[277 U.S. 438, 439] Mr. John F. Dore, of Seattle, Wash., for petitioners Olmstead and others.
[277 U.S. 438, 441] Mr. Frank R. Jeffrey, of Seattle, Wash., for petitioner McInnis.
[277 U.S. 438, 445] Mr. Arthur E. Griffin, of Seattle, Wash., for petitioners Green and others.
[277 U.S. 438, 447] The Attorney General and Mr. Michael J. Doherty, of St. Paul, Minn., for the United States.
[277 U.S. 438, 452] Messrs. Charles M. Bracelen, of New York City, Otto B. Rupp. of Seattle, Wash., Clarence B. Randall, of Chicago, Ill., and Robert H. Strahan, of New York City, for Pacific Telephone & Telegraph Co., American Telephone & Telegraph Co., United States Independent Telephone Ass'n and Tri-State Telephone & Telegraph Co., as amici curiae.
[277 U.S. 438, 455]
Mr. Chief Justice TAFT delivered the opinion of the Court.
These cases are here by certiorari from the Circuit Court of Appeals for the Ninth Circuit. 19 F.(2d) 842, 53 A. L. R. 1472, and 19 F.(2d) 850. The petition in No. 493 Was filed August 30, 1927; in Nos. 532 and 533, September 9, 1927. They were granted with the distinct limitation that the hearing should be confined to the single question whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wire tapping, amounted to a violation of the Fourth and Fifth Amendments. 276 U.S. 609, 48 S. Ct. 207, 72 L. Ed. -.
The petitioners were convicted in the District Court for the Western District of Washington of a conspiracy to violate the National Prohibition Act (27 USCA) by unlawfully possessing, transporting and importing intoxicating liquors and maintaining nuisances, and by selling intoxicating liquors. Seventy-two others, in addition to the petitioners, were indicted. Some were not apprehended, some were acquitted, and others pleaded guilty.
The evidence in the records discloses a conspiracy of amazing magnitude to import, possess, and sell liquor un- [277 U.S. 438, 456] lawfully. It involved the employment of not less than 50 persons, of two sea-going vessels for the transportation of liquor to British Columbia, of smaller vessels for coastwise transportation to the state of Washington, the purchase and use of a branch beyond the suburban limits of Seattle, with a large underground cache for storage and a number of smaller caches in that city, the maintenance of a central office manned with operators, and the employment of executives, salesmen, deliverymen dispatchers, scouts, bookkeepers, collectors, and an attorney. In a bad month sales amounted to $176,000; the aggregate for a year must have exceeded $2,000, 000.
Olmstead was the leading conspirator and the general manager of the business. He made a contribution of $10,000 to the capital; 11 others contributed $1,000 each. The profits were divided, one-half to Olmstead and the remainder to the other 11. Of the several offices in Seattle, the chief one was in a large office building. In this there were three telephones on three different lines. There were telephones in an office of the manager in his own home, at the homes of his associates, and at other places in the city. Communication was had frequently with Vancouver, British Columbia. Times were fixed for the deliveries of the 'stuff' to places along Puget Sound near Seattle, and from there the liquor was removed and deposited in the caches already referred to. One of the chief men was always on duty at the main office to receive orders by the telephones and to direct their filling by a corps of men stationed in another room-the 'bull pen.' The call numbers of the telephones were given to those known to be likely customers. At times the sales amounted to 200 cases of liquor per day.
The information which led to the discovery of the conspiracy and its nature and extent was largely obtained by intercepting messages on the telephones of the conspirators by four federal prohibition officers. Small [277 U.S. 438, 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 court held the act of 1874 repugnant to the Fourth and Fifth Amendments. As to the Fourth Amendment, Justice Bradley said (page 621 (6 S. Ct. 527)):
[277 U.S. 438, 459] 'But, in regard to the Fourth Amendment, it is contended that, whatever might have been alleged against the constitutionality of the acts of 1863 and 1867, that of 1874, under which the order in the present case was made, is free from constitutional objection, because it does not authorize the search and seziure of books and papers, but only requires the defendant or claimant to produce them. That is so; but it declares that if he does not produce them, the allegations which it is affirmed they will prove shall be taken as confessed. This is tantamount to compelling their production; for the prosecuting attorney will always be sure to state the evidence expected to be derived from them as strongly as the case will admit of. It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man's house and searching amongst his papers, are wanting, and to this extent the proceeding under the act of 1874 is a mitigation of that which was authorized by the former acts; but it accomplishes the substantial object of those acts in forcing from a party evidence against himself. It is our opinion, therefore, that a compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure.'
