U.S. Supreme Court Olmstead v. United States, 277
U.S. 438 (1928) Olmstead v. United
States Nos. 493, 532 and 533 Argued February 20, 21,
1928 Decided June 4, 1928 277
U.S. 438 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE NINTH
CIRCUIT Syllabus 1. Use in evidence in a criminal trial in a federal court of an
incriminating telephone conversation voluntarily conducted by the
accused and secretly overheard from a tapped wire by a government
officer does not compel the accused to be a witness against himself
in violation of the Fifth Amendment. P. 277 U. S.
462 .

															2. Evidence of a conspiracy to violate the Prohibition Act was
obtained by government officers by secretly tapping the lines of a
telephone company connected with the chief office and some of the
residences of the conspirators, and thus clandestinely overhearing
and recording their telephonic conversations concerning the
conspiracy and in aid of its execution. The tapping connections
were made in the basement of a large office building and on public
streets, and no trespass was committed upon any property of the
defendants. Held, that the obtaining of the evidence and
its use at the trial did not violate the Fourth Amendment. Pp. 457- 277 U. S.
466 .

															3. The principle of liberal construction applied to the
Amendment to effect its purpose in the interest of liberty will not
justify enlarging it beyond the possible practical meaning of
"persons, houses, papers, and effects," or so applying "searches
and seizures" as to forbid hearing or sight. P. 277 U. S.
465 .

															4. The policy of protecting the secrecy of telephone messages by
making them, when intercepted, inadmissible as evidence in federal
criminal trials may be adopted by Congress through legislation, but
it is not for the courts to adopt it by attributing an enlarged and
unusual meaning to the Fourth Amendment. P. 277 U. S.
465 .

															5. A provision in an order granting certiorari limiting the
review to a single specific question does not deprive the Court of
jurisdiction to decide other questions presented by the record. P. 277 U. S.
466 .

															6. The common law of evidence having prevailed in the State of
Washington since a time antedating her transformation from a Page 277 U. S. 439 Territory to a State, those rule apply in the trials of criminal
cases in the federal courts sitting in that State. P. 277 U. S.
466 .

															7. Under the common law, the admissibility of evidence is not
affected by the fact of its having been obtained illegally. P. 277 U.S. 467 .

															8. The rule excluding from the federal Courts evidence of crime
procured by government officers by methods forbidden by the Fourth
and Fifth Amendments is an exception to the common law rule. Id. 9. Without the sanction of an Act of Congress, federal courts
have no discretion to exclude evidence, the admission of which is
not unconstitutional, because it was unethically procured. P. 277 U. S.
468 .

															10. The statute of Washington, adopted in 1909, making the
interception of telephone messages a misdemeanor cannot affect the
rules of evidence applicable in federal courts in criminal cases. Id. 19 F. (2d) 842, 848, 850, affirmed.

															CERTIORARI, 276 U.S. 609, to judgments of the Circuit Court of
Appeals affirming convictions of conspiracy to violate the
Prohibition Act. See 5 F.2d 712 ; 7 F.2d 756 , 760 . The
order granting certiorari confined the hearing to the question
whether the use in evidence of private telephone conversations,
intercepted by means of wiretapping, violated the Fourth and Fifth
Amendments. Page 277 U. S. 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 and 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 wiretapping amounted
to a violation of the Fourth and Fifth Amendments.

															The petitioners 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. 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 unlawfully. Page 277 U. S. 456 It involved the employment of not less than fifty persons, of
two seagoing 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 ranch 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, 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 two millions of dollars.

															Olmstead was the leading conspirator and the general manager of
the business. He made a contribution of $10,000 to the capital;
eleven others contributed $1,000 each. The profits were divided
one-half to Olmstead and the remainder to the other eleven. 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 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 277 U. S. 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 277 U. S. 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 , was an information filed by the District
Attorney in the federal court in a cause of seizure and forfeiture
against thirty-five 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 twenty-nine cases previously imported. The fifth
section of the Act of June 22, 1874, 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, which
provided that, in such cases, the District Judge, on affidavit of
any person interested, might issue a warrant to the marshal 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 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 116 U. S.
621 ): Page 277 U. S. 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 seizure 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 the Fifth Amendment
had been violated.

															The statute provided an official demand for the production of a
paper or document by the defendant for official search and use as
evidence on penalty that, by refusal, he should be conclusively
held to admit the incriminating Page 277 U. S. 460 character of the document as charged. It was certainly no
straining of the language to construe the search and seizure under
the Fourth Amendment to include such official procedure.

