Time: Thu Jul 10 10:46:31 1997
	by primenet.com (8.8.5/8.8.5) with ESMTP id KAA05942;
	Thu, 10 Jul 1997 10:36:52 -0700 (MST)
	by usr08.primenet.com (8.8.5/8.8.5) with SMTP id KAA29890;
	Thu, 10 Jul 1997 10:36:35 -0700 (MST)
Date: Thu, 10 Jul 1997 10:36:22 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Great Language, worth repeating (fwd)
Content-Transfer-Encoding: 8bit

>Snippets of Powerful language, 
>you may have seen this before, I am sure.
>It is still beautiful.
>Olmstead v. United States, 277 U.S. 438 (1928) (USSC+)
>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 wiretapping 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 wiretapping on the ground that the
>Government's wiretapping 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 [p*472] that, if wiretapping can be deemed
>a search and seizure within the Fourth Amendment, such wiretapping 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
>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;
>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.
>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 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 [p*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. [p*474]
>Moreover, "in the application of a constitution, our contemplation
>cannot be only of 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 wiretapping. Ways may someday 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?
>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
>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
>It is not the breaking 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 security, [p*475]
>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.
>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  [p*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.
>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 [p*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
>wiretapping 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
>immaterial that the intrusion was in aid of law enforcement. 
>Experience should teach us to be most on our guard to protect liberty when
>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. [n12] 
>Independently of the constitutional question, I am of opinion that the
>judgment should be reversed. By the laws of Washington, wiretapping is a
>crime. [n13] Pierce's [p*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, 276 U.S. 36, id.,
>604. [p*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 [p*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 wiretapping 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.
>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 [p*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] 
>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 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
>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
>[p*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]  
>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
>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 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 [p*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
>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
>1. 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 95.2. Entick v. Carrington, 19
>Howell's State Trials, 1030, 1066.
>3. 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. 
>4. Gouled v. United States, 255 U.S. 298.
>5. 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.
>6. 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.
>7. 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.
>8. 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.
>9. Gouled v. United States, 255 U.S. 298.
>10. Boyd v. United States, 116 U.S. 616; Hale v. Henkel, 201 U.S. 43,
>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.
>11. 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 disclosures by the defendant. Compare Smith v. United
>States, 2 F.2d 715; United States v. Lee, 274 U.S. 559.
>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 wiretapping a crime will
>not suffice if the courts nevertheless hold the evidence to be lawful.

Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

tel:     (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night
email:   [address in tool bar]       : using Eudora Pro 3.0.3 on 586 CPU
website: http://www.supremelaw.com   : visit the Supreme Law Library now
ship to: c/o 2509 N. Campbell, #1776 : this is free speech,  at its best
             Tucson, Arizona state   : state zone,  not the federal zone
             Postal Zone 85719/tdc   : USPS delays first class  w/o this

As agents of the Most High, we came here to establish justice.  We shall
not leave, until our mission is accomplished and justice reigns eternal.
[This text formatted on-screen in Courier 11, non-proportional spacing.]


Return to Table of Contents for

Supreme Law School:   E-mail