AT THE HEIGHT OF OUR LAST WAR ON DRUGS—PROHIBITION, IN THE LATE 1920S—THE federal government began using a technique of police work that startled many but proved quite effective. The technique was wiretapping. 1 Telephones had become a dominant mode of communication, life had just begun to move onto the wires, and in an effort to take advantage of the evidence that this new medium might yield, the government, without warrants, began to tap phones.
Because law enforcement officials themselves were conflicted about the ethics of wiretapping, taps were used sparingly. Nonetheless, for threats perceived to be extremely grave, the technique was deployed. Illegal alcohol, as the obsession of the age, was just such a threat.
The most famous of these taps led to the 1928 Supreme Court case Olmstead v United States. The government was investigating one of the largest illegal liquor import, distribution, and sales organizations in the nation. As part of the investigation, the government began to tap the telephones used by dealers and their agents. These were private phones, but the taps were always secured without trespassing on the property of the targets. 2 Instead, the taps were placed on the wires in places where the government had rightful access to the phone lines. Though wiretapping was illegal under many states' laws, the government had not illegally trespassed on the defendants' property while tapping phones.
Using these taps, the government recorded many hours of conversations (775 typewritten pages, according to Justice Louis Brandeis's dissent) 3, and it used these recordings to convict the defendants in the case. The defendants challenged the use of these recordings, claiming that the government had violated the Constitution in securing them. The Fourth Amendment protects "persons, houses, papers, and effects, against unreasonable searches and seizures," and this wiretapping, the defendants argued, was a violation of their right to be protected from unreasonable searches.