If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

277 U.S. 438 (1928)

OLMSTEAD ET AL.
v.
UNITED STATES.
GREEN ET AL.
v.
SAME.
McINNIS
v.
SAME.

Nos. 493, 532 and 533.Supreme Court of United States.

Argued February 20, 21, 1928.Decided June 4, 1928.CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

439*439 Mr. John F. Dore, with whom Messrs. F.C. Reagan and J.L. Finch were on the brief, for petitioners in No. 493.

Mr. Frank R. Jeffery, for petitioner in No. 533, and some of the petitioners in No. 532.

Messrs. Arthur E. Griffin, George F. Vanderveer, and Samuel B. Bassett, on a brief for petitioners in No. 532.

Mr. Michael J. Doherty, Special Assistant to the Attorney General, with whom Solicitor General Mitchell was on the brief, for the United States.

Messrs. Otto B. Rupp, Charles M. Bracelen, Robert H. Strahan, and Clarence B. Randall on behalf of The Pacific Telephone and Telegraph Company, American Telephone and Telegraph Company, United States Independent Telephone Association, and the Tri-State Telephone and Telegraph Company, as amici curiae, filed a brief by special leave of Court.

455*455 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

These cases are here by certiorari from the Circuit Court of Appeals for the Ninth Circuit. 19 F. (2d) 842 and 850. The petition in No. 493 was filed August 30, 1927; in Nos. 532 and 533, September 9, 1927. They were granted with the distinct limitation that the hearing should be confined to the single question whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wire tapping, amounted to a violation of the Fourth and Fifth Amendments.

The petitioners were convicted in the District Court for the Western District of Washington of a conspiracy to violate the National Prohibition Act by unlawfully possessing, transporting and importing intoxicating liquors and maintaining nuisances, and by selling intoxicating liquors. Seventy-two others in addition to the petitioners were indicted. Some were not apprehended, some were acquitted and others pleaded guilty.

The evidence in the records discloses a conspiracy of amazing magnitude to import, possess and sell liquor unlawfully. 456*456 It involved the employment of not less than fifty persons, of two seagoing vessels for the transportation of liquor to British Columbia, of smaller vessels for coastwise transportation to the State of Washington, the purchase and use of a ranch beyond the suburban limits of Seattle, with a large underground cache for storage and a number of smaller caches in that city, the maintenance of a central office manned with operators, the employment of executives, salesmen, deliverymen, dispatchers, scouts, bookkeepers, collectors and an attorney. In a bad month sales amounted to $176,000; the aggregate for a year must have exceeded two millions of dollars.

Olmstead was the leading conspirator and the general manager of the business. He made a contribution of $10,000 to the capital; eleven others contributed $1,000 each. The profits were divided one-half to Olmstead and the remainder to the other eleven. Of the several offices in Seattle the chief one was in a large office building. In this there were three telephones on three different lines. There were telephones in an office of the manager in his own home, at the homes of his associates, and at other places in the city. Communication was had frequently with Vancouver, British Columbia. Times were fixed for the deliveries of the “stuff,” to places along Puget Sound near Seattle and from there the liquor was removed and deposited in the caches already referred to. One of the chief men was always on duty at the main office to receive orders by telephones and to direct their filling by a corps of men stationed in another room — the “bull pen.” The call numbers of the telephones were given to those known to be likely customers. At times the sales amounted to 200 cases of liquor per day.

The information which led to the discovery of the conspiracy and its nature and extent was largely obtained by intercepting messages on the telephones of the conspirators by four federal prohibition officers. Small 457*457 wires were inserted along the ordinary telephone wires from the residences of four of the petitioners and those leading from the chief office. The insertions were made without trespass upon any property of the defendants. They were made in the basement of the large office building. The taps from house lines were made in the streets near the houses.

The gathering of evidence continued for many months. Conversations of the conspirators of which refreshing stenographic notes were currently made, were testified to by the government witnesses. They revealed the large business transactions of the partners and their subordinates. Men at the wires heard the orders given for liquor by customers and the acceptances; they became auditors of the conversations between the partners. All this disclosed the conspiracy charged in the indictment. Many of the intercepted conversations were not merely reports but parts of the criminal acts. The evidence also disclosed the difficulties to which the conspirators were subjected, the reported news of the capture of vessels, the arrest of their men and the seizure of cases of liquor in garages and other places. It showed the dealing by Olmstead, the chief conspirator, with members of the Seattle police, the messages to them which secured the release of arrested members of the conspiracy, and also direct promises to officers of payments as soon as opportunity offered.

The Fourth Amendment provides — “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.” And the Fifth: “No person . . . shall be compelled, in any criminal case, to be a witness against himself.”

458*458 It will be helpful to consider the chief cases in this Court which bear upon the construction of these Amendments.

Boyd v. United States, 116 U.S. 616, was an information filed by the District Attorney in the federal court in a cause of seizure and forfeiture against thirty-five cases of plate glass, which charged that the owner and importer, with intent to defraud the revenue, made an entry of the imported merchandise by means of a fraudulent or false invoice. It became important to show the quantity and value of glass contained in twenty-nine cases previously imported. The fifth section of the Act of June 22, 1874, provided that in cases not criminal under the revenue laws, the United States Attorney, whenever he thought an invoice, belonging to the defendant, would tend to prove any allegation made by the United States, might by a written motion describing the invoice and setting forth the allegation which he expected to prove, secure a notice from the court to the defendant to produce the invoice, and if the defendant refused to produce it, the allegations stated in the motion should be taken as confessed, but if produced, the United States Attorney should be permitted, under the direction of the court, to make an examination of the invoice, and might offer the same in evidence. This Act had succeeded the Act of 1867, which provided that in such cases the District Judge, on affidavit of any person interested, might issue a warrant to the marshal to enter the premises where the invoice was and take possession of it and hold it subject to the order of the judge. This had been preceded by the Act of 1863 of a similar tenor, except that it directed the warrant to the collector instead of the marshal. The United States Attorney followed the Act of 1874 and compelled the production of the invoice.

The court held the Act of 1874 repugnant to the Fourth and Fifth Amendments. As to the Fourth Amendment, Justice Bradley said (page 621):

459*459 “But, in regard to the Fourth Amendment, it is contended that, whatever might have been alleged against the constitutionality of the acts of 1863 and 1867, that of 1874, under which the order in the present case was made, is free from constitutional objection because it does not authorize the search and seizure of books and papers, but only requires the defendant or claimant to produce them. That is so; but it declares that if he does not produce them, the allegations which it is affirmed they will prove shall be taken as confessed. This is tantamount to compelling their production; for the prosecuting attorney will always be sure to state the evidence expected to be derived from them as strongly as the case will admit of. It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man’s house and searching amongst his papers, are wanting, and to this extent the proceeding under the Act of 1874 is a mitigation of that which was authorized by the former acts; but it accomplishes the substantial object of those acts in forcing from a party evidence against himself. It is our opinion, therefore, that a compulsory production of a man’s private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure.”

Concurring, Mr. Justice Miller and Chief Justice Waite said that they did not think the machinery used to get this evidence amounted to a search and seizure, but they agreed that the Fifth Amendment had been violated.

The statute provided an official demand for the production of a paper or document by the defendant for official search and use as evidence on penalty that by refusal he should be conclusively held to admit the incriminating 460*460 character of the document as charged. It was certainly no straining of the language to construe the search and seizure under the Fourth Amendment to include such official procedure.

The next case, and perhaps the most important, is Weeks v. United States, 232 U.S. 383, — a conviction for using the mails to transmit coupons or tickets in a lottery enterprise. The defendant was arrested by a police officer without a warrant. After his arrest other police officers and the United States marshal went to his house, got the key from a neighbor, entered the defendant’s room and searched it, and took possession of various papers and articles. Neither the marshal nor the police officers had a search warrant. The defendant filed a petition in court asking the return of all his property. The court ordered the return of everything not pertinent to the charge, but denied return of relevant evidence. After the jury was sworn, the defendant again made objection, and on introduction of the papers contended that the search without warrant was a violation of the Fourth and Fifth Amendments and they were therefore inadmissible. This court held that such taking of papers by an official of the United States, acting under color of his office, was in violation of the constitutional rights of the defendant, and upon making seasonable application he was entitled to have them restored, and that by permitting their use upon the trial, the trial court erred.

The opinion cited with approval language of Mr. Justice Field in Ex parte Jackson, 96 U.S. 727, 733, saying that the Fourth Amendment as a principle of protection was applicable to sealed letters and packages in the mail and that, consistently with it, such matter could only be opened and examined upon warrants issued on oath or affirmation particularly describing the thing to be seized.

In Silverthorne Lumber Company v. United States, 251 U.S. 385, the defendants were arrested at their homes and 461*461 detained in custody. While so detained, representatives of the Government without authority went to the office of their company and seized all the books, papers and documents found there. An application for return of the things was opposed by the District Attorney, who produced a subpoena for certain documents relating to the charge in the indictment then on file. The court said:

“Thus the case is not that of knowledge acquired through the wrongful act of a stranger, but it must be assumed that the Government planned or at all events ratified the whole performance.”

And it held that the illegal character of the original seizure characterized the entire proceeding and under the Weeks case the seized papers must be restored.

In Amos v. United States, 255 U.S. 313, the defendant was convicted of concealing whiskey on which the tax had not been paid. At the trial he presented a petition asking that private property seized in a search of his house and store “within his curtilage,” without warrant should be returned. This was denied. A woman, who claimed to be his wife, was told by the revenue officers that they had come to search the premises for violation of the revenue law. She opened the door; they entered and found whiskey. Further searches in the house disclosed more. It was held that this action constituted a violation of the Fourth Amendment, and that the denial of the motion to restore the whiskey and to exclude the testimony was error.

