Olmstead v. United States Green v. Same Innis v. Same, 493

• Citation: 277 U.S. 438,48 S.Ct. 564,72 L.Ed. 944
• Decision Date: 04 June 1928
• Docket Number: No. 533,No. 493,No. 532,493,532,533
• Parties: OLMSTEAD et al. v. UNITED STATES. GREEN et al. v. SAME McINNIS v. SAME
• Court: United States Supreme Court

277 U.S. 438

48 S.Ct. 564

72 L.Ed. 944

OLMSTEAD et al.

v UNITED STATES.

GREEN et al.

v. SAME

McINNIS

v. SAME.

No. 493.

No. 532.

No. 533.

Argued Feb. 20 and 21, 1928.

Decided June 4, 1928.

Mr. John F. Dore, of Seattle, Wash., for petitioners Olmstead and others.

[Argument of Counsel from Pages 439-440 intentionally omitted] Mr. Frank R. Jeffrey, of Seattle, Wash., for petitioner McInnis.

[Argument of Counsel from Pages 441-445 intentionally omitted] Mr. Arthur E. Griffin, of Seattle, Wash., for petitioners Green and others.

[Argument of Counsel from Pages 445-447 intentionally omitted.]

The Attorney General and Mr. Michael J. Doherty, of St. Paul, Minn., for the United States.

[Argument of Counsel from Pages 447-452 intentionally omitted.]

Page 452

Messrs. Charles M. Bracelen, of New York City, Otto B. Rupp. of Seattle, Wash., Clarence B. Randall, of Chicago, Ill., and Robert H. Strahan, of New York City, for Pacific Telephone & Telegraph Co., American Telephone & Telegraph Co., United States Independent Telephone Ass'n and Tri-State Telephone & Telegraph Co., as amici curiae.

[Argument of Counsel from pages 452-454 intentionally omitted]

Page 455

Mr. Chief Justice TAFT delivered the opinion of the Court.

These cases are here by certiorari from the Circuit Court of Appeals for the Ninth Circuit. 19 F.(2d) 842, 53 A. L. R. 1472, and 19 F.(2d) 850. The petition in No. 493 Was filed August 30, 1927; in Nos. 532 and 533, September 9, 1927. They were granted with the distinct limitation that the hearing should be confined to the single question whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wire tapping, amounted to a violation of the Fourth and Fifth Amendments. 276 U. S. 609, 48 S. Ct. 207, 72 L. Ed. —.

The petitioners were convicted in the District Court for the Western District of Washington of a conspiracy to violate the National Prohibition Act (27 USCA) by unlawfully possessing, transporting and importing intoxicating liquors and maintaining nuisances, and by selling intoxicating liquors. Seventy-two others, in addition to the petitioners, were indicted. Some were not apprehended, some were acquitted, and others pleaded guilty.

The evidence in the records discloses a conspiracy of amazing magnitude to import, possess, and sell liquor un-

Page 456

lawfully. It involved the employment of not less than 50 persons, of two sea-going vessels for the transportation of liquor to British Columbia, of smaller vessels for coastwise transportation to the state of Washington, the purchase and use of a branch beyond the suburban limits of Seattle, with a large underground cache for storage and a number of smaller caches in that city, the maintenance of a central office manned with operators, and the employment of executives, salesmen, deliverymen dispatchers, scouts, bookkeepers, collectors, and an attorney. In a bad month sales amounted to $176,000; the aggregate for a year must have exceeded $2,000,000.

Olmstead was the leading conspirator and the general manager of the business. He made a contribution of $10,000 to the capital; 11 others contributed $1,000 each. The profits were divided, one-half to Olmstead and the remainder to the other 11. Of the several offices in Seattle, the chief one was in a large office building. In this there were three telephones on three different lines. There were telephones in an office of the manager in his own home, at the homes of his associates, and at other places in the city. Communication was had frequently with Vancouver, British Columbia. Times were fixed for the deliveries of the 'stuff' to places along Puget Sound near Seattle, and from there the liquor was removed and deposited in the caches already referred to. One of the chief men was always on duty at the main office to receive orders by the telephones and to direct their filling by a corps of men stationed in another room-the 'bull pen.' The call numbers of the telephones were given to those known to be likely customers. At times the sales amounted to 200 cases of liquor per day.