															The next case, and perhaps the most important, is Weeks v.
United States, 232 U. S. 383 -- a
conviction for using the mails to transmit coupons or tickets in a
lottery enterprise. The defendant was arrested by a police officer
without a warrant. After his arrest, other police officers and the
United States marshal went to his house, got the key from a
neighbor, entered the defendant's room and searched it, and took
possession of various papers and articles. Neither the marshal nor
the police officers had a search warrant. The defendant filed a
petition in court asking the return of all his property. The court
ordered the return of everything not pertinent to the charge, but
denied return of relevant evidence. After the jury was sworn, the
defendant again made objection, and, on introduction of the papers,
contended that the search without warrant was a violation of the
Fourth and Fifth Amendments, and they were therefore inadmissible.
This court held that such taking of papers by an official of the
United States, acting under color of his office, was in violation
of the constitutional rights of the defendant, and, upon making
seasonable application, he was entitled to have them restored, and
that, by permitting their use upon the trial, the trial court
erred.

															The opinion cited with approval language of Mr. Justice Field in Ex parte Jackson, 96 U. S. 727 , 96 U. S. 733 ,
saying that the Fourth Amendment, as a principle of protection, was
applicable to sealed letters and packages in the mail, and that,
consistently with it, such matter could only be opened and examined
upon warrants issued on oath or affirmation particularly describing
the thing to be seized.

															In Silverthorne Lumber Company v. United States, 251 U. S. 385 , the
defendants were arrested at their homes and Page 277 U. S. 461 detained in custody. While so detained, representatives of the
Government, without authority, went to the office of their company
and seized all the books, papers and documents found there. An
application for return of the things was opposed by the District
Attorney, who produced a subpoena for certain documents relating to
the charge in the indictment then on file. The court said:

															"Thus, the case is not that of knowledge acquired through the
wrongful act of a stranger, but it must be assumed that the
Government planned, or at all events ratified, the whole
performance."

															And it held that the illegal character of the original seizure
characterized the entire proceeding, and, under the Weeks case, the seized papers must be restored.

															In Amos v. United States, 255 U.
S. 313 , the defendant was convicted of concealing
whiskey on which the tax had not been paid. At the trial, he
presented a petition asking that private property seized in a
search of his house and store "within his curtilage" without
warrant should be returned. This was denied. A woman who claimed to
be his wife was told by the revenue officers that they had come to
search the premises for violation of the revenue law. She opened
the door; they entered, and found whiskey. Further searches in the
house disclosed more. It was held that this action constituted a
violation of the Fourth Amendment, and that the denial of the
motion to restore the whiskey and to exclude the testimony was
error.

															In Gouled v. The United States, 255 U.
S. 298 , the facts were these: Gouled and two others were
charged with conspiracy to defraud the United States. One pleaded
guilty, and another was acquitted. Gouled prosecuted error. The
matter was presented here on questions propounded by the lower
court. The first related to the admission in evidence of a paper
surreptitiously taken from the office of the defendant by one
acting under the direction Page 277 U. S. 462 of an officer of the Intelligence Department of the Army of the
United States. Gouled was suspected of the crime. A private in the
U.S. Army, pretending to make a friendly call on him, gained
admission to his office and, in his absence, without warrant of any
character, seized and carried away several documents. One of these
belonging to Gouled, was delivered to the United States Attorney,
and by him introduced in evidence. When produced, it was a surprise
to the defendant. He had had no opportunity to make a previous
motion to secure a return of it. The paper had no pecuniary value,
but was relevant to the issue made on the trial. Admission of the
paper was considered a violation of the Fourth Amendment. Agnello v. United States, 269 U. S.
20 , held that the Fourth and Fifth Amendments were
violated by admission in evidence of contraband narcotics found in
defendant's house, several blocks distant from the place of arrest,
after his arrest, and seized there without a warrant. Under such
circumstances, the seizure could not be justified as incidental to
the arrest.

															There is no room in the present case for applying the Fifth
Amendment unless the Fourth Amendment was first 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 confined 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
officers 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 Page 277 U. S. 463 unimportant. This was held by the Supreme Judicial Court of
Massachusetts in Commonwealth v. Dana, 2 Metcalf, 329,
337. There it was ruled that the only remedy open to a defendant
whose rights under a state constitutional equivalent of the Fourth
Amendment had been invaded was by suit and judgment for damages, as
Lord Camden held in Entick v. Carrington, 19 Howell State
Trials, 1029. Mr. Justice Bradley made effective use of this case
in Boyd v. United States. But in the Weeks case,
and those which followed, 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 official 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. This phase of the misuse of governmental power of
compulsion is the emphasis of the opinion of the Court in the Boyd case. This appears too in the Weeks case, in
the Silverthorne case, and in the Amos case. Gouled v. United States carried the inhibition against
unreasonable searches and seizures to the extreme limit. Its
authority is not to be enlarged by implication, and must be
confined to the precise state of facts disclosed by the record. A
representative of the Intelligence Department of the Army, having
by stealth obtained admission to the defendant's office, seized and
carried away certain private papers valuable for evidential
purposes. This was held an unreasonable search and seizure within
the Fourth Amendment. A stealthy entrance in such circumstances Page 277 U. S. 464 became the equivalent to an entry by force. There was actual
entrance into the private quarters of defendant, and the taking
away of something tangible. Here we have testimony only of
voluntary conversations secretly overheard.

