Mapp v. Ohio

Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise.

The Landmark Case this week regards a case that applied the so-called "Exclusionary Rule" where illegally obtained is excluded from the evidence allowed in a trial.  The case is a famous Warren Court ruling, but has a somewhat atypical author -- Truman holdover Tom Clark, former attorney general, who dissented in various of these cases.  Clark, however, was particularly concerned about the right to privacy as well as generally going along in religious and race cases.  He took a basically middle of the road position to "one person, one vote" cases, which will be next week.

Justice Clark believed that the only practical way to deter illegal searches and seizures (exclusionary rules also apply to confessions) was to exclude the evidence.  Relying on prosecutors to punish them was unrealistic and often against their interest in using the evidence.  It also was a matter of judiciary integrity.  This was dealt with in the decision but one other thing was that the matter was not really new.  Federal prosecutions had followed the rule for around fifty years.  Right before Clark came on the Court, it was decided that the Fourth Amendment applied to the states, but not this enforcement mechanism.  But, only by a divided court though Black was a special case here as his later actions show. 

Five justices a year before applied the rule to materials obtained by states and used by the federal government though curiously Clark joined the dissent most supportive of the old rule. Justice Stewart did suggest there were grounds to apply the rule only to the federal government, but the opinion comes off as supportive of the rule overall. Likely the rule would be applied to the states at some point, especially as special rules for the federal government in civil liberties was looked at with disfavor by many justices, all on certain issues such as racial justice and some Bill of Rights matters such as religious liberty.

Like another famous case not covered by this series a few years later involving the right to an attorney, this has a feel of the justices reaching out to use a case to decide something they were looking to when the right avenue came along.  A major concern of the Supreme Court, now that they have near total control of their docket (more so than even back in 1961) is to settle disputes of law.  It is not just a matter of justice for specific parties and it often is bad news for the winning party if the often apparent leanings of the justices go against them.  But, this seemed to be taken up as a First Amendment case, the material seized pornographic materials.  Search and seizure did not seem to be the point, surely not overruling Wolf v. Colorado.

A summary of the events with some useful links to documents tied to the prosecution and an obit (she died last year) provides some useful background including events after the case and a link to oral arguments (see also, Oyez.com).  The colorful events are of some relevance here. The police invaded a woman's home to search for evidence without a warrant, seized some sort of paper out of her bra when she shoved it down there after they refused to let her read it and arrested her on charges unrelated to the crime (a bombing) they originally was there to investigate.  She was known to be involved in gambling but that wasn't what they prosecuted her for either.  It was for some pornographic materials of a former tenant that she was legally held to have possessed. So, they spent three hours (according to one of the guests here) searching and was punished for a totally separate matter.  This makes the whole thing quite blatant.

There are various accounts how the Supreme Court reached out to decide the exclusionary rule issue (four justices strongly challenged the move, one still deciding to overturn the prosecution on First Amendment grounds) though Justice Douglas separately tried to justify it.  Listening to the oral argument, the first half hour of the extended argument (longer than an hour) did largely concern the details of the search itself.  The lawyers were as a whole hedgy on what exactly was wrong with it, but there was some implication that it crossed the line, even if a complete overruling of Wolf v. Colorado [in a bit of foreshadowing, this involved getting evidence in an abortion conviction] was not sought.  For instance, at one point her lawyer suggested that the Rochin v. California case (forced vomiting of pills as a shock of the conscience) should apply. State law allowed use of illegally obtained evidence unless some egregious behavior was involved.  Some loophole seemed to be sought there too.

So, though it would have been good judicial policy to at least re-hear the case with a special examination of the search and seizure issue, overall the matter was not completely taken up out of left field. The fact the First Amendment and the home was involved was in some fashion supposed to help here. This would turn out to be the path taken by the Supreme Court in Stanley v. Georgia -- at least in the home, even obscenity is protected. And, even the ACLU lawyer that took part granted the material here was obscene. And, given the breadth of the statute and the fact she merely possessed it without apparently knowing what was involved, there might have been a unanimous vote to overturn her conviction on 1A grounds. In fact, the possibility of up to seven years in prison for this "crime," opened up a credible Eighth Amendment claim.

Again, assigning it to Justice Clark, who ultimately was a conservative on obscenity as well, suggests the simplicity of matters.  But, Clark voiced his distaste for not consistently applying the exclusionary rule over five years before, and was looking for a way to do so. According to Warren's autobiography, he suggested using this case as a means at the elevator one day.  The majority were game.  The only tricky one was Justice Black, who actually joined the Court back in Wolf v. Colorado. He later was a lone dissenter in not applying the Fourth Amendment to listening devices since words did not seem to be the sort of tangible things it covers.  Nonetheless, taking a 19th Century case (Boyd v. U.S.) to help, he decided this was really also a Fifth Amendment case -- Mapp was being coerced to testify against herself.