In Gouled v. The United States, 255 U.S. 298, the facts were these: Gouled and two others were charged with conspiracy to defraud the United States. One pleaded guilty and another was acquitted. Gouled prosecuted error. The matter was presented here on questions propounded by the lower court. The first related to the admission in evidence of a paper surreptitiously taken from the office of the defendant by one acting under the direction 462*462 of an officer of the Intelligence Department of the Army of the United States. Gouled was suspected of the crime. A private in the U.S. Army, pretending to make a friendly call on him, gained admission to his office and in his absence, without warrant of any character, seized and carried away several documents. One of these belonging to Gouled, was delivered to the United States Attorney and by him introduced in evidence. When produced, it was a surprise to the defendant. He had had no opportunity to make a previous motion to secure a return of it. The paper had no pecuniary value, but was relevant to the issue made on the trial. Admission of the paper was considered a violation of the Fourth Amendment.

Agnello v. United States, 269 U.S. 20, held that the Fourth and Fifth Amendments were violated by admission in evidence of contraband narcotics found in defendant’s house, several blocks distant from the place of arrest, after his arrest, and seized there without a warrant. Under such circumstances the seizure could not be justified as incidental to the arrest.

There is no room in the present case for applying the Fifth Amendment unless the Fourth Amendment was first violated. There was no evidence of compulsion to induce the defendants to talk over their many telephones. They were continually and voluntarily transacting business without knowledge of the interception. Our consideration must be confined to the Fourth Amendment.

The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction if obtained by government officers through a violation of the Amendment. Theretofore many had supposed that under the ordinary common law rules, if the tendered evidence was pertinent, the method of obtaining it was 463*463 unimportant. This was held by the Supreme Judicial Court of Massachusetts in Commonwealth v. Dana, 2 Metcalf, 329, 337. There it was ruled that the only remedy open to a defendant whose rights under a state constitutional equivalent of the Fourth Amendment had been invaded was by suit and judgment for damages, as Lord Camden held in Entick v. Carrington, 19 Howell State Trials, 1029. Mr. Justice Bradley made effective use of this case in Boyd v. United States. But in the Weeks case, and those which followed, this Court decided with great emphasis, and established as the law for the federal courts, that the protection of the Fourth Amendment would be much impaired unless it was held that not only was the official violator of the rights under the Amendment subject to action at the suit of the injured defendant, but also that the evidence thereby obtained could not be received.

The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man’s house, his person, his papers and his effects; and to prevent their seizure against his will. This phase of the misuse of governmental power of compulsion is the emphasis of the opinion of the Court in the Boyd case. This appears too in the Weeks case, in the Silverthorne case and in the Amos case.

Gouled v. United States carried the inhibition against unreasonable searches and seizures to the extreme limit. Its authority is not to be enlarged by implication and must be confined to the precise state of facts disclosed by the record. A representative of the Intelligence Department of the Army, having by stealth obtained admission to the defendant’s office, seized and carried away certain private papers valuable for evidential purposes. This was held an unreasonable search and seizure within the Fourth Amendment. A stealthy entrance in such circumstances 464*464 became the equivalent to an entry by force. There was actual entrance into the private quarters of defendant and the taking away of something tangible. Here we have testimony only of voluntary conversations secretly overheard.

The Amendment itself shows that the search is to be of material things — the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized.

It is urged that the language of Mr. Justice Field in Ex parte Jackson, already quoted, offers an analogy to the interpretation of the Fourth Amendment in respect of wire tapping. But the analogy fails. The Fourth Amendment may have proper application to a sealed letter in the mail because of the constitutional provision for the Postoffice Department and the relations between the Government and those who pay to secure protection of their sealed letters. See Revised Statutes, §§ 3978 to 3988, whereby Congress monopolizes the carriage of letters and excludes from that business everyone else, and § 3929 which forbids any postmaster or other person to open any letter not addressed to himself. It is plainly within the words of the Amendment to say that the unlawful rifling by a government agent of a sealed letter is a search and seizure of the sender’s papers or effects. The letter is a paper, an effect, and in the custody of a Government that forbids carriage except under its protection.

The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.

465*465 By the invention of the telephone, fifty years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.

This Court in Carroll v. United States, 267 U.S. 132, 149, declared:

“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner which will conserve public interests as well as the interests and rights of individual citizens.”

Justice Bradley in the Boyd case, and Justice Clark in the Gouled case, said that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that can not justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.

Hester v. United States, 265 U.S. 57, held that the testimony of two officers of the law who trespassed on the defendant’s land, concealed themselves one hundred yards away from his house and saw him come out and hand a bottle of whiskey to another, was not inadmissible. While there was a trespass, there was no search of person, house, papers or effects. United States v. Lee, 274 U.S. 559, 563; Eversole v. State, 106 Tex. Cr. 567.

Congress may of course protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal criminal trials, by direct legislation, 466*466 and thus depart from the common law of evidence. But the courts may not adopt such a policy by attributing an enlarged and unusual meaning to the Fourth Amendment. The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment. Here those who intercepted the projected voices were not in the house of either party to the conversation.

Neither the cases we have cited nor any of the many federal decisions brought to our attention hold the Fourth Amendment to have been violated as against a defendant unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house “or curtilage” for the purpose of making a seizure.

We think, therefore, that the wire tapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment.

What has been said disposes of the only question that comes within the terms of our order granting certiorari in these cases. But some of our number, departing from that order, have concluded that there is merit in the two-fold objection overruled in both courts below that evidence obtained through intercepting of telephone messages by government agents was inadmissible because the mode of obtaining it was unethical and a misdemeanor under the law of Washington. To avoid any misapprehension of our views of that objection we shall deal with it in both of its phases.

While a Territory, the English common law prevailed in Washington and thus continued after her admission in 1889. The rules of evidence in criminal cases in courts of the United States sitting there, consequently are those of the common law. United States v. Reid, 12 How. 361, 467*467 363, 366; Logan v. United States, 144 U.S. 263, 301; Rosen v. United States, 245 U.S. 467; Withaup v. United States, 127 Fed. 530, 534; Robinson v. United States, 292 Fed. 683, 685.

The common law rule is that the admissibility of evidence is not affected by the illegality of the means by which it was obtained. Professor Greenleaf in his work on evidence, vol. 1, 12th ed., by Redfield, § 254(a) says:

“It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue, to determine that question.”

Mr. Jones in his work on the same subject refers to Mr. Greenleaf’s statement, and says:

“Where there is no violation of a constitutional guaranty, the verity of the above statement is absolute.” Vol. 5, § 2075, note 3.

The rule is supported by many English and American cases cited by Jones in vol. 5, § 2075, note 3, and § 2076, note 6; and by Wigmore, vol. 4, § 2183. It is recognized by this Court in Adams v. New York, 192 U.S. 585. The Weeks case, announced an exception to the common law rule by excluding all evidence in the procuring of which government officials took part by methods forbidden by the Fourth and Fifth Amendments. Many state courts do not follow the Weeks case. People v. Defore, 242 N.Y. 13. But those who do, treat it as an exception to the general common law rule and required by constitutional limitations. Hughes v. State, 145 Tenn. 544, 551, 566; State v. Wills, 91 W. Va. 659, 677; State v. Slamon, 73 Vt. 212, 214, 215; Gindrat v. People, 138 Ill. 103, 111; People v. Castree, 311 Ill. 392, 396, 397; State v. 468*468 Gardner, 77 Mont. 8, 21; State v. Fahn, 53 N. Dak. 203, 210. The common law rule must apply in the case at bar.

Nor can we, without the sanction of congressional enactment, subscribe to the suggestion that the courts have a discretion to exclude evidence, the admission of which is not unconstitutional, because unethically secured. This would be at variance with the common law doctrine generally supported by authority. There is no case that sustains, nor any recognized text book that gives color to such a view. Our general experience shows that much evidence has always been receivable although not obtained by conformity to the highest ethics. The history of criminal trials shows numerous cases of prosecutions of oath-bound conspiracies for murder, robbery, and other crimes, where officers of the law have disguised themselves and joined the organizations, taken the oaths and given themselves every appearance of active members engaged in the promotion of crime, for the purpose of securing evidence. Evidence secured by such means has always been received.

A standard which would forbid the reception of evidence if obtained by other than nice ethical conduct by government officials would make society suffer and give criminals greater immunity than has been known heretofore. In the absence of controlling legislation by Congress, those who realize the difficulties in bringing offenders to justice may well deem it wise that the exclusion of evidence should be confined to cases where rights under the Constitution would be violated by admitting it.

The statute of Washington, adopted in 1909, provides (Remington Compiled Statutes, 1922, § 2656-18) that:

“Every person . . . who shall intercept, read or in any manner interrupt or delay the sending of a message over any telegraph or telephone line . . . shall be guilty of a misdemeanor.”

469*469 This statute does not declare that evidence obtained by such interception shall be inadmissible, and by the common law, already referred to, it would not be. People v. McDonald, 177 App. Div. (N.Y.) 806. Whether the State of Washington may prosecute and punish federal officers violating this law and those whose messages were intercepted may sue them civilly is not before us. But clearly a statute, passed twenty years after the admission of the State into the Union can not affect the rules of evidence applicable in courts of the United States in criminal cases. Chief Justice Taney, in United States v. Reid, 12 How. 361, 363, construing the 34th section of the Judiciary Act, said:

“But it could not be supposed, without very plain words to show it, that Congress intended to give the states the power of prescribing the rules of evidence in trials for offenses against the United States. For this construction would place the criminal jurisprudence of one sovereignty under the control of another.” See also Withaup v. United States, 127 Fed. 530, 534.

The judgments of the Circuit Court of Appeals are affirmed. The mandates will go down forthwith under Rule 31.

Affirmed.

MR. JUSTICE HOLMES:

My brother BRANDEIS has given this case so exhaustive an examination that I desire to add but a few words. While I do not deny it, I am not prepared to say that the penumbra of the Fourth and Fifth Amendments covers the defendant, although I fully agree that Courts are apt to err by sticking too closely to the words of a law where those words import a policy that goes beyond them. Gooch v. Oregon Short Line R.R. Co., 258 U.S. 22, 24. But I think, as MR. JUSTICE BRANDEIS says, that apart from the Constitution the Government ought not to use 470*470 evidence obtained and only obtainable by a criminal act. There is no body of precedents by which we are bound, and which confines us to logical deduction from established rules. Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that in the future it will pay for the fruits. We have to chose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.

