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LAW ENFORCEMENT: THE LEGAL BASIS FOR THE WIRETAP

Going after the Bootleggers

For most of the 1920s a syndicate of bootleggers based in Seattle, Washington, operated with relative impunity throughout the Pacific Northwest and routinely smuggled major consignments of liquor into the United States from British Columbia. Such hauls were transported by oceangoing ships and deposited on remote beaches along the Puget Sound. Truck convoys carried this liquor inland to Seattle, where it was stored in various cellars within the city limits. These bootleggers reputedly sold two hundred cases of liquor per day.

Gathering Evidence through Wiretaps

Federal officials knew that the headquarters of this criminal organization was in the Seattle offices of a merchant marine company. Yet over the years this ring had established firm ties with local law enforcement authorities, who repeatedly warned them about upcoming raids. To collect hard evidence against this syndicate, the local division of the Federal Prohibition Bureau decided to wiretap the telephones at the bootleggers' headquarters and to "bug" the residences of key syndicate members. By February 1926 an agent who had been a telephone lineman had successfully placed listening devices on the outside lines of a dozen office telephones. During the next six months agents listening to telephone conversations gathered evidence that led to the indictments of nearly forty individuals. The majority of them were tried collectively before the U.S. District Court for the Western District of Washington and were found guilty of violating federal prohibition laws.

Appeal to the Supreme Court

One of those convicted, Samuel Olmstead, decided to appeal this verdict. His attorneys contended that by wiretapping Olmstead's private telephone, federal agents had violated their client's right to privacy as guaranteed in the Fourth Amendment and his right to due process as guaranteed in the Fourteenth Amendment. The Supreme Court agreed to consider the case of Olmstead' v. United States in October 1927 and rendered its decision the following June.

The Supreme Court Decision

A five-member majority upheld Olmstead's conviction. Chief Justice William Howard Taft declared that he saw no sound legal reason to reverse the original judicial verdict. The wiretaps had been placed "without trespass upon any property of the defendant," Taft noted. The tap on Olmstead's business phone had been placed in the wire connection running through the basement in the building where Olmstead maintained an office, and, Taft observed, 'The tap on the residential line was made on the street near the house." Therefore, the court ruled that evidentiary information secured from such sources certainly did not violate the Fourth Amendment. Through legal wiretapping, Taft added, federal officials had been able to thwart the machinations of a "criminal conspiracy of amazing magnitude."

Brandeis's Dissenting Opinion

Associate Justice Louis Brandeis expressed his strong opposition to wire-tapping, expressing the belief that the practice clearly violated the Fourth and Fourteenth Amendments. "Crime is contagious," Brandeis wrote, "and when the Government becomes a lawbreaker, it breeds public contempt for the law.… it invites anarchy." He deplored the implicit notion that "the Government may commit crimes in order to secure the conviction of a common criminal" and closed his argument by stating, "Against this pernicious doctrine this Court should resolutely set its face." Such sentiments failed to change the attitude of the court majority. Through its ruling on Olmstead v. United States the Supreme Court created an important precedent, establishing the wiretap as a lawful method of obtaining evidence during an official criminal investigation.