The defendant was the leading figure in a major conspiracy. The government, observing that the defendant appeared to conduct some of his illegal business through the means of a telephone, tapped the telephone to his home and office. In doing so, the officers refrained from entering onto the defendant’s property, using the public street near his home. These wiretaps generated much of the evidence against the defendant.
Whether the agents’ actions amounted to a Fourth Amendment search?
No. The Fourth Amendment protects “persons, houses papers and effects,” none of which were implicated here.
The Court held that, absent an intrusion onto the defendant’s property, no search occurred. While this definition of search would be expanded in the Katz decision, at the time of the Olmstead ruling, no search occurred unless the government intruded into the defendant’s person, home, papers or personal effects. The officers in this instance took special care not to intrude onto the defendant’s property, so, under the
only definition of a search at that time, the officers were permitted to listen to the defendant’s telephone conversations. Interestingly, the Court wrote “[C]ongress may of course protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal criminal trials, by direct legislation, and thus depart from the common law of evidence.” Congress did so in Title III of the Omnibus Crime Control and Safe Streets Act of 1968.
277 U.S. 438, 48 S. Ct. 564 (1928)