The information which 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

Page 457

wires were inserted along the ordinary telephone wires from the residences of four of the petitioners 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.

The gathering of evidence continued for many months. Conversations of the conspirators, of which refreshing stenographic notes were currently made, were testified to by the government witnesses. They revealed the large business transactions of the partners and their subordinates. Men at the wires heard the orders given for liquor by customers and the acceptances; they became auditors of the conversations between the partners. All this disclosed the conspiracy charged in the indictment. Many of the intercepted conversations were not merely reports, but parts of the criminal acts. The evidence also disclosed the difficulties to which the conspirators were subjected, the reported news of the capture of vessels, the arrest of their men, and the seizure of cases of liquor in garages and other places. It showed the dealing by Olmstead, the chief conspirator, with members of the Seattle police, the messages to them which secured the release of arrested members of the conspiracy, and also direct promises to officers of payments as soon as opportunity offered.

The Fourth Amendment provides:

'The right 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 affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

And the Fifth:

'No person * * * shall be compelled in any criminal case to be a witness against himself.'

Page 458

It will be helpful to consider the chief cases in this court which bear upon the construction of these amendments.

Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746, was an information filed by the District Attorney in the federal court in a cause of seizure and forfeiture against 35 cases of plate glass, which charged that the owner and importer, with intent to defraud the revenue, made an entry of the imported merchandise by means of a fraudulent or false invoice. It became important to show the quantity and value of glass contained in 29 cases previously imported. The fifth section of the Act of June 22, 1874 (19 USCA § 535), provided that, in cases not criminal under the revenue laws, the United States attorney, whenever he thought an invoice, belonging to the defendant, would tend to prove any allegation made by the United States, might by a written motion, describing the invoice and setting forth the allegation which he expected to prove, secure a notice from the court to the defendant to produce the invoice, and, if the defendant refused to produce it, the allegations stated in the motion should be taken as confessed, but if produced the United States attorney should be permitted, under the direction of the court, to make an examination of the invoice, and might offer the same in evidence. This act had succeeded the act of 1867 (14 Stat. 547), which provided in such cases the District Judge, on affidavit of any person interested, might issue a warrant to the marshall to enter the premises where the invoice was and take possession of it and hold it subject to the order of the judge. This had been preceded by the act of 1863 (12 Stat. 740) of a similar tenor, except that it directed the warrant to the collector instead of the marshal. The United States attorney followed the act of 1874 and compelled the production of the invoice.

The court held the act of 1874 repugnant to the Fourth and Fifth Amendments. As to the Fourth Amendment, Justice Bradley said (page 621 (6 S. Ct. 527)):

Page 459

'But, in regard to the Fourth Amendment, it is contended that, whatever might have been alleged against the constitutionality of the acts of 1863 and 1867, that of 1874, under which the order in the present case was made, is free from constitutional objection, because it does not authorize the search and seziure of books and papers, but only requires the defendant or claimant to produce them. That is so; but it declares that if he does not produce them, the allegations which it is affirmed they will prove shall be taken as confessed. This is tantamount to compelling their production; for the prosecuting attorney will always be sure to state the evidence expected to be derived from them as strongly as the case will admit of. It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man's house and searching amongst his papers, are wanting, and to this extent the proceeding under the act of 1874 is a mitigation of that which was authorized by the former acts; but it accomplishes the substantial object of those acts in forcing from a party evidence against himself. It is our opinion, therefore, that a compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure.'

Concurring, Mr. Justice Miller and Chief Justice Waite said that they did not think the machinery used to get this evidence amounted to a search and seizure, but they agreed that...