[The opinion in 1960 cited above and forthcoming actions, including a post-retirement law article, shows Stewart did ultimately agree with the rule applied.  Justice Stevens' dissenting opinion (see third and fourth sections) in U.S. v. Leon  provides a good analysis here.  It is somewhat curious the others that dissented from the 4A ruling here didn't concur on 1A grounds, especially since apparently up to eight of them at least was going to do that originally.*] 

Mapp v. Ohio is an attempt to protect overall constitutional principle even though it might not seem the text explicitly demands the approach. Some even then spoke about exclusionary rules as a sort of technicality, a way for people to get away with things because the police blundered. But, of course, they did not here -- there was an intentional plan to avoid obtaining a warrant, here almost gratuitous fashion since one would think there was evidence to do so if it was actually necessary. The resulting invasion of privacy is aggravated given a warrant requires a certain degree of particularity, which helps avoid fishing expeditions.  And, as a matter of principle, crime shouldn't pay, even if the criminals are the government.

The ultimate burden to law enforcement here is greatly debated but the net results of the studies suggest it is not really much of one, particularly outside of vice crimes where obtaining warrants might be tricky.  And, how do we balance the cost/benefits here?  Are not things such as respect for privacy and the honor of law enforcement (see, e.g., Justice Brandeis' famous Olmstead v. U.S. dissent) / judicial integrity benefits?  The many exceptions to the rule, some valid/some probably not, also limits the reach.  But, there remains some bite here, including as a way to protect disfavored groups, particularly those tied to certain crimes such as drug matters.

These cases also helped provide a basis for a "right to privacy," which traditionally was a major concern -- not merely some property right or such -- in Fourth Amendment matters.  (The Self-Incrimination Clause also cited as a zone of privacy.)  Boyd v. U.S. argued that ultimately privacy was the point here.  Griswold v. Connecticut, protecting use of contraceptives as a form of protected privacy, quoted that case:

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 then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity 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, 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.

The Fourth Amendment starts by saying: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."  Criminalizing certain acts that take part in these private zones was seen as illegitimately stopping certain private acts, not "public offenses." Tellingly, Justice Clark was the only one who joined Justice Douglas' opinion here without adding more.  Allowing the state without good cause to prosecute private acts violated general constitutional principles just as use of illegally obtained materials did in this context.  The Fourth Amendment alone did not provide the basis on the constitutional right to privacy (or "liberty") in Griswold et. al., but there is a major overlap here.  Again, Mapp herself would have been a beneficiary of Stanley v. Georgia which relied on both free speech and privacy grounds. 

Mapp v. Ohio was an early example of a range of cases where the Warren Court restrained the police, including by applying various rules to the states. The addition of Justice Goldberg (and Fortas who replaced him) helped obtain a "fifth vote" in many of these cases though here was a case where an existing fifth vote was present to do the job.  Mapp herself later got in trouble with the strict NY drug laws, the Fourth Amendment not helping her much there.  Her rule gets mixed respect these days, especially in fictional accounts where private investigators or the police have little respect for it, but the overall honoring of privacy and the integrity of law enforcement continues to be quite important. 

This was seen as perhaps the start of the activist period of the Warren Court, but activism is not a bad thing if done correctly. As the show noted, the case had a race angle as does criminal justice in general. Likewise, other at risk groups are particularly protected, though so are we all.

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If original understandings of the Convention existed, we cannot retrieve them. Indeed, hours after the Convention ended for the day, Madison could no longer recover it precisely for himself.

There is a lot of words used to try to determine the proper approach in Fourth Amendment cases, including what history teaches us here. Madison's Hand examines the trouble with relying on that, at least with Madison's Notes to the Constitutional Convention.  It is a major act of scholarship, if a bit cumbersome to read.  All the same, it helps my conclusion that we are left with trying to understand the words of the Constitution today, history serving as a guide, but not a straitjacket.  This is particularly the case as we apply criminal procedures in a different world than two hundred years ago, where things like qualified immunity as applied today, modern police forces, changing litigation realities etc. has made things significantly different.

This aside that just how exclusionary rules were applied back in the day is a matter of scholarly dispute anyhow.  Samuel Dash's The Intruders, e.g., provides a good expert analysis of things up to 2004, one extended end-note disputing the findings of another scholar.  Orin Kerr, who blogs at Volokh Conspiracy and in some ways is a mild conservative on certain matters, is but one who challenges various accepted "law office history" on this topic.  Ultimately, perhaps, it is up to us to determine the best path with history potentially providing some unexpected assistance.

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* I live tweeted (Joe Paulson) a few comments as this episode was going on, the show inviting comments as well via #LandmarkCases along with Facebook and live calls. Audience involvement is a major concern of C-SPAN.  I flagged the curious fact that (as noted at one point up to eight justices thought the law here overbroad on 1A grounds) only Stewart noted in a special memorandum that he would strike down the conviction on that ground. In various cases, justices hold for a litigant, but on a different ground. That is, they only concur in judgment.

My question was actually taken on the show as the sole tweet question (unless I missed something while I was online!).  My question: "why didn't dissenters in Mapp v. Ohio concur in judgement on 1A grounds? Stewart's memorandum basically did that." (I added a reply citing Stanley v. Georgia, where justices did hold for Stanley but splitting on rationales, but it wasn't cited.)  For some reason, this confused both guests, noting the majority opinion only ruled on the 4A. Yes!  That is why they would concur in judgment alone!  Oh well.  Appreciate the attempt.  Lol.