For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed. See Silverthorne Lumber Co. v. United States, 251 U.S. 385. And if all that I have said so far be accepted it makes no difference that in this case wire tapping is made a crime by the law of the State, not by the law of the United States. It is true that a State cannot make rules of evidence for Courts of the United States, but the State has authority over the conduct in question, and I hardly think that the United States would appear to greater advantage when paying for an odious crime against State law than when inciting to the disregard of its own. I am aware of the often repeated statement that in a criminal proceeding the Court will not take notice of the manner in which papers offered in evidence have been 471*471 obtained. But that somewhat rudimentary mode of disposing of the question has been overthrown by Weeks v. United States, 232 U.S. 383 and the cases that have followed it. I have said that we are free to choose between two principles of policy. But if we are to confine ourselves to precedent and logic the reason for excluding evidence obtained by violating the Constitution seems to me logically to lead to excluding evidence obtained by a crime of the officers of the law.

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 wire-tapping 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 type-written 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 wire-tapping, on the ground that the Government’s wire-tapping 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 472*472 that if wire-tapping can be deemed a search and seizure within the Fourth Amendment, such wire-tapping 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 473*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.

474*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 wire-tapping. Ways may some day 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.[1] To Lord Camden, a far slighter intrusions seemed “subversive of all the comforts of society.”[2] 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, 475*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.”[3]

In Ex parte Jackson, 96 U.S. 727, it was held that a sealed letter entrusted to the mail is protected by the Amendments. The mail is a public service furnished by the Government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said below: “True the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed and the other unsealed, but these are distinctions without a difference.” The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations 476*476 between them upon any subject, and although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.

Time and again, this Court in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it. This was notably illustrated in the Boyd case itself. Taking language in its ordinary meaning, there is no “search” or “seizure” when a defendant is required to produce a document in the orderly process of a court’s procedure. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” would not be violated, under any ordinary construction of language, by compelling obedience to a subpoena. But this Court holds the evidence inadmissible simply because the information leading to the issue of the subpoena has been unlawfully secured. Silverthorne Lumber Co. v. United States, 251 U.S. 385. Literally, there is no “search” or “seizure” when a friendly visitor abstracts papers from an office; yet we held in Gouled v. United States, 255 U.S. 298, that evidence so obtained could not be used. No court which looked at the words of the Amendment rather than at its underlying purpose would hold, as this Court did in Ex parte Jackson, 96 U.S. 727, 733, that its protection extended to letters in the mails. The provision against self-incrimination in the Fifth Amendment has been given an equally broad construction. The language is: “No person. . . shall be compelled in any criminal case to be a witness against himself.” Yet we have held, not only that the 477*477 protection of the Amendment extends to a witness before a grand jury, although he has not been charged with crime, Counselman v. Hitchcock, 142 U.S. 547, 562, 586. but that: “It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant.” McCarthy v. Arndstein, 266 U.S. 34, 40. The narrow language of the Amendment has been consistently construed in the light of its object, “to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.” Counselman v. Hitchcock, supra, p. 562.

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;[4] whether the paper when taken by the federal officers was in the home,[5] in an office[6] or elsewhere;[7] whether the taking was effected by force,[8] by 478*478 fraud,[9] or in the orderly process of a court’s procedure.[10] 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[11] — 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 479*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 wire-tapping 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.[12]

Independently of the constitutional question, I am of opinion that the judgment should be reversed. By the laws of Washington, wire-tapping is a crime.[13] Pierce’s 480*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.

481*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 482*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 wire-tapping and of facts ascertained thereby.[14] 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 483*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.[15]

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.[16] The maxim of unclean hands comes 484*484 from courts of equity.[17] 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.[18]

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.[19] Then aid is denied despite the defendant’s wrong. It is denied in order to maintain respect for law; in order is 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 485*485 spoken of as a rule of substantive law. But it extends to matters of procedure as well.[20] 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.[21] 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 imperilled 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.

MR. JUSTICE BUTLER, dissenting.

I sincerely regret that I cannot support the opinion and judgments of the Court in these cases.

486*486 The order allowing the writs of certiorari operated to limit arguments of counsel to the constitutional question. I do not participate in the controversy that has arisen here as to whether the evidence was inadmissible because the mode of obtaining it was unethical and a misdemeanor under state law. I prefer to say nothing concerning those questions because they are not within the jurisdiction taken by the order.

The Court is required to construe the provision of the Fourth Amendment that declares: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” The Fifth Amendment prevents the use of evidence obtained through searches and seizures in violation of the rights of the accused protected by the Fourth Amendment.

The single question for consideration is this: May the Government, consistently with that clause, have its officers whenever they see fit, tap wires, listen to, take down and report, the private messages and conversations transmitted by telephones?

The United States maintains that “The `wire tapping’ operations of the federal prohibition agents were not a `search and seizure’ in violation of the security of the `persons, houses, papers and effects’ of the petitioners in the constitutional sense or within the intendment of the Fourth Amendment.” The Court, adhering to and reiterating the principles laid down and applied in prior decisions[*] construing the search and seizure clause, in substance adopts the contention of the Government.

The question at issue depends upon a just appreciation of the facts.

487*487 Telephones are used generally for transmission of messages concerning official, social, business and personal affairs including communications that are private and privileged — those between physician and patient, lawyer and client, parent and child, husband and wife. The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. During their transmission the exclusive use of the wire belongs to the persons served by it. Wire tapping involves interference with the wire while being used. Tapping the wires and listening in by the officers literally constituted a search for evidence. As the communications passed, they were heard and taken down.

In Boyd v. United States, 116 U.S. 616, there was no “search or seizure” within the literal or ordinary meaning of the words, nor was Boyd — if these constitutional provisions were read strictly according to the letter — compelled in a “criminal case” to be a “witness” against himself. The statute, there held unconstitutional because repugnant to the search and seizure clause, merely authorized judgment for sums claimed by the Government on account of revenue if the defendant failed to produce his books, invoices and papers. The principle of that case has been followed, developed and applied in this and many other courts. And it is in harmony with the rule of liberal construction that always has been applied to provisions of the Constitution safeguarding personal rights (Byars v. United States, 273 U.S. 28, 32), as well as to those granting governmental powers. McCulloch v. Maryland, 4 Wheat. 316, 404, 406, 407, 421. Marbury v. Madison, 1 Cranch 137, 153, 176. Cohens v. Virginia, 6 Wheat. 264. Myers v. United States, 272 U.S. 52.

This Court has always construed the Constitution in the light of the principles upon which it was founded. 488*488 The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this Court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words. That construction is consonant with sound reason and in full accord with the course of decisions since McCulloch v. Maryland. That is the principle directly applied in the Boyd case.

When the facts in these cases are truly estimated, a fair application of that principle decides the constitutional question in favor of the petitioners. With great deference, I think they should be given a new trial.

MR. JUSTICE STONE, dissenting.

I concur in the opinions of MR. JUSTICE HOLMES and MR. JUSTICE BRANDEIS. I agree also with that of MR. JUSTICE BUTLER so far as it deals with the merits. The effect of the order granting certiorari was to limit the argument to a single question, but I do not understand that it restrains the Court from a consideration of any question which we find to be presented by the record, for, under Jud. Code, § 240(a), this Court determines a case here on certiorari “with the same power and authority, and with like effect, as if the cause had been brought [here] by unrestricted writ of error or appeal.”

[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 dilosures 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 wire tapping a crime will not suffice if the courts nevertheless hold the evidence to be lawful.”

[13] In the following states it is a criminal offense to intercept a message sent by telegraph and/or telephone: Alabama, Code, 1923, § 5256; Arizona, Revised Statutes, 1913, Penal Code, § 692; Arkansas, Crawford & Moses Digest, 1921, § 10246; California, Deering’s Penal Code, 1927, § 640; Colorado, Compiled Laws, 1921, § 6969; Connecticut, General Statutes, 1918, § 6292; Idaho, Compiled Statutes, 1919, §§ 8574, 8586; Illinois, Revised Statutes, 1927, c. 134, § 21; Iowa, Code, 1927, § 13121; Kansas, Revised Statutes, 1923, c. 17, § 1908; Michigan, Compiled Laws, 1915, § 15403; Montana, Penal Code, 1921, § 11518; Nebraska, Compiled Statutes, 1922, § 7115; Nevada, Revised Laws, 1912, §§ 4608, 6572(18); New York, Consolidated Laws, c. 40, § 1423(6); North Dakota, Compiled Laws, 1913, § 10231; Ohio, Page’s General Code, 1926, § 13402; Oklahoma, Session Laws, 1923, c. 46; Oregon, Olson’s Laws, 1920, § 2265; South Dakota, Revised Code, 1919, § 4312; Tennessee, Shannon’s Code, 1919, §§ 1839, 1840; Utah, Compiled Laws, 1917, § 8433; Virginia, Code, 1924, § 4477(2), (3); Washington, Pierce’s Code, 1921, § 8976(18); Wisconsin, Statutes, 1927, § 348.37; Wyoming, Compiled Statutes, 1920, § 7148. Compare State v. Behringer, 19 Ariz. 502; State v. Nordskog, 76 Wash. 472.

