges of liquor 

law violations.
3

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Prohibition in Seattle: The Olmstead ring 

In Seattle, as in many American cities, the lucrative nature of the illegal liquor trade 

encouraged the expansion of organized criminal gangs. It is unknown when police 

lieutenant Roy Olmstead fi rst became a bootlegger, but he was arrested for smuggling 

liquor in March 1920, when national Prohibition was just weeks old. He was fi red 

from the police force. He later pled guilty and paid a $500 fi ne. From the time of this 

arrest, Olmstead was a full-time bootlegger. Indeed, he became, as the newspapers 

called him, King of the Northwest Bootleggers. 

 Olmstead’s service in the police department taught him the requirements for 

success as a bootlegger, and the bribes he had accepted as an offi cer gave him ready 

funds to invest. He was the chief manager of a gang, coordinating all the details of 

what became a complex business. Olmstead procured his liquor in the Canadian 

province of British Columbia. At the start of United States Prohibition, the Canadian 

government imposed an extra tax on spirits bought for shipment to the United States. 

Most bootleggers merely paid the tax and passed it on to their customers. Olmstead 

avoided the tax by presenting forged documents indicating that he was shipping his 

liquor to Mexico. This willingness to break Canadian law allowed Olmstead to get 

all the liquor he needed at a price much lower than that paid by his competitors. 

He loaded his liquor onto an ocean-going vessel sailing to Mexico and then sent the 

liquor into the United States by smaller boatloads. Once in the United States, the 

liquor was shipped by truck and stored in various locations, awaiting distribution. To 

get liquor, customers called Olmstead’s phone and placed orders; cars then delivered 

the liquor. 

 The gregarious Olmstead was known to the business and political elite of Seattle, 

and he found a ready clientele in a market that depended on personal connections. At 

its peak, Olmstead’s business was delivering over 200 cases of liquor daily to Seattle 

residents, hotels, and restaurants. The business gave Olmstead the money to buy an 

expensive house and to establish Seattle’s fi rst radio station. In one year he admitted 

on his tax return to earning $19,000 or $20,000 more than the previous year. Olmstead 

bribed the Seattle police and the sheriffs of King County to ignore his operations. 

His brothers remained on the police force, and one of his former associates became 

head of the local enforcement unit, so state and local authorities never threatened 

Olmstead’s business. Olmstead only had to worry about federal law enforcement.

Federal enforcement of Prohibition in Washington State 

Federal Prohibition agents were initially appointed by the Commissioner of Internal Revenue and, starting in 1921, by a state enforcement director. Roy C. Lyle, 

the director for the state of Washington, was a close associate of one of the state’s 

U.S. senators, but Lyle had no experience in law enforcement. Lyle left much of the 
4

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

day-to-day operations to his legal advisor and chief assistant, William M. Whitney. 

A Seattle lawyer and Republican politician, Whitney was a vigorous enforcer of the 

law and authorized the searches of the cars and homes of leading citizens. Within a 

year of his appointment he was widely attacked in the press for these tactics. Whitney took the lead in pursuing Olmstead and endorsed investigation methods that 

would raise important constitutional issues in the federal courts. As in other states, 

many of the agents working under Whitney misused their offi ce when performing 

undercover operations, and the agents faced allegations of drinking heavily and patronizing prostitutes. Some agents were so notorious that juries refused to convict 

on their word, and judges rebuked the agents for their actions. The district offi cers 

nevertheless enforced the liquor ban through many arrests. By one internal account, 

the agents in Washington made over 7,000 arrests before 1927. 

Wiretapping the bootlegger

Beginning in June 1924, federal Prohibition agents, for months on end and with no 

authorizing warrants, listened to the phone conversations of Roy Olmstead and other 

members of his bootlegging gang. Even though the wiretappers were not on the line 

around the clock, the number of overheard conversations made for over 700 pages 

of transcripts, many of which were compiled by the wife of William Whitney. But the 

wiretaps did not generate the evidence that would enable the government to catch 

gang members in the act of smuggling or selling liquor. 

 The wiretaps were unproductive in part because Roy Olmstead was aware of 

them. According to the defendants, the chief wiretapper approached Olmstead and 

offered to sell him transcripts of his phone conversations. Olmstead refused to buy, 

convinced that the federal rules of evidence and Washington state law would not 

allow such evidence to be submitted in court.

 Until the Olmstead case, the federal courts had established few rules about wiretap evidence or about the privacy of telephone conversations. In an age when many 

telephone users had access only to shared “party” lines, many people did not have 

the same expectations of privacy that would be assumed by later generations. The 

ability to tap telephone lines, however, like the introduction of technology to intercept telegraph wires in the late nineteenth century, did raise many concerns about 

protecting confi dential communications. Most states had laws to protect telegraph 

communications, and by 1910 the majority of states had enacted restrictions on 

the tapping of telephone conversations. Law enforcement offi cials, however, had 

used wiretapping in criminal investigations, and federal offi cials relied on wiretaps 

during the surveillance of suspected radicals during World War I. Wiretaps became 

more frequent in federal investigations during Prohibition but no federal statutes or 

federal case law regulated wiretaps, and many offi cials were concerned about the use 

of evidence gained from intercepted conversations. In 1924, under Attorney General 
5

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Harlan Fiske Stone, the Federal Bureau of Investigation forbade Department of Justice 

agents from engaging in wiretapping. (By the time Olmstead reached the Supreme 

Court, Stone was sitting as a justice on the Court.) Olmstead was the most notable 

of the Prohibition-era cases that brought to the federal courts essential questions 

about legal status of telephone conversations. Did callers have a right to privacy in 

their telephone conversations? Were telephone conversations similar to mailed letters, 

which were protected by the Fourth Amendment? 

 While the wiretap would create the constitutional issue in the case, it was the actions of the Canadian government that made possible the prosecution of Olmstead. 

The Canadians caught three of Olmstead’s men with a large boatload of liquor, 

illegally bound for the United States. The testimony of the Canadians, augmented 

by the information from the wiretaps, provided Whitney with enough evidence to 

secure a search warrant and raid on the night of November 17/18, 1924. The records 

seized that night, supplemented with what the federal agents had learned through the 

wiretaps and from the testimony of gang members, were used by the U.S. attorney’s 

offi ce to convince the grand jury to indict Olmstead and ninety others for conspiracy 

to violate the National Prohibition Act.

From indictment to trial 

On January 19, 1925, a federal grand jury, empanelled in the U.S. District Court for 

the Western District of Washington, charged ninety-one individuals with four different counts of conspiracy to violate federal law. (The crime of conspiracy consists 

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 the prosecution must establish that 

those involved in the conspiracy intended to break the law.) The indictment charged 

the individuals with two counts of conspiring to import and to sell prohibited alcoholic beverages in violation of the National Prohibition Act and with two counts of 

conspiring to defraud the national revenue and to import prohibited merchandise 

in violation of the Tariff Act of 1922. The indictment listed the individual’s names, 

some with aliases such as “Shorty,” “Baldy,” and “Brownie.” Among the indicted were 

two Seattle police offi cers.

 Between the indictment in January 1925 and the trial in January 1926, Olmstead 

and most of the members of his organization returned to the bootlegging business. 

Olmstead’s attorney, Jerry L. Finch, himself a codefendant, presented the court with 

several motions variously intended to stop the trial, to improve the likelihood of 

acquittal if the defendants came to trial, and to establish grounds for appeal if the 

defendants were convicted at trial. In a plea to dismiss the indictment, Finch alleged 

that agent Whitney threatened the foreman of the grand jury and presented the grand 

jury with insuffi cient and hearsay evidence. In a second motion, Finch challenged the 
6

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

conspiracy indictment as too vague and too imprecise for the defendants to prepare 

their case. In separate decisions in April and May of 1925, Judge Jeremiah Neterer of 

the U.S. District Court for the Western District of Washington rejected these pretrial 

motions.

 Finch and Olmstead fi led motions asking the district court to quash the warrants 

for searches of their offi ces and Olmstead’s residence, and to exclude the evidence 

resulting from the searches. In the motions to quash, the defendants argued that the 

seized records and the wiretap evidence were obtained in violation of the Fourth 

Amendment’s protections against unreasonable search and seizure, and therefore 

should be excluded from the trial. The motions also argued that the evidence compromised the defendants’ Fifth Amendment right against self-incrimination, and 

the defendants asked the judge to order the return of the records to their owners. 

In September 1925, Judge Neterer rejected the Fourth Amendment arguments and 

upheld the use of wiretap evidence, but he did specify that the papers seized from 

Finch and Olmstead could not be used against them in the trial. This, however, was a 

hollow victory for the defense because those materials could be used against all of the 

other defendants and, therefore, would not be returned. This ruling made clear the 

strategic advantage of charging the members of the Olmstead ring with conspiracy, 

as each could be held liable for the actions of the other members of the conspiracy 

and evidence that would be suppressed in a trial of a single defendant charged with 

a crime would be admitted in a conspiracy case.

 The prosecution, headed by U.S. Attorney Thomas Revelle and assisted by Charles 

T. McKinney and John Marshall, worked with William Whitney to prepare the evidence for trial. The prosecution convinced members of the Olmstead organization to 

testify for the prosecution. One member of the organization, Alfred Hubbard, asked 

for and received an appointment as a federal Prohibition agent in exchange for inside 

information. Hubbard was the probable source that allowed federal agents to catch 

Roy Olmstead on Thanksgiving morning 1925, unloading liquor from a boat. 

The trial 

By the opening of the trial on conspiracy charges, twelve defendants had pleaded 

guilty and agreed to testify against the others. Another twelve defendants hired the 

combative George Francis Vanderveer to defend them; others hired their own lawyers. 

And another thirty-two defendants fl ed to Canada, forfeiting their bail. Only fortyseven individuals, including Roy Olmstead and Jerry Finch, remained to stand trial 

in Seattle beginning on January 19, 1926. At the opening of the trial, the government 

attorneys decided not to prosecute the two charges related to the Tariff Act. The jury 

was selected in two days and was sequestered for the duration of the trial. 

 The prosecution detailed the Olmstead ring operations, from the procurement 

of the liquor to its fi nal distribution. Witnesses described the acquisition of boats, 
7

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

trucks, and property to facilitate the trade. Prominent Seattle citizens, most notably the business magnate William E. Boeing, testifi ed about the purchase of liquor 

through the phone order service provided by the Olmstead gang. The testimonies of 

members of the gang who pleaded guilty and the federal agents who had listened in 

on the telephone taps were central to the prosecution’s case. While the transcripts of 

the tapped conversations were never entered into evidence, the federal agents who 

had listened into the conversations were allowed to use the transcripts to refresh their 

memories when testifying. These witnesses described the full range of the smuggling 

and sale of liquor as well as the corruption of the local police. 

 The defense attempted to discredit or to exclude the wiretapped evidence. 

Vanderveer successfully challenged the identifi cation of speakers on some of the 

wiretaps, and the government consequently dismissed indictments against thirteen 

people. By the end of the trial in February 1926, charges against fi ve more defendants 

were dismissed, leaving only twenty-nine defendants. The jury deliberated for six 

hours over two days and found twenty-one of those defendants guilty. Among those 

convicted were Roy Olmstead and Jerry Finch. 

 Before the sentencing in March, Judge Neterer carefully reviewed the records of 

those convicted and levied heavier sentences on those who were repeat offenders 

or whom the evidence showed were the leaders of the ring. Olmstead received the 

heaviest penalties: four years in prison and $8,000 in fi nes. In sentencing him, Neterer 

said: “The operation of this conspiracy, as disclosed by the testimony was scandalous 

and of incalculable damage to society and the organization of government. . . . If 

the same energy and organization had been directed along legitimate lines . . . great 

good might have obtained.” Jerry Finch was sentenced to two years and fi ned $500. 

Finch received the lowest fi ne, while the least prison time ordered by Judge Neterer 

was eighteen months. At the same time, Neterer rejected all the defense motions for 

arrest of judgment, saying, “I think all the points raised were ruled upon during the 

trial . . . the defendants were given every legal right.” 

The appeals

After the sentencing, the great majority of the defendants, upon payment of their bails, 

were free while their lawyers planned their appeals. Before the U.S. Circuit Court of 

Appeals for the Ninth Circuit, Finch and Vanderveer, in appeals for separate groups 

of defendants, repeated their trial court arguments that the tapping of the phone 

lines constituted an illegal search in violation of the Fourth Amendment and that 

the introduction of the wiretapped evidence in court violated the defendants’ Fifth 

Amendment rights against self-incrimination. On May 9, 1927, Judge William Ball 

Gilbert, joined by Judge Frank Dietrich, ruled that “the purpose of the amendments 

is to prevent the invasion of homes and offi ces and the seizure of incriminating 

evidence found therein.” He did not see wiretapping as such an invasion, equating 
8

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

it with “evidence obtained by listening at doors or windows.” The court’s majority 

also denied the appellants’ claim that the grand jury had been coerced to return the 

indictment and the claim that the witnesses had improperly relied on transcripts of 

the wiretapped conversations.

 In his dissenting opinion, Judge Frank Rudkin found that the witnesses had improperly relied on the transcripts, and concluded that “a better opportunity to color 

or fabricate testimony could not well be devised by the wit of man.” Rudkin, however, 

quickly added that his dissent was based on “much broader grounds.” The testimony 

drawn from the wiretaps was inadmissible in “any event” because it so clearly violated 

the protections offered by the Fourth and Fifth Amendments. The amendments’ 

“chief aim and purpose was not the protection of property, but the protection of the 

individual in his liberty and in the privacies of life.” He noted “a growing tendency to 

encroach upon and ignore constitutional rights,” but pointed out that the Supreme 

Court had “consistently and persistently declared that the amendments in question 

must be liberally construed in favor of the citizen and his liberties, and that stealthy 

encroachments will not be tolerated.”

