Olmstead vs.

US,
Brandeis dissenting, 277 US 438 (1928)

RULE: The Fourth Amendment is not violated unless there has been an official search and seizure of a defendant's
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. Therefore, the wiretapping of the defendant's telephone conversations did
not amount to a search or seizure within the meaning of the Fourth Amendment.

FACTS: Defendants were convicted in the District Court for the Western District of Washington of a conspiracy to
violate the National Prohibition Act by unlawfully possessing, transporting, and importing intoxicating liquors and
maintaining nuisances, and by selling intoxicating liquors. The information that led to the discovery of the conspiracy and
its nature and extent was largely obtained by intercepting messages on the telephones of the conspirators by four federal
prohibition officers. Small wires were inserted along the ordinary telephone wires from the residences of four of
the defendants and those leading from the chief office. The insertions were made without trespass upon any property of
the defendants. They were made in the basement of the large office building. The taps from house lines were made in the
streets near the houses.

ISSUE: Were the evidence obtained in wiretapped private telephone conversations violate the defendants' Fourth
Amendment?

HELD: NO. The United States Supreme Court affirmed that the wiretapping of telephone conversations did not amount
to a search or seizure within the meaning of US Const. Fourth Amendment. There was no room for applying the Fifth
Amendment unless amendment IV was first violated. The Fourth Amendment was not violated unless there was an
official search and seizure of a 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. There was no evidence of compulsion to induce
defendants to talk over their many telephones. They were continually and voluntarily transacting business without
knowledge of the interception. The evidence was secured using the sense of hearing only. There was no entry of the
houses or offices of defendants.

DISSENT: Justice Louis Brandeis wrote an influential dissent that was the foundation for future court decisions. In it, he
attacked the proposition that the government had the power to wiretap phones without warrant, arguing that there is no
difference between listening to a phone call and reading a sealed letter. The government should not violate the laws of
states to gather evidence (wiretapping was illegal in many states, including Washington) and then use that evidence to
prosecute people.

The Brandeis dissent was widely cited and came to prominence in later Supreme Court decisions. The 1967 Katz v.
U.S. case overturned the Olmstead ruling, holding that warrants were in fact required to wiretap payphones, with
Brandeis’s dissent held as a primary influence.

Constitutional Law II Regina Noreen Arahan