In the following states it is a criminal offense for a company engaged in the transmission of messages by telegraph and/or telephone, or its employees, or, in many instances, persons conniving with them, to disclose or to assist in the disclosure of any message: Alabama, Code, 1923, §§ 5543, 5545; Arizona, Revised Statutes, 1913, Penal Code, §§ 621, 623, 691; Arkansas, Crawford & Moses Digest, 1921, § 10250; California, Deering’s Penal Code, 1927, §§ 619, 621, 639, 641; Colorado, Compiled Laws, 1921, §§ 6966, 6968, 6970; Connecticut, General Statutes, 1918, § 6292; Florida, Revised General Statutes, 1920, §§ 5754, 5755; Idaho, Compiled Statutes, 1919, §§ 8568, 8570; Illinois, Revised Statutes, 1927, c. 134, §§ 7, 7a; Indiana, Burns’ Revised Statutes, 1926, § 2862; Iowa, Code, 1924, § 8305; Louisiana, Acts, 1918, c. 134, p. 228; Maine, Revised Statutes, 1916, c. 60, § 24; Maryland, Bagby’s Code, 1926, § 489; Michigan, Compiled Statutes, 1915, § 15104; Minnesota, General Statutes, 1923, §§ 10423, 10424; Mississippi, Hemingway’s Code, 1927, § 1174; Missouri, Revised Statutes, 1919, § 3605; Montana, Penal Code, 1921, § 11494; Nebraska, Compiled Statutes, 1922, § 7088; Nevada, Revised Laws, 1912, §§ 4603, 4605, 4609, 4631; New Jersey, Compiled Statutes, 1910, p. 5319; New York, Consolidated Laws, c. 40, §§ 552, 553; North Carolina, Consolidated Statutes, 1919, §§ 4497, 4498, 4499; North Dakota, Compiled Laws, 1913, § 10078; Ohio, Page’s General Code, 1926, § 13388, 13419; Oklahoma, Session Laws, 1923, c. 46; Oregon, Olson’s Laws, 1920, §§ 2260, 2266; Pennsylvania, Statutes, 1920, §§ 6306, 6308, 6309; Rhode Island, General Laws, 1923, § 6104; South Dakota, Revised Code, 1919, §§ 4346, 9801; Tennessee, Shannon’s Code, 1919, §§ 1837, 1838; Utah, Compiled Laws, 1917, §§ 8403, 8405, 8434; Washington, Pierce’s Code, 1921, §§ 8982, 8983, Wisconsin, Statutes, 1927, § 348.36.

The Alaskan Penal Code, Act of March 3, 1899, c. 429, 30 Stat. 1253, 1278, provides that “if any officer, agent, operator, clerk, or employee of any telegraph company, or any other person, shall wilfully divulge to any other person than the party from whom the same was received, or to whom the same was addressed, or his agent or attorney, any message received or sent, or intended to be sent, over any telegraph line, or the contents, substance, purport, effect, or meaning of such message, or any part thereof,. . . the person so offending shall be deemed guilty of a misdemeanor, and shall be punished by a fine not to exceed one thousand dollars or imprisonment not to exceed one year, or by both such fine and imprisonment, in the discretion of the court.”

The Act of October 29, 1918, c. 197, 40 Stat. 1017, provided: “That whoever during the period of governmental operation of the telephone and telegraph systems of the United States . . . shall, without authority and without the knowledge and consent of the other users thereof, except as may be necessary for operation of the service, tap any telegraph or telephone line, or wilfully interfere with the operation of such telephone and telegraph systems or with the transmission of any telephone or telegraph message, or with the delivery of any such message, or whoever being employed in any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any person not duly authorized to receive the same, shall be fined not exceeding $1,000 or imprisoned for not more than one year, or both.”

The Radio Act, February 23, 1927, c. 169, § 27, 44 Stat. 1162, 1172, provides that “no person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purport, effect, or meaning of such intercepted message to any person.”

[14] The above figures relate to Case No. 493. In Nos. 532-533, the Government evidence fills 278 pages, of which 140 are recitals of the evidence obtained by wire-tapping.

[15] According to the Government’s brief, p. 41, “The Prohibition Unit of the Treasury disclaims it [wire-tapping] and the Department of Justice has frowned on it.” See also “Prohibition Enforcement,” 69th Congress, 2d Session, Senate Doc. No. 198, pp. IV, V, 13, 15, referred to Committee, January 25, 1927; also Same, Part 2.

[16] See Hannay v. Eve, 3 Cranch, 242, 247; Bank of the United States v. Owens, 2 Pet. 527, 538; Bartle v. Coleman, 4 Pet. 184, 188; Kennett v. Chambers, 14 How. 38, 52; Marshall v. Baltimore & Ohio R.R. Co., 16 How. 314, 334; Tool Co. v. Norris, 2 Wall 45, 54; The Ouachita Cotton, 6 Wall. 521, 532; Coppell v. Hall, 7 Wall. 542; Forsyth v. Woods, 11 Wall. 484, 486; Hanauer v. Doane, 12 Wall. 342, 349; Trist v. Child, 21 Wall. 441, 448; Meguire v. Corwine, 101 U.S. 108, 111; Oscanyan v. Arms Co., 103 U.S. 261; Irwin v. Williar, 110 U.S. 499, 510; Woodstock Iron Co. v. Richmond & Danville Extension Co., 129 U.S. 643; Gibbs v. Consolidated Gas Co., 130 U.S. 396, 411; Embrey v. Jemison, 131 U.S. 336, 348; West v. Camden, 135 U.S. 507, 521; McMullen v. Hoffman, 174 U.S. 639, 654; Hazelton v. Sheckells, 202 U.S. 71; Crocker v. United States, 240 U.S. 74, 78. Compare Holman v. Johnson, 1 Cowp. 341.

[17] See Creath’s Administrator v. Sims, 5 How. 192, 204; Kennett v. Chambers, 14 How. 38, 49; Randall v. Howard, 2 Black, 585, 586; Wheeler v. Sage, 1 Wall. 518, 530; Dent v. Ferguson, 132 U.S. 50, 64; Pope Manufacturing Co. v. Gormully, 144 U.S. 224, 236; Miller v. Ammon, 145 U.S. 421, 425; Hazelton v. Sheckells, 202 U.S. 71, 79. Compare International News Service v. Associated Press, 248 U.S. 215, 245.

[18] Compare State v. Simmons, 39 Kan. 262, 264-265; State v. Miller, 44 Mo. App. 159, 163-164; In re Robinson, 29 Neb. 135; Harris v. State, 15 Tex. App. 629, 634-635, 639.

[19] See Armstrong v. Toler, 11 Wheat. 258; Brooks v. Martin, 2 Wall. 70; Planters’ Bank v. Union Bank, 16 Wall. 483, 499-500; Houston & Texas Central R.R. Co. v. Texas, 177 U.S. 66, 99; Bothwell v. Buckbee, Mears Co., 275 U.S. 274.

[20] See Lutton v. Benin, 11 Mod. 50; Barlow v. Hall, 2 Anst. 461; Wells v. Gurney, 8 Barn. & Cress. 769; Ilsley v. Nichols, 12 Pick. 270; Carpenter v. Spooner, 2 Sandf. 717; Metcalf v. Clark, 41 Barb. 45; Williams ads. Reed, 29 N.J.L. 385; Hill v. Goodrich, 32 Conn. 588; Townsend v. Smith, 47 Wis. 623; Blandin v. Ostrander, 239 Fed. 700; Harkin v. Brundage, 276 U.S. 36, id., 604.

[21] Coppell v. Hall, 7 Wall. 542, 558; Oscanyan v. Arms Co., 103 U.S. 261, 267; Higgins v. McCrea, 116 U.S. 671, 685. Compare Evans v. Richardson, 3 Mer. 469; Norman v. Cole, 3 Esp. 253; Northwestern Salt Co. v. Electrolytic Alkali Co., [1913] 3 K.B. 422.

[*] Ex parte Jackson, 96 U.S. 727. Boyd v. United States, 116 U.S. 616. Weeks v. United States, 232 U.S. 383. Silverthorne Lumber Co. v. United States, 251 U.S. 385. Gouled v. United States, 255 U.S. 298. Amos v. United States, 255 U.S. 313.

 

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Georgia’s Supreme Court Fails Again

It never ceases to amaze me. How do Supreme Courts decide which petitions for certiorari they will grant?

Georgia’s Supreme Court this year, passed to Court of Appeals, almost all of the last kind of cases that you could directly appeal to Georgia Supreme Court. I have no idea what they do now. Sure, they still take death penalty cases, some criminal cases, but other than that, who knows what they do.

There was a Petition for Certiorari filed due to the fact that Judge Hunter in DeKalb County Superior Court, had ruled that service of process at the Courthouse was proper service. That only goes totally against all rulings ever since that law was put into place. The man, was at the Courthouse to testify, the process server came up to him, right outside of the courtroom where he was to testify. The process server threw the papers down at the man’s feet, laughed and said “Now Your Served!” and ran off. DeKalb County Superior Court’s Judge Hunter, said that that had been proper service.

In Georgia, like in most other states, when you are at the Courthouse, to give testimony, of any kind, you are 100% privileged from service. No if’s and’s or but’s.