															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.

															It is urged that the language of Mr. Justice Field in Ex
parte Jackson, already quoted, offers an analogy to the
interpretation of the Fourth Amendment in respect of wiretapping.
But the analogy fails. The Fourth Amendment may have proper
application to a sealed letter in the mail because of the
constitutional provision for the Post Office Department and the
relations between the Government and those who pay to secure
protection of their sealed letters. See Revised Statutes,
§§ 3978 to 3988, whereby Congress monopolizes the carriage of
letters and excludes from that business everyone else, and § 3929,
which forbids any postmaster or other person to open any letter not
addressed to himself. It is plainly within the words of the
Amendment to say that the unlawful rifling 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 offices of the
defendants. Page 277 U. S. 465 By the invention of the telephone fifty 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
office. The intervening wires are not part of his house or office
any more than are the highways along which they are stretched.

															This Court, in Carroll v. United States, 267 U.
S. 132 , 267 U. S. 149 ,
declared:

															"The Fourth Amendment is to be construed in the light of what
was deemed an unreasonable search and seizure when it was adopted
and in a manner which will conserve public interests as well as the
interests and rights of individual citizens."

															Justice Bradley, in the Boyd case, and Justice Clark in
the Gouled case, said that the Fifth Amendment and the
Fourth Amendment were to be liberally construed to effect the
purpose of the framers of the Constitution in the interest of
liberty. But that cannot justify enlargement of the language
employed beyond the possible practical meaning of houses, persons,
papers, and effects, or so to apply the words search and seizure as
to forbid hearing or sight. Hester v. United States, 265 U. S.
57 , held that the testimony of two officers of the law
who trespassed on the defendant's land, concealed themselves one
hundred yards away from his house, and saw him come out and hand a
bottle of whiskey to another was not inadmissible. While there was
a trespass, there was no search of person, house, papers or
effects. United States v. Lee, 274 U.
S. 559 , 274 U. S. 563 ; Eversole v. State, 106 Tex.Cr. 567.

															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, Page 277 U. S. 466 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
official 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 wiretapping 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 overruled 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. United States v.
Reid , 12 How. 361, Page 277 U. S. 467 53 U. S. 363 , 53 U. S. 366 ; Logan v. United States, 144 U. S. 263 , 144 U. S. 301 ; Rosen v. United States, 245 U. S. 467 ; Withaup v. United States, 127 Fed. 530, 534; Robinson
v. United States, 292 Fed. 683, 685.

															The common law rule is that the admissibility of evidence, is
not affected by the illegality of the means by which it was
obtained. Professor Greenleaf, in his work on evidence, vol. 1,
12th ed., by Redfield, § 254(a) says:

															"It may be mentioned in this place, that though papers and other
subjects of evidence may have been illegally taken from
the possession of the party against whom they are offered, or
otherwise unlawfully obtained, this is no valid objection to their
admissibility, if they are pertinent to the issue. The court will
not take notice how they were obtained, whether lawfully or
unlawfully, nor will it form an issue, to determine that
question."

															Mr. Jones, in his work on the same subject, refers to Mr.
Greenleaf's statement and says:

															"Where there is no violation of a constitutional guaranty, the
verity of the above statement is absolute."

															Vol. 5, § 2075, note 3.

															The rule is supported by many English and American cases cited
by Jones in vol. 5, 2075, note 3, and § 2076, note 6, and by
Wigmore, vol. 4, § 2183. It is recognized by this Court, in Adams v. New York, 192 U. S. 585 . The Weeks case announced an exception to the common law rule
by excluding all evidence in the procuring of which government
officials took part by methods forbidden by the Fourth and Fifth
Amendments. Many state courts do not follow the Weeks case. People v. Defore, 242 N.Y. 13. But those who do
treat it as an exception to the general common law rule, and
required by constitutional limitations. Hughes v. State, 145 Tenn. 544, 551, 566; State v. Wills, 91 W.Va. 659,
677; State v. Slamon, 73 Vt. 212, 214, 215; Gindrat v.
People, 138 Ill. 103, 111; People v. Castree, 311
Ill. 392, 396, 397; State v. Page 277 U. S. 468 Gardner, 77 Mont. 8, 21; State v. Fahn, 53
N.Dak. 203, 210. 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 officers 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 officials
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 difficulties in
bringing offenders to justice may well deem it wise that the
exclusion of evidence should be confined to cases where rights
under the Constitution would be violated by admitting it.