 Lawyers for Olmstead and two other groups of defendants submitted petitions 

appealing the case to the Supreme Court of the United States. In the fall of 1927, 

Olmstead was tried and acquitted on separate federal charges arising from his arrest 

on Thanksgiving Day 1925. Without wiretap evidence, and relying on the dubious 

testimony of Alfred Hubbard, the U.S. attorney was unable to convince a jury to convict Olmstead. Five days after this acquittal, the Supreme Court denied the petitions 

for certiorari. Within a week, Olmstead, Finch, and others entered federal prison.

 After two groups of appellants applied for a rehearing of their petitions, the 

Supreme Court reconsidered and, on January 9, 1928, agreed to hear arguments in 

the Olmstead appeal and two companion cases (Green v. United States and McInnis v. 

United States). The Supreme Court limited arguments in the combined cases to the 

Fourth and Fifth Amendment questions raised by the reliance on evidence gathered 

by wiretapping.

Prohibition in the Supreme Court

In a series of cases in the 1920s, the Supreme Court had almost always supported 

the enforcement of Prohibition, although the demands of federal policing and the 

social reform goals of the liquor ban often produced unpredictable voting alliances 

on the Court. The Chief Justice of the United States was William Howard Taft, the 

former President, appointed to the Supreme Court in 1921. Taft, who served as a 

professor at Yale Law School before joining the Court, had originally opposed Prohibition, in part because of the unsustainable burden it would place on the federal 

court system. But once the Eighteenth Amendment was ratifi ed and he joined the 

Supreme Court, Taft was determined to support the enforcement of democratically 
9

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

enacted and constitutionally authorized federal law. Other conservative justices on 

the Supreme Court, such as George Sutherland and James McReynolds, distrusted 

the social engineering goals of Prohibition and feared that strict enforcement would 

undermine public confi dence in the federal courts. Justices like Louis Brandeis and 

Oliver Wendell Holmes generally supported the enforcement of laws passed by the 

Congress, but they became increasingly concerned about the lack of public support 

for strict enforcement of Prohibition and also questioned the police’s enforcement 

methods.

 Mabel Walker Willebrandt, who usually represented the government before the 

Supreme Court in Prohibition-related cases, travelled to Seattle to observe the trial, 

and although she signed the government’s brief asking the Supreme Court not to 

grant certiorari, she refused to represent the government at oral arguments in Olmstead because she opposed the use of wiretap evidence. The Supreme Court heard 

arguments in Olmstead and the related cases on February 20 and 21, 1928; on June 4 

of that year, the Court announced its decision in the case. In a fi ve-to-four decision, 

the Court, in an opinion written by Chief Justice Taft, affi rmed the decisions of the 

U.S. court of appeals and thus upheld the convictions. The Supreme Court held that 

the wiretaps entailed no entry into Olmstead’s home or offi ce and thus the wiretap 

evidence was not obtained through violations of the search and seizure limitations 

of the Fourth Amendment. In addition, Taft declared that phone conversations were 

not the equivalent of sealed letters, which previous Supreme Court decisions had 

protected from warrantless searches and seizures. Taft held that the invention of the 

telephone had not changed the meaning of the Fourth Amendment. “The language 

of the Amendment can not be extended and expanded to include telephone wires 

reaching to the whole world from the defendant’s house or offi ce. The intervening 

wires are not part of his house or offi ce any more than are the highways along which 

they are stretched.” Taft added that Congress was free to protect telephone communication through legislation, but the courts could not do so without distorting the 

meaning of the Fourth Amendment.

 There were strong dissents from Justices Pierce Butler, Oliver Wendell Holmes, 

and Louis Brandeis; Justice Harlan Fiske Stone concurred with most of the dissents. 

Justice Butler saw a clear analogy between private telephone conversations and letters, and therefore concluded that the Fourth Amendment limitations on searches 

and seizures should apply in the case. “The contracts between telephone companies 

and users contemplate the private use of the facilities employed in the service. The 

communications belong to the parties between whom they pass.” Justice Holmes asserted that as a matter of policy and principle the government should not allow the 

introduction of evidence obtained in violation of Washington state law, for “if the 

Government becomes a lawbreaker, it breeds contempt for law.”

 In the lengthiest and most noted dissent, Justice Brandeis asserted a general “right 

to be let alone” from government intrusion and argued that the purpose of the Fourth 
10

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Amendment was to secure that right. In contrast to Taft and the Court’s majority, 

Brandeis found that “there is, in essence, no difference between the sealed letter 

and the private telephone message.” The protections of the Fourth Amendment, he 

said, did not apply solely to the medium familiar to the framers of the Constitution. 

“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.” Having 

found a violation of the Fourth Amendment, Brandeis concluded that the use of the 

wiretap evidence had violated the defendants’ Fifth Amendment protection against 

self-incrimination. Brandeis added that he would have reversed the lower court decisions regardless of the constitutional questions because of the admission of evidence 

that had been obtained in violation of Washington state law prohibiting wiretaps. In 

his opinion for the majority, Taft dismissed this objection, stating that the common 

law had long permitted the use of illegally or improperly obtained evidence.

The aftermath

Much of the public reaction to the Supreme Court’s decision in Olmstead was critical. A popular magazine, The Outlook, went so far as to label Olmstead the “the Dred 

Scott decision of Prohibition.” The comparison to the Supreme Court’s most reviled 

decision may have been exaggerated, but it refl ected the growing concern that the 

enforcement of national Prohibition was damaging public confi dence in the federal 

court system and undermining public respect for law enforcement. Before he became 

Chief Justice and before the ratifi cation of the Eighteenth Amendment, William Howard Taft had warned that national Prohibition would be “an irretrievable national 

blunder” that would be unenforceable and a threat to the proper balance of state and 

federal governmental responsibilities. Following Taft’s decision in Olmstead, more and 

more commentators concluded that Prohibition had become a threat to the rule of 

law in the United States. According to The Nation, the Court had endorsed a kind of 

“lawlessness” in a misguided effort to enforce Prohibition. The Court’s acquiescence 

in what a leading business newspaper called the “dirty business” of wiretapping came 

to symbolize a level of federal intrusion that many were not willing to accept. Even 

a leader of the Anti-Saloon League protested the acceptance of wiretapping, which 

he feared would turn public opinion against Prohibition.

 The reaction to Olmstead refl ected growing disenchantment with Prohibition and 

doubts about the possibilities of effective enforcement. Although Herbert Hoover had 

supported the continuation of Prohibition in his successful presidential campaign 

in 1928, both political parties were seriously divided over the issue. After 1928, a 

growing number of studies documented the law enforcement challenges and judicial 

burdens of Prohibition. In 1928 and 1929, nearly two-thirds of the criminal cases in 

federal courts were related to Prohibition, and in 1930 federal prisons housed twice 

the number of prisoners they could normally accommodate. In May 1929, President 
11

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Hoover appointed a commission to study “Law Observance and Enforcement.” The 

commission, in its report released in January 1931, recommended efforts to enforce 

the Eighteenth Amendment, but its fi ndings indicated how diffi cult that would be. 

The report documented increased consumption of alcohol, a rise in criminal activity 

associated with the manufacture and sale of alcoholic beverages, and the crushing 

burden on law enforcement forces and the nation’s courts.

 Organizations supporting the repeal of the Eighteenth Amendment, including 

the Women’s Organization for National Prohibition Reform, established by socially 

prominent women from throughout the nation, began to coordinate their campaign 

for repeal. The Democratic Party platform of 1932 endorsed repeal, and although both 

parties remained divided over the issue, the overwhelming victory of the Democrats 

in November 1932 was interpreted by most as a referendum in favor of repeal. The 

new Congress, on February 20, 1933, approved a constitutional amendment repealing 

the Eighteenth Amendment, and Congress provided for popularly elected state conventions to consider ratifi cation. A majority of Republicans as well as Democrats in 

Congress approved the amendment. On December 5, 1933, the Twenty-First Amendment was ratifi ed when Utah’s state convention became the thirty-sixth convention 

to approve it.

 In the spring of 1931, Roy Olmstead was released from prison a changed man. He 

had become a Christian Scientist and had renounced liquor. The repeal of Prohibition 

strengthened support for pardons of many convicted of violating the Volstead Act, 

and on Christmas 1935, Olmstead received a full presidential pardon and remittance 

of fi nes paid. In 1934, Congress passed a communication act that would in just a 

few years serve as the basis for Supreme Court decisions prohibiting wiretapping by 

federal agents without a warrant.

13

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

The Federal Courts and Their Jurisdiction

United States District Court for the Western District of 

Washington

The Judiciary Act of 1789 created the U.S. district courts as trial courts with jurisdiction over admiralty, minor crimes, and suits involving the federal government. 

Over the course of the nineteenth century, Congress expanded the district courts’ 

jurisdiction. With the abolition of the circuit trial courts in 1911, the district courts 

became the sole trial courts of the federal system. They heard all matters arising 

in their district under the laws of the United States. During national Prohibition, 

district court dockets came to be dominated by criminal law cases. Originally the 

courts’ districts mirrored state boundaries. As the population and federal jurisdiction expanded in the nineteenth and early twentieth centuries, Congress authorized 

multiple districts for some states. 

The state of Washington was organized by Congress as a single judicial district in 

1890, with one district court judge, and the district was assigned to the Ninth Judicial 

Circuit. In 1905, Congress divided the state into the Eastern and Western Districts. 

As the population and judicial business expanded dramatically with the boom of the 

Pacific Northwest, brought on by the Alaska and Yukon gold rushes, an additional 

judgeship was created for the Western District in 1909. 

United States Circuit Court of Appeals for the Ninth 

Circuit

Established in 1891, the U.S. circuit courts of appeals were the first federal courts 

designed exclusively to hear cases on appeal from trial courts. These were courts that 

settled issues of law; they did not try original cases. Congress established a court of 

appeals in each of the existing nine regional circuits. The existing circuit judges and 

one newly authorized judge in each circuit served as the judges of the appellate courts 

along with district court judges or Supreme Court justices, who could make up the 

required three-judge panels. The same 1891 act gave the U.S. circuit courts of appeals 

jurisdiction over the great majority of appeals from the U.S. district courts and the 

U.S. circuit courts. This appellate function was intended by Congress to reduce the 

number of cases that could be routinely appealed to the Supreme Court. The 1925 

Judiciary Act, also known as the Judges’ Bill, further restricted appeals to the Supreme 

Court, and this Act, combined with the explosion of litigation brought about by the 

expansion of federal activity, resulted in great growth of business before the courts 
14

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

of appeals. By the 1920s, each U.S. court of appeals had at least three assigned judges, 

ending the need for regular service by district judges on court of appeals panels. 

 The U.S. Circuit Court of Appeals for the Ninth Circuit originally heard appeals 

from trials in federal courts in California, Oregon, Nevada, Washington, Idaho, and 

Montana. In 1900, the territories of Alaska and Hawaii were added to the circuit; 

in 1912, Arizona was added. The Ninth Circuit Court of Appeals had the broadest 

geographical jurisdiction as it also heard appeals from American possessions across 

the Pacifi c and a special extraterritorial court in China. 

Supreme Court of the United States

The Supreme Court was the only court named in the Constitution. The Judiciary 

Act of 1789 fi rst set out the details of the Court’s organization and jurisdiction. 

Subsequent acts and its practices over time altered the original plans. By the time 

of the Olmstead case, the Supreme Court was a court of nine justices, including the 

Chief Justice. The Supreme Court exercised limited original jurisdiction as set out in 

the Constitution, but it was primarily an appeals court. Moreover, the Court largely 

controlled what cases it would hear on appeal. The 1891 act establishing the U.S. 

circuit courts of appeals authorized the justices of the Supreme Court to accept or 

reject cases brought to them through petitions for writs of certiorari, and the 1925 

Judges’ Bill further increased the justices’ discretion in determining which cases to 

hear by eliminating certain automatic appeals that had previously existed. 
Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

The Judicial Process: A Chronology

January 16, 1920

National Prohibition of intoxicating liquor went into effect under the Eighteenth

Amendment and the Volstead Act.

March 22, 1920

Federal Prohibition agents apprehended Roy Olmstead and a number of men unloading a boatload of smuggled Canadian liquor.

Mid-June 1924

Federal agents began to tap Roy Olmstead’s phones.

October 6, 1924

Canadian officials captured an Olmstead boat smuggling liquor contrary to the laws 

of Canada and the United States.

November 17–18, 1924

Federal agents raided and seized records from Roy Olmstead’s home and offi ce and 

from the office of Jerry Finch.

January 19, 1925

A grand jury of the U.S. District Court for the Western District of Washington returned conspiracy indictments naming ninety-one individuals. 

April 23, 1925

Judge Jeremiah Neterer in the U.S. District Court for the Western District of Washington refused to grant the defendants’ plea of abatement filed by Jerry Finch.

May 13, 1925

Judge Neterer refused to grant Finch’s request to drop the indictments, which Finch 

claimed charged the defendants multiple times for the same offence. Finch also 

argued that the indictments were insuffi cient in that they did not charge particular 

defendants with particular acts. 

15
16

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

May 25, 1925

Defendants pleaded not guilty.

September 21, 1925

Judger Neterer rejected the Fourth and Fifth Amendment challenges to the indictments. 

November 26, 1925

Federal agents again caught Roy Olmstead smuggling liquor. 

January 19, 1926

The trial opened in the U.S. District Court for the Western District of Washington 

before Judge Jeremiah Neterer with only forty-seven defendants present. The government dismissed indictments against four on the eve of the trial in exchange for 

testimony or information.

February 10, 1926

The prosecution rested its case, and the court dismissed seventeen more defendants 

on the motion of the government. At the same time, two conspiracy charges were 

dropped by the prosecutors.

February 16, 1926

The defense rested its case. By this point only twenty-nine defendants remained since 

the exclusion of some evidence forced the government to drop charges against some 

defendants. 

February 18, 1926

Judge Neterer sent the case to the jury, which deliberated for six hours over two days. 