Ga. Process And Service § 4:2
Georgia Process and Service with Forms
Database updated November 2015
Philip Weltner II
Part II. SERVICE
Chapter 4. Service In General
§ 4:2. Privilege from service
Even if a defendant is served with process in accordance with the mandated procedures, that service may nonetheless be invalid if the defendant is privileged from service. The Judiciary Act of 1799 stated that “all witnesses going to, attending on, and returning from any of the said courts, shall be free from arrest or any civil process.” While this provision is declaratory of the common law privilege, it is not exhaustive of all the exemptions from service recognized in this state.1
Any witness going to, attending, or returning from an appearance in court is privileged from service of process, even if he appeared voluntarily and not pursuant to a subpoena.2  The privilege applies to all aspects of the judicial proceeding.   Thus, a nonresident who is a party to a suit pending in another state and who comes into Georgia under stipulation of counsel solely for a deposition is immune from service.3
This privilege does not apply to a resident defendant in a criminal case.4  A nonresident criminal defendant, however, is immune from civil process in two situations. First, a nonresident who is in Georgia under extradition proceedings is not subject to service in a civil action until he is convicted or, if acquitted, given a reasonable opportunity to return to the state from which he was extradited.5 Second, a nonresident who voluntarily appears in a criminal proceeding in this state, and thus saves the state the expense, delay and uncertainty of an extradition hearing and thereby promotes the orderly, expeditious and unobstructed administration of justice, is given immunity.6
A nonresident witness does not waive his immunity by availing himself of the Georgia courts. The use of the courts does not constitute a waiver.7

1    Ewing v. Elliott, 51 Ga. App. 565, 181 S. E. 123 (1935).

2    O.C.G.A. § 24-13-1; Fidelity & Cas. Co. v. Everett, 97 Ga. 787, 25 S.E. 734 (1896).

3    Ewing v. Elliott, 51 Ga. App. 565, 181 S. E. 123 (1935).
Husband did not waive service of an ex parte family violence protective order when he appeared in court to answer petition, as he had not been served with a copy of the petition itself. Attempts to serve him in court and afterwards in the court parking lot were inadequate. Husband argued the long-standing rule that a suitor or witness in attendance upon the trial of any case in court is privileged from arrest under any civil process, and is exempted from the service of any writ or summons upon him or them while in attendance upon such court, or in going to or returning therefrom. See Steelman v. Fowler, 234 Ga. 706, 217 S.E.2d 285 (1975). The later judicially-created exception from this rule for nonresidents who are in the state temporarily for some purpose other than to appear in court as a party or witness does not apply here, even though Husband was a nonresident in the state to appear in court as a party, because the rule is intended to insulate a party in attendance from service in a new action, and although the action had previously proceeded ex parte, the action was new to Husband, who appeared solely to contest the initial service. Loiten v. Loiten, 288 Ga. App. 638, 655 S.E.2d 265 (2007).

4    Warren v. Hiers, 105 Ga. App. 202, 124 S. E. 2d 445 (1962). This rule had been based on the law that a defendant could not be a witness in his own case. Now, however, pursuant to O.C.G.A. § 17-7-28 (GCA § 27-405), a defendant can be sworn and testify in his own case just like any other witness. Accordingly, resident criminal defendants, even though they now may be sworn as witnesses in their own cases, are not immune from service of process while in court. Payton v. Green, 179 Ga. App. 438, 346 S. E. 2d 884 (1986).

5 Uniform Criminal Extradition Act, O.C.G.A. § 17-13-45 (GCA § 44-425).

6    White v. Henry, 232 Ga. 64, 205 S. E. 2d 206 (1974).
The term “nonresident” refers only to nonresidents of Georgia, not nonresidents of the county in which the trial of the criminal defendant is proceeding. Payton v. Green, 179 Ga. App. 438, 346 S. E. 2d 884 (1986).

7     Word v. Word, 236 Ga. 100, 222 S. E. 2d 382 (1976); Steelman v. Fowler, 234 Ga. 706, 217 S. E. 2d 285 (1975); Couture v. Couture, 242 Ga. 11, 247 S. E. 2d 751 (1978).

End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.

11 indicted for laundering $40 million in Atlanta-area drug proceeds


https://www.ice.gov/news/releases/11-indicted-laundering-40-million-atlanta-area-drug-proceeds
06/22/2017

11 indicted for laundering $40 million in Atlanta-area drug proceeds
ATLANTA – Eleven individuals were charged Wednesday with laundering more than $40 million in drug proceeds back to Mexico through Atlanta-area money remitters following a three-year criminal investigation led by U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) and the IRS.

According to court documents, in 2014, HSI Atlanta special agents began investigating individuals across the Atlanta area that were suspected of using money-broker businesses to launder drug proceeds from the United States back to Mexico by breaking up large amounts of cash into smaller transactions, and using false names and addresses in an attempt to disguise the electronic transfers as remittances.

These small money-broker businesses allow customers to wire funds to individuals in other countries without using traditional bank accounts and are commonly used by foreign nationals to send money to family and friends across the border.

“The criminal network uncovered by this investigation laundered millions of dollars in illegal drug proceeds back to Mexico and provided direct support to the drug trafficking organizations plaguing the region with dangerous illicit narcotics and the violence associated with drug trafficking activities,” said ICE HSI Atlanta Special Agent in Charge Nick Annan. “HSI will continue to focus investigative efforts on dismantling and bringing to justice members of drug trafficking organizations and all those complicit in their activities.”
HSI Atlanta special agents determined during the course of the investigation that managers and employees of a number of metro-Atlanta money remitters were knowingly helping the money launderers send drug proceeds to Mexico. Cooperating sources and an undercover law enforcement officer subsequently brought money that was represented as coming from drug sales to different remitters.

In exchange for a kickback, managers and employees of nine different businesses allegedly agreed to willfully launder these purported drug funds to Mexico by breaking the transactions into thousands of smaller transactions and by listing fake sender information.

“Using money remitters to launder illegal drug proceeds is just one more way drug cartels fuel their criminal enterprises,” said U.S. Attorney for the Northern District of Georgia John Horn. “The business model of many Mexican cartels requires a means to get their cash profits across the border and into the hands of the supervisors and sellers. This investigation shows that they may have found an effective means through unscrupulous money remitters. We hope these cases will help to close this pipeline.”

“Narcotics traffickers will attempt to create elaborate financial networks in an effort to launder illegal drug proceeds,” stated IRS Acting Special Agent in Charge James E. Dorsey. “IRS Criminal Investigation will continue to work with our law enforcement partners to peel back every intricate layer used to launder those proceeds and expose everyone involved.‎”

The indictments allege that the defendants tried to conceal the source of the funds by circumventing the Bank Secrecy Act, which requires financial institutions, including money remitters, to monitor their clients for suspicious conduct and to obtain valid identification for high dollar remittances.

The defendants allegedly kept their transfers under certain dollar amounts to avoid raising suspicion. Several of the defendants allegedly served as the Bank Secrecy Act/Anti-Money Laundering (BSA/AML) Compliance Officers for their respective stores and were responsible for detecting and reporting these types of illicit financial transactions.

Federal agents conducted search warrants at several metro-Atlanta area money remitters Tuesday and arrested nine defendants.

The following individuals were arraigned before U.S. Magistrate Judge Russell G. Vineyard:

Oscar Gustavo Perez-Bernal, 34, of Atlanta. Perez-Bernal was the manager and BSA/AML compliance officer at La Tienda and Cocina Linda Vista — both located in Chamblee. These two stores allegedly transmitted more than $16.9 million.
Itzayana Guadalupe Perez-Bernal, 24, of Norcross. Perez-Bernal was an employee at La Tienda.
Norma Dominguez, 57, of Atlanta. Dominguez was the manager and BSA/AML compliance officer at La Veracruzana, located in Chamblee. This store allegedly transmitted more than $5.7 million.
Norma Carrera, 39, of Atlanta. Carrera was the manager and BSA/AML compliance officer at Hilos y Estambres Teresita, located in Chamblee. This store allegedly transmitted more than $6.1 million.
Victor Perez, 30, of Lawrenceville. Perez was the manager and BSA/AML compliance officer at Intercargo, which had offices in Lawrenceville and Marietta. This store allegedly transmitted more than $7 million.
Merli Sandy Tejeda-Bermudez, aka Jorhley Adadlay-Bermudez, 30, of Duluth. Tejeda-Bermudez was the manager and compliance officer at Mundo Cargo and RR Latinas, which were both located in Lawrenceville. This store allegedly transmitted more than $1.5 million.
Daniel Castaneda-Garcia, 31, of Atlanta. Castaneda-Garcia was the manager and BSA/AML compliance officer at Taqueria el Dany, located in Lawrenceville. This store allegedly transmitted more than $300,000.
Susan Fiorella Ayala-Chavez, 30, of Lawrenceville. Ayala-Chavez was an employee at the Rainforest Chevron gas station in Lawrenceville. This store allegedly transmitted more than $3 million.
Lidia Pineda-Altamarino, 32, of Lawrenceville.
The following individuals have been charged with money laundering but have not yet been apprehended:

Norma Eriza-Gomez, 41, of Mexico.
Marina Eriza-Gomez of Mexico.
In addition to HSI and the IRS, the Gwinnett County Police Department, Georgia State Patrol and Powder Springs Police Department provided assistance to the investigation.

Assistant U.S. Attorneys Thomas J. Krepp and Alison B. Prout are prosecuting the case. The Justice Department’s Money Laundering and Asset Recovery Section provided significant assistance.

Members of the public are reminded that the indictments only contain charges. The defendants are presumed innocent of the charges and it will be the government’s burden to prove the defendants’ guilt beyond a reasonable doubt at trial.

Originally posted on #Breaking144 @Breaking144: #AceBreakingNews – 13/03/17: 20:27: US Environmental Agency Must Disclose Information on Colorado Gold King Mine Spill Case – Senator McCain – #AceNewsDesk reports EDITOR NOTES: Thanks for following as always appreciate every like, reblog or retweet also our newspaper is added with all our posts daily below: Private Messages to…

via #Breaking144 – US Environmental Agency Must Disclose Information on Colorado Gold King Mine Spill Case – Senator McCain – #AceNewsDesk reports – @AceBreakingNews — Brittius

By Brandon Tubeville Shortly after the mainstream media erupted in hysteria and neo-McCarthyistic attacks against former National Security Advisor Michael Flynn for having a routine conversation with the Russian Ambassador and for once having dinner with the President of Russia as part of an event, aging warmonger Senator John McCain recently announced that he had […]

via John McCain Illegally Travels To Syria, Meets With Leaders And Fighting Groups; No Criticism From MSM — tomfernandez28’s Blog

Mary Margaret Oliver – HB for Gun Confiscation/assault weapons ban in Georgia


Gun confiscation bill introduced in Georgia
Gun confiscation bill introduced in Georgia
Parsons Patrick November 29, 2016
https://www.georgiagunowners.org/2016/11/29/gun-confiscation-bill-introduced-in-georgia/

Anti-gun witch Mary Margaret Oliver knew you wouldn’t be paying attention during the Thanksgiving holiday.