															The statute of Washington, adopted in 1909, provides (Remington
Compiled Statutes, 1922, § 26518) 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 Page 277 U. S. 469 "

															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. People v. McDonald, 177
App.Div. (N.Y.) 806. Whether the State of Washington may prosecute
and punish federal officers 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 into the Union cannot affect the rules of evidence
applicable in courts of the United States in criminal cases. Chief
Justice Taney, in United States v.
Reid , 12 How. 361, 53 U. S. 363 ,
construing the 34th section of the Judiciary Act, said:

															"But it could not be supposed, without very plain words to show
it, that Congress intended to give the states the power of
prescribing the rules of evidence in trials for offenses against
the United States. For this construction would place the criminal
jurisprudence of one sovereignty under the control of another." See also Withaup v. United States, 127 Fed. 530,
534.

															The judgments of the Circuit Court of Appeals are affirmed. The
mandates will go down forthwith under Rule 31. Affirmed. 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. Gooch v. Oregon Short line R.R. Co., 258 U. S.
22 , 258 U. S. 24 .
But I think, as MR. JUSTICE BRANDEIS says, that, apart from the
Constitution, the Government ought not to use Page 277 U. S. 470 evidence obtained and only obtainable by a criminal act. There
is no body of precedents by which we are bound, and which confines
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 crime, when they are the
means by which the evidence is to be obtained. If it pays its
officers 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. See Silverthorne Lumber Co. v. United
States, 251 U. S. 385 . And
if all that I have said so far be accepted, it makes no difference
that, in this case, wiretapping 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
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 Page 277 U. S. 471 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 confine
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 officers of
the law.

															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 wiretapping 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 typewritten 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 wiretapping on the ground
that the Government's wiretapping 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 Page 277 U. S. 472 that, if wiretapping can be deemed a search and seizure within
the Fourth Amendment, such wiretapping 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, 17 U. S. 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 , 96 U. S. 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 , 272 U. S. 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 , 217 U. S.
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 Page 277 U. S. 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 , 116 U. S. 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 closet. Page 277 U. S. 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 wiretapping. 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
officer" was said by James Otis of much lesser intrusions than
these. [ Footnote 1 ] To Lord
Camden, a far slighter intrusion seemed "subversive of all the
comforts of society." [ Footnote
2 ] Can it be that the Constitution affords no protection
against such invasions of individual security?

															A sufficient answer is found in Boyd v. United States, 116 U. S. 616 , 116 U. S.
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, Page 277 U. S. 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. [ Footnote
3 ]"

															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 Page 277 U. S. 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 wiretapping.

															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 , 96 U. S. 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 Page 277 U. S. 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 , 142 U. S. 562 ,
586, but that:

															"[i]t 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. Arndsten, 266 U. S. 34 , 266 U. S. 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. 142 U. S.
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; [ Footnote 4 ]
whether the paper when taken by the federal officers was in the
home, [ Footnote 5 ] in an
office, [ Footnote 6 ] or
elsewhere; [ Footnote 7 ] whether
the taking was effected by force, [ Footnote 8 ] by Page 277 U. S. 478 fraud, [ Footnote 9 ] or in
the orderly process of a court's procedure. [ Footnote 10 ] 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 [ Footnote 11 ] -- 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 Page 277 U. S. 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 wiretapping 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. [ Footnote
12 ]

															Independently of the constitutional question, I am of opinion
that the judgment should be reversed. By the laws of Washington,
wiretapping is a crime. [ Footnote 13 ] Pierce's Page 277 U. S. 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. Page 277 U. S. 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 Page 277 U. S. 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 wiretapping and
of facts ascertained thereby. [ Footnote 14 ] 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 Page 277 U. S. 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. [ Footnote
15 ]

															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 , 189 U. S. 465 ; O'Reilly deCamara v. Brooke, 209 U. S.
45 , 209 U. S. 52 ; Dodge v. United States, 272 U. S. 530 , 272 U. S. 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. [ Footnote 16 ] The maxim of unclean hands
comes Page 277 U. S. 484 from courts of equity. [ Footnote 17 ] 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 compelling.
[ Footnote 18 ]

															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. [ Footnote 19 ] Then aid is denied
despite the defendant's wrong. It is denied in order to maintain
respect for law; in order 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 Page 277 U. S. 485 spoken of as a rule of substantive law. But it extends to
matters of procedure, as well. [ Footnote 20 ] 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. [ Footnote 21 ] 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 imperiled 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.

