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 <snip> > >Snippets of Powerful language, >you may have seen this before, I am sure. >It is still beautiful. > > >http://supct.law.cornell.edu/supct/cases/topic.htm > > >Olmstead v. United States, 277 U.S. 438 (1928) (USSC+) > >Opinions > >Affirmed. > >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 >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 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 >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 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. >[n3] > > >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 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 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 >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 >[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 >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 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 itself. >[n21] > >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 >face. > >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. > > ><snip> > > ======================================================================== 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.]
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