OLMSTEAD
ET AL. v. UNITED STATES; GREEN ET AL. v. SAME; McINNIS v.
SAME.
277
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 [**565]
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.
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 [*456] unlawfully.
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
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 [*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
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." [*458]
[***948]
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
[**566] 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 621): [*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 [*460] incriminating 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.
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 Company v.
"Thus the case is not that of
knowledge acquired through the wrongful act of a stranger, [**567]
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.
In Gouled v. The United
States, 255
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, [***950] 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 [*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.
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.
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
The
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 can not be
extended and expanded to include telephone wires reaching to the whole world
from the defendant's house of office.
The intervening wires are not part of his house of office any more than
are the highways along which they are stretched.
This Court in Carroll v.
"The Fourth Amendment is to
be construed in the light of what was deemed an unreasonable [***951] 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 Clarke 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 can not 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.
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, [*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 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
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
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 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, § 2656-18) 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."
[*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 can not 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, 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.
DISSENTBY:
HOLMES; BRANDEIS; BUTLER; STONE
DISSENT:
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. But I think, as MR. JUSTICE BRANDEIS says,
that apart from the Constitution the Government ought not to use [*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 [***953] 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 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 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
[*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.
[**570]
MR. JUSTICE BRANDEIS, dissenting.
The defendants were convicted of
conspiring to violate the National Prohibition Act. Before any of the persons now charged had
been arrested or indicted, the telephones by means of which they habitually
communicated with one another and with others had been tapped by federal
officers. To this end, a lineman of long
experience in wire-tapping was employed, on behalf of the Government and at its
expense. He tapped eight telephones,
some in the homes of the persons charged, some in their offices. Acting on behalf of the Government and in
their official capacity, at least six other prohibition agents listened over
the tapped wires and reported the messages taken. Their operations extended over a period of
nearly five months. The type-written
record of the notes of conversations overheard occupies 775 typewritten
pages. By objections seasonably made and
persistently renewed, the defendants objected to the admission of the evidence
obtained by wire-tapping, on the ground that the Government's wire-tapping
constituted an unreasonable search and seizure, in violation of the Fourth
Amendment; and that the use as evidence of the conversations overheard
compelled the defendants to be witnesses against themselves, in violation of
the Fifth Amendment.
The Government makes no attempt to
defend the methods employed by its officers.
Indeed, it concedes [*472] that if wire-tapping can be deemed a search
and seizure within the Fourth Amendment, such wire-tapping as was practiced in
the case at bar was an unreasonable search and seizure, and that the evidence
thus obtained was inadmissible. But it relies on the language of the Amendment;
and it claims that the protection given thereby cannot properly be held to
include a telephone conversation.
"We must never forget,"
said Mr. Chief Justice Marshall in McCulloch v. Maryland, 4
Wheat. 316, 407, "that it is a constitution we are expounding." Since
then, this Court has repeatedly sustained the exercise of power by Congress,
under various clauses of that instrument, over objects of which the Fathers
could not have dreamed. See Pensacola
Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 9; Northern
Pacific Ry. Co. v. North Dakota, 250 U.S. 135; Dakota Central
Telephone Co. v. South Dakota, 250 U.S. 163; Brooks v.
United States, 267 U.S. 432. We have likewise held that general limitations
on the powers of Government, like those embodied in the due process clauses of
the Fifth and Fourteenth Amendments, do not forbid [***954]
the United States or the States from meeting modern conditions by
regulations which "a century ago, or even half a century ago, probably
would have been rejected as arbitrary and oppressive." Village of
Euclid v. Ambler Realty Co., 272 U.S. 365, 387; Buck v.
Bell, 274 U.S. 200. Clauses guaranteeing to the individual protection
against specific abuses of power, must have a similar capacity of adaptation to
a changing world. It was with reference
to such a clause that this Court said in Weems v. United States,
217 U.S. 349, 373: "Legislation, both statutory and constitutional, is
enacted, it is true, from an experience of evils, but its general language
should not, therefore, be necessarily confined to the form that evil had
theretofore taken. Time works changes,
brings into existence new conditions
[*473] and purposes. Therefore a principle to be vital must be
capable of wider application than the mischief which gave it birth. This is peculiarly true of
constitutions. They are not ephemeral
enactments, designed to meet passing occasions.