															[ Footnote 1 ]

															Otis' Argument against Writs of Assistance. See Tudor,
James Otis, p. 66; John Adams, Works, Vol. II, p. 524; Minot,
Continuation of the History of Massachusetts Bay, Vol. II, p
95.

															[ Footnote 2 ] Entick v. Carrington, 19 Howell's State Trials, 1030,
1066.

															[ Footnote 3 ]

															In Interstate Commerce Commission v. Brimson, 154 U. S. 447 , 154 U. S. 479 ,
the statement made in the Boyd case was repeated, and the
Court quoted the statement of Mr. Justice Field in In re
Pacific Railway Commission, 32 Fed. 241, 250:

															"Of all the rights of the citizen, few are of greater importance
or more essential to his peace and happiness than the right of
personal security, and that involves not merely protection of his
person from assault, but exemption of his private affairs, books,
and papers, from the inspection and scrutiny of others. Without the
enjoyment of this right, all others would lose half their
value."

															The Boyd case has been recently reaffirmed in Silverthorne Lumber Co. v. United States, 251 U.
S. 385 , in Gouled v. United States, 255 U. S. 298 , and
in Byars v. United States, 273 U. S.
28 .

															[ Footnote 4 ] Gouled v. United States, 255 U.
S. 298 .

															[ Footnote 5 ] Weeks v. United States, 232 U.
S. 383 ; Amos v. United States, 255 U.
S. 313 ; Agnello v. United States, 269 U. S.
20 ; Byars v. United States, 273 U. S.
28 .

															[ Footnote 6 ] Boyd v. United States, 116 U.
S. 616 ; Hale v. Henkel, 201 U. S.
43 , 201 U. S. 70 ; Silverthorne Lumber Co. v. United States, 251 U.
S. 385 ; Gouled v. United States, 255 U.
S. 298 ; Marron v. United States, 275 U.
S. 192 .

															[ Footnote 7 ] Ex parte Jackson, 96 U. S. 727 , 96 U. S. 733 ; Carroll v. United States, 267 U.
S. 132 , 267 U. S. 156 ; Gambino v. United States, 275 U.
S. 310 .

															[ Footnote 8 ] Weeks v. United States, 232 U.
S. 383 ; Silverthorne Lumber Co. v. United
States, 251 U. S. 385 ; Amos v. United States, 255 U. S. 313 ; Carroll v. United States, 267 U.
S. 132 , 267 U. S. 156 ; Agnello v. United States, 269 U. S.
20 ; Gambino v. United States, 275 U.
S. 310 .

															[ Footnote 9 ] Gouled v. United States, 255 U.
S. 298 .

															[ Footnote 10 ] Boyd v. United States, 116 U.
S. 616 ; Hale v. Henkel, 201 U. S.
43 , 201 U. S. 70 . See Gouled v. United States, 255 U.
S. 298 ; Byars v. United States, 273 U. S.
28 ; Marron v. United States, 275 U.
S. 192 .

															[ Footnote 11 ] Silverthorne Lumber Co. v. United States, 251 U.
S. 385 . Compare Gouled v. United States, 255 U. S. 298 , 255 U. S. 307 .
In Stroud v. United States, 251 U. S.
15 , and Hester v. United States, 265 U. S.
57 , the letter and articles admitted were not obtained
by unlawful search and seizure. They were voluntary disclosures by
the defendant. Compare Smith v. United States, 2 F.2d 715; United States v. Lee, 274 U. S. 559 .

															[ Footnote 12 ]

															The point is thus stated by counsel for the telephone companies,
who have filed a brief as amici curiae: "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
wiretapping a crime will not suffice if the courts nevertheless
hold the evidence to be lawful."

															[ Footnote 13 ]

															In the following states, it is a criminal offense to intercept a
message sent by telegraph and/or telephone: Alabama, Code, 1923, §
5256; Arizona, Revised Statutes, 1913, Penal Code, § 692; Arkansas,
Crawford & Moses Digest, 1921, § 10246; California, Deering's
Penal Code, 1927, § 640; Colorado, Compiled Laws, 1921, § 6969;
Connecticut, General Statutes, 1918, § 6292; Idaho, Compiled
Statutes, 1919, §§ 8574, 8586; Illinois, Revised Statutes, 1927, c.
134, § 21; Iowa, Code, 1927, § 13121; Kansas, Revised Statutes,
1923, c. 17, § 1908; Michigan Compiled Laws, 1915, § 15403;
Montana, Penal Code, 1921, § 11518; Nebraska, Compiled Statutes,
1922, § 7115; Nevada, Revised Laws, 1912, §§ 4608, 6572(18); New
York, Consolidated Laws, c. 40, § 1423(6); North Dakota, Compiled
Laws, 1913, § 10231; Ohio, Page's General Code, 1926, § 13402;
Oklahoma, Session Laws, 1923, c. 46; Oregon, Olson's Laws, 1920, §
2265; South Dakota, Revised Code, 1919, § 4312; Tennessee,
Shannon's Code, 1919, §§ 1839, 1840; Utah, Compiled Laws, 1917, §
8433; Virginia, Code, 1924, § 4477(2), (3); Washington, Pierce's
Code, 1921, § 8976(18); Wisconsin, Statutes, 1927, § 348.37;
Wyoming, Compiled Statutes, 1920, § 7148. Compare State v.
Behringer, 19 Ariz. 502; State v. Norsko, 76 Wash.
472.