Concurring, Mr. Justice Miller and Chief Justice Waite said that they did not think the machinery used to get this evidence amounted to a search and seizure, but they agreed that the Fifth Amendment had been violated.
The statute provided an official demand for the production of a paper of document by the defendant, for official search and use as evidence on penalty that by refusal he should be conclusively held to admit the incriminat- [277 U.S. 438, 460] ing 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, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1815C, 1177, a conviction for using the mails to transmit coupons or tickets in a lottery enterpise. 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, 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 Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 24 A. L. R. 1426, the defendants were arrested at their homes and [277 U.S. 438, 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:
In Amos v. United States, 255 U.S. 313, 41 S. Ct. 266, the defendant was convicted of concealing whisky 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 whisky. 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 whisky and to exclude the testimony was error.
In Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 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 direc- [277 U.S. 438, 462] tion of an officer of the Intelligence Department of the Army of the United States. Gouled was suspected of the crime. A private in the United States 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, 46 S. Ct. 4, 51 A. L. R. 409, 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 court, 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 [277 U.S. 438, 463] unimportant. This was held by the Supreme Judicial Court of Massachusetts in Commonwealth v. Dana, 2 Metc. 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 cir- [277 U.S. 438, 464] cumstances 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 wire tapping. 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 Postoffice 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 section 3929 (39 USCA 259), 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 of 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. [277 U.S. 438, 465] By the invention of the telephone 50 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, 149, 45 S. Ct. 280, 284 (69 L. Ed. 543, 39 A. L. R. 790), declared:
Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, held that the testimony of two officers of the law who trespassed on the defendant's land, concealed themselves 100 yards away from his house, and saw him come out and hand a bottle of whisky 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, 563, 47 S. Ct. 746; Eversole v. State, 106 Tex. Cr. R. 567, 294 S. W. 210.
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, [277 U.S. 438, 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 wire tapping 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 twofold objection, overruled in both courts below, that evidence obtained through intercepting of telephone messages by a 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, [277 U.S. 438, 467] 363, 366; Logan v. United States, 144 U.S. 263, 301, 12 S. Ct. 617; Rosen v. United States, 245 U.S. 467, 38 S. Ct. 148; Withaup v. United States (C. C. A.) 127 F. 530, 534; Robinson v. United States (C. C. A.) 292 F. 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 (volume 1 (12th Ed., by Redfield) 254(a)), says:
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 oathbound conspiracies for murder, robbery, and other crimes, where officers of the law have disguished 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, 2656(18) that:
The judgments of the Circuit Court of Appeals are affirmed. The mandates will go down forthwith under rule 31.
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, 24, 42 S. Ct. 192. But I think, as Mr. Justice BRANDEIS says, that apart from the Constitution the government ought not to use [277 U.S. 438, 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 crimes, 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 attorenys 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, 40 S. Ct. 182, 24 A. L. R. 1426. And if all that I have said so far be accepted it makes no difference that in this case wire tapping 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 [277 U.S. 438, 471] obtained. But that somewhat rudimentary mode of disposing of the question has been overthrown by Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, 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 (27 USCA). 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 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 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 [277 U.S. 438, 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.
A sufficient answer is found in Boyd v. United States, 116 U.S. 616, 627-630, 6 S. Ct. 524, 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:
[GalactusNT: Rewritten for 1997 - As a means of espionage, wire tapping is but a puny instrument of tyranny and oppression compared to federally mandated key escrow regarding encrypted materials.]
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 of 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, 40 S. Ct. 182. 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, 41 S. Ct. 261, 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:
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;4 whether the paper when taken by the federal officers was in the home,5 in an office,6 or elsewhere;7 whether the taking was effected by force,8 by [277 U.S. 438, 478] fraud,9 or in the orderly process of a court's procedure. 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 elsewhere11-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 [277 U.S. 438, 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. 12
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. 13 Pierce's [277 U.S. 438, 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 (No. 117) 276 U.S. 36, 48 S. Ct. 268, decided February 20, 1928
[277 U.S. 438, 481] The situation in the case at bar differs widely from that presented in Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 13 A. L. R. 1159. 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 any one had thought of instituting a [277 U.S. 438, 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. 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 (19 F.(2d) 842):
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, 23 S. Ct. 593; O'Reilly de Camara v. Brooke, 209 U.S. 45, 52, 28 S. Ct. 439; Dodge v. United States, 272 U.S. 530, 532, 47 S. Ct. 191; Gambino v. United States, 275 U.S. 310, 48 S. Ct. 137, 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. 16 The maxim of unclean hands comes [277 U.S. 438, 484] from courts of equity. 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. 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. 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 [277 U.S. 438, 485] spoken of as a rule of substantive law. But it extends to matters of procedure as well. 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. 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.