They are, to use the words of Chief Justice Marshall 'designed to
approach immortality as nearly as human institutions can approach it.' The
future is their care and provision for events of good and bad tendencies of
which no prophecy can be made. In the
application of a constitution, therefore, our contemplation cannot be only of what
has been but of what may be. Under any
other rule a constitution would indeed be as easy of application as it would be
deficient in efficacy and power. Its
general principles would have little value and be converted by precedent into
impotent and lifeless formulas. Rights
declared in words might be lost in reality."
When the Fourth and Fifth
Amendments were adopted, "the form that evil had theretofore taken,"
had been necessarily simple. Force and
violence were then the only means known to man by which a Government could
directly effect self-incrimination. It
could compel the individual to testify -- a compulsion effected, if need be, by
torture. It could secure possession of
his papers and other articles incident to his private life -- a seizure effected,
if need be, by breaking and entry.
Protection against such invasion of "the sanctities of a man's home
and the privacies of life" was provided in the Fourth and Fifth Amendments
by specific language. Boyd v.
United States, 116 U.S. 616, 630. But "time works changes, brings into existence new conditions and
purposes." Subtler and more far-reaching means of invading privacy have
become available to the Government.
Discovery and invention have made it possible for the Government, by
means far more effective than stretching upon the rack, to obtain disclosure in
court of what is whispered in the closet.
[*474]
Moreover, "in the application
of a constitution, our contemplation cannot be only of [**571]
what has been but of what may be." The progress of science in
furnishing the Government with means of espionage is not likely to stop with
wire-tapping. Ways may some day be developed by which the Government, without
removing papers from secret drawers, can reproduce them in court, and by which
it will be enabled to expose to a jury the most intimate occurrences of the
home. Advances in the psychic and
related sciences may bring means of exploring unexpressed beliefs, thoughts and
emotions. "That places the liberty
of every man in the hands of every petty officer" was said by James Otis
of much lesser intrusions than these. n1
To Lord Camden, a far slighter intrusion seemed "subversive of all the
comforts of society." n2 Can it be that the Constitution affords no
protection against such invasions of individual security?
n1 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.
n2 Entick v. Carrington, 19 Howell's
State Trials, 1030, 1066.
A sufficient answer is found in Boyd
v. United States, 116 U.S. 616, 627-630, a case that will be
remembered as long as civil liberty lives in the United States. This Court there reviewed the history that
lay behind the Fourth and Fifth Amendments. We said with reference to Lord
Camden's judgment in Entick v. Carrington, 19 Howell's State
Trials, 1030: "The principles laid down in this opinion affect the very
essence of constitutional liberty and security.
They reach farther than the concrete form of the case there before the
court, with its adventitious circumstances; they apply to all invasions on the
part of the Government and its employes of the sanctities of a man's home and
the privacies of life. It is not the
breaking [***955] 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 [*475] security, 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." n3
n3 In Interstate Commerce Commission v.
Brimson, 154 U.S. 447, 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.
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
[*476] conversations between them
upon any subject, and although proper, confidential and privileged, may be
overheard. Moreover, the tapping of one
man's telephone line involves the tapping of the telephone of every other
person whom he may call or who may call him.
As a means of espionage, writs of assistance and general warrants are
but puny instruments of tyranny and oppression when compared with wire-tapping.
Time and again, this Court in
giving effect to the principle underlying the Fourth Amendment, has refused to
place an unduly literal construction upon it.