															In the following states. it is a criminal offense for a company
engaged in the transmission of messages by telegraph and/or
telephone, or its employees, or, in many instances, persons
conniving with them, to disclose or to assist in the disclosure of
any message: Alabama, Code, 1923, §§ 5543, 5545; Arizona, Revised
Statutes, 1913, Penal Code, §§ 621, 623, 691; Arkansas, Crawford
& Moses Digest, 1921, § 10250; California, Deering's Penal
Code, 1927, §§ 619, 621, 639, 641; Colorado, Compiled Laws, 1921,
§§ 6966, 6968, 6970; Connecticut, General Statutes, 1918, § 6292;
Florida, Revised General Statutes, 1920, §§ 5754, 5755; Idaho,
Compiled Statutes, 1919, §§ 8568, 8570; Illinois, Revised Statutes,
1927, c. 134, §§ 7, 7a; Indiana, Burns' Revised Statutes, 1926, §
2862; Iowa, Code, 1924, § 8305; Louisiana, Acts, 1918, c. 134, p.
228; Maine, Revised Statutes, 1916, c. 60, § 24; Maryland, Bagby's
Code, 1926, § 489; Michigan, Compiled Statutes, 1915, § 15104;
Minnesota, General Statutes, 1923, §§ 10423, 10424; Mississippi,
Hemingway's Code, 1927, § 1174; Missouri, Revised Statutes, 1919, §
3605; Montana, Penal Code, 1921, § 11494; Nebraska, Compiled
Statutes, 1922, § 7088; Nevada, Revised Laws, 1912, §§ 4603, 4605,
4609, 4631; New Jersey, Compiled Statutes, 1910, p. 5319; New York,
Consolidated Laws, c. 40, §§ 552, 553; North Carolina, Consolidated
Statutes, 1919, §§ 4497, 4498, 4499; North Dakota, Compiled Laws,
1913, § 10078; Ohio, Page's General Code, 1926, §§ 13388, 13419;
Oklahoma, Session Laws, 1923, c. 46; Oregon, Olson's Laws, 1920, §§
2260, 2262, 2266; Pennsylvania, Statutes, 1920, §§ 6306, 6308,
6309; Rhode Island, General Laws, 1923, § 6104; South Dakota,
Revised Code, 1919, §§ 4346, 9801; Tennessee, Shannon's Code, 1919,
§§ 1837, 1838; Utah, Compiled Laws, 1917, §§ 8403, 8405, 8434;
Washington, Pierce's Code, 1921, §§ 8982, 8983, Wisconsin,
Statutes, 1927, § 348.36.

															The Alaskan Penal Code, Act of March 3, 1899, c. 429, 30 Stat.
1253, 1278, provides that,

															"if any officer, agent, operator, clerk, or employee of any
telegraph company, or any other person, shall willfully divulge to
any other person than the party from whom the same was received, or
to whom the same was addressed, or his agent or attorney, any
message received or sent, or intended to be sent, over any
telegraph line, or the contents, substance, purport, effect, or
meaning of such message, or any part thereof, . . . the person so
offending shall be deemed guilty of a misdemeanor, and shall be
punished by a fine not to exceed one thousand dollars or
imprisonment not to exceed one year, or by both such fine and
imprisonment, in the discretion of the court."

															The Act of October 29, 1918, c.197, 40 Stat. 1017, provided:

															"That whoever, during the period of governmental operation of
the telephone and telegraph systems of the United States . . . ,
shall, without authority and without the knowledge and consent of
the other users thereof, except as may be necessary for operation
of the service, tap any telegraph or telephone line, or willfully
interfere with the operation of such telephone and telegraph
systems or with the transmission of any telephone or telegraph
message, or with the delivery of any such message, or whoever being
employed in any such telephone or telegraph service, shall divulge
the contents of any such telephone or telegraph message to any
person not duly authorized to receive the same, shall be fined not
exceeding $1,000 or imprisoned for not more than one year, or
both."

