But I think, as Mr. Jus­tice Bran­deis says, that apart from the Con­sti­tu­tion the gov­ern­ment ought not to use [277 U.S. 438, 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 future it will pay for the fruits. We have to choose, and for my part I think it a less evil that some crim­i­nals should escape than that the gov­ern­ment should play an igno­ble part.

Jus­tice Oliv­er Wen­dell Holmes, Jr., OLMSTEAD v. U.S., 277 U.S. 438 (1928), dissenting

Napalm Death — “You Suffer”

Napalm Death — “From Enslave­ment to Obliteration”