Richmond planet. [volume] (Richmond, Va.) 1883-1938, 1928-06-09
AN ASTOUNDING DECISION


The five to four decision Of the Su-
oreme Court of the United States IN
the wire tapping case has resulted IN
one of the most remarkable judicial
squabbles ever known in these uniteo
States. The open condemnation OF
one part of the court, seemingly
moved by political considerations by
the other will be in the nature OF a
nrecedent, which has been preclpl-
tated by repeated decisions by tins
august tribunal, which decisions have
been widely at variance with the eX-
pressive and impressive declarations
of the Constitution itself
The facts are told as follows:
ssJustice BraRdeis, in his scathlrs
rebuke to overlapping described II
ns q resort to a crime to detect d
crime and said:
iaThe evil incident to invasion OIL
,he privacy of the telephone Is la
greater than that involved IN tampef
ing with the mails.
The Taft opinion was rendered
in two cases arising in the western
district of the State Of washington
where Roy Olmstead, Cnarles .;
Green and others were convicted Oh
conspiracy TO violate the Federal ory
law, largely by evidence obtained py
overlapping. They had sold ABOUT
$4,000 900 of liquor year.
The accused urged that evidence
NV wire.rapping was in violation OF
tbe constitutional provisions against
unreasonable search and seizure.
THE Circuit Court of Appeals az
flrmsd the convictitn Of the trlai
court. These judgments were upnelo
in the Taft opinion today
Then follows, the report Of the
minority: -
Justice Brandels in his dissent
said: ,ow
"Bsfore any OF the persons now
charged had been arrested or 1ndict'
.d. the telephones by means or wn!cn
thew hab'tu~lly communicated WIN
Cne another and with others, nad
been tapped by Federal onlcers. ~
this end, lineman OF long eAper
fence in wire-tapping was employed
on behalf Of the Government ana at
it's expense. He tapped eight teie'
phones, some In the homes OF the
persons charged, some in their OIL
ces.
"Acting on behalf of the Govern
menr and in their official capacity,
AT least six other prohibition agents
listened over the tapped wires and
reported the messages taken. Their
generations extended over a period OF
nearly five months. The Government
makes no attempt to defend the
methods employed by its officers.
indeed, it conceded that if wire
tapping can be deemed search and
seizure within the Fourth Amend
ment, such overlapping as was
Iracticed in the case at bar was an
unreasonable search and seizure, and
that the evidence thus obtained was
inadm' ssible.
''But it relies on the language OF
the amendment and it claims that
the protection given thereby cannot
properly be held to include tele
phone conversation.
Assailing the doctrine that such
methods can properly be employed,
Justice Brandeis said time works
changes. and new conditions arise
which did not obtain when the Con
stitution and the Fourth and Fifth
Amendments were adopted. He went
On:
"Subtler and more far-reaching
means of invading privacy have be-
come ave- liable to the Government
Discovery and invention have made
it possible for the Government, by
means more effective than stretch
ing upon the rack. to obtain dis
closure in court of what is whispered
in the closet.
"The progress of science" he de-
clared. "in furnishing the Govern
ment with means of espionage is not
likely to stop with overlapping.
"Ways may some day 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 psy'
chic and related sciences may bring
means of exploring unexpressed be-
Iiefs, thoughts and emotions. That
places the liberty of every man II
the hands of every petty officer, was
said by James Otis of much lesser In
trusions than these. IS
Can it be that the Constitution at
fords no protection against such in
vasions of individual security"
Justice Brandeis said the answer
was to be found in the decision II
BOYD VS.. limited States. "a case tina