February 20, 1926

The jury convicted twenty-one defendants and acquitted eight. Among the convicted 

were Roy Olmstead and Jerry Finch.

March 8, 1926

Judge Neterer sentenced the convicted. 
17

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

May 9, 1927

The Ninth Circuit Court of Appeals rejected Olmstead’s appeal of his conviction. 

Judge William Gilbert in his opinion for the court upheld the use of the wiretapped 

evidence, while in dissent Judge Frank Rudkin focused on invasion of privacy by 

government offi cers. 

November 16–17, 1927

Olmstead was tried and acquitted on a federal liquor smuggling case stemming from 

his arrest in November 1925. 

November 21, 1927

The Supreme Court denied petitions for certiorari in Olmstead and companion cases.

November 29, 1927

Olmstead, Finch, and others entered prison. 

January 9, 1928

The Supreme Court granted a writ of certiorari in Olmstead and companion cases 

on an application for rehearing. 

February 20–21, 1928

Olmstead and companion cases were argued in the U.S. Supreme Court. The arguments were limited to Fourth and Fifth Amendment questions raised by the wiretapping. 

June 4, 1928

The Supreme Court announced its decision in the case. In a fi ve-to-four decision, the 

Court, in an opinion written by Chief Justice Taft, upheld the decision of the court 

of appeals, fi nding that there was no real search of Olmstead’s home or offi ce, that 

the phone conversations were not the equivalent of a sealed letter, and that wiretap 

evidence did not need to be excluded. In addition, since the Fourth Amendment was 

not violated, the Fifth Amendment did not apply. 

May 12, 1931

Olmstead released from prison. 

December 5, 1933

Twenty-First Amendment adopted repealing the Eighteenth Amendment.
18

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

June 19, 1934

Passage of Federal Communications Act, which would be construed to prohibit 

wiretapping by federal agents without warrants.

December 25, 1935

Roy Olmstead granted a full presidential pardon.
19

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Legal Questions Before the Federal Courts

Did the use of evidence gained from wiretaps and 

confi scated 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 

confi scated 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 offi ces 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 
20

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

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 fi nd 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 offi ce 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 fi rst 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 suffi cient 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 
21

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

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 suffi ciency 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 suffi ciently apprised the defendants of the charges against 

them. The U.S. Court of Appeals for the Ninth Circuit affi rmed Neterer’s decision, 

stating that the indictment “furnished suffi cient 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 infl uence 

and pressure on the grand jury? 

Attorneys for Olmstead and thirty-two other defendants fi led motions to dismiss the 

indictment because it was based on improperly obtained or insuffi cient 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 

offi ce, even though the warrant for those searches had been issued without probable 

cause. Judge Neterer could fi nd no precedent for setting aside an indictment on the 

basis of insuffi cient evidence. The fi ndings of the grand jury were not fi nal, 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 infl uenced the jury, Neterer added, separate charges should 

be brought against him.
22

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

 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 fi rst 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 fi ne 
23

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

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 

offi cials 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 offi cials could seize private letters and 
24

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

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 fi nding 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 unfulfi lled 

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 affi xed 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 
25

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

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 specifi cally 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’.”

27

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Legal Arguments in Court

The defense attorneys

Attorneys for the Olmstead defendants asked the trial judge to review the evidence 

to make sure it was suffi cient to justify an indictment. The attorneys also asked that 

the indictment be dismissed on grounds of improper infl uence, alleging that William 

Whitney coerced the grand jury by threatening the foreman with prosecution. On the 

constitutional issues, the Olmstead defense attorneys wanted to exclude from trial the 

evidence obtained by wiretapping on the grounds that the wiretapping constituted 

an unreasonable search and seizure in violation of the Fourth Amendment. They 

pointed out that the wiretapping was contrary to Washington state law and that the 

court ought not sanction breaking the law as a means of obtaining evidence. Drawing 

on the long tradition of associating search and seizure issues with property rights, the 

defense attorneys characterized the agents who listened in as “trespassers” on private 

rights and portrayed conversations on the telephone as the equivalent of letters sent 

in the mail, which the Supreme Court had recognized as protected by the Fourth 

Amendment. Defense attorneys also argued that the use as evidence of the overheard 

conversations compelled the defendants to be witnesses against themselves, in violation of the Fifth Amendment. Citing the two amendments and invoking property 

rights, in effect, postulated a right of privacy from government intrusion. 

The government attorneys 

At the trial level and in the Ninth Circuit court of appeals, the government prosecutors argued that there was suffi cient evidence to bring an indictment and that there 

was no undue infl uence on the grand jury, referring to the affi davits of the foreman 

and others that contradicted the defendants’ claims. The government attorneys asserted that only evidence gathered in violation of the Fourth Amendment could be 

excluded from federal courts, and that even illegally obtained evidence, such as that 

obtained in violation of the Washington state law prohibiting wiretaps, could be 

used according to the common law. The government turned the property argument 

against the defendants, pointing out that the wiretap was made not on the defendants’ 

premises and arguing there was no invasion of their property. The government also 

rebutted the equating of phone conversations with sealed letters, pointing out that 

letters were papers, which were mentioned in the text of the Fourth Amendment. 

In short, the government argued that there was no violation of Fourth Amendment 

provisions against unreasonable searches and that the evidence from the wiretaps 

should be admitted. The government separated the questions of the Fourth and 
28

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Fifth Amendments, arguing that if the Fourth did not exclude the evidence then the 

Fifth did not apply. The government claimed the Fourth Amendment was intended 

to prohibit the use of general warrants that did not specify the place that was to be 

searched or the items to be seized, and thus did not combine with the Fifth Amendment to create a right of privacy. 
29

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Biographies

Roy Olmstead (1886–1966)

The defendant

Born in Nebraska on September 18, 1886, Roy Olmstead moved to Seattle in 1904. 

He worked in the Seattle shipyards before joining the city police department in 1906. 

Olmstead rose quickly through the 

ranks of the Seattle police, becoming 

sergeant in 1910 and lieutenant in 1916. 

He was a rising star in the department 

and was well thought of in the courts, 

where he appeared often to recommend 

probation for offenders. 

 Olmstead’s police career coincided 

with a period of tremendous growth 

for Seattle. From 1906 to 1920, the 

city’s population tripled, and, like 

many boomtowns, Seattle fl uctuated 

between periods of institutionalized 

corruption, with “wide open” fl outing 

of restrictions on liquor, gambling, and 

prostitution, and periods of strict law 

enforcement and reform. Olmstead 

was a friend to two Seattle mayors, Dr. 

Edwin J. Brown and Hiram Gill, both 

of whom favored the “wide open” style. 

Before Prohibition, Olmstead had begun to sell his probation recommendations and soon had capital to invest.

 By 1920, Olmstead was perfectly 

placed to become the city’s major bootlegger. From his position in the police 

department, he saw how profi table bootlegging liquor from Canada had become. 

He also saw how criminal groups, one headed by a former policeman, dominated 

the business of illegal alcohol supply after the state of Washington went dry in 1916. 

After law enforcement offi cials broke existing bootlegging gangs, Olmstead saw his 

opportunity to enter the lucrative and illegal business. 

Elise and Roy Olmstead (1925)

Courtesy of Seattle Post-Intelligencer Collection, Museum 

of History & Industry, Seattle, Washington.
30

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

 In March 1920, Olmstead was caught by federal agents while unloading illegal 

Canadian liquor from a boat, the largest shipment seized in the area up to that time. 

He was fi red from the police department, and while on bail he devoted his energies 

to bootlegging. His organization soon dominated the smuggling and supplying of 

liquor to Seattle. 

 Olmstead became widely identifi ed as the King of the Northwest Bootleggers, and 

he lived a royal life. He divorced his fi rst wife in 1924 and married Elise Campbell 

(known as Elsie), and they entertained at the large house he bought in the exclusive 

neighborhood of Mount Baker. He was a dapper dresser and moved in the highest 

political and economic circles of the city. He bought the city’s fi rst radio station, 

located its transmitter in his home, and gave his wife time on the air. Rumors spread 

that she sent coded messages out over the air to the bootlegging ships at sea. She was 

tried along with her husband in 1926, but she was acquitted.

 Following his conspiracy conviction at trial, Olmstead sold his legal business, 

his home, and personal property. After the Ninth Circuit court rejected Olmstead’s 

appeals, Olmstead began serving his four-year sentence at the federal penitentiary 

on McNeil Island in Washington. He left the prison only to appear as a witness in the 

corruption trial of the leading federal Prohibition administrators, including William 

Whitney. The administrators were acquitted. 

 In May 1931, Olmstead left prison a changed man. In prison he became a Christian 

Scientist, embracing his religion’s view that liquor was a harmful substance. After his 

release, he made his living selling furniture. In 1935, due largely to the efforts of his 

wife Elise, Roy Olmstead received a presidential pardon, which remitted his fi nes and 

court costs. Eventually Olmstead became a full time Christian Science practitioner 

and spent much of his time visiting prisons and jails attempting to help inmates with 

their rehabilitations. He died on April 30, 1966. 

Thomas P. Revelle (1868–1941)

United States attorney

Thomas P. Revelle was born in Maryland in 1868. He fi rst studied for the ministry 

at Western Maryland College and went to Seattle in 1898 to serve as a minister in 

a Methodist Church. He continued his education, earning a masters degree from 

Western Maryland College and a law degree at the University of Washington Law 

School. In 1906, he took up the practice of law with his brothers, forming the fi rm 

of Revelle, Revelle, & Revelle. He made Seattle his home and became involved in local politics. As a Seattle city councilman from 1906 to 1911, Revelle was a reformer. 

He was best known as the founder of the Pike Place Public Market. While today the 

market is a Seattle landmark, at the time of its founding it was an attempt to bring 

farm produce to the public directly and cheaply. 
31

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

 Revelle was appointed a U.S. attorney for the Western District of Washington by 

President Warren Harding and was confi rmed by the Senate on October 11, 1921. 

As a Methodist, Revelle was personally dry, and, as an offi cial, he was scrupulously 

honest. When the leading federal law enforcers, including members of his offi ce, were 

indicted for corruption in 1930, Revelle’s name was absent. However, the corruption of government during Prohibition, especially during the term of Mayor Edwin 

J. “Doc” Brown, spurred him to action. Before Revelle resigned his offi ce, he was so 

concerned about corruption within Prohibition enforcement ranks that he asked the 

Justice Department to investigate the federal offi cials in his district. Revelle was an 

able prosecutor. His cases were always well prepared, and he was a clear presenter of 

evidence in court. He also had aspirations for higher offi ce; he unsuccessfully sought 

the Republican nomination for governor in 1924. 

 Revelle remained loyal to his political patron, Senator Wesley L. Jones, and he 

effectively used material developed from the Olmstead case to attack the record of 

Mayor Brown when Brown began his campaign for Senator Jones’s seat. With the 

decline in the popularity of Prohibition and with the decline in the fortune of his 

political patron, Revelle abandoned politics and law and took up a career in real 

estate. He died in 1941. 

Jerry L. Finch

Co-defendant and lawyer

Not much is known about Jerry L. Finch. While Thomas Revelle characterized Finch 

as a “fi xer,” and the Seattle Daily Times mostly commented on his attire, he was an 

important fi gure in the case. Finch was not only Roy Olmstead’s attorney, but also one 

of the most important men in the Olmstead liquor smuggling and selling operation. 

Few knew as much about Olmstead’s operations as Finch. Finch was the front man 

on many of the purchases and leases of vehicles and property used in the operation. 

Although better in the boardroom than the courtroom, he was a capable lawyer, 

and, prior to the trial, he fi led a number of motions for suppression of evidence that 

raised the key legal questions that would be addressed on appeal. Finch again raised 

those points at trial and added to them in fi lings on appeal. After the appeals in the 

case ended, Finch entered prison and was disbarred.
32

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

George Francis Vanderveer (1875–1942)

Defense lawyer

George Francis Vanderveer was born in Iowa on August 2, 1875. At his father’s urging, 

he attended college at the new Stanford University in California, and then attended 

Columbia Law School. Vanderveer moved to the boomtown of Seattle, renewed his 

connections with school friends, and became associated with the business and legal 

leaders of the city. 

 Vanderveer took a job with the prosecuting attorney of King County. As a prosecutor, Vanderveer developed into an able courtroom warrior. He disliked the webs 

of corruption that characterized local politics, and he made a political enemy of the 

owner of the Seattle Daily Times, Alden J. Blethen. Despite the strong opposition of 

that paper, Vanderveer won election in 1908 as prosecuting attorney of King County. 

(Years later, during the Olmstead trial, the Seattle Daily Times, then being published by 

C.B. Blethen, son of Alden, did not print Vanderveer’s name even though Vanderveer 

was the most active of the defense attorneys.) Vanderveer quickly became a crusading prosecutor, especially targeting corruption in the city. He was a one-term offi ce 

holder, and his crusading work was quickly undone by the election of a wide-open 

mayor. 

 Vanderveer went into private practice, specializing in criminal defense and was 

soon defending people like those he had previously prosecuted. Vanderveer became 

famous defending the radical laborers of the Industrial Workers of the World (the 

Wobblies); at the same time he became alienated from the business community. To 

make a living he began working for those individuals who took advantage of loopholes in Washington’s Prohibition system. The state Prohibition law of 1916 allowed 

legal importation of alcohol and sale for medicinal purposes. The latter provision 

prompted the entry of existing drug stores into the retail liquor business and also the 

birth of new drug stores, whose major purpose was to supply alcoholic beverages. 

Vanderveer devised means to take advantage of these gaps in the state Prohibition 

law, and he was closely identifi ed with bootleggers. 