This was notably illustrated in the Boyd case itself. Taking language in its ordinary meaning,
there is no "search" or "seizure" when a defendant is
required to produce a document in the orderly process of a court's
procedure. "The right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures," would not be violated, under any
ordinary construction of language, by compelling obedience to a subpoena. But this Court holds the evidence
inadmissible simply because the information leading to the issue of the
subpoena has been unlawfully secured. Silverthorne
Lumber Co. v. United States, 251 U.S. 385. Literally, there is no
"search" or "seizure" when a friendly visitor abstracts
papers from an office; yet we held in Gouled v. United States,
255 U.S. 298, that evidence so obtained could not be used. No court which looked at the words of the
Amendment rather than at its underlying purpose would hold, as this Court did
in Ex parte Jackson , 96 U.S. 727, 733, that its protection extended to
letters in the mails. [**572] The provision against self-incrimination in
the Fifth Amendment has been given an equally broad construction. The language is: "No person... shall be
compelled in any criminal case to be a witness against himself." Yet we
have held, not only that the [*477] protection of the Amendment extends to a
witness before a grand jury, although he has not been charged with crime, Counselman
v. Hitchcock, 142 U.S. 547, 562, 586, but that: "It applies
alike to civil and criminal proceedings, wherever the answer might tend to subject
to criminal responsibility him who gives it.
The privilege protects a mere witness as fully as it does one who is
also a party defendant." McCarthy v. [***956]
Arndstein, 266 U.S. 34, 40. The narrow language of the Amendment
has been consistently construed in the light of its object, "to insure
that a person should not be compelled, when acting as a witness in any
investigation, to give testimony which might tend to show that he himself had
committed a crime. The privilege is
limited to criminal matters, but it is as broad as the mischief against which
it seeks to guard." Counselman
v. Hitchcock, supra,
p. 562.
Decisions of this Court applying
the principle of the Boyd case have settled these things. Unjustified search and seizure violates the Fourth
Amendment, whatever the character of the paper; n4 whether the paper when taken
by the federal officers was in the home, n5 in an office n6 or elsewhere; n7
whether the taking was effected by force, n8 by
[*478] fraud, n9 or in the
orderly process of a court's procedure.
n10 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 n11 -- any such use constitutes a violation of the
Fifth Amendment.
n4 Gouled v. United States, 255 U.S.
298.
n5 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.
n6 Boyd v. United States, 116 U.S. 616; Hale
v. Henkel, 201 U.S. 43, 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.
n7 Ex parte Jackson, 96 U.S. 727, 733; Carroll
v. United States, 267 U.S. 132, 156; Gambino v. United
States, 275 U.S. 310.
n8 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, 156; Agnello v. United States, 269 U.S. 20; Gambino v.
United States, 275 U.S. 310.
n9 Gouled v. United States, 255 U.S.
298.
n10 Boyd v. United States, 116 U.S. 616;
Hale v. Henkel, 201 U.S. 40, 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.
n11 Silverthorne Lumber Co. v. United
States, 251 U.S. 385. Compare Gouled v. United States, 255
U.S. 298, 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 dislosures by
the defendant. Compare Smith v.
United States, 2 F. (2d) 715; United States v. Lee, 274 U.S.
559.
The protection guaranteed by the
Amendments is much broader in scope. The
makers of our Constitution undertook to secure conditions favorable to the
pursuit of happiness. They recognized
the significance of man's spiritual nature, of his feelings and of his
intellect. They knew that only a part of
the pain, pleasure and satisfactions of life are to be found in material
things. They sought to protect Americans
in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government,
the right to be let alone -- the most comprehensive of rights and the right
most valued by civilized men. To protect
that right, every unjustifiable intrusion by the Government upon the privacy of
the individual, whatever the means employed, must be deemed a violation of the
Fourth Amendment. And the use, as evidence
[*479] 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,
[***957] 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 [**573] 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. n12
n12 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."
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. n13 Pierce's [*480]
Code, 1921, § 8976(18). [***958]
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.
n13 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. Nordskog, 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
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,
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 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."
[*481]
The situation in the case at bar
differs widely from that presented in Burdeau v. McDowell, 256
U.S. 465. There, only a single lot of papers was involved. They had been obtained by a private detective
while acting on behalf of a private party; without the knowledge of any federal
official; long before anyone had thought of instituting a [*482]
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 [**574]
filled by recitals of the details of the wire-tapping and of facts
ascertained thereby. n14 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.
n14 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.
