Olmstead v. United States

Following is the case brief for Olmstead v. United States, 277 U.S. 438 (1928)

Case Summary of Olmstead v. United States:

  • Olmstead, and other defendants, were convicted of conspiracy to violate the Prohibition Act.
  • The evidence used to convict consisted of wiretapped conversations that were obtained without judicial approval.
  • Olmstead challenged his conviction, claiming that the use of the wiretap evidence violated his Fourth and Fifth Amendment rights.
  • The lower courts did not provide Olmstead relief.
  • The U.S. Supreme Court affirmed the lower courts’ decision.  It held that there was no compelled speech, therefore the Fifth Amendment does not apply.  Also, it held that a telephone conversation is different from the “papers and effects” mentioned in the Fourth Amendment, and thus there was no search or seizure in wiretapping Olmstead’s phones.
  • Justice Brandeis wrote a powerful dissent, noting that the Court must consider technological advances that police may use when evaluating cases under the Fourth Amendment.  His dissent presaged the Court’s overturning of Olmstead in Katz v. United States 40 years later.

Olmstead v. United States Case Brief

Statement of the Facts:

Roy Olmstead, along with a number of co-conspirators, were convicted of a conspiracy to violate the National Prohibition Act by selling alcohol.  The evidence used to convict Olmstead, and the others, was wiretapped phone conversations of Olmstead and his cohorts.  The police did not obtain judicial approval before wiretapping the defendants’ phones.

Olmstead and the other defendants challenged their convictions, claiming that use of the wiretapped private phone conversations was a violation of their Fourth and Fifth Amendment rights.

Procedural History:

  • The trial court and Circuit Court of Appeals for the Ninth Circuit denied Olmstead and the other defendants relief.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Does using wiretapped conversations, that were not obtained through a warrant, as evidence at a criminal trial violate the Fourth or Fifth Amendments?  No.


The decision of the Ninth Circuit Court of Appeals is affirmed.

Rule of Law or Legal Principle Applied:

Using wiretapped conversations, that were not obtained through a warrant, as evidence at a criminal trial does not violate the Fourth or Fifth Amendments.


As a threshold matter, there is no Fifth Amendment issue here because Olmstead and the other defendants in the case were voluntarily engaging in business over the telephone.  Therefore, there was no compelled statement of incrimination.

With regard to the Fourth Amendment, excluding evidence at trial if the evidence was obtained in violation of the Fourth Amendment is proper.  However, the Fourth Amendment does not apply to wiretapped phone conversations.  It applies to “letters and effects,” but not to conversations.  There was no search or seizure in this case, and no entry into anyone’s house.

Congress can pass a law to protect the use of phone conversations at trial, but the Court will not read the Fourth Amendment as covering wiretapped conversations.

Concurring and Dissenting Opinions:

Dissenting Opinion (Brandeis):

The government conceded that the wiretap evidence would be inadmissible in court if it was based on an unreasonable search and seizure.  Further, the Court’s opinion does not appropriately take into account the need to have the Fourth Amendment keep up with technological advances.

The mail is protected by the Fourth Amendment, and that is a public service furnished by the government, just like a telephone is a public service furnished by its authority.  And, there is no difference between a private telephone conversation and a sealed letter.  In fact, the evil incident to invasion of privacy on the telephone is far greater than that involved in tampering with someone’s mail.  Accordingly, the Court’s literal reading of the Fourth Amendment should be discarded, because the Court has not followed such a literal reading in the past.

Moreover, the rights under the Fourth and Fifth Amendments should be broad, so as to protect a citizen’s thoughts and emotions.  Those amendments established, as against the government, the “right to be let alone” as “the most comprehensive of rights and the right most valued by civilized men.”

Finally, even outside of the constitutional issues, wiretapping is a crime in the State of Washington, where the case took place.  The government should not benefit with a conviction when it committed a crime itself to obtain that conviction.

Dissenting Opinion (Holmes):

Although the Fourth and Fifth Amendment do not cover the defendants in this case, the government should not be allowed to use evidence at trial that was obtained through a criminal act, wiretapping in this case.

Dissenting Opinion (Butler):

The Court should have confined itself to the sole question presented in the writ of certiorari, which was the constitutional question, not the police’s violation of the crime of wiretapping.  The Fourth Amendment enjoys a broader interpretation than just its literal terms of “papers and effects.”  It safeguards similar violations of a person’s private affairs, such as telephone conversations.  The defendants should get a new trial.

Dissenting Opinion (Stone):

Justice Stone agreed with Justices Holmes and Brandeis.  Justice Stone also agreed with Justice Butler, except that the Court may, in its discretion, look at issues beyond what was stated in the writ of certiorari.


Olmstead v. United States is known less for its holding, and far more for the now-famous dissent written by Justice Brandeis.  In that dissent, Justice Brandeis wrote those powerful words that “the right to be let alone” as against the Government is “the most comprehensive of rights, and the right most valued by civilized men.”  Justice Brandeis’ opinion, that wiretapped conversations constitute a search and seizure for purposes of the Fourth Amendment, finally became law almost 40 years later with the Court’s 1967 opinion in Katz v. United States.

Student Resources:

Read the Full Court Opinion