 In late 1924, his longtime girlfriend committed suicide, and Vanderveer began 

drinking heavily. Nevertheless, he was still recognized by many in the area as an 

aggressive and able courtroom advocate, so a good number of defendants in the 

Olmstead case hired him to conduct their defense. Olmstead, though a legal defeat, 

showcased Vanderveer’s crusading side. Until the end of his life in 1942, he served as 

a lawyer to a great number of labor unions. 
33

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Jeremiah Neterer (1862–1943)

U.S. district court judge, Western District of Washington

Jeremiah Neterer was born in a log house on a farm in Northern Indiana. Little is 

known about his childhood and early youth. He migrated to Washington, but whether 

he came with his family or alone is unclear. He received a law degree from Valparaiso 

University in 1885. By 1890, he 

lived in what would later become 

Bellingham, and beginning in 

1893 he served as city attorney. He became a judge of the 

Superior Court of Whatcom 

County in 1901. As a judge he 

was somewhat of an innovator, 

organizing an informal juvenile 

court. Like the famous Colorado 

Judge Benjamin Lindsey, Neterer 

set certain days aside for holding 

conferences with boys in trouble 

and their parents. He was a lifelong Democrat, serving as a 

delegate to the Democratic National Convention in 1912. He 

received a recess appointment 

to the U.S. District Court for 

the Western District of Washington from Woodrow Wilson 

on March 4, 1913, and after confi rmation by the Senate received 

his commission on July 21, 1913. 

By 1933 Neterer assumed senior 

status, and he continued to serve 

until his death.

Judge Jeremiah Neterer

Courtesy of the U.S. District Court for the Western District 

of Washington.
34

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

William Ball Gilbert (1847–1931) 

Judge of the United States Court of Appeals for the Ninth Circuit 

William Ball Gilbert was born in Fairfax County, Virginia, into a family that could 

trace its roots in America to the seventeenth century. His father moved the family to 

Ohio before the Civil War, and William 

spent the war years at Williams College, 

graduating in 1866. His fi rst interests 

were scientifi c, but he later turned to 

law. Gilbert enrolled in the University 

of Michigan law school, earning a degree in 1872. The next year he moved 

to Portland, Oregon, and practiced law 

there until 1892. He also served one term 

in the Oregon legislature from 1889 

to 1891. President Benjamin Harrison 

nominated him to the newly created U.S. 

Circuit Court of Appeals for the Ninth 

Circuit. Gilbert received his commission 

on March 18, 1892, and served until 

1931. In his long judicial career, Gilbert 

proved to be a hard worker and productive jurist with a real love for the law. For 

over twenty years he lectured at the University of Oregon Law School. He never 

fully accepted modern times, refusing to 

ride in a car, for example. Gilbert wrote 

for the U.S. court of appeals in a great 

number of cases, both small and large, 

including one of the cases that came out 

of the Teapot Dome scandal. 

Judge William Ball Gilbert

Courtesy of Ninth Circuit U.S. Court of Appeals Library.
35

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Frank H. Rudkin (1864–1931) 

Judge of the United States Court of Appeals for the Ninth Circuit 

Frank Rudkin was born in Vernon, 

Ohio, and was educated in Ohio and in 

Canada. He attended Washington and 

Lee University, in Lexington, Virginia, 

where he took up the study of law. After 

completing his studies, Rudkin settled 

in North Yakima, Washington, where he 

practiced law for fourteen years before 

winning an election as state superior 

court judge in 1901. In 1905, he was 

elected to the Washington Supreme 

Court, and he became chief justice in 

1909. In 1911, Rudkin accepted President 

William Howard Taft’s appointment 

to become U.S. district judge for the 

Eastern District of Washington. Twelve 

years later, President Harding nominated 

Rudkin to the U.S. Court of Appeals 

for the Ninth Circuit. He served there 

until his death. He was by all accounts a 

quick study and a hard worker. He did 

not defer to his elders, and from his fi rst 

year on the circuit he was challenging the 

reasoning of more established judges, 

especially William B. Gilbert.

Louis Dembitz Brandeis (1856–1941) 

Justice of the Supreme Court of the United States

Louis Brandeis was appointed a justice of the U.S. Supreme Court on June 1, 1916. 

Brandeis was already one of the most famous lawyers in the United States, and he 

provided legal support in defense of many Progressive reforms. He was perhaps 

best known for use of what became known as the “Brandeis brief,” which provided 

courts with social and economic background that illuminated the potential impact 

of a court’s decision in a given case. In earlier Prohibition cases before the Supreme 

Judge Frank H. Rudkin

Courtesy of Ninth Circuit U.S. Court of Appeals Library.
36

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Court, Brandeis frequently supported the enforcement of the Volstead Act, in part 

because he believed the courts should generally defer to democratically enacted statutes, and because he supported the 

use of legislation to promote social 

reform. Although he joined Chief 

Justice Taft in the Carroll decision 

to permit unwarranted searches of 

automobiles suspected of transporting liquor, Brandeis offered a strong 

dissent to the Court’s opinion in Olmstead. The methods employed by the 

government to indict and convict the 

Olmstead gang became for Brandeis 

the real threat of lawlessness. If the 

Supreme Court let stand a conviction 

based on evidence gathered in violation of a state’s law, “the Government 

itself would become a lawbreaker.” 

New technologies portended even 

more serious threats of government 

intrusion that would not be restricted 

by Taft’s literal reading of the Fourth 

Amendment. Brandeis warned that 

“subtler and more far-reaching means 

of invading privacy have become 

available to the Government. . . . 

The progress of science in furnishing the Government with means of 

espionage is not likely to stop with 

wire-tapping.”

William Howard Taft (1857–1930) 

Chief Justice of the Supreme Court of the United States

William Howard Taft was appointed Chief Justice of the United States on June 30, 

1921, and is the only former President of the United States to serve as Chief Justice. 

Taft had also served as a judge of the U.S. Court of Appeals for the Sixth Circuit, 

to which he was appointed in 1892 at the age of 34. After serving as President from 

1909 to 1913, Taft was a professor at his alma mater, Yale Law School, from 1913 to 

Justice Louis D. Brandeis (1916) 

Harris and Ewing Collection

Library of Congress, Prints and Photographs Division 

[LC-DIG-ppmsca-06024].
37

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

1921, and during that time he frequently gave public talks on legal issues and on the 

administration of the federal court system. Taft adamantly opposed the proposed 

constitutional amendment prohibiting alcoholic beverages, and he feared that national 

Prohibition would impose an 

impossible burden on law enforcement agencies and on the 

federal courts. Taft doubted 

that legislation alone would ever 

bring about such a signifi cant 

social reform, and he thought 

the practical challenges to federal enforcement would make 

the nation’s courts the object 

of popular ridicule. Prohibition, he predicted, would not 

end the manufacture and sale 

of beverage alcohol, only drive 

the industry into the hands of 

criminals. He also found nothing inherently wrong with alcohol consumption.

 Once the Eighteenth Amendment was ratifi ed, however, Taft 

was determined that the federal 

courts apply the enforcement 

act. Taft’s fear that disregard 

of the Prohibition laws would 

engender disrespect for all laws 

convinced him that the Supreme 

Court must strictly support the 

enforcement of Prohibition 

laws. Taft faced strong dissents 

from many of his fellow justices, 

and some of the most important 

Prohibition decisions, like Olmstead, divided the Supreme Court fi ve to four. Taft 

acknowledged that his predictions about the obstacles to enforcement and public 

criticism of the courts had proved true, but he remained convinced that the constitutional amendment and related legislation must be observed to preserve respect for 

the rule of law.

 Taft resigned as Chief Justice a month before his death in 1930 and did not live 

to see the repeal of Prohibition.

Chief Justice William Howard Taft

Harris and Ewing Collection

Library of Congress, Prints and Photographs Division

[LC-DIG-hec-15125].

39

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Media Coverage and Public Debates

The Olmstead case went from 1924 to 1928, the middle period of the United States’ 

experience with national Prohibition. The case began after the early optimism that 

Prohibition would better the nation had faded, but it came before the movement for 

repeal of the Eighteenth Amendment had gathered steam. The case was thus part of 

the debate over the effects of Prohibition on government, law, and society.

 At the time, questions of government corruption were the key issue of the case, 

while for latter-day commentators the concerns about privacy and over active government were central. The case exemplifi ed the worries, intensifi ed by alcohol Prohibition, over the corruption of government and police. Much of the Seattle newspapers’ 

coverage of the case focused on the questions of police and government corruption. 

In the year of the trial, for example, the weekly newspaper the Argus, which had always 

opposed Prohibition, decried the corruption of the Seattle police and the regime of 

Mayor Edwin J. Brown. As much as the Argus deprecated the social cost of corruption it also recognized the futility of attempting to enforce the Prohibition law. The 

Argus ran an editorial on the Hearst newspaper chain’s attempt to poll Americans as 

to whether they supported the Prohibition law, and the paper was happy to report 

that public opinion was running strongly against Prohibition. 

 A year later, when the leading federal enforcers were on trial for corruption, the 

Seattle Daily Times, which strongly supported Prohibition at its onset, continued to 

be worried about the corruption of government. In this middle period of Prohibition, corruption and crime became the staples of discussion about Prohibition. Some 

advocated harsher penalties, and indeed such penalties came with the passage of the 

Jones “5 and 10” law of 1930, named after Washington Senator Wesley L. Jones. The 

law raised federal penalties for violating Prohibition to up to fi ve years in prison and 

$10,000 in fi nes. Others advocated stricter enforcement of Prohibition or called for 

a modifi cation of Prohibition, such as permitting the sale of beer and wine, or for a 

repeal of the system. 

 In 1931, Roy Olmstead left prison, prompting the Seattle Post Intelligencer to assess his career and subsequent events. The extraordinary effort of the government 

to put him out of business only resulted in his replacement by others. Prohibition 

continued to corrupt, and the solution, the paper thought, lay in changing the law. 

Thus the Olmstead case was part of the debate about corruption, government power, 

and privacy, which fi ltered into the debate about improving or repealing Prohibition. 
40

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

“Police Protection for Bootleggers”

The Argus (a well-established weekly Seattle paper), under the management 

of Harry A. Chadwick, became the most important media outlet for commentary on public affairs in Seattle. Chadwick and his paper were steadfastly against 

Prohibition, and this editorial used the Olmstead case to attack Prohibition for creating a culture of corruption.

 [Document Source: The Argus, Seattle, Wash., Feb. 6, 1926.]

 

 Testimony so far produced in the Olmsted trial shows that certain police offi cers 

furnished protection de lux for the bootleggers now on trial. The “whispering wires” 

may or may not be competent evidence. It may or may not result in the conviction 

of the men on trial. But it will be mighty hard from now on to make some people 

believe that those police offi cers did not go the limit in protecting the headquarters 

of the bootleggers from raids, and when this became impossible, furnished suffi cient 

warning. Indeed, it looks from the testimony as though certain police offi cers were 

falling all over each other in an attempt to get credit for this kindly action.

 The Argus has no opinion to express at this time as to the guilt or innocence of 

any of the accused. It simply desires to call attention to the fact that Mayor Brown is 

a candidate for reelection, and that he is the man that any successful candidate will 

have to defeat. Without the evidence so far produced at this trial it is quite apparent 

that Seattle has been run wide open, insofar as the handling of liquor is concerned. 

Those who use liquor, or who are in touch with people who use liquor, know that 

at certain times, as, for instance, when Mrs. Landes was acting mayor and when the 

grand jury was in session, liquor was exceedingly diffi cult to purchase.

“A Judicial Farce”

Strongly against Prohibition from the onset, the Argus, unlike the other newspapers in Seattle, did not see the conviction of Olmstead and others as a sign that 

Prohibition was working. Rather, in this editorial, the paper argued exactly the opposite.

 [Document Source: The Argus, Seattle, Wash., Mar. 13, 1926.]

 

 Roy Olmsted must go to jail for four years and pay a fi ne of $8,000. Anyhow, 

that is the sentence which was handed out to him Monday. Twenty others received 

sentences of small fi nes and short terms of imprisonment. 

 Originally some sixty odd men were charged with conspiracy. One third of that 

number have been convicted; the balance are at liberty. The chances are that they are 
41

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

still importing and selling liquor. Indeed, during the trial one of the gang, then out 

on bail, was caught with liquor in his possession.

 After many weary weeks, after good men who should have been busy with their 

own affairs had given up their time to act as jurors, after the court had been given 

over to this conspiracy case while important matters which would ordinarily come 

before the federal court had been side-tracked, this is the result.

 And thus is another ridiculous chapter written in this ridiculous and hopeless 

task of enforcing the prohibition law.

 In a trifl e over two years from the time he goes into the penitentiary Olmsted 

will be in a position to apply for parole. But it must be remembered that he has not 

yet gone to the penitentiary. It is stated that he will appeal. He will probably take 

advantage of all possible legal loopholes. And in the meantime there does not seem 

to be anything to prevent him from tacking the motto above his desk “Business as 

Usual.”

“The Occasion Has Passed”

By the 1920s, the Seattle Daily Times, an afternoon newspaper, was a fi xture of the 

city. The paper, owned and managed by C. B. Blethen, had been one of the most 

vocal opponents of Prohibition prior to the law’s enactment. The paper became one 

of the strongest public voices in support of Prohibition after it became law. In this 

editorial, the Times asserts that the corruption of the law could be overcome.

 [Document Source: Seattle Daily Times, Nov. 17, 1927, p. 6.]

 

 Public interest in the real or purported rum-running activities of Mr. Roy Olmsted 

has been pretty well sated, and public opinion as to his guilt or innocence of the many 

offenses charged against him is not likely to be very infl uential in determining his 

ultimate fate. What Mr. Olmsted may say in testifying on his own behalf is of public 

importance only in its bearing upon matters of public knowledge or surmise.

 The statement made by Mr. Olmsted, under oath, that he was offered a pardon 

if he would help the government “get” certain county and city offi cials comes within 

that category. Federal authorities of this district made no secret of their dissatisfaction with the workings of the county sheriff’s offi ce and the city Police Department 

under earlier administrations. By every means of words and gesture from all quarters the public was kept constantly aware of the fact that there was no semblance of 

cooperation to endorse the prohibition law.

