What You Didn’t Know about the Olmstead Wiretaps

Roy Olmstead was stunned. On June 4, 1928, in a 5-4 decision on the last day of the term, the Supreme Court held that the wiretaps used to convict him for violating Prohibition laws did not violate the Constitution’s Fourth Amendment warrant requirements. In short, secretly tapping a phone line was neither a search nor a seizure and the government could do it all day long for as long as it wanted without any court order or oversight. Despite the prescient dissent of Justice Brandeis against such unbridled government power, the case stood as good law for 40 years.

But the Court condoned much more by green-lighting the wiretapping practices used by the government in Olmstead’s case. Here’s what you may not have known about the Olmstead wiretaps. 

The technical solution in 1924 when the first taps were placed on Olmstead’s business office was simple enough – an agent created an extension line at the junction box in the basement of the building where Olmstead’s bootleg dispatch operation was run. By attaching an additional pair of wires to the circuit running up to the office, the agents created an extension line no different than if Olmstead had an extension phone in another office. It was that technical act alone that the Court found not to be a search or seizure.

But there was no device to record a conversation at that time. It would be a few more years before the ability to record sound and save it to some storage media for later playback would be developed. Instead, in Olmstead’s case, one agent attached the wires at the junction box to create the extension phone and another listened to the conversations through an earpiece and took notes. The agent taking notes most often was no government agent at all, but rather the wife of William Whitney, lead agent of Seattle’s Prohibition Bureau. She was a stenographer and knew how to take shorthand.

In the evening, she would transcribe her or the other agents’ notes into a typewritten transcript of each call. Whitney would then review the transcript and make changes “for clarity,” which sometimes required Whitney or his wife to fill in the full name of a person speaking or being discussed rather than a nickname, or, identify a person whose voice they didn’t recognize but could guess based on the context of the discussion.     

The original notes were then destroyed and the transcripts compiled into a book. When the government brought the case against Olmstead, his wife Elise, and dozens of his organization before the grand jury, Whitney did not let the grand jurors see the book or any pages, but rather he read them selected conversations involving the dozens of bootleggers and rum runners in Olmstead’s operation .

The defense made every effort to get the federal district court judge to find the wiretapping to be unconstitutional, but Judge Neterer found that there was no constitutional violation and no federal law prohibited the tapping. But by the time the trial started, the facts were known about how the wiretap “book” and transcripts were compiled. Not surprising, the agents called to testify about what they overheard could not recall any specific conversation on any specific date at all.

Ultimately, the court ruled that the book and individual transcripts were not admissible and only could be used to refresh the recollection of the testifying agent that heard the conversation rather than be read into the record.  Worse, the court ruled that the defense was not entitled to see or have a copy of the book. The testimony was a charade.

Whitney, in his testimony, covered 216 conversations that he overheard while intermittently listening for a total of 26 hours and 24 minutes between July 8th to July 12th. It took him seven and a half court hours to deliver the testimony, and yet he estimated that he only provided a third of all the conversations that his agents would cover in their testimony. For over the next two weeks, the courtroom would hear conversation after conversation “refreshed and recalled” by agents about the transport, distribution, and sale of liquor imported from Canada by Olmstead’s organization.

The sheer volume of wiretap evidence was enough to convict Olmstead and his cronies even if individual conversations were not verbatim or were unreliable and embellished as the defense rightly claimed. Roy Olmstead’s wife, Elise, couldn’t believe the unfairness of it. Standing trial herself, the jury must have noticed that there were no conversations involving her even though their home telephone line was tapped. Elise had a separate phone line installed for her own use that eluded the investigators!    

Only one conversation potentially involving Elise was reported – a call from the home line to the office line: “This is Elsie. Take a case of good stuff to the Fortune Transfer company.” But the agent was not able to identify the caller as Elise and the court struck the testimony. Remarkably, the government did not ask the agent whether he knew Elise’s voice or recognized her distinct English accent. It was a narrow escape for Elise.

The trial became known as the “Whispering Wires” trial. Roy went to prison for 4 years and later, through the hard work of Elise, received a Presidential pardon two years after Prohibition was repealed.  But what about Elise? If Roy was the King of the Bootleggers, was she the Queen as the newspapers dubbed her?  Did she use her children’s bedtime stories radio show to send coded messages to Roy’s gang as the government believed? Was she a spy or an informant? And did she have a dark secret and lie about her immigration to the U.S.?   Her story will surprise you and you can get the answers in Elise Olmstead: The Myth and Mystery of Seattle’s “Queen of the Bootleggers,” available here.