As Judge Rudkin said below:
"Here we are concerned with neither eavesdroppers nor thieves. Nor are we concerned with the acts of private
individuals... We are concerned only
with the acts of federal agents whose powers are limited and controlled by the
Constitution of the United States." The Eighteenth Amendment has not in
terms empowered Congress to authorize anyone to violate the criminal laws of a
State. And Congress has never purported
to do so. Compare Maryland v.
Soper, 270 U.S. 9. The terms of appointment of federal prohibition agents
do not purport to confer upon them authority to violate any criminal law. Their superior officer, the Secretary of the
Treasury, has not instructed them to commit
[*483] 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. n15
n15 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.
When these unlawful acts were
committed, they were crimes only of the officers individually. The Government was innocent, in legal
contemplation; for no federal official is authorized to commit a crime on its
behalf. When the Government, having full
knowledge, sought, through the Department of Justice, to avail itself of the
fruits of these acts in order to accomplish its own ends, it assumed moral
responsibility for the officers' crimes.
Compare The Paquete Habana, 189 U.S. 453, 465; O'Reilly
deCamara v. Brooke, 209 U.S. 45, 52; Dodge v. United
States, 272 U.S. 530, 532; Gambino v. United States, 275 U.S.
310. And if this Court should permit the Government, by means of its officers'
crimes, to effect its purpose of punishing the defendants, there would seem to
be present [***959] 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. n16 The maxim of unclean hands comes [*484]
from courts of equity. n17 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.
n18
n16 See Hannay v. Eve, 3 Cranch, 242,
247; Bank of the United States v. Owens, 2 Pet. 527, 538; Bartle
v. Coleman, 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; Woodstock Iron Co. v.
Richmond & Danville Extension Co., 129 U.S. 643; Gibbs v.
Consolidated Gas Co., 130 U.S. 396, 411; Embrey v. Jemison,
131 U.S. 336, 348; West v. Camden, 135 U.S. 507, 521; McMullen
v. Hoffman, 174 U.S. 639, 654; Hazelton v. Sheckells,
202 U.S. 71; Crocker v. United States, 240 U.S. 74, 78. Compare Holman
v. Johnson, 1 Cowp. 341.
n17 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; Pope Manufacturing Co. v.
Gormully, 144 U.S. 224, 236; Miller v. Ammon, 145 U.S. 421,
425; Hazelton v. Sheckells, 202 U.S. 71, 79. Compare International
News Service v. Associated Press, 248 U.S. 215, 245.
n18 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.
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.
n19 Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for
law; in order [**575] to promote confidence in the administration
of justice; in order to preserve the judicial process from contamination. The rule is one, not of action, but of
inaction. It is sometimes [*485]
spoken of as a rule of substantive law.
But it extends to matters of procedure as well. n20 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. n21 It will be taken despite the wish to the
contrary of all the parties to the litigation.
The court protects itself.
n19 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.R. Co. v.
Texas, 177 U.S. 66, 99; Bothwell v. Buckbee, Mears Co., 275
U.S. 274. $
n20 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.
n21 Coppell v. Hall, 7 Wall. 542, 558; Oscanyan
v. Arms Co., 103 U.S. 261, 267; Higgins v. McCrea, 116
U.S. 671, 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.
Decency, security and liberty
alike demand [***960] that government officials shall be subjected
to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the
government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent
teacher. For good or for ill, it teaches
the whole people by its example. Crime
is contagious. If the Government becomes
a lawbreaker, it breeds contempt for law; it invites every man to become a law
unto himself; it invites anarchy. To
declare that in the administration of the criminal law the end justifies the
means -- to declare that the Government may commit crimes in order to secure
the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court
should resolutely set its face.
MR. JUSTICE BUTLER, dissenting.
I sincerely regret that I cannot
support the opinion and judgments of the Court in these cases. [*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 [**576]
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 'wire tapping' 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.
* 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.
The question at issue depends upon
a just appreciation of the facts.
[*487] $ TTelephones 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. 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, 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), as well as to those granting governmental powers. McCulloch v. Maryland, 4 Wheat.
316, 404, 407, 421. [***961] Marbury v. Madison, 1 Cranch
137, 153, 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. [*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 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."