 In handling the fi rst of the Olmsted “conspiracy” cases the federal offi cers frankly 

disclosed an eagerness for local housecleaning. If Mr. Olmsted, as he says, refused 

to help in that enterprise, he may have strengthened himself temporarily in certain 

more or less secluded quarters, but his belated recital of any such circumstances will 

add nothing to public appreciation of his doubtful virtues.
42

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

 In any event, the occasion in which Mr. Olmsted’s help might have been useful 

has passed. The people have done some housecleaning on their own account.
43

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Historical Documents Related to the 

Olmstead Case

The Fourth Amendment to the U.S. Constitution

Ratifi ed as part of the Bill of Rights in 1791, the Fourth Amendment was a response 

to two specifi c concerns of the founding era. Prior to the American Revolution, 

British colonial governments attempted to enforce trade laws by using broad search 

warrants known as writs of assistance. These writs violated well-established English 

rights and were deeply resented by many colonists. Americans of the Revolutionary 

generation were also well acquainted with the story of the English radical John 

Wilkes and the British government’s seizure of Wilkes’ personal papers, which 

were used against him at his trial for libel. To prevent similar abuses, the Fourth 

Amendment bans unreasonable searches and seizures and sets out a general procedure to be used in searches. One of the questions raised by the Olmstead case was, 

did the use of wiretapping violate the Fourth Amendment? 

AMENDMENT IV

The rights of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated, and no Warrants 

shall issue, but upon probable cause, supported by Oath or affi rmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fifth Amendment to the U.S. Constitution

The Fifth Amendment is in essence a miniature code of criminal procedure. Ratifi ed 

as part of the Bill of Rights in 1791, the amendment set out safeguards for an individual’s rights before a court. Among other things, it forbade compelling a person to 

be a witness against himself or herself in a criminal trial. Later, that provision was 

interpreted by courts to limit the introduction of personal papers (such as letters) as 

evidence of crime. The Olmstead case raised the question of whether wire tapping 

of the phones forced the defendants to be witnesses against themselves, contrary to 

the amendment’s guarantee. 

AMENDMENT V

No person shall be held to answer for a capital, or otherwise infamous crime, unless 

on a presentment or indictment of a Grand Jury, except in cases arising in the land or 
44

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

naval forces, or in the Militia, when in actual service in time of War or public danger; 

nor shall any person be subject for the same offence to be twice put in jeopardy of life 

or limb; nor shall be compelled in any criminal case to be a witness against himself, 

nor be deprived of life, liberty, or property, without due process of law; nor shall 

private property be taken for public use, without just compensation. 

The Eighteenth Amendment to the U.S. Constitution

The Prohibition amendment banned commerce in intoxicating liquors, divided enforcement between the state and federal governments, and set a time limit for ratifi cation. The last provision was a desperate attempt by the amendment’s opponents 

to stop Prohibition, but the amendment was passed by Congress on December 18, 

1917, and ratifi cation came on January 16, 1919, little more than a year later.

AMENDMENT XVIII 

Section 1.

After one year from the ratifi cation of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation 

thereof from the United States and all territory subject to the jurisdiction thereof for 

beverage purposes is hereby prohibited.

Section 2.

The Congress and the several States shall have concurrent power to enforce this article 

by appropriate legislation.

Section 3.

This article shall be inoperative unless it shall have been ratifi ed as an amendment 

to the Constitution by the legislatures of the several States as provided in the Constitution, within seven years from the date of the submission hereof to the States by 

the Congress.
45

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

The Twenty-First Amendment to the U.S. Constitution

The repeal amendment not only repealed the Eighteenth Amendment, but it also 

gave each state authority to regulate alcohol coming into its jurisdiction from outside the country or state. This is the only amendment to require the convention 

method of ratifi cation instead of putting it to a vote of state legislatures. This provision was adopted out of fear of Prohibitionist control of many state legislatures. The 

strategy was effective in that the amendment passed Congress on February 20, 1933, 

and was ratifi ed on December 5, 1933.

AMENDMENT XXI 

Section 1.

The eighteenth article of amendment to the Constitution of the United States is 

hereby repealed.

Section 2.

The transportation or importation into any State, Territory, or possession of the 

United States for delivery or use therein of intoxicating liquors, in violation of the 

laws thereof, is hereby prohibited.

Section 3.

This article shall be inoperative unless it shall have been ratifi ed as an amendment 

to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the 

Congress.

The National Prohibition Act (the Volstead Act)

Congress passed the Volstead Act on October 18, 1919, and the law went into effect 

January 16, 1920. The Act was organized in three titles: the first instituted a

system of war-time prohibition that ran until the beginning of national 

Prohibition; the second set out the system of national Prohibition; and the third set 

up the system for the regulation of production of industrial alcohol. The Act 

outlawed the production and sale of alcoholic beverages unless for religious or 

medical purposes. The Act defined intoxicating beverages to include those that 

contained as little as one half of one per cent alcohol, but it allowed for the 

manufacture, possession, and use of alcoholic beverages in private homes. It also 

contained a specific provision limiting searches of private homes under the Act. 

[Document Source: 41 U.S. Statutes at Large, pp. 305–19.]
46

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

TITLE II. Prohibition of Intoxicating Beverages.

SEC. 3. 

No person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, 

export, deliver, furnish or possess any intoxicating liquor except as authorized in this 

Act, and all the provisions of this Act shall be liberally construed to the end that—the 

use of intoxicating liquor as a beverage may be prevented. . . . 

SEC. 21. 

Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor 

is manufactured, sold, kept, or bartered in violation of this title, and all intoxicating 

liquor and property kept and used in maintaining the same, is hereby declared to be 

a common nuisance, and any person who maintains such a common nuisance shall 

be guilty of a misdemeanor and upon conviction thereof shall be fi ned not more 

than $1,000 or be imprisoned for not more than one year, or both. . . .

SEC. 25. 

It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and 

no property rights shall exist in any such liquor or property. . . . No search warrant 

shall issue to search any private dwelling occupied as such unless it is being used for 

the unlawful sale of intoxicating liquor, or unless it is in part used for some business 

purpose such as a store, shop, saloon, restaurant, hotel, or boarding house. . . .

SEC. 29. 

Any person who manufactures or sells liquor in violation of this title shall for a fi rst 

offense be fi ned not more than $1,000, or imprisoned not exceeding six months, and 

for a second or subsequent offense shall be fi ned not less than $200 nor more than 

$2,000 and be imprisoned not less than one month nor more than fi ve years.

 Any person violating the provisions of any permit, or who makes any false record, 

report, or affi davit required by this title, or violates any of the provisions of this title, 

for which offense a special penalty is not prescribed, shall be fi ned for a fi rst offense 

not more than $500; for a second offense not less than $100 nor more than $1,000, 

or be imprisoned not more than ninety days; for any subsequent offense he shall be 

fi ned not less than $500 and be imprisoned not less than three months nor more 

than two years. . . .

SEC. 33. 

After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor 

is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or 

otherwise disposed of in violation of the provisions of this title. . . . But it shall not be 

unlawful to possess liquors in one’s private dwelling while the same is occupied and 
47

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

used by him as his dwelling only and such liquor need not be reported, provided such 

liquors are for use only for the personal consumption of the owner thereof and his 

family residing in such dwelling and of his bona fi de guests when entertained by him 

therein; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used. . . . 

Judge Jeremiah Neterer’s decision on defendants’ plea in 

abatement, U.S. District Court for the Western District of 

Washington

Soon after the grand jury presented the indictments, Jerry L. Finch, himself a defendant and attorney for the Olmstead defendants, fi led a plea for an abatement, 

which would overturn the indictments. In addition to his allegation that William 

Whitney unduly infl uenced the grand jury, Finch asked the district court judge to 

assess the suffi ciency of the evidence before any trial. The U.S. attorney urged that 

the abatement be struck, that is, not granted, and Judge Neterer agreed. In his opinion, Neterer stressed the reluctance of courts to interfere with the grand jury’s responsibility for bringing an indictment.

 [Document Source: United States v. Olmstead, 7 F.2d 756 (U.S. Dist. Ct., W.D. 

Wash., Apr. 23, 1925).]

 

 The defendants contend that their rights have been invaded by the reception of 

incompetent evidence and by coercion of the foreman of the grand jury by a prohibition agent, and that it is the duty of the court to review the testimony and determine 

its suffi ciency before requiring the defendants to plead, that a trial would take from 

30 to 60 days, large expenses be necessitated which may now be eliminated by the 

court in this preliminary examination, . . . .

 The grand jury is of ancient origin; . . . It is a distinct, independent body, and 

must act free from infl uence, fear, favor, affection, reward, or hope thereof proceeding from, or without, the court. The Constitution of the United States, as well as the 

constitutions of all the states, show it is adopted as a means of protection to the citizen as well as a necessary aid to public justice. The grand jurors being sworn offi cers 

of the court, the presumption is that the indictment was found only upon proper 

evidence . . . , and before the court would, under any circumstances, enter upon an 

investigation, it must appear by strong, positive proof that the inhibitions of the law 

have been violated and the presumption overcome.

 May a defendant require the court to go behind the return of a true bill [an indictment] and sit as a court of error and enter upon an investigation of the testimony 

produced and determine its relevancy and suffi ciency, review the cause as heard by 

the grand jury upon the sole demand of a defendant, upon statements which he ver-
48

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

ily believes to be true? May the secrecy of investigation essential to the nature of the 

institution, which has from time immemorial been associated with the grand jury 

system, and considered an effi cient means of its successful operation, be set aside, 

and all proceedings made public, if a party charged so elects? If a review is had, and 

a grand juror is called as a witness, must he tell who testifi ed before the grand jury 

. . . and disclose the testimony of the witnesses before the grand jury? . . . If an investigation is made as to the suffi ciency of the evidence, then all the evidence must be 

produced . . . , and shall the court sit as a sieve through which the testimony of the 

government must pass, in preparation for trial by the defendants to the charge in 

the indictment? If in one case, it must be done in all cases on request of a defendant. 

May the court, irrespective of statute, adopt a procedure and assume a reviewing 

function, and pass upon the materiality and suffi ciency of the evidence, and become 

an indicting, as well as a trying tribunal? I know of no rule of procedure or provision 

of law under which the court would be warranted to establish such a precedent. . . . 

 I know of no case in this circuit where an indictment has been set aside because 

of insuffi ciency of the evidence before the grand jury. Pleas in abatement are most 

strongly construed against the pleader, and every existing fact must be negatived and 

every inference denied. I think it is well established that the rule of the Fourth and 

Fifth Amendments is a personal privilege, and may not be here urged, except with the 

possible exception of defendants Olmstead and Finch . . . , and since, as I view it, the 

“wire tapping” and search warrant bear a different status and upon the record may 

not be here invoked by these parties, and are not suffi cient as to these defendants, 

in the proceedings before the grand jury. Grand jury proceedings are not fi nal, and 

the proof need only establish a reasonable ground to believe that the defendant is 

guilty. The record is not clear, nor the inference impelling under the plea, that there 

was not some competent evidence before the grand jury.

 No objection can be made to the indictment because of the alleged conduct of 

Whitney and the foreman of the grand jury. The foreman did not control the jury. 

There is no allegation or intimation that the foreman sought to impress upon the 

jurors any undue infl uence, nor any infl uence whatever. A vote of twelve of the grand 

jurors was suffi cient to indict, sixteen were a quorum, more were present. It was the 

foreman’s duty to sign the indictment upon the vote of twelve fi nding the indictment, whether he voted in favor of it or otherwise. If Whitney was guilty of conduct 

as charged, he is liable to another proceeding, and, if the matter is presented before 

the court upon a positive declaration and statement of fact under oath, cognizance 

will be taken of the matter. No person, be he government agent or otherwise, has 

any right or license to attempt to persuade, coerce, or in any manner infl uence the 

action of a grand juror other than as a sworn witness giving testimony before the 

entire body.

 The motion to strike is granted. 
49

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Majority opinion on the appeal of the Olmstead 

defendants, U.S. Circuit Court of Appeals for the Ninth 

Circuit 

Three groups of defendants appealed the verdict in the district court trial. The appeal of Olmstead and others was prepared by Finch and Vanderveer; the two other 

appeals were Green v. United States and McInnis v. United States. Much of the 

argument for the appellants repeated the points raised by Finch at the trial, and 

some of the argument responded to the rulings of Judge Neterer in the district court. 

The defendants’ attorneys asserted that Judge Neterer had erred in a number of 

decisions and thus the verdict should be overturned. Key to the defendants’ appeal 

was the claim that Neterer had permitted the admission of wiretapped evidence, 

contrary to the Fourth Amendment. In a two-to-one decision, the circuit appeals 

court rejected the defendants’ appeal. Judge Gilbert’s opinion for the majority upheld all of Judge Neterer’s rulings. On the key Fourth Amendment question, Gilbert 

portrayed the wiretapping as comparable to overhearing a conversation and not as 

an invasion of the home, which the Fourth Amendment was designed to protect.

 [Document Source: Olmstead v. United States, 19 F.2d 842 (U.S. Cir. Ct. of 

App., 9th Cir., May 9, 1927).]

 

In Error to the District Court of the United States, for the Northern Division of the 

Western District of Washington; Jeremiah Neterer, Judge. . . .

Before Gilbert, Rudkin, and Dietrich, Circuit Judges.

Gilbert, Circuit Judge. . . . 

 The court below ruled that objection to the indictment could not be sustained 

on the ground of the alleged coercion of the foreman by Whitney, there being no allegation that the foreman exerted undue infl uence, or any infl uence whatever, upon 

the jurors, and that as to the other matters alleged in the pleas the court was not 

required to go behind the return of the indictment, and enter upon an investigation 

of the relevancy and suffi ciency of the testimony to justify the indictment, upon the 

sole demand of a defendant who, to his plea in abatement, makes affi davit that the 

facts stated therein are true as he verily believes.