															The Radio Act, February 23, 1927, c. 169, § 27, 44 Stat. 1162,
1172, provides that

															"no person not being authorized by the sender shall intercept
any message and divulge or publish the contents, substance,
purport, effect, or meaning of such intercepted message to any
person."

															[ Footnote 14 ]

															The above figures relate to Case No. 493. In Nos. 532-533, the
Government evidence fills 278 pages, of which 140 are recitals of
the evidence obtained by wiretapping.

															[ Footnote 15 ]

															According to the Government's brief, p. 41, "The Prohibition
Unit of the Treasury disclaims it [wiretapping], and the Department
of Justice has frowned on it." See also "Prohibition
Enforcement," 69th Congress,2d Session, Senate Doc. No.198, pp. IV,
V, 13, 15, referred to Committee, January 25, 1927; also
same, Part 2.

															[ Footnote 16 ] See Hannay v. Eve , 3 Cranch 242, 7 U. S. 247 ; Bank of the United States v.
Owens , 2 Pet. 527, 27 U. S. 538 ; Bartle v.
Coleman , 4 Pet. 184, 29 U. S. 188 ; Kennett v.
Chambers , 14 How. 38, 55
U. S. 52 ; Marshall v. Baltimore &
Ohio R.R. Co. , 16 How. 314, 57 U. S. 334 ; Tool Co. v.
Norris , 2 Wall 45, 69 U. S. 54 ; The Ouachita
Cotton , 6 Wall. 521, 73 U. S. 532 ; Coppell v.
Hall , 7 Wall. 542; Forsyth v.
Woods , 11 Wall. 484, 78 U. S. 486 ; Hanauer v.
Doane , 12 Wall. 342, 79 U. S. 349 ; Trist v.
Child , 21 Wall. 441, 88 U. S. 448 ; Meguire v. Corwine, 101 U. S. 108 , 101 U. S. 111 ; Oscanyan v. Arms Co., 103 U. S. 261 ; Irwin v. Williar, 110 U. S. 499 , 110 U. S. 510 ; Woodstock Iron Co. v. Richmond & Danville Extension
Co., 129 U. S. 643 ; Gibbs v. Consolidated Gas Co., 130 U.
S. 396 , 130 U. S. 411 ; Embrey v. Jemison, 131 U. S. 336 , 131 U. S. 348 ; West v. Camden, 135 U. S. 507 , 135 U. S. 521 ; McMullen v. Hoffman, 174 U. S. 639 , 174 U. S. 654 ; Hazelton v. Sheckells, 202 U. S. 71 ; Crocker v. United States, 240 U. S.
74 , 240 U. S. 78 . Compare Holman v. Johnson, 1 Cowp. 341.

															[ Footnote 17 ] See Creath's Administrator v.
Sims , 5 How. 192, 46 U. S. 204 ; Kennett v.
Chambers , 14 How. 38, 55 U. S. 49 ; Randall v.
Howard , 2 Black, 585, 67 U. S. 586 ; Wheeler v.
Sage , 1 Wall. 518, 68 U. S. 530 ; Dent v. Ferguson, 132 U. S. 50 , 132 U. S. 64 ; Pope Manufacturing Co. v. Gormully, 144 U.
S. 224 , 144 U. S. 236 ; Miller v. Ammon, 145 U. S. 421 , 145 U. S. 425 ; Hazelton v. Sheckells, 202 U. S. 71 , 202 U. S. 79 . Compare International News Service v. Associated Press, 248 U. S. 215 , 248 U. S.
245 .

															[ Footnote 18 ] Compare State v. Simmons, 39 Kan. 262, 264-265; State v. Miller, 44 Mo.App. 159, 163-164; In re
Robinson, 29 Neb. 135; Harris v. State, 15 Tex.App.
629, 634-635, 639.

															[ Footnote 19 ] See Armstrong v.
Toler , 11 Wheat. 258; Brooks v.
Martin , 2 Wall 70; Planters'
Bank v. Union Bank , 16 Wall. 483, 83 U. S.
499 -500; Houston & Texas Central R.R. Co. v.
Texas, 177 U. S. 66 , 177 U. S. 99 ; Bothwell v. Buckbee, Mears Co., 275 U.
S. 274 .

															[ Footnote 20 ] See Lutton v. Benin, 11 Mod. 50; Barlow v.
Hall, 2 Anst. 461; Wells v. Gurney, 8 Barn. &
Cress. 769; Ilsley v. Nichols, 12 Pick. 270; Carpenter
v. Spooner, 2 Sandf. 717; Metcalf v. Clark, 41 Barb.
45; Williams ads. Reed, 29 N.J.L. 385; Hill v.
Goodrich, 32 Conn. 588; Townsend v. Smith, 47 Wis.
623; Blandin v. Ostrander, 239 Fed. 700; Harkin v.
Brundage, 276 U.S.
36 , id., 604.

