26 May 2014
Louis Brandeis Dissent in Olmstead v. United States
The empire strikes back: How Brandeis foreshadowed Snowden and Greenwald
May 24, 2014
OLMSTEAD ET AL. v. UNITED STATES.
GREEN ET AL. v. SAME.
McINNIS v. SAME.
Nos. 493, 532 and 533.
Supreme Court of United States.
Argued February 20, 21, 1928.
Decided June 4, 1928.
MR. JUSTICE BRANDEIS, dissenting.
The defendants were convicted of conspiring to violate the National Prohibition
Act. Before any of the persons now charged had been arrested or indicted,
the telephones by means of which they habitually communicated with one another
and with others had been tapped by federal officers. To this end, a lineman
of long experience in wire-tapping was employed, on behalf of the Government
and at its expense. He tapped eight telephones, some in the homes of the
persons charged, some in their offices. Acting on behalf of the Government
and in their official capacity, at least six other prohibition agents listened
over the tapped wires and reported the messages taken. Their operations extended
over a period of nearly five months. The type-written record of the notes
of conversations overheard occupies 775 typewritten pages. 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 officers.
Indeed, it concedes 472*472 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.
"We must never forget," said Mr. Chief Justice Marshall in McCulloch v. Maryland,
4 Wheat. 316, 407, "that it is a constitution we are expounding." Since then,
this Court has repeatedly sustained the exercise of power by Congress, under
various clauses of that instrument, over objects of which the Fathers could
not have dreamed. See Pensacola Telegraph Co. v. Western Union Telegraph
Co., 96 U.S. 1, 9; Northern Pacific Ry. Co. v. North Dakota, 250 U.S. 135;
Dakota Central Telephone Co. v. South Dakota, 250 U.S. 163; Brooks v. United
States, 267 U.S. 432. We have likewise held that general limitations on the
powers of Government, like those embodied in the due process clauses of the
Fifth and Fourteenth Amendments, do not forbid the United States or the States
from meeting modern conditions by regulations which "a century ago, or even
half a century ago, probably would have been rejected as arbitrary and
oppressive." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387; Buck
v. Bell, 274 U.S. 200. Clauses guaranteeing to the individual protection
against specific abuses of power, must have a similar capacity of adaptation
to a changing world. It was with reference to such a clause that this Court
said in Weems v. United States, 217 U.S. 349, 373: "Legislation, both statutory
and constitutional, is enacted, it is true, from an experience of evils,
but its general language should not, therefore, be necessarily confined to
the form that evil had theretofore taken. Time works changes, brings into
existence new conditions 473*473 and purposes. Therefore a principle to be
vital must be capable of wider application than the mischief which gave it
birth. This is peculiarly true of constitutions. They are not ephemeral
enactments, designed to meet passing occasions. They are, to use the words
of Chief Justice Marshall `designed to approach immortality as nearly as
human institutions can approach it.' The future is their care and provision
for events of good and bad tendencies of which no prophecy can be made. In
the application of a constitution, therefore, our contemplation cannot be
only of what has been but of what may be. Under any other rule a constitution
would indeed be as easy of application as it would be deficient in efficacy
and power. Its general principles would have little value and be converted
by precedent into impotent and lifeless formulas. Rights declared in words
might be lost in reality."
When the Fourth and Fifth Amendments 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 torture. 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 specific language. Boyd v. United States,
116 U.S. 616, 630. 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
474*474 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 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 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 officer" was said by James
Otis of much lesser intrusions than these. To Lord Camden, a far slighter
intrusions seemed "subversive of all the comforts of society." Can it
be that the Constitution affords no protection against such invasions of
A sufficient answer is found in Boyd v. United States, 116 U.S. 616, 627-630,
a case that will be remembered as long as civil liberty lives in the United
States. This Court there reviewed the history that lay behind the Fourth
and Fifth Amendments. We said with reference to Lord Camden's judgment in
Entick v. Carrington, 19 Howell's State Trials, 1030: "The principles laid
down in this opinion affect the very essence of constitutional liberty and
security. They reach farther than the concrete form of the case there before
the court, with its adventitious circumstances; they apply to all invasions
on the part of the Government and its employes of the sanctities of a man's
home and the privacies of life. It is not the breaking of his doors, and
the rummaging of his drawers, that constitutes the essence of the offence;
but it is the invasion of his indefeasible right of personal security, 475*475
personal liberty and private property, where that right has never been forfeited
by his conviction of some public offence, it is the invasion of this
sacred right which underlies and constitutes the essence of Lord Camden's
judgment. Breaking into a house and opening boxes and drawers are circumstances
of aggravation; but any forcible and compulsory extortion of a man's own
testimony or of his private papers to be used as evidence of a crime or to
forfeit his goods, is within the condemnation of that judgment. In this regard
the Fourth and Fifth Amendments run almost into each other."
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 476*476 between them upon any
subject, and although proper, confidential 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 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.