 We fi nd no error in the ruling of the trial court. While it is the rule in many jurisdictions that the court will not inquire into the suffi ciency of the evidence before 

the grand jury, the decisions of the Supreme Court and those of most of the inferior 

federal courts have been to the effect that an indictment cannot be abated, on account 

of the admission of incompetent or hearsay testimony, unless it affi rmatively appear 

in the plea that no competent evidence of the commission of the offense charged 

therein was presented to the grand jury, or unless all of the evidence was unlawfully 
50

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

procured in violation of substantial rights of the accused, so as to subject it to exclusion if offered against him. . . .

 An assignment of error challenges the testimony adduced by the witness Whitney, 

in that he was permitted to use a bound volume of memoranda of certain alleged 

telephone conversations. . . .

 But the record shows that the witness testifi ed only to conversations which he 

heard over the wire, and that he used the typewritten book only to refresh his memory.

 . . . [This court has] held it not to be a valid objection to the use of a memorandum 

by a witness to refresh his memory that it had been copied from another, so long as 

he could testify from his own recollection. . . .

 It was further ruled that the petition to suppress evidence obtained by tapping 

the telephone wires be denied.

 It is contended that by the latter ruling the defendant’s rights under the Fourth 

and Fifth Amendments to the Constitution were violated. The protection of those 

amendments, however, has never been extended to the exclusion of evidence obtained 

by listening to the conversation of persons at any place or under any circumstances. 

The purpose of the amendments is to prevent the invasion of homes and offi ces and 

the seizure of incriminating evidence found therein. 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. It is not disputed that evidence obtained 

by the vision of one who sees through windows or open doors of a dwelling house 

is admissible. Nor has it been held that evidence obtained by listening at doors or 

windows is inadmissible. Evidence thus obtained is not believed to be distinguishable 

from evidence obtained by listening in on telephone wires. . . .

 We fi nd no error for which the judgment should be reversed. It is accordingly 

affi rmed.

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).]

 
51

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

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, testifi ed 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 offi cers 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 offi cers 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 offi cers, 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 offi cers. 

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 offi cer 

or federal agent has a right to take his message from the wires, in order that it may 
52

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

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 confi dential 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 offi cial 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.

Appellants’ brief to the U.S. Supreme Court, Olmstead v. 

United States

Three separate cases arising from the Olmstead trial and the appeals in the Ninth 

Circuit were appealed to the Supreme Court. The Court initially declined to grant 

certiorari but after reconsideration it agreed, on January 9, 1928, to combine the 

three cases and accept them. The Court limited the arguments in the case to questions about the Fourth and Fifth Amendments. This appellants’ brief, a collaboration of Jerry L. Finch, John F. Dore, and F. C. Reagan, argued for an expansive 

rather than literal reading of the Fourth Amendment, which necessarily had to 

be combined with the Fifth Amendment’s protections against self-incrimination. 

The brief asserted that the Fourth Amendment covered persons, not just places and 

things, and it asked the Court to exclude evidence that had been obtained through 

warrantless search and seizure of conversations as well as papers. The brief omitted 

the argument about property rights that Finch had used in the lower federal courts 

and asserted a right to privacy, such as that fi rst articulated in the famous 1890 

article by Louis Brandeis and Samuel Warren in the Harvard Law Review (“The 

Right to Privacy,” 4 Harv. L. Rev. 193 (1890). 

 [Document Source: Olmstead v. United States, 277 U.S. 438 (1928).]

 

 . . . If incriminating evidence is secured by means of trickery, subterfuge, trespass 

or fraud, and, after it has been so secured, fi nds its way into the hands of government 

offi cials, no legal ground can be urged against its introduction in evidence, for the 

reason that no constitutional question is involved. If, however, the fraud, subterfuge, 

trespass or theft is perpetrated by government offi cials, or if a government offi cial 

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. . . . 
53

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

 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 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.

Brief of Frank Jeffrey for the appellants, submitted to the 

Supreme Court in Olmstead v. United States

The brief of Frank Jeffrey, a Seattle attorney who represented Edward McInnis 

at every stage of the case, asserted a broad interpretation of the Fourth and Fifth 

Amendments’ protections. This expansive view of the amendments was supported by an historical argument asserting that the framers of the Fourth and Fifth 

Amendments intended to protect individuals’ liberties from government. Jeffrey 

challenged both Judge Gilbert of the court of appeals and Judge Neterer of the district court in their denial of a property right in the use of the telephone. Jeffrey also 

denied their equating the use of the telephone with the use of the radio. He argued 

that there was an expectation of speaking only to the person one called on the phone, 

unlike the recognized broad audience for a radio broadcast. 

 [Document Source: Olmstead v. United States, 277 U.S. 438 (1928).]

 

 . . . 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 offi ces, as well as the telephone equipment in the 

houses and offi ces, 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 offi ces 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 
54

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

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 offi ce. If the stamp of approval is put upon the action 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 confi dential 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 offi cers prior to the Revolution.

George Vanderveer’s brief for appellants, submitted to the 

Supreme Court in Olmstead v. United States

The Vanderveer brief, which he drafted with the help of Samuel Basset and Arthur 

Griffi n, asserted a broad right of privacy based on the Fourth and Fifth Amendments. 

Hoping to convince a property-conscious Court, Vanderveer asserted that the enjoyment of privacy was a property right. Like the other defendants’ briefs, this one cited 

a number of older cases in which seized papers were excluded as evidence because 

their seizure violated the Fourth Amendment, and Vanderveer argued that these decisions applied to phone conversations heard on a wiretap. The brief also appealed 

to the broad principles of the Founders.

 [Document Source: Olmstead v. United States, 277 U.S. 438 (1928).]

 

 . . . 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 cancelled 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. . . .

 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, 
55

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

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 offi cer on a public street overhears conversations within a citizen’s private 

residence, or where a federal offi cer joins a band of conspirators and listens from day 

to day to 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. . . .

 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, and 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. . . . 

Government’s brief submitted to the Supreme Court in 

Olmstead v. United States

The government’s case was presented by Solicitor General William Mitchell and by 

Michael J. Doherty, Mitchell’s former law partner acting as a special assistant to the 

Attorney General. Mabel Walker Willebrandt, who usually wrote the Department 

of Justice briefs for Prohibition cases, declined to participate because she thought the 

wiretapping was an invasion of privacy.

 The government argued for a narrow interpretation of the Fourth Amendment, 

claiming it was intended to prohibit the use only of general warrants that did not 

specify the place that was to be searched or the items to be seized. The government’s 

brief sought to separate the questions of the Fourth and Fifth Amendments, thereby 

undermining the idea of a general right of privacy. As for the exclusion of evidence 

in federal courts, the government sought to show that only evidence gathered in 

violation of the Fourth Amendment could be excluded and that evidence obtained 

in violation of Washington state law could be used since it was admissible under the 

traditions of the common law.

 [Document Source: Olmstead v. United States, 277 U.S. 438 (1928).]

 

 . . . The Fifth Amendment can only be invoked by fi rst 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. . . .
56

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

 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 testifi ed 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 

offi cers, relating in court what they overheard, were testifying as immediate witnesses 

of the crime, as much so as would be a witness who testifi ed 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 time-honoured 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. . . .

 Petitioners are urging the extension of the Fourth Amendment into a new fi eld, 

the limits of which are diffi cult to defi ne. 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 offi cer obtains access to a telephone on a party line 

and listens to incriminating conversations of other parties having telephones on the 

line . . . ; 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 . . . might be multiplied indefi nitely 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, and 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. . . .

 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 offi cers of the law, but clearly the Constitution does not forbid it unless 

it involves actual unlawful entry into a house.
57

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Amicus curiae brief of telephone companies submitted to 

the Supreme Court in Olmstead v. United States

The leading telephone companies of the day and their business association fi led an 

amicus curiae brief, which is a way for a person or group interested in the case, but 

not a party to the case, to submit a statement of related legal arguments. Clearly 

fearful that telephone companies would suffer if people thought that their telephone 

conversations were not private, the telephone industry argued that the telephone 

had “become part and parcel of the social and business intercourse of the people.” 

It was a public service just like the mails and therefore was deserving of protection 

under the Fourth and Fifth Amendments, as well as through the existing state laws.

 [Document Source: Olmstead v. United States, 277 U.S. 438 (1928).]

 

 Messrs. Otto B. Rupp, Charles M. Bracelen, Robert H. Strahan and Clarence B. Randall on behalf of The Pacifi c 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, fi led 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 

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 offi ce of 

either one. When the lines of two “parties” are connected at the central offi ce, 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. . . . 

 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-fi ve 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 
58

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

search warrant, as in the nature of the case there could not be. If the agent should 

secrete himself in the house or offi ce 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 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 fi rst, 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 fi rst place, that this is a purely superfi cial 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 offi cer 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 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 suffi ce 

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.
59

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Opinion of the Supreme Court of the United States, 

Olmstead v. United States

The Supreme Court ruled fi ve to four to affi rm the decision of the U.S. court of 

appeals and thus uphold the Olmstead convictions. Chief Justice William H. Taft 

wrote for the majority while the four dissenters fi led separate opinions (of those the 

dissent of Harlan Fiske Stone was on procedural grounds only, although he concurred with the dissents of Brandeis and Holmes). Taft, as Chief Justice, sought to 

have the Prohibition laws strictly enforced and wrote most of the Court’s opinions 

on the Prohibition cases. He feared that widespread violation of the Prohibition law 

undermined the sanctity of all law. His opinion echoes the decision of Judge Gilbert 

in focusing on the extent of the Olmstead ring’s activities and thus highlighting its 

threat to the rule of law. Taft wrote that the Fourth Amendment did not apply, as 

there was no invasion of Olmstead’s premises or seizure of his papers, thus there was 

no reason to exclude the evidence. Moreover, the Court held that the Washington 

statute prohibiting wiretaps did not block the introduction of the evidence since the 

federal rule about excluding evidence did not apply to the states, and the common 

law accepted evidence illegally procured. 

 [Document Source: Olmstead v. United States, 277 U.S. 438 (1928).]

 

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

 There is no room in the present case for applying the Fifth Amendment unless 

the Fourth Amendment was fi rst violated. There was no evidence of compulsion to 

induce the defendants to talk over their many telephones. They were continually 

and voluntarily transacting business without knowledge of the interception. Our 

consideration must be confi ned to the Fourth Amendment.

 The striking outcome of the Weeks case and those which followed it was the 

sweeping declaration that the Fourth Amendment, although not referring to or 

limiting the use of evidence in courts, really forbade its introduction if obtained by 

government offi cers through a violation of the Amendment. Theretofore many had 

supposed that under the ordinary common law rules, if the tendered evidence was 

pertinent, the method of obtaining it was unimportant. . . . This Court decided with 

great emphasis, and established as the law for the federal courts, that the protection 

of the Fourth Amendment would be much impaired unless it was held that not only 

was the offi cial violator of the rights under the Amendment subject to action at the 

suit of the injured defendant, but also that the evidence thereby obtained could not 

be received.

 The well known historical purpose of the Fourth Amendment, directed against 

general warrants and writs of assistance, was to prevent the use of governmental force 

to search a man’s house, his person, his papers and his effects; and to prevent their 

seizure against his will. . . .
60

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

 The Amendment itself shows that the search is to be of material things—the 

person, the house, his papers, or his effects. The description of the warrant necessary 

to make the proceeding lawful, is that it must specify the place to be searched and 

the person or things to be seized. . . .

 The Fourth Amendment may have proper application to a sealed letter in the 

mail because of the constitutional provision for the Postoffi ce Department and the 

relations between the Government and those who pay to secure protection of their 

sealed letters. . . . It is plainly within the words of the Amendment to say that the 

unlawful rifl ing by a government agent of a sealed letter is a search and seizure of 

the sender’s papers or effects. The letter is a paper, an effect, and in the custody of a 

Government that forbids carriage except under its protection.

 The United States takes no such care of telegraph or telephone messages as of 

mailed sealed letters. The Amendment does not forbid what was done here. There 

was no searching. There was no seizure. The evidence was secured by the use of the 

sense of hearing and that only. There was no entry of the houses or offi ces of the 

defendants. 

 By the invention of the telephone, fi fty years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place. 

The language of the Amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or offi ce. The 

intervening wires are not part of his house or offi ce any more than are the highways 

along which they are stretched. . . .

 Congress may, of course, protect the secrecy of telephone messages by making 

them, when intercepted, inadmissible in evidence in federal criminal trials, by direct 

legislation, and thus depart from the common law of evidence. But the courts may not 

adopt such a policy by attributing an enlarged and unusual meaning to the Fourth 

Amendment. The reasonable view is that one who installs in his house a telephone 

instrument with connecting wires intends to project his voice to those quite outside, 

and that the wires beyond his house and messages while passing over them are not 

within the protection of the Fourth Amendment. Here those who intercepted the 

projected voices were not in the house of either party to the conversation.

 Neither the cases we have cited nor any of the many federal decisions brought 

to our attention hold the Fourth Amendment to have been violated as against a 

defendant unless there has been an offi cial search and seizure of his person, or such 

a seizure of his papers or his tangible material effects, or an actual physical invasion 

of his house “or curtilage” for the purpose of making a seizure.

 We think, therefore, that the wire tapping here disclosed did not amount to a 

search or seizure within the meaning of the Fourth Amendment.

 What has been said disposes of the only question that comes within the terms 

of our order granting certiorari in these cases. But some of our number, departing 

from that order, have concluded that there is merit in the two-fold objection over-
61

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

ruled in both courts below that evidence obtained through intercepting of telephone 

messages by government agents was inadmissible because the mode of obtaining it 

was unethical and a misdemeanor under the law of Washington. To avoid any misapprehension of our views of that objection, we shall deal with it in both of its phases.