Mr. Justice BUTLER (dissenting).
I sincerely regret that I cannot support the opinion and judgments of the court in these cases. [277 U.S. 438, 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 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 question at issue depends upon a just appreciation of the facts. [277 U.S. 438, 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, lwayer 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. Wire tapping 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, 6 S. Ct. 524, 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, 32, 47 S. Ct. 248), as well as to those granting governmental powers. McCulloch v. Maryland, 4 Wheat. 316, 404, 406, 407, 421; Marbury v. Madison, 1 Cranch, 137, 153, 176; Cohens v. Virginia, 6 Wheat. 264; Myers v. United States, 272 U.S. 52, 47 S. Ct. 21.
This court has always construed the Constitution in the light of the principles upon which it was founded. [277 U.S. 438, 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.
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 Judicial Code, 240(a), 28 USCA 347(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.'
[Footnote 2] Entick v. Carrington, 19 Howell's State Trials, 1030, 1066.
[Footnote 3] In Interstate Commerce Commission v. Brimson, 154 U.S. 447, 479, 155 U.S. 3, 14 S. Ct. 1125, 15 S. Ct. 19, the statement made in the Boyd Case was repeated, and the court quoted the statement of Mr. Justice Field in Re Pacific Railway Commission (C. C.) 32 F. 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 other rights would lose half their value.' The Boyd Case has been recently reaffirmed in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, in Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, and in Byars v. United States, 273 U.S. 28, 47 S. Ct. 248.
[Footnote 4] Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261.
[Footnote 5] Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Amos v. United States, 255 U.S. 313, 41 S. Ct. 266; Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4; Byars v. United States, 273 U.S. 28, 47 S. Ct. 248.
[Footnote 6] Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524; Hale v. Henkel, 201 U.S. 43, 70, 26 S. Ct. 370; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182; Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261; Marron v. United States, 275 U.S. 192, 48 S. Ct. 74.
[Footnote 7] Ex parte Jackson, 96 U.S. 727, 733; Carroll v. United States, 267 U.S. 132, 156, 45 S. Ct. 280, 39 A. L. R. 790; Gambino v. United States, 275 U.S. 310, 48 S. Ct. 137, 52 A. L. R. 1381.
[Footnote 8] Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182; Amos v. United States, 255 U.S. 313, 41 S. Ct. 266; Carroll v. United States, 267 U.S. 132, 156, 45 S. Ct. 280, 39 A. L. R. 790; Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4; Gambino v. United States, 275 U.S. 310, 48 S. Ct. 137, 52 A. L. R. 1381.
[Footnote 9] Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261.
[Footnote 10] Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524; Hale v. Henkel, 201 U.S. 43, 70, 26 S. Ct. 370. See Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261; Byars v. United States, 273 U.S. 28, 47 S. Ct. 248; Marron v. United States, 275 U.S. 192, 48 S. Ct. 74.
[Footnote 11] Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182. Compare Gouled v. United States, 255 U.S. 298, 307, 41 S. Ct. 261. In Stroud v. United States, 251 U.S. 15, 40 S. Ct. 50, and Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 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 (C. C. A.) 2 F.(2d) 715; United States v. Lee, 274 U.S. 559, 47 S. Ct. 746.
[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 wire tapping 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, Revsied Statutes 1927, c. 134, 16; 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, 6752(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 1917, 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, 172 P. 660; State v. Nordskog, 76 Wash. 472, 136 P. 694, 50 L. R. A. (N. S.) 1216.
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, art. 27, 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 1917, 1837, 1838; Utah, Compiled Laws 1917, 8403, 8405, 8434; Washington, Pierce's Code 1921, 8982, 8983; Wisconsin, Statutes 1927, 348.36.
The Alaska 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 wilfully 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 (Comp. St. 3115 3/4 xx), 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 wilfully 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 or entitled to receive the same, shall be fined not exceeding $1,000 or imprisoned for not more than one year, or both.'
The Radio Act of February 23, 1927, c. 169, 27. 44 Stat. 1162, 1172 ( 47 USCA 107), 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 wire tapping.