															[ Footnote 21 ] Coppell v.
Hall , 7 Wall. 542, 74 U. S. 558 ; Oscanyan v. Arms Co., 103 U. S. 261 , 103 U. S. 267 ; Higgins v. McCrea, 116 U. S. 671 , 116 U. S. 685 . Compare Evans v. Richardson, 3 Mer. 469; Norman v.
Cole, 3 Esp. 253; Northwestern Salt Co. v. Electrolytic
Alkali Co., [1913] 3 K.B. 422.

															MR. JUSTICE BUTLER, dissenting.

															I sincerely regret that I cannot support the opinion and
judgments of the Court in these cases. Page 277 U. S. 486 The order allowing the writs of certiorari operated to limit
arguments of counsel to the constitutional question. I do not
participate in the controversy that has arisen here as to whether
the evidence was inadmissible because the mode of obtaining it was
unethical and a misdemeanor under state law. I prefer to say
nothing concerning those questions, because they are not within the
jurisdiction taken by the order.

															The Court is required to construe the provision of the Fourth
Amendment that declares:

															"The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures,
shall not-be violated."

															The Fifth Amendment prevents the use of evidence obtained
through searches and seizures in violation of the rights of the
accused protected by the Fourth Amendment.

															The single question for consideration is this: may the
Government, consistently with that clause, have its officers
whenever they see fit, tap wires, listen to, take down, and report
the private messages and conversations transmitted by
telephones?

															The United States maintains that

															"The 'wiretapping' operations of the federal prohibition agents
were not a 'search and seizure' in violation of the security of the
'persons, houses, papers and effects' of the petitioners in the
constitutional sense or within the intendment of the Fourth
Amendment."

															The Court, adhering to and reiterating the principles laid down
and applied in prior decisions * construing the
search and seizure clause, in substance adopts the contention of
the Government.

															The question at issue depends upon a just appreciation of the
facts. Page 277 U. S. 487 Telephones are used generally for transmission of messages
concerning official, 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. Wiretapping involves
interference with the wire while being used. Tapping the wires and
listening in by the officers literally constituted a search for
evidence. As the communications passed, they were heard and taken
down.

															In Boyd v. United States, 116 U.
S. 616 , there was no "search or seizure" within the
literal or ordinary meaning of the words, nor was Boyd -- if these
constitutional provisions were read strictly according to the
letter -- compelled in a "criminal case" to be a "witness" against
himself. The statute, there held unconstitutional because repugnant
to the search and seizure clause, merely authorized judgment for
sums claimed by the Government on account of revenue if the
defendant failed to produce his books, invoices and papers. The
principle of that case has been followed, developed and applied in
this and many other courts. And it is in harmony with the rule of
liberal construction that always has been applied to provisions of
the Constitution safeguarding personal rights ( Byars v. United
States, 273 U. S. 28 , 273 U. S. 32 ),
as well as to those granting governmental powers. McCulloch
v. Maryland , 4 Wheat. 316, 17 U. S. 404 , 17 U. S. 406 , 17 U. S. 407 , 17 U. S. 421 . Marbury v.
Madison , 1 Cranch 137, 5 U. S. 153 , 5 U. S. 176 . Cohens v.
Virginia , 6 Wheat. 264. Myers v. United
States, 272 U. S. 52 .

															This Court has always construed the Constitution in the light of
the principles upon which it was founded. Page 277 U. S. 488 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. That
construction is consonant with sound reason, and in full accord
with the course of decisions since McCulloch v. Maryland. That is the principle directly applied in the Boyd case.

															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.

															* Ex parte Jackson, 96 U. S. 727 . Boyd v. United States, 116 U. S. 616 . Weeks v. United States, 232 U. S. 383 . Silverthorne Lumber Co. v. United States, 251 U.
S. 385 . Gouled v. United States, 255 U.
S. 298 . Amos v. United States, 255 U.
S. 313 .

															MR. JUSTICE STONE, dissenting.

															I concur in the opinions of MR. JUSTICE HOLMES and MR. JUSTICE
BRANDEIS. I agree also with that of MR. JUSTICE BUTLER so far as it
deals with the merits. The effect of the order granting certiorari
was to limit the argument to a single question, but I do not
understand that it restrains the Court from a consideration of any
question which we find to be presented by the record, for, under
Jud.Code, § 240(a), this Court determines a case here on certiorari
"with the same power and authority, and with like effect, as if the
cause had been brought [here] by unrestricted writ of error or
appeal."