 While a Territory, the English common law prevailed in Washington and thus 

continued after her admission in 1889. The rules of evidence in criminal cases in 

courts of the United States sitting there, consequently are those of the common law. 

. . .

 The common law rule is that the admissibility of evidence is not affected by the 

illegality of the means by which it was obtained. . . . 

 The Weeks case announced an exception to the common law rule by excluding 

all evidence in the procuring of which government offi cials took part by methods 

forbidden by the Fourth and Fifth Amendments. . . . The common law rule must 

apply in the case at bar.

 Nor can we, without the sanction of congressional enactment, subscribe to the 

suggestion that the courts have a discretion to exclude evidence, the admission of 

which is not unconstitutional, because unethically secured. This would be at variance with the common law doctrine generally supported by authority. There is no 

case that sustains, nor any recognized text book that gives color to such a view. Our 

general experience shows that much evidence has always been receivable although 

not obtained by conformity to the highest ethics. The history of criminal trials shows 

numerous cases of prosecutions of oath-bound conspiracies for murder, robbery, 

and other crimes, where offi cers of the law have disguised themselves and joined 

the organizations, taken the oaths and given themselves every appearance of active 

members engaged in the promotion of crime, for the purpose of securing evidence. 

Evidence secured by such means has always been received.

 A standard which would forbid the reception of evidence if obtained by other 

than nice ethical conduct by government offi cials would make society suffer and 

give criminals greater immunity than has been known heretofore. In the absence 

of controlling legislation by Congress, those who realize the diffi culties in bringing 

offenders to justice may well deem it wise that the exclusion of evidence should be 

confi ned to cases where rights under the Constitution would be violated by admitting it.

 The statute of Washington, adopted in 1909, provides ... that: “Every person . . . 

who shall intercept, read or in any manner interrupt or delay the sending of a message over any telegraph or telephone line . . . shall be guilty of a misdemeanor.”

 This statute does not declare that evidence obtained by such interception shall 

be inadmissible, and by the common law, already referred to, it would not be. . . . 

Whether the State of Washington may prosecute and punish federal offi cers violating this law and those whose messages were intercepted may sue them civilly is not 

before us. But clearly a statute, passed twenty years after the admission of the State 
62

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

into the Union can not affect the rules of evidence applicable in courts of the United 

States in criminal cases. . . .

 The judgments of the Circuit Court of Appeals are affi rmed. The mandates will 

go down forthwith under Rule 31.

 Affi rmed.

Dissenting opinion of Justice Louis D. Brandeis in 

Olmstead v. United States

Justice Brandeis’s dissenting opinion is one of the more notable dissents in Supreme 

Court history. He attempted to defi ne a general right of privacy based on the Fourth 

and Fifth Amendments. Brandeis had long been interested in the problem of privacy 

in the modern age; years earlier he and his law partner, Samuel Warren, published 

what many consider the seminal article on the topic (Samuel Warren & Louis D. 

Brandeis, “The Right to Privacy,” 4 Harv. L. Rev. 193 (1890)). Brandeis’s opinion 

in Olmstead attempted to apply to the current era what he said were the principles 

of the Fourth and Fifth Amendments. Historians often overlook how much his approach draws on the dissenting opinion of Judge Rudkin in the circuit court, but 

Brandeis himself acknowledged his debt to Rudkin in the text. The quotation about 

“the form that evil had theretofore taken” referred to the Supreme Court decision in 

Weems v. United States, in which Justice Joseph McKenna wrote of the need for the 

Court to apply the general principles of the Constitution to new problems.

 [Document Source: Olmstead v. United States, 277 U.S. 438 (1928).]

 

MR. JUSTICE BRANDEIS, dissenting. . . . By objections seasonably made and persistently renewed, the defendants objected to the admission of the evidence obtained 

by wire-tapping, on the ground that the Government’s wire-tapping constituted an 

unreasonable search and seizure, in violation of the Fourth Amendment; and that 

the use as evidence of the conversations overheard compelled the defendants to be 

witnesses against themselves, in violation of the Fifth Amendment.

 The Government makes no attempt to defend the methods employed by its offi cers. 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. . . .

 When the Fourth and Fifth Amendment were adopted, “the form that evil had 

theretofore taken,” had been necessarily simple. Force and violence were then the only 

means known to man by which a Government could directly effect self-incrimination. 

It could compel the individual to testify—a compulsion effected, if need be, by tor-
63

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

ture. It could secure possession of his papers and other articles incident to his private 

life—a seizure effected, if need be, by breaking and entry. Protection against such 

invasion of “the sanctities of a man’s home and the privacies of life” was provided in 

the Fourth and Fifth Amendments by specifi c language. . . . But “time works changes, 

brings into existence new conditions and purposes.” Subtler and more far-reaching 

means of invading privacy have become available to the Government. Discovery and 

invention have made it possible for the Government, by means far more effective 

than stretching upon the rack, to obtain disclosure in court of what is whispered in 

the closet. 

 Moreover, “in the application of a constitution, our contemplation cannot be 

only of what has been but of what may be.” The progress of science in furnishing the 

Government with means of espionage is not likely to stop with wire-tapping. Ways 

may someday be developed by which the Government, without removing papers 

from secret drawers, can reproduce them in court, and by which it will be enabled to 

expose to a jury the most intimate occurrences of the home. Advances in the psychic 

and related sciences may bring means of exploring unexpressed beliefs, thoughts and 

emotions. “That places the liberty of every man in the hands of every petty offi cer” 

was said by James Otis of much lesser intrusions than these. To Lord Camden, a far 

slighter intrusion seemed “subversive of all the comforts of society.” Can it be that 

the Constitution affords no protection against such invasions of individual security? 

. . . 

 In Ex parte Jackson, 96 U.S. 727, it was held that a sealed letter entrusted to the 

mail is protected by the Amendments. The mail is a public service furnished by the 

Government. The telephone is a public service furnished by its authority. There is, 

in essence, no difference between the sealed letter and the private telephone message. 

As Judge Rudkin said below: “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.” The evil incident to invasion of the privacy of the 

telephone is far greater than that involved in tampering with the mails. Whenever 

a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and, although proper, 

confi dential and privileged, may be overheard. Moreover, the tapping of one man’s 

telephone line involves the tapping of the telephone of every other person whom he 

may call or who may call him. As a means of espionage, writs of assistance and general 

warrants are but puny instruments of tyranny and oppression when compared with 

wire-tapping.

 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 to be secure in 
64

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

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 provision against self-incrimination in the Fifth Amendment has 

been given an equally broad construction. . . . 

 Decisions of this Court applying the principle of the Boyd case have settled these 

things. Unjustifi ed search and seizure violates the Fourth Amendment, whatever the 

character of the paper; whether the paper when taken by the federal offi cers was in 

the home, in an offi ce, or elsewhere; whether the taking was effected by force, by

fraud, or in the orderly process of a court’s procedure. From these decisions, it follows necessarily that the Amendment is violated by the offi cer’s reading the paper 

without a physical seizure, without his even touching it; and that use, in any criminal 

proceeding, of the contents of the paper so examined—as where they are testifi ed 

to by a federal offi cer who thus saw the document, or where, through knowledge so 

obtained, a copy has been procured elsewhere—any such use constitutes a violation 

of the Fifth Amendment.

 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 signifi cance 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 unjustifi able 

intrusion by the Government upon the privacy of the individual, whatever the means 

employed, must be deemed a violation of the Fourth Amendment. And the use, as 

evidence in a criminal proceeding, of facts ascertained by such intrusion must be 

deemed a violation of the Fifth.

 Applying to the Fourth and Fifth Amendments the established rule of construction, the defendants’ objections to the evidence obtained by wire-tapping must, in my 

opinion, be sustained. It is, of course, immaterial where the physical connection with 

the telephone wires leading into the defendants’ premises was made. And it is also 

immaterial that the intrusion was in aid of law enforcement. Experience should teach 

us to be most on our guard to protect liberty when the Government’s purposes are 

benefi cent. Men born to freedom are naturally alert to repel invasion of their liberty 

by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment 

by men of zeal, well meaning but without understanding. 
65

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

 Independently of the constitutional question, I am of opinion that the judgment 

should be reversed. By the laws of Washington, wire-tapping is a crime. . . . To prove 

its case, the Government was obliged to lay bare the crimes committed by its offi cers 

on its behalf. A federal court should not permit such a prosecution to continue. . . .

 The evidence obtained by crime was obtained at the Government’s expense, by 

its offi cers, while acting on its behalf; the offi cers who committed these crimes are 

the same offi cers who were charged with the enforcement of the Prohibition Act; the 

crimes of these offi cers were committed for the purpose of securing evidence with 

which to obtain an indictment and to secure a conviction. The evidence so obtained 

constitutes the warp and woof of the Government’s case. The aggregate of the Government evidence occupies 306 pages of the printed record. More than 210 of them 

are fi lled by recitals of the details of the wire-tapping and of facts ascertained thereby. 

. . . 

 When these unlawful acts were committed, they were crimes only of the offi cers 

individually. The Government was innocent, in legal contemplation; for no federal 

offi cial is authorized to commit a crime on its behalf. When the Government, having 

full knowledge, sought, through the Department of Justice, to avail itself of the fruits 

of these acts in order to accomplish its own ends, it assumed moral responsibility for 

the offi cers’ crimes. . . . And if this Court should permit the Government, by means 

of its offi cers’ crimes, to effect its purpose of punishing the defendants, there would 

seem to be present all the elements of a ratifi cation. If so, the Government itself would 

become a lawbreaker. . . .

 Decency, security and liberty alike demand that government offi cials shall be 

subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe 

the law scrupulously. Our Government is the potent, the omnipresent teacher. For 

good or for ill, it teaches the whole people by its example. Crime is contagious. If the 

Government becomes a lawbreaker, it breeds contempt for law; it invites every man 

to become a law unto himself; it invites anarchy. To declare that in the administration 

of the criminal law the end justifi es the means—to declare that the Government may 

commit crimes in order to secure the conviction of a private criminal—would bring 

terrible retribution. Against that pernicious doctrine this Court should resolutely set 

its face.
66

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Dissenting opinion of Justice Pierce Butler in Olmstead v. 

United States

Seldom did Justice Pierce Butler vote with Justices Brandeis and Holmes, but in this 

case Butler found it absurd that the government and the majority of the Court did 

not see the clear analogy between private telephone conversations and letters. Since 

letters had long had Fourth Amendment protection he thought telephone conversations should have it also. Butler’s dissent arose from his belief in a limited government that did not interfere with the liberty of its citizens. 

 [Document Source: Olmstead v. United States, 277 U.S. 438 (1928).]

 

MR. JUSTICE BUTLER, dissenting.

 Telephones are used generally for transmission of messages concerning offi cial, 

social, business and personal affairs including communications that are private and 

privileged—those between physician and patient, lawyer and client, parent and child, 

husband and wife. The contracts between telephone companies and users contemplate 

the private use of the facilities employed in the service. The communications belong 

to the parties between whom they pass. During their transmission the exclusive use of 

the wire belongs to the persons served by it. Wire tapping involves interference with 

the wire while being used. Tapping the wires and listening in by the offi cers literally 

constituted a search for evidence. As the communications passed, they were heard 

and taken down. . . .

 This Court has always construed the Constitution in the light of the principles 

upon which it was founded. The direct operation or literal meaning of the words 

used do not measure the purpose or scope of its provisions. Under the principles 

established and applied by this Court, the Fourth Amendment safeguards against all 

evils that are like and equivalent to those embraced within the ordinary meaning of 

its words. . . .

 When the facts in these cases are truly estimated, a fair application of that principle 

decides the constitutional question in favor of the petitioners. With great deference, 

I think they should be given a new trial.
67

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Dissenting opinion of Justice Oliver W. Holmes in 

Olmstead v. United States

Justice Holmes, writing in dissent, avoided the constitutional question about wiretapping and focused on the use of illegally obtained evidence. To Holmes it did not 

matter that state rather than federal law had been broken by gathering evidence 

through wiretaps. What mattered was that the government agents broke the law. 

Holmes wanted to extend the rule established in the Court’s earlier Weeks decision 

to exclude all illegally gathered evidence. Holmes’s stand was both a matter of policy 

and also a statement of philosophy about the proper action of government. 

 [Document Source: Olmstead v. United States, 277 U.S. 438 (1928).]

 

MR. JUSTICE HOLMES:

 My brother brandeis has given this case so exhaustive an examination that I 

desire to add but a few words. While I do not deny it, I am not prepared to say that 

the penumbra of the Fourth and Fifth Amendments covers the defendant, although 

I fully agree that Courts are apt to err by sticking too closely to the words of a law 

where those words import a policy that goes beyond them. . . . But I think, as mr. 

justice brandeis says, that apart from the Constitution the Government ought not 

to use evidence obtained and only obtainable by a criminal act. There is no body 

of precedents by which we are bound, and which confi nes us to logical deduction 

from established rules. Therefore we must consider the two objects of desire, both 

of which we cannot have, and make up our minds which to choose. It is desirable 

that criminals should be detected, and to that end that all available evidence should 

be used. It also is desirable that the Government should not itself foster and pay for 

other crimes when they are the means by which the evidence is to be obtained. If it 

pays its offi cers for having got evidence by crime I do not see why it may not as well 

pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that in future 

it will pay for the fruits. We have to choose, and, for my part I think it a less evil that 

some criminals should escape than that the Government should play an ignoble part.

 For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit 

district attorneys to have a hand in such dirty business it does not permit the judge 

to allow such iniquities to succeed. . . . And if all that I have said so far be accepted it 

makes no difference that in this case wire tapping is made a crime by the law of the 

State, not by the law of the United States. It is true that a State cannot make rules of 

evidence for Courts of the United States, but the State has authority over the conduct in question, and I hardly think that the United States would appear to greater 

advantage when paying for an odious crime against State law than when inciting to 
68

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

the disregard of its own. I am aware of the often repeated statement that in a criminal 

proceeding the Court will not take notice of the manner in which papers offered in 

evidence have been obtained. But that somewhat rudimentary mode of disposing 

of the question has been overthrown by Weeks v. United States, 232 U.S. 383, and the 

cases that have followed it. I have said that we are free to choose between two principles of policy. But if we are to confi ne ourselves to precedent and logic the reason 

for excluding evidence obtained by violating the Constitution seems to me logically 

to lead to excluding evidence obtained by a crime of the offi cers of the law.