[Footnote 15] According to the government's brief, p. 41, 'The Prohibition Unit of the Treasury disclaims it (wire tapping) 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.
[GalactusNT: Yeah - right - 50 years later
we can say that they don't frown and now want free access to encrypted
[Footnote 16] See Hannay v. Eve, 3 Cranch, 242, 247; Bank of the United States v. Owens, 2 Pet. 527, 538; Bartle v. Nutt, 4 Pet. 184, 188; Kennett v. Chambers, 14 How. 38, 52; Marshall v. Baltimore & Ohio R. R. Co., 16 How. 314, 334; Tool Co. v. Norris, 2 Wall. 45, 54; The Ouachita Cotton, 6 Wall. 521, 532; Coppell v. Hall, 7 Wall. 542; Forsyth v. Woods, 11 Wall. 484, 486; Hanauer v. Doane, 12 Wall. 342, 349; Trist v. Child, 21 Wall. 441, 448; Meguire v. Corwine, 101 U.S. 108, 111; Oscanyan v. Arms Co., 103 U.S. 261; Irwin v. Williar, 110 U.S. 499, 510, 4 S. Ct. 160; Woodstock Iron Co. v. Richmond & Danville Extension Co., 129 U.S. 643, 9 S. Ct. 402; Gibbs v. Consolidated Gas Co., 130 U.S. 396, 411, 9 S. Ct. 553; Embrey v. Jemison, 131 U.S. 336, 348, 9 S. Ct. 776; West v. Camden, 135 U.S. 507, 521, 10 S. Ct. 838; McMullen v. Hoffman, 174 U.S. 639, 654, 19 S. Ct. 839; Hazelton v. Sheckells, 202 U.S. 71, 26 S. Ct. 567, 6 Ann. Cas. 217; Crocker v. United States, 240 U.S. 74, 78, 36 S. Ct. 245. Compare Holman v. Johnson, 1 Cowp. 341.
[Footnote 17] See Creath's Administrator v. Sims, 5 How. 192, 204; Kennett v. Chambers, 14 How. 38, 49; Randall v. Howard, 2 Black, 585, 586; Wheeler v. Sage, 1 Wall. 518, 530; Dent v. Ferguson, 132 U.S. 50, 64, 10 S. Ct. 13; Pope Manufacturing Co. v. Gormully, 144 U.S. 224, 236, 12 S. Ct. 632; Miller v. Ammon, 145 U.S. 421, 425, 12 S. Ct. 884; Hazelton v. Sheckells, 202 U.S. 71, 79, 26 S. Ct. 567, 6 Ann. Cas. 217. Compare International News Service v. Associated Press, 248 U.S. 215, 245, 39 S. Ct. 68, 2 A. L. R. 293.
[Footnote 18] Compare State v. Simmons, 39 Kan. 262, 264, 265, 18 P. 177; State v. Miller, 44 Mo. App. 159, 163, 164; In re Robinson, 29 Neb. 135, 45 N. W. 267, 8 L. R. A. 398, 26 Am. St. Rep. 378; 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, 499, 500; Houston & Texas Central R. Co. v. Texas, 177 U.S. 66, 99, 20 S. Ct. 545; Bothwell v. Buckbee, Mears Co., 275 U.S. 274, 48 S. Ct. 124.
[Footnote 20] See Lutton v. Benin, 11 Mod. 50; Barlow v. Hall, 2 Anstr. 461; Wells v. Gurney, 8 Barn. & C. 769; Ilsley v. Nichols, 12 Pick. (Mass.) 270, 22 Am. Dec. 425; Carpenter v. Spooner, 4 N. Y. Super. Ct. (N. Y.) 717; Metcalf v. Clark, 41 Barb. (N. Y.) 45; Reed v. Williams, 29 N. J. Law, 385; Hill v. Goodrich, 32 Conn. 588; Townsend v. Smith, 47 Wis. 623, 3 N. W. 439, 32 Am. Rep. 793; Blandin v. Ostrander (C. C. A.) 239 F. 700; Harkin v. Brundage, 276 U.S. 36, 48 S. Ct. 268.
[Footnote 21] Coppell v. Hall, 7 Wall. 542, 558; Oscanyan v. Arms Co., 103 U.S. 261, 267; Higgins v. McCrea, 116 U.S. 671, 685, 6 S. Ct. 557. 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.
[Footnote 22] Ex parte Jackson, 96 U.S. 727; Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524; Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 24 A. L. R. 1426; Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261; Amos v. United States, 255 U.S. 313, 41 S. Ct. 266.