That’s why she pre-filed her so-called “Assault Weapons Ban” bill (H.B. 10) the day before Thanksgiving!

Hoping she could do so without a ruckus, she forgot that Georgia Gun Owners publicly exposed her and her anti-gun cronies at the Capitol within minutes of the bill’s introduction this past January.

That’s why I’m at the Capitol — right now — to let you know what’s happening with H.B. 10, that would ban dozens of firearms in Georgia, as well as .50 caliber ammunition.

Please click here to join me for a LIVE broadcast on our Facebook page (you have to be signed into Facebook; scroll to the LIVE video when you get on our page) from just outside Oliver’s meeting of anti-gunners today at the Capitol.

ggopress

For freedom,

Patrick Parsons
Executive Director
Georgia Gun Owners

Posted in 2nd Amendment in the News, Latest News
Tagged “assault weapons” ban, Constitutional Carry, Gun control, H.B. 10, Mary Margaret Oliver, Oliver Gun Ban, shared-news

Check out this witch of a gun confiscation/gun control freak:
http://marymargaretoliver.org/


That is just the tip of the iceberg for this woman.

Many people don’t know about the tragedies within the Probate Courts of this country, and guardianships. Mary Margaret Oliver is one of the DeKalb County, Georgia Probate Court appointed guardians for children and elderly. These “guardians” rob the elderly. I don’t know if she has been involved with robbing from children’s accounts, but I do know she has been appointed by Probate Court numerous times, and have talked with the people who have had to try to stop this woman (if you will) from stealing all of the accounts blind, and that was when she was appointed by the court as an administrator over a Will that named an executor of the estate. Since there was money within the estate, the Probate court decided that the county needed to appoint the administrator.

People yall be careful out there, and keep your families away from Probate Courts if you can. Also keep guardianships away from your elderly beloved family members. Our aunt was taken from all family, hidden from family and died a horrible death while being brainwashed to think family had not looked for her. The guardian of property took our names off of our accounts, delinked all of our Wachovia brokerage/savings/checking accounts, and began spending our money. In the end, there was nothing left out of the $600,000 taken from us.
Since the DeKalb County Georgia Probate Judge (Debra Rosh, clerk at the time) was involved, as was a DeKalb County Superior Court Judge (Hunter) and Wachovia of course, no one would sue them, not one single attorney would go up against these crooks.
That was when we were forced to learn about pro se litigation. Another long story.

That’s right, Mary Margaret Oliver.
Her HB is here: http://www.legis.ga.gov/Legislation/en-US/MemberLegislation.aspx?Member=181&Session=23

They take the name “assault weapon” to a whole new level…

WHITE MAN KIDNAPPED AND BEATEN FOR HIS SKIN COLOR BUT CHICAGO POLICE DON’T KNOW IF IT’S A HATE CRIME — tomfernandez28’s Blog

HerosComment17 hours ago They made him drink from their toilet too, see Mark Dice video Sailor Jerry Swallow3 hours ago yup, if it was a jig, the riots would going on for a year..worse then jews… Danksmoke Bong1 hour ago whoda thunk this would happen in Rahm Emmanuel and Obama’s Chicago. Ned Chil38 minutes […]

via WHITE MAN KIDNAPPED AND BEATEN FOR HIS SKIN COLOR BUT CHICAGO POLICE DON’T KNOW IF IT’S A HATE CRIME — tomfernandez28’s Blog

Homeowners losing money in legal snarls surrounding non-judicial foreclosures

Although this article is about Hawaii, Georgia too, is a non-judicial foreclosure state.  The state of Georgia has bent over backwards to see that the bank and their attorneys, who lie at every instance, never loses.  We have been aiding in the battle against “the Bank with the most homes in the end wins”.

Very interesting outlook in this article.

Homeowners losing money in legal snarls surrounding non-judicial foreclosures

A previous version of this story listed that an interview subject, Lynn Noffsinger had purchased his title insurance policy from Fidelity National Title Insurance Company. He actually bought his policy from First American Title Company Inc. It is the policy of West Hawaii Today to correct promptly any incorrect information.

KAILUA-KONA — Foreclosed properties bought at auction often afford buyers a chance at a lucrative deal.

But if you’ve purchased a property anywhere in Hawaii that’s been through a non-judicial foreclosure, you may have acquired considerably less than you bargained for — or potentially nothing at all.

That’s because of several class action and individual action lawsuits that have been filed across every county in the state. The lawsuits allege the banks that administered mass foreclosures during and after the 2008 housing crisis using the non-judicial foreclosure process — meaning without the supervision of the court — did so without following proper procedure.

If a judge rules that a lender didn’t follow the highly specific power of sale outlined in the mortgage contract and supplemented by Hawaii’s non-judicial foreclosure statute part 1, then the sale is void and the property is returned to its original owner.

Such a determination by a judge doesn’t necessarily leave the current title holder on the street absent compensation, particularly if he or she holds title insurance. But it does place on the title company the burden of reimbursing the current holder the monetary value of the property outlined in the title insurance policy.

Because the number of lawsuits challenging the legitimacy of non-judicial foreclosures conducted in Hawaii over the last several years has recently skyrocketed and yet continues to climb, title insurers are wary of insuring future sales of any property that’s gone through the process, whether it was bought firsthand from the bank or secondhand from a private citizen.

When they are willing to insure, it’s not necessarily at fair market value.

“If the sale is void, that means when the bank sold the property to the new owner, the new owner got nothing,” said James Bickerton, an Oahu attorney who to date has filed nearly 60 lawsuits against financial institutions contesting the legitimacy of their foreclosure procedures. “So there are dozens and dozens of people sitting on property they thought was good because they bought it from a bank. That’s where the title insurance comes in. Title insurance companies have to step up and take care of it.”

Losing value on non-judicial foreclosures

Gretchen Osgood, principal broker and owner of Hawaiian Isle Real Estate, found out about the amended policies of title companies the hard way earlier this year. Her husband, Randy, purchased a unit at Kona Mansions from Bank of New York in 2013, as well as title insurance from Fidelity National Title and Escrow. The property had been through a non-judicial foreclosure in 2008.

More than three years after Randy purchased the unit for $72,000 and spent more than $10,000 to upgrade it, Osgood said the property’s face value has risen to around $160,000. The long-term plan has been to sell the unit for profit after utilizing it for several years as a rental — a typical tactic of real estate investors.

But when examining the process of sale, Osgood discovered no title company would offer to insure the property for any future buyer for more than $69,000 — the same amount Randy received on the policy he purchased in 2013 and nearly $100,000 short of the unit’s current market value.

“The reason you buy title insurance is to validate the title as valid so you can resell it. That’s why you pay for title insurance, and that’s why lenders require you to buy them title insurance as well,” Osgood explained. “Now, we don’t have the ability to get title insurance re-issued for this property for the face value of what we would sell it at. No buyer in their right mind would buy a property unless you can get title insurance for it, otherwise you could end up with a property you can’t resell, as we have now.”

Osgood added they could sell the property for $69,000 and lose part of their investment along with their equity. So the unit is technically re-sellable, but not at a price anywhere near what it would command on the open market.

Suzanne Patterson, who works at Kona Resort Properties, said word has been circulating within the real estate community about the concern since this summer, when issues arose for several brokers across the industry almost simultaneously.

One couple in Kona was served a lawsuit as they left their home one afternoon with their daughter on the way to her wedding.

“We were aghast by the fact this even happened,” Patterson said. “It’s a bad situation. These are local people, not cash buyers, but people getting loans. They are real people.”

One real estate agent who requested anonymity said the circumstances surrounding non-judicial foreclosures and the inability to insure them have created a major public relations crisis for the industry, as both title insurers and real estate agents are concerned about how these developments will affect buyer perception of the market.

For people with substantial portions of their finances tied up in one or several of these properties, the situation could become dire, especially if any issues arise demanding a sale of property to create cash flow.

“Lots of people won’t care,” Osgood said. “But for some, it will be catastrophic.”

Comparing judicial, non-judicial foreclosures in Hawaii

The differences between judicial and non-judicial foreclosures are stark, starting with the presence of a court authority in the process.

“In a judicial foreclosure, you have judicial supervision of how the transaction or foreclosure is being conducted,” said Robert Triantos, administrative partner in the Kona Office of the law firm Carlsmith Ball. “In a non-judicial foreclosure, it’s just the attorney going out there, publishing in the newspaper, holding the auction, sometimes extending the dates, maybe following the letter of the law, maybe not.”

Non-judicial foreclosures are not permitted in every state but have always been a staple of the real estate industry in Hawaii, said Bruce Graham, an attorney at Ashford & Wriston in Honolulu who also teaches a transactional property/real estate class at University of Hawaii at Manoa’s William S. Richardson School of Law.

The process of non-judicial foreclosure, which Graham characterized as essentially a reversion to the foreclosure process of 17th century England, became popular in the immediate aftermath of the housing crisis as financial institutions were foreclosing on a massive scale.

“Non-judicial foreclosures were more expeditious and less expensive than judicial foreclosures,” said Stephen Whittaker, Big Island real estate attorney and broker.

Triantos explained, however, that is no longer the case. The law in Hawaii was changed approximately two years ago, he said, making the judicial method considerably less expensive. The development has spurred a migration back to the judicial process, especially considering the position of title companies.

Triantos added it’s been roughly a year since most title insurance companies decided it wasn’t worth the hassle or the financial risk to insure properties that have been through non-judicial foreclosures in Hawaii.

“The title insurance companies are essentially saying they are not going to go back and investigate whether everything was done correctly,” Triantos said. “They are making a business decision. Whether that renders (the properties) unsellable — it probably does. But I’m not going to say it’s the title insurance companies that have put the properties in those positions.”

The only recourse for those who’d like to sell is to scour the industry for a title company that might be willing to insure a sale, sell at a substantial markdown or simply sit on the property until the statute of limitations to challenge the title expires.