“An Unusual Prohibition Victory”

Mabel Walker Willebrandt intended her newspaper series (and later book) to mobilize public opinion in favor of stricter enforcement of Prohibition. Supporters and 

opponents of Prohibition, however, derived different conclusions from her insider 

account of enforcement, with drys contending that stricter laws and more vigilant 

enforcement would work and wets decrying the growth of government action and 

corruption.

 [Document Source: Mabel Walker Willebrandt, “An Unusual Prohibition 

Victory,” Ch. 15 in The Inside of Prohibition, published in the New York Times, 

Aug. 19, 1929, p. 14.]

 

 In one case of widespread interest a prohibition victory was achieved in which I 

not only had no part but which I actually opposed. I refer to the so-called “whispering wires” case at Seattle, Washington. It involved the prosecution of a bootlegger 

named Olmstead. I certainly approved of apprehending Olmstead—he was head of a 

big ring of liquor runners from Canada—but didn’t approve the way the prohibition 

agents obtained their evidence. Practically all their testimony consisted of things they 

overheard on tapped telephone wires.

 Now, I thoroughly disapprove of the practice of tapping telephone wires. Irrespective of its legality, I believe it a dangerous and unwarrantable policy to follow in 

enforcing law. Many of the States of the Union have State laws against it. The point 

involved in the Olmstead case was whether, in the absence of a State law, the Federal 

Constitution alone prevented obtaining evidence by tapping wires.

 When the point was sustained in the lower Federal courts, and reached the Supreme Court of the United States, I indicated to the Solicitor General my unwillingness to argue the case and try to justify the prohibition agents’ wire-tapping tactics 

when I so thoroughly disapproved of them. Consequently, Mr. Mitchell employed 

distinguished counsel, a man formerly associated with his fi rm in Minnesota. . . .

 . . . An intense bitterness developed between the two branches of the Treasury 

Department, and it was not an uncommon thing for agents of the intelligence unit 

and for the special assistants to the Attorney General who had been sent to Seattle 
69

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

to handle the Hubbard case to be “shadowed” by agents of the prohibition unit and 

their friends.

 The evidence obtained over the 

“whispering wires” and otherwise 

disclosed an illegal liquor business of 

amazing magnitude. It involved the 

employment of not less than fi fty persons, of two seagoing vessels for carrying liquor from Scotland to British 

Columbia, the employment of smaller 

vessels for coastwise transportation, 

the purchase and use of a ranch for 

an underground cache for storage of 

liquor, the operation of a central offi ce 

in the heart of Seattle, the employment of executives, salesmen, delivery 

men, dispatchers, scouts, bookkeepers, 

clerks, and even an attorney.

 Monthly transactions reached a 

total as high as $176,000 and the aggregate for the year’s operation probably 

exceeded $2,000,000. Olmstead was 

the leading conspirator. He acted as 

general manager. His contribution to 

the capital of the business was $10,000. 

Eleven others were his partners by virtue of contributions of $1,000 apiece. 

Profi ts were divided, one-half to Olmstead and the remaining half to eleven 

others.

 One of the chief men was always on duty at the main offi ce to receive orders by 

telephone and to direct the fi lling of these orders by a corps of men stationed in another room, called “the bull pen.” At times the sales amounted to 200 cases of liquor 

a day.

 In this statement of the case I have largely used the language of the Supreme 

Court and the Court of Appeals. . . .

 . . . Although personally I would still use my infl uence to prevent the policy of 

wire tapping being adopted as a prohibition enforcement measure, I nevertheless 

recognize that the interpretation of the United States Constitution against the lawbreaker and in favor of the government’s right to catch him is a prohibition victory 

of no small proportions.

Mabel Willebrandt

Bain Collection

Library of Congress, Prints and Photographs Division 

[LC-DIG-ggbain-33093].
70

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Editorial by H.L. Mencken

American journalist H.L. Mencken, in his characteristically sarcastic style, identifi ed the ways in which Prohibition altered the traditional role of a federal judge and 

jeopardized public confi dence in the nation’s judiciary.

 [Document Source: The American Mercury, vol. 1, no. 1, Feb. 1924, p. 161.]

 

Perhaps the chief victims of Prohibition, in the long run, will turn out to be the 

Federal judges. I do not argue here, of course, that drinking bootleg liquors will kill 

them bodily. I merely suggest that enforcing the unjust and insane provisions of the 

Volstead Act will rob them of all their old dignity. A dozen years ago, or even half a 

dozen years ago, a Federal judge was perhaps the most dignifi ed and respected offi cial yet fl ourishing under our democracy. The plain people, many years before, had 

lost all respect for lawmakers, whether Federal, State or municipal, and, save for the 

President himself, they had very little respect left for the gentlemen of the executive 

arm, high or low. More, they had begun to view the State judiciary very biliously, 

and showed no sign of surprise when a member of it was taken in judicial adultery. 

But for the Federal judges they still continued to have a high veneration, and for 

plain reasons. Imprimis, the Federal judges sat for life, and thus did not have to climb 

down from their benches at intervals and clamor obscenely for votes. Secondly, the 

laws that they were told [of] to enforce, and especially the criminal laws, were few in 

number, simple in character, and thoroughly in accord with almost universal ideas 

of right and wrong. . . .

 I describe a Golden Age, now lamentably closed. The Uplift in its various lovely 

forms has completely changed the character of the work done by a Federal judge. 

Once the dispenser of varieties of law that only scoundrels questioned, he is now 

the harassed and ludicrous dispenser of varieties of law that only idiots approve. . . . 

[I]t is Prohibition—whether of winebibbing, of drug-taking, of interstate weekending, 

or of what not—that has carried him beyond the bounds of what, to most normal 

men, is common decency. His typical job today, as a majority of the plain people see 

it, especially in the big cities, is simply to punish men who had refused or been unable 

to pay the bribes demanded by Prohibition enforcement offi cers.
71

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Report of the President’s Commission on Law Observance 

and Enforcement, January 20, 1931

President Herbert Hoover appointed a commission to report on the enforcement of 

Prohibition laws. Chaired by George Wickersham, who served as Attorney General 

under President William Howard Taft, the commission included a former secretary of war, several federal and state judges, Dean Roscoe Pound of Harvard Law 

School, and the president of Radcliffe College. The commission recommended ways 

in which Prohibition might be more effectively enforced, but much of the commission’s report indicated the overwhelming challenges to enforcement. Here the commission discusses the damaging impact of Prohibition on the practical business of 

the federal courts and on public respect for the judicial system.

 [Document Source: “A Report of the National Commission on Law 

Observance and Enforcement Relative to the Facts as to the enforcement, the 

Benefi ts, and the Abuses under the Prohibition Laws, Both before and since the 

Adoption of the Eighteenth Amendment to the Constitution.” House Document 

No. 722, 71st Cong., 3d Sess., pp. 55–57.]

 

 Our federal organization of courts and of prosecution were ill adapted to the task 

imposed on them by the National Prohibition Act. Serious diffi culties at this point 

soon became apparent and enforcement of national Prohibition still wrestles with 

them. The program of concurrent federal and state enforcement imposes a heavy 

burden of what was in substance the work of police courts upon courts set up and 

hitherto employed chiefl y for litigation of more than ordinary magnitude. In the fi rst 

fi ve years of national Prohibition, the volume of liquor prosecutions in the federal 

courts had multiplied by seven and federal prosecutions under the Prohibition Act 

terminated in 1930 had become nearly eight times as many as the total number of all 

pending federal prosecutions in 1914. In a number of urban districts the enforcement 

agencies maintain that the only practicable way of meeting this situation with the 

existing machinery of federal courts and prosecutions is for the United States Attorneys to make bargains with defendants or their counsel whereby defendants plead 

guilty to minor offenses and escape with light penalties. Hence a disproportionate 

number of federal liquor prosecutions terminate in pleas of guilty. . . . 

 Lawyers everywhere deplore, as one of the most serious effects of Prohibition, 

the change in the general attitude toward the federal courts. Formerly these tribunals 

were of exceptional dignity, and the effi ciency and dispatch of their criminal business 

commanded wholesome fear and respect. The professional criminal, who sometimes 

had scanty respect for the state tribunals, was careful so to conduct himself as not to 

come within the jurisdiction of the federal courts. The effect of the huge volume of 

liquor prosecutions, which has come to these courts under Prohibition, has injured 

their dignity, impaired their effi ciency, and endangered the wholesome respect for 
72

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

them which once obtained. Instead of being impressive tribunals of superior jurisdiction, they have had to do the work of police courts and that work has been chiefl y 

in the public eye. These deplorable conditions have been aggravated by the constant 

presence in and about these courts of professional criminal lawyers and bail-bond 

agents, whose unethical and mercenary practices have detracted from these valued 

institutions. . . . 

 Nor have these bad effects been confi ned to the criminal side of the federal courts. 

There has been a general bad effect upon the whole administration of justice. There 

has been a tendency to appraise judges solely by their zeal in liquor prosecutions. In 

consequence, the civil business of the courts has often been delayed or interfered with. 

Zealous organizations, dictating appointments, interfering with policies and seeking 

to direct the course of administering the law, cooperating with other unfortunate 

conditions when the law took effect, brought about crude methods of enforcement. 
73

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Bibliography

Secondary sources

Dorothy M. Brown. Mabel Walker Willebrandt: A Study of Power, Loyalty, and Law.

Knoxville: University of Tennessee Press, 1984. This work is the standard biography 

of a key fi gure in enforcing Prohibition. 

Norman H. Clark. Deliver Us From Evil: An Interpretation of American Prohibition. 

New York: Norton, 1976. 

Norman H. Clark. The Dry Years: Prohibition and Social Change in Washington. 

Seattle: University of Washington Press, 1965. This is the classic account of 

Prohibition in Washington with a chapter on the Olmstead case. 

Richard F. Hamm. Shaping the Eighteenth Amendment: Temperance Reform, Legal 

Culture, and the Polity, 1880-1920. Chapel Hill: University of North Carolina Press, 

1995. The last chapter is very useful for understanding the nature of the Eighteenth 

Amendment and the Volstead Act.

Richard F. Hamm. “Short Euphorias Followed by Long Hangovers: Unintended 

Consequences of the Eighteenth and Twenty-fi rst Amendments” in David E. Kyvig, 

editor. Unintended Consequences of Constitutional Amendment. Athens: University 

of Georgia Press, 2000, pp. 164–199. Contains a useful section on Prohibition enforcement.

David E. Kyvig. Repealing National Prohibition. 2d ed. Kent, OH: Kent State 

University Press, 2000.

Philip Metcalfe. Whispering Wires: The Tragic Tale of an American Bootlegger. 

Portland, OR: Inkwater Press, 2007.

Walter F. Murphy. Wiretapping on Trial: A Case Study in the Judicial Process. New 

York: Random House, 1965.

Robert Post. “Federalism, Positive Law, and the Emergence of the American 

Administrative State: Prohibition in the Taft Court Era.” William and Mary Law 

Review. 48 (October 2006): 1–181. The best scholarly account of the Olmstead case 

in the United States Supreme Court. 
74

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement

Primary sources 

Manuscript

National Archives Pacifi c NW Region; Record Group 21, Records of the United 

States District Courts, Western District of Washington, North Divisions, Seattle, 

Civil, Criminal & Admiralty Case Files, 1912–1928 Criminal Case 9165, United 

States of America vs. Roy Olmstead, et al. There is no transcript, but the other court 

papers preserve much of what went on in the trial.

Published

Mabel Walker Willebrandt. The Inside of Prohibition (Indianapolis: The BobbsMerrill Co., 1929). This is her account of working in the Justice Department trying 

to enforce Prohibition compiled from her newspaper articles on the topic. 
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Susan H. Black, U.S. Court of Appeals for the Eleventh Circuit

Judge David O. Carter, U.S. District Court for the Central District of California

Magistrate Judge John M. Facciola, U.S. District Court for the District of Columbia

Judge James B. Haines, Jr., U.S. Bankruptcy Court for the District of Maine

Judge Edward C. Prado, U.S. Court of Appeals for the Fifth Circuit 

Judge Loretta A. Preska, U.S. District Court for the Southern District of New York

Judge Philip M. Pro, U.S. District Court for the District of Nevada

James C. Duff, Director of the Administrative Offi ce of the U.S. Courts

Director

Judge Barbara J. Rothstein

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

 By statute, the Chief Justice of the United States chairs the Center’s Board, which also 

includes the director of the Administrative Offi ce of the U.S. Courts and seven judges elected by the Judicial Conference.

 The organization of the Center refl ects its primary statutory mandates. The Education 

Division plans and produces education and training programs for judges and court staff, 

including satellite broadcasts, video programs, publications, curriculum packages for incourt training, and Web-based programs and resources. The Research Division examines 

and evaluates current and alternative federal court practices and policies. This research 

assists Judicial Conference committees, who request most Center research, in developing 

policy recommendations. The Center’s research also contributes substantially to its educational programs. The two divisions work closely with two units of the Director’s Offi ce—

the Systems Innovations & Development Offi ce and Communications Policy & Design 

Offi ce—in using print, broadcast, and online media to deliver education and training and 

to disseminate the results of Center research. The Federal Judicial History Offi ce helps 

courts and others study and preserve federal judicial history. The International Judicial 

Relations Offi ce provides information to judicial and legal offi cials from foreign countries 

and assesses how to inform federal judicial personnel of developments in international law 

and other court systems that may affect their work.