Mapp v. Ohio: Things You Never Knew About the Landmark Case
A Retrospective Analysis
Enter any criminal court part and within moments you will hear some participant, be it defense counsel, prosecution or Judge requesting, contesting or ordering a “Mapp Hearing.”
Whether it is better to convict and punish the guilty even when the constable blunders or rather to allow the guilty go free, appears to be confronted head-on in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684(1961).
Or was it.
The tension between letting the guilty go free because of a “technicality” or judicially declared loophole and the need to respect and cherish the fundamental constraints imposed over unlawful governmental intrusions was the ultimate contention in the 1961 Mapp case. This debate still continues today. The current Presidential contenders in their recent national debate have raised, defended and challenged the appropriateness of New York’s Stop and Frisk program which has been ruled unlawful by a single District Court Judge.
- fn: David Floyt, et al, v City of New York, Jeanean Legon, et al, v. City of New York, SDNY 08 Civ. 1034, 12 Civ 2274, Scheidlin, USDJ (2013).
It is contended that few seasoned experienced criminal law practitioners, defense, prosecution, or judiciary have recently taken the time to re-visit the hallow grounds of Mapp v. Ohio; the United States Supreme Court 1961 landmark case. Many surprises await those who do so.
The first surprise is that the landmark case’s imposition of the exclusionary rule to all state criminal trials, “came out of left field” and surprised even the most vociferous pundits of the day. The issue of police misconduct and the need for state-wide universal application of an exclusionary rule was not the central thrust of the briefs or arguments.
The present-day and much-heralded Mapp hearing was the result of a fractured, contentious Court in which a minority of four justices became the “majority” ruling, and contained a concurrence which in reality was a dissent, and a dissent that cried out against the Court’s failure to follow its own procedural rules, viable precedents and blatant inappropriate counter-productive judicial activism.
Unknown to most, Mapp appears to have been originally a challenge to Ohio’s criminal obscenity law, not a consideration of what is required when states violate the 4th Amendment’s requirements of reasonable search and seizure.
Most telling, and as gleaned from the dissent of Justice Harlan, the Court’s ruling to universally impose the exclusionary rule upon the States was unexpected even for many of the then sitting Justices. It was not the main thrust of the briefs and presentations at the oral argument. In fact, the Justice Harlan’s questions why the matter was not set down for re-briefing, renewed arguments and renewed consideration
The next surprise, reveals that the majority ruling, ostensibly a 6 to 3 majority was in fact but a 5 v 4 majority, and of that slim 5 v 4 majority, only four Justices, a minority “majority” fully embraced the rationale of the new state-wide Exclusionary Rule.
Even more quizzical was Justice Stewart’s poorly disguised concurrence, a dissent in reality, against the majority ruling’s holding but in agreement to reverse the underlying possession of obscene materials conviction under 1st Amendment grounds, and not for the imposition of a statewide exclusionary rule.
The Majority opinion with its multitude of concurrences demonstrates how the Court was required to avoid its many precedential land mines to arrive at its landmark ruling.
The majority opinion was authored by Justice Clark and joined in by C.J. Warren, Brennan, and Douglas with his own concurrence. It was a “majority” of four, coupled with the concurrence by Justice Black under somewhat different reasoning, who joined in the reversal but struggled mightily to agree and reconcile his prior contrary positions.
Consequently, though only five of the Justices agreed with the majority’s imposition of the Exclusionary Rule, only a minority of four Justices, Clark, C.J. Warren, J. Brennan, and Douglas, fully embraced and actually agreed with the reasoning of the four Justice “majority” decision.
The present-day mantra of Mapp Hearing may be defense counsel’s best weapon, the bane of the prosecution, and the chore of the judiciary. Nonetheless, it all came about in a most unorthodox and unexpected route.
At first read, the opinion is straightforward enough in that the Court by a majority vote of six to three ruled that the Federal Court’s exclusionary rule would henceforth be universally applied to all state criminal proceedings.
The decision was criticized by many of the presiding Justices for it was the result of the Court’s failure to follow its own internal procedural rules, controlling court precedents, and worse yet, radical uncalled for and counter-productive judicial activism. See concurrence of Stewart, Dissents Harlan joined in by Frankfurter and Whittaker.
A review of the facts in Mapp may provide some insight into the Justices’ apparent compulsion to become “activists” and the need for the imposition of a “one size fits all” universal statewide protection against recent “brutish” conduct of law enforcement officials. See Douglas concurrence.
An activist judiciary could not have produced a better set of facts in support of the newly imposed Constitutionally mandated deterrence and restraint imposed on all State Criminal Prosecutions.
An unidentified confidential informant told the police that someone was hiding in Ms. Mapp’s house who was connected to a recent bombing and wanted by the police for questioning.
The unidentified anonymous informant, also told the police that there was a large amount of policy paraphernalia hidden in the home. The home was a two-family residence in which Ms. Mapp and her 15-year-old daughter resided on the top floor.
The Police demanded entry, but Mapp refused and called her attorney. She was advised by counsel to deny police entry unless the police had a search warrant. The police produced no warrant, but watched the house for three hours until four more officers came to the home. Now, seven police officers again demanded entry, were refused, and broke a window and forcibly opened a locked door to gain entry into the home.
At the time the police broke down her door, the attorney arrived. The police denied his request to see his client, denied his command not to enter the home. The police in response forcibly denied the attorney access to his client. Mapp demanded to see the warrant and when some non-descript paper was shown, she grabbed it an put “it in her bosom” for safekeeping. This angered the police who retrieved the paper, handcuffed to a police officer, and forcibly took her up-stairs to her bedroom where, ”the police searched a dresser, a chest of drawer, a closet and some suitcases.” They also looked into a photo album and through personal papers,
Apparently unsatisfied, the police search the remainder of the second floor including the child’s bedroom, living room, kitchen, and dinette. Thereafter, the basement of the building was searched and a located truck was opened and also searched.
All the while during the extensive search Ms. Mapp was handcuffed to a police officer and apparently dragged about to each room while the areas were searched.
No fugitive was found nor were any gambling records produced. The extensive search uncovered unlawful obscene material which formed the basis of her conviction of possession of obscenity.
The offending “obscene” materials were, as Justice Douglas reported in his concurrence, “knowing possession of four little pamphlets, a couple of phonographs and a little pencil doodle––all of which are alleged to be pornographic.”
The Ohio Appeals Court conclusively ruled that the police’s conduct was a clear and unmistaken violation of the 4th Amendment for the search were unreasonable. The police did not have probable cause to enter the residence, no warrant was produced, and any purported but overwhelming refuted, “search warrant” would not have passed Constitutional muster.
Recall it was an unidentified informant whom the facts do not demonstrate was either credible or reliable, there was a total lack of police corroboration, and the search was over-broad and non-particularized.
Moreover, the denial of access to legal counsel who was present at the scene and asserting