Bickerton said the applicable statute is the same as the one dealing with the recovery of a property someone is occupying. While that issue is currently under legal review, he said one judge has already agreed with him on his interpretation.

If Bickerton is correct, the applicable statue of limitations to contest title is 20 years.

The catalyst for change

The Honolulu law firm Bickerton Dang has been the most prominent filer of lawsuits contributing to the change in title company policy.

As of Monday, the firm had filed 51 individual actions against banks challenging the legitimacy of foreclosures, at least 15 of which originated on Hawaii Island. Bickerton’s firm is also behind seven class action suits naming Bank of America, U.S. Bank, Wells Fargo and Deutsche Bank as defendants.

The class action suits don’t directly involve title insurers, Bickerton said, as his clients in those cases are simply seeking damages against the banks.

The individual actions do involve title companies because the current owners of the properties are also named in the lawsuits, as the plaintiffs are asking for the return of their former properties.

Bickerton said that Fidelity National Title Insurance Company and First American Title Company Inc. are the most commonly named title institutions in his clients’ lawsuits.

He explained that title insurers haven’t done anything expressly wrong, but asserted the banks had no legal right to sell the foreclosed properties and title companies were an integral part of those sale processes.

Steve Gottheim, senior counsel for the American Land Title Association, explained Bickerton’s approach from a title company’s point of view.

“Plaintiffs’ attorneys try to basically name everybody they can possibly think of that has ever been connected to the mortgage in some way,” Gottheim said of lawsuits like those being headed by Bickerton’s firm. “The tactic from those attorneys is to name everyone and every company they can think of, make it as painful as possible, and see if any or all of them are willing to come to the table and pay the client(s) something to go away.”

How homeowners can be hurt at foreclosure auctions

The grounds for Bickerton’s filings are that lenders performed non-judicial foreclosures improperly, a claim that can be made for several reasons.

The most prominent reason, present in almost all 58 of Bickerton’s cases, is that lawyers enlisted by banks to handle foreclosures didn’t provide proper notice of the date and time of auctions.

When Bickerton’s clients granted power of sale to lenders in the initial contracts, the mortgages specified that if lenders reclaimed the properties by way of foreclosure, they were required to publish the date and time of auctions in general circulation news outlets in the counties where the auctions were to be held.

Bickerton said lawyers would regularly put up the initial notice, then postpone the auction and never republish the specific details.

He added a typical example involved an auction being slated for December. Then, at the auction, the bank’s lawyer announced the proceedings would be postponed until a later date but never published a circulated notice containing the new, pertinent information.

Bickerton said he is working on multiple cases where auctions were continued in that fashion as many as 12 or 13 times. He and his clients want to know why.

“The banks may have had other reasons, but it looks like it’s a possibility they were doing it to reduce the amount of buyer interest to (acquire the properties) for themselves,” Bickerton said. “You can see the temptation for the mortgagee to under-publicize a sale. They don’t have to let someone else get it if it’s a deal. Instead of selling it at a fire sale auction price, they can retail it and extract more value.”

Osgood explained that banks are allowed a credit up to the face value of what is still owed on the mortgage, plus penalties and interest for non-payment. That typically allows banks a credit large enough to claim the property at auction, particularly if they’re only bidding against themselves with what Osgood characterized as “monopoly money.”

This can create a problem for borrowers who defaulted because it tends to drive auction prices down. In judicial foreclosures, those which are overseen by a court of law, lenders can often seek a deficiency judgment if the amount the property sells for is less than the amount the bank is owed.

At first glance, that wouldn’t appear an issue for a non-judicial foreclosure, because generally the security, or the reclaimed property itself, satisfies the debt. Plus, there’s no legal entity to render a deficiency judgment because there was no court presiding over the process.

Even in such cases where there were no monetary consequences for a borrower due to an unfairly low auction price, the foreclosure may still be voided simply because proper protocol wasn’t observed, creating grounds for a lawsuit.

But Bickerton explained there tend to be actual monetary damages for many of his clients despite going through non-judicial foreclosures because they took out second mortgages on properties the initial lenders later reclaimed.

“I’ve got a lot of clients where the second mortgagee went after them for the deficiency because that lender is not getting paid,” Bickerton said. “The first bank is the only one that bid on the property because the auction date was not publicized. The bank bid what it was owed, acquired the property, and then the second bank says, ‘What about me?’ The junior bank then turns around and goes after borrower. They are allowed to do that because the debt hasn’t been paid.”

Bickerton said the notion that auctioneers must publish postponements as well as initial auction details is being challenged currently in the Hawaii Supreme Court based on a case argued last year. The seven class action lawsuits his firm has filed are on hold until that ruling is handed down.

More potential pitfalls

But there remain other methods lenders used that Bickerton claims didn’t fit the specifications outlined in both Hawaii law and the specific mortgages, so all individual actions his firm is handling are moving forward.

One such issue is providing sufficient notice of a foreclosure and the subsequent proceedings. The law states a physical notice must be posted on the property at least three weeks before its sale, and the language of the mortgage may require more notice and in a different form.

Bickerton mentioned one case on Hawaii Island he recently took up in which the final public notice was published on Nov. 2 for a Nov. 3 auction. Final publication notice is supposed to be published at least two weeks prior to the date of auction.

The physical notification of the borrower, which was supposed to be posted on the property three weeks prior to any auction, wasn’t posted there until Nov. 10, a week after the auction had concluded.

“That’s quite common, that sort of sloppiness,” Bickerton said. “Banks just treated people very, very poorly, not really recognizing that these are contractual powers that people have granted them that they have to honor. Banks need to step up and solve this problem they created.”

Another potential issue can be holding an auction for a property in a separate county from the one in which the property is located, because this can also produce the effect of driving down the price at auction.

Business strategy for the title companies

The alleged missteps of lenders during non-judicial foreclosures and the resulting lawsuits have combined to create hesitance on the part of title insurance companies to insure the resale of properties that have been through the process.

First and foremost, it’s a financial risk. Title insurers not only pay out claims if a title is successfully challenged by a former title holder, but also pay to represent the current title holder in legal proceedings.

“In title insurance, about 80 percent of your dollar is spent upfront so the title company can review the title, understand what some of the risks are and try to fix those risks before you even buy the property,” Gottheim, senior counsel for the American Land Title Association, said. “So only a smaller portion of the dollar is really available to cover claims.

“When you have the increased potential risk of somebody coming back and challenging the ownership of the home because of a foreclosure that there wasn’t a good view into, it can create some challenges on the pricing dynamic and the economics of that policy.”

Gottheim explained the better the title insurer’s understanding of the foreclosure process, the more effectively it will be able to represent a policy holder in any potential legal challenges.

Acquiring a good view into a foreclosure proceeding can be riskier and more difficult to accomplish if the process wasn’t overseen by the courts.

People who challenge title based on improper foreclosure proceedings rarely win their properties back, Gottheim said. But even if the title company never has to pay out a claim, just the process of defending title in court can be pricey.

“The easier it is for a title company to know what happened in that foreclosure, the easier it is to get lawsuit kicked out early at a lower cost,” Gottheim said. “The less we know about that process, the more expensive it becomes.”

The result of these risks, as Triantos explained, has been title companies making the business decision over the last year not to insure such properties — or not to do so at more than the value of the policies currently held, which may be substantially less than the properties would command on the open market.

But such practices may have existed even before the last year. While going through a purchase process for a condo at Kona Bali Kai six years ago, Lynn Noffsinger noticed something curious in the fine print on his First American title insurance policy. His agent at the time, Osgood, negotiated its removal from the contract.

“He was reviewing title policy offered to him during escrow. In the exclusions section, the company listed a foreclosure as an exclusion,” Osgood said. “It was in about eight-point type in the generic template part of the title policy. His diligence is how we discovered it.”

Marcus Ginnaty, media relations manager for First American, said his company “evaluates non-judicial foreclosures on a case-by-case basis in order to consider the unique circumstances of each foreclosure when considering whether or not to offer a title insurance policy.”

Fidelity representatives did not return a request for comment on their current title policies in regards to properties that have been subject to non-judicial foreclosures.

As for those who hold title to properties that have been through non-judicial foreclosures, and who wish to alleviate themselves of potential litigation as well as the anxiety surrounding whether their title may one day be contested, Gottheim explained they are simply in a tough spot with limited recourse.

“It can become a challenge. There’s not a lot of good options for them at that point,” he said. “If they’re not able to get title insurance up to the amount that would cover (the property’s) worth, a lot of times what becomes difficult is thinking about their next steps.”

Emails reveal judge coached district attorney on prosecuting Fannin Focus publisher

August 4th, 2016 by Tyler Jett in Local Regional News Read Time: 5 mins.

Fannin Focus Publisher Mark Thomason, who was arrested…

Photo by Contributed Photo /Times Free Press.

Appalachian Judicial Circuit District Attorney Alison Sosebee dropped…

Photo by Contributed Photo /Times Free Press.

Document: Weaver emails

Emails from Appalachian Judicial Circuit Superior Court Judge Brenda Weaver to District Attorney Alison Sosebee.

BLUE RIDGE, Ga. — A judge coached a prosecutor to arrest a local reporter, emails show.

Communications obtained through an open records request reveal Appalachian Judicial Circuit Superior Court Judge Brenda Weaver gave District Attorney Alison Sosebee advice about prosecuting the publisher of the Fannin Focus newspaper, as well as his lawyer.

Weaver sent Sosebee a state code section that could be used against the publisher, Mark Thomason, and his attorney, Russell Stookey. Weaver also told Sosebee how to cross examine some potential witnesses in the case.

The advice came after Thomason tried to see the cash flow for Weaver’s publicly funded bank account. Sosebee presented a case to a grand jury, which on June 24 indicted Thomason and Stookey on charges of identity fraud and attempt to commit identity fraud for their efforts to access documents pretaining to Weaver’s operating account. The grand jury also indicted Thomason on a count of making false statements, in reference to a records request he filed.

