The Supreme Court’s Olmstead Power Grab

Source: The Volokh Conspiracy
by Ben Johnson

Olmstead is mostly remembered for its constitutional holding regarding wiretapping. The facts of the case involve a somewhat large conspiracy to traffic in illicit alcohol in Washington State during Prohibition. Without a warrant, federal officials tapped the phones of several key players in the scheme in violation of a state statute. … The subsequent certiorari petitions included not only the now famous constitutional claims, but they also raised the evidentiary issue. Specifically, the defense argued it was improper to admit evidence obtained in violation of state law. The defendants had every reason to think the Court would consider both issues if it took the case, since this was the unbroken practice of the Court and the way certiorari-to-error worked, but Taft threw the defendants a curveball.” (05/12/22)