# Olmstead v. United States > Supreme Court of the United States · June 4, 1928 · 277 U.S. 438 URL: https://www.frixlaw.com/law-library/cases/9418653 ## Case - **Full name:** OLMSTEAD Et Al. v. UNITED STATES; GREEN Et Al. v. SAME; McINNIS v. SAME - **Court:** Supreme Court of the United States - **Decided:** June 4, 1928 - **Citations:** 277 U.S. 438; 66 A.L.R. 376; 48 S. Ct. 564; 72 L. Ed. 944; 1928 U.S. LEXIS 694 - **Precedential status:** Published - **Opinion:** Dissent by Holmes - **Judges:** Stone, Taft, Holmes, Brandéis, Butler - **Cited by:** 1,733 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by Katz v. United States, 389 U.S. 347 (1967). - Negative treatments: 3 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9418653 ## How later opinions describe it (automated extraction) - stating that "the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wire tapping" did not amount to a violation of the Fourth Amendment because "[t]here was no searching. There was no seizure. The evidence was secured… - holding, in a search and seizure case, that we cannot ignore constitutional commands even if they pose difficulties for law enforcement ## Opinion text Mr. Justice Holmes: My brother Brandéis 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 Brandéis says, that apart from the Constitution the Government ought- not to use *470 evidence obtained and only obtainable by a criminal act. TKere 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 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 pbtained by a crime of the officers of the law. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9418653. Public record. Not legal advice.