The emails obtained this week provide a behind-the-scenes account of how the judge and prosecutor worked together in the case against Thomason and Stookey. They also reveal the nature of the relationship between Weaver and Sosebee, who once worked for the judge and her husband.

“For the DA to take this without much of an investigation and turn it into a criminal indictment is really disturbing,” said Bob Rubin, president of the Georgia Association of Criminal Defense Lawyers. “It certainly gives the appearance that the DA was doing the judge’s bidding.”

Thomason’s indictment in late June drew national media attention. First amendment organizations condemned the charges, saying Sosebee overstepped her authority in punishing a reporter for a records request. On July 18, at Weaver’s request, a judge granted a motion to not prosecute the case.

Since then, Thomason has filed a complaint against Weaver with the Judicial Qualifications Commission, the organization that oversees misconduct by Georgia judges. Weaver is the chairwoman of that organization. Also, multiple sources say, the FBI is investigating the circumstances surrounding Thomason’s and Stookey’s arrests.

Stookey and Thomason said they plan to file civil lawsuits against Weaver, as well as Fannin County.

“They’ve gotten away with doing this kind of crap for years there,” Stookey said. “There is nobody in that crowd that is smart. It is absolutely the dumbest crowd that I have seen. Maybe they’ll learn from this.”

Roots of the case

The cases against Stookey and Thomason began last summer, when they sued a court reporter. In April 2015, Superior Court Judge Roger Bradley used a racial slur for African Americans from the bench. Thomason wrote that others in the room that day claimed sheriff’s deputies had also used the racial slur, though that did not appear in the court reporter’s transcript.

Thomason and Stookey sued for an audio recording of the hearing. A judge ruled against them, saying that the transcript seemed consistent with an audio recording of the hearing that she heard. The court reporter, Rhonda Stubblefield, then sued Thomason’s newspaper, the Fannin Focus, for $1.6 million. She later dropped the complaint.

Then, the two sides fought about attorneys’ fees. Stookey and Thomason said Stubblefield’s lawyer admitted that Weaver paid for Stubblefield’s legal defense with taxpayer money. Stubblefield is not a county employee, making the lawsuit a private case.

On June 1, Thomason issued subpoenas for access to Weaver’s operating account, which is funded by taxpayers in Fannin, Gilmer and Pickens counties. On June 13, Thomason filed a records request for checks from Pickens County to Weaver’s account. He wrote in the request that he had reason to believe the checks had been cashed illegally.

That same day, emails show, Pickens County Commission Chairman Rob Jones forwarded Thomason’s request to Weaver. Weaver then forwarded it to Sosebee, as well as a district attorney’s office investigator.

On June 17, Weaver emailed Jones and carbon copied Sosebee, multiple sheriffs, a GBI agent and commission chairmen for other counties. She said she had already requested a criminal investigation against Thomason for the records request he sent.

“The allegations that I or anyone in my office have ‘illegally cashed checks’ are absolutely false,” Weaver wrote.

The next day, she sent emails to Sosebee’s personal account. Around 10 a.m., she told Sosebee that the key to the criminal case is Thomason’s statement in the records request that the checks had been cashed illegally. She also told Sosebee to question Fannin County Attorney Lynn Doss about giving copies of checks to Thomason — which Thomason then used to subpoena her operating account.

Weaver added: “Stookey needs to be questioned about how he got (a copy of) the check and his continued efforts to get more checks.”

Later that day, Weaver’s law clerk sent her an email with a state code section about the proper process for getting bank account information through a subpoena. The clerk told Weaver that the person issuing the subpoena needs to alert the owner of the bank account.

Weaver forwarded the message to Sosebee, with a note: “Stookey was required to give me notice and did not.”

Stookey denied this, telling the Times Free Press that he called Weaver’s assistant when the subpoenas had been issued. He said he left a message and didn’t hear back from Weaver.

“I find it amazing that Judge Weaver has the audacity to use her judicial authority to direct her constituents how she wants things done,” Thomason said upon learning about the emails.

Sosebee and Weaver did not return calls or emails seeking comment for this story. The two have been close for years. In 2001, after she graduated from law school, Sosebee worked as Weaver’s law clerk. A year later, she began to practice law with Weaver’s husband, George Weaver. She ran for district attorney in 2012, and George Weaver donated $1,000 to her campaign.

“She’s clearly influencing the district attorney,” Stookey said of Brenda Weaver.

In one email, Brenda Weaver wrote that she had been in contact with a Georgia Bureau of Investigation agent about Thomason and Stookey’s requests for bank account information. But on Wednesday, GBI Director of Public Affairs Scott Dutton said his office declined to look into the case because FBI agents are already investigating “the entire situation.”

Contact Staff Writer Tyler Jett at 423-757-6476 or tjett@timesfreepress.com. Follow him on Twitter @LetsJett.http://www.timesfreepress.com/news/local/story/2016/aug/04/emails-reveal-close-relationship-between-judg/379467/

Home Loans for Poor Leave Some Feeling Misled By Michael Kanell The Atlanta Journal-Constitution


Home Loans for Poor Leave Some Feeling Misled
By Michael Kanell
The Atlanta Journal-Constitution
August 2, 2016

Al Butts and his wife thought they were becoming homeowners when, in 2011, they moved into their Decatur, Ga., residence.

“It sounded too good to be true, because it was such an achievement for me,” Butts said. “They said, ‘This is your house.’ ”

The too-good-to-be-true part could be right.

The Butts didn’t have a mortgage loan on the home but rather something called a “land contract,” a little-known form of lending marketed to people who can’t get regular financing.

People with a land contract put money down, make regular payments plus interest, and pay taxes and insurance. If they make payments all the way to the end of the contract, they will own the home. If they don’t they can be evicted and lose everything they put into it.

That’s what could happen to Butts and his wife, who this summer got an eviction threat after some late payments.

“It’s a 30-year contract. You could make payments every month and lose it in year 29,” said Kristin Tullos of Decatur Legal Aid, which is representing the couple as they try to stay in the home.

Georgia, like most states, does not regulate land contracts, which are also known as “contract for deed.” Critics generally do not argue that they are illegal. But they say companies offering them target credit-starved, minority neighborhoods and deceive consumers. The deals typically carry interest rates well above those for mortgages.

Fueled by housing crisis

The practice was fueled by the housing crisis, which put millions of homes on the market at huge discounts while also savaging consumers’ credit ratings.

No one has recent numbers, but 3.5 million people bought a home through a land contract in 2009, according to the U.S. Census. “Evidence suggests that land contracts are making a resurgence in the wake of the foreclosure crisis,” a recent report from the National Consumer Law Center said.

Equity firms and real estate companies bought thousands of depressed properties as investments, renting them until the market made a resale lucrative.

A small group of companies have added “contract for deed” deals as a profitable variation aimed at minorities, according to the group’s report.

Dallas-based Harbour Portfolio Advisors — the name on the Butts’ deed — is one of the largest with an estimated 6,700 properties in five states.

Calls from the AJC to Harbour over the past several weeks were not returned, but earlier this year, a lawyer for Harbour told the New York Times that the company’s business model is “to purchase unproductive residential properties and sell them to other people who will make them productive again.”

Local attorneys say there’s no indication Harbour set out to exploit minorities. But in choosing low-income, foreclosure-afflicted areas and appealing to people who cannot get traditional mortgages, Harbour ends up with a clientele that is largely black.

In metro Atlanta, Harbour had 94 properties, in Fulton, DeKalb, Cobb, Gwinnett, Clayton and Rockdale counties, the report said. “The common theme is that land contracts were being sold predominantly to borrowers of color.”

Shut out of mortgages

From the 1930s to 1950s, when blacks were shut out of many mortgage programs, land contracts were often the most common form of home-buying. But the contracts did not fulfill their promise then — and still don’t, the Law Center report concluded.

“Then, as now, homeownership through these deals was often a mirage, and buyers lost their homes, their down payments, their sweat equity, and the money they paid for repairs, maintenance, insurance, and interest,” the report said.

For depressed areas, the impact is not all bad — it puts people into houses that might otherwise be vacant, said Deirdre Oakley, sociology professor and housing expert at Georgia State University.

But for people who aspire to own a home, it isn’t a good deal due to the risk and interest charged, she said.

A big motive for buying a home is to build equity — to gain wealth as the property value rises. With a contract for deed, the consumer only gains if he or she completes the full payment schedule and becomes the owner.

“They are basically like renters but also paying interest and insurance and taxes and paying for repairs,” Oakley said. “You are giving them a chance to own a home, but you are not giving them much of a chance.”

For the deal to be at all fair, customers need to know exactly what they are getting into, said Svenja Gudell, chief economist at Zillow, a national real estate research firm.

“They target people who are less informed. They are often taken advantage of,” she said.

Al Butts doesn’t claim to be blameless, but he feels misled.

‘Flim-flam from the git-go’

“I told them right up front I was on a fixed income, and I have made up every payment I’ve been late on,” he said. “The way I think of it, it was a flim-flam from the git-go. It was like we were their cash-cow.”

Irene Cole and her husband thought they were buying an East Point home from Harbour in 2013 for $49,000. They put $1,500 down, agreed to a 9.9 interest rate on the rest and started paying $605.92 a month.

“We were told that the house was ours,” Cole said.

Their land contract was sold, however, and they dealt with a series of other companies. They had a disagreement with one about which bank account the company was taking money from — when it came from the wrong account, there wasn’t enough money.

Later, they missed some payments but say they weren’t sure who to send a check to.

Now, they’ve received notice that their house is scheduled for a foreclosure hearing. They are working with attorneys at Legal Aid to fight the foreclosure.

They first sought to refinance through Home Safe Georgia, a state program aimed at helping people avoid foreclosure.

“But when we went to Home Safe Georgia,” Cole said, “they said we can’t help you because you don’t own the property.”
© 2016 The Atlanta Journal-Constitution. Distributed by Tribune Content Agency