Silverthorne Lumber Co. v. United States, 251 U.S. 385. Literally, there
is no "search" or "seizure" when a friendly visitor abstracts papers from
an office; yet we held in Gouled v. United States, 255 U.S. 298, that evidence
so obtained could not be used. No court which looked at the words of the
Amendment rather than at its underlying purpose would hold, as this Court
did in Ex parte Jackson, 96 U.S. 727, 733, that its protection extended to
letters in the mails. The provision against self-incrimination in the Fifth
Amendment has been given an equally broad construction. The language is:
"No person. . . shall be compelled in any criminal case to be a witness against
himself." Yet we have held, not only that the 477*477 protection of the Amendment
extends to a witness before a grand jury, although he has not been charged
with crime, Counselman v. Hitchcock, 142 U.S. 547, 562, 586. but that: "It
applies alike to civil and criminal proceedings, wherever the answer might
tend to subject to criminal responsibility him who gives it. The privilege
protects a mere witness as fully as it does one who is also a party defendant."
McCarthy v. Arndstein, 266 U.S. 34, 40. The narrow language of the Amendment
has been consistently construed in the light of its object, "to insure that
a person should not be compelled, when acting as a witness in any investigation,
to give testimony which might tend to show that he himself had committed
a crime. The privilege is limited to criminal matters, but it is as broad
as the mischief against which it seeks to guard." Counselman v. Hitchcock,
supra, p. 562.
Decisions of this Court applying the principle of the Boyd case have settled
these things. Unjustified search and seizure violates the Fourth Amendment,
whatever the character of the paper; whether the paper when taken by the
federal officers was in the home, in an office or elsewhere; whether
the taking was effected by force, by 478*478 fraud, or in the orderly
process of a court's procedure. From these decisions, it follows necessarily
that the Amendment is violated by the officer'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 testified to by a federal officer 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 significance 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 unjustifiable
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 479*479 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 beneficent. 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.
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.
Pierce's 480*480 Code, 1921, § 8976(18). To prove its case, the Government
was obliged to lay bare the crimes committed by its officers on its behalf.
A federal court should not permit such a prosecution to continue. Compare
Harkin v. Brundage, 276 U.S. 36, id. 604.
481*481 The situation in the case at bar differs widely from that presented
in Burdeau v. McDowell, 256 U.S. 465. There, only a single lot of papers
was involved. They had been obtained by a private detective while acting
on behalf of a private party; without the knowledge of any federal official;
long before anyone had thought of instituting a 482*482 federal prosecution.
Here, the evidence obtained by crime was obtained at the Government's expense,
by its officers, while acting on its behalf; the officers who committed these
crimes are the same officers who were charged with the enforcement of the
Prohibition Act; the crimes of these officers 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 filled by recitals
of the details of the wire-tapping and of facts ascertained thereby.
There is literally no other evidence of guilt on the part of some of the
defendants except that illegally obtained by these officers. As to nearly
all the defendants (except those who admitted guilt), the evidence relied
upon to secure a conviction consisted mainly of that which these officers
had so obtained by violating the state law.
As Judge Rudkin said below: "Here we are concerned with neither eavesdroppers
nor thieves. Nor are we concerned with the acts of private individuals. .
. . We are concerned only with the acts of federal agents whose powers are
limited and controlled by the Constitution of the United States." The Eighteenth
Amendment has not in terms empowered Congress to authorize anyone to violate
the criminal laws of a State. And Congress has never purported to do so.
Compare Maryland v. Soper, 270 U.S. 9. The terms of appointment of federal
prohibition agents do not purport to confer upon them authority to violate
any criminal law. Their superior officer, the Secretary of the Treasury,
has not instructed them to commit 483*483 crime on behalf of the United States.
It may be assumed that the Attorney General of the United States did not
give any such instruction.
When these unlawful acts were committed, they were crimes only of the officers
individually. The Government was innocent, in legal contemplation; for no
federal official 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 officers' crimes. Compare The
Paquete Habana, 189 U.S. 453, 465; O'Reilly deCamara v. Brooke, 209 U.S.
45, 52; Dodge v. United States, 272 U.S. 530, 532; Gambino v. United States,
275 U.S. 310. And if this Court should permit the Government, by means of
its officers' crimes, to effect its purpose of punishing the defendants,
there would seem to be present all the elements of a ratification. If so,
the Government itself would become a lawbreaker.
Will this Court by sustaining the judgment below sanction such conduct on
the part of the Executive? The governing principle has long been settled.
It is that a court will not redress a wrong when he who invokes its aid has
unclean hands. The maxim of unclean hands comes 484*484 from courts of
equity. But the principle prevails also in courts of law. Its common
application is in civil actions between private parties. Where the Government
is the actor, the reasons for applying it are even more persuasive. Where
the remedies invoked are those of the criminal law, the reasons are
The door of a court is not barred because the plaintiff has committed a crime.
The confirmed criminal is as much entitled to redress as his most virtuous
fellow citizen; no record of crime, however long, makes one an outlaw. The
court's aid is denied only when he who seeks it has violated the law in
connection with the very transaction as to which he seeks legal redress.
Then aid is denied despite the defendant's wrong. It is denied in order to
maintain respect for law; in order is to promote confidence in the administration
of justice; in order to preserve the judicial process from contamination.
The rule is one, not of action, but of inaction. It is sometimes 485*485
spoken of as a rule of substantive law. But it extends to matters of procedure
as well. A defense may be waived. It is waived when not pleaded. But
the objection that the plaintiff comes with unclean hands will be taken by
the court itself. It will be taken despite the wish to the contrary of
all the parties to the litigation. The court protects itself.
Decency, security and liberty alike demand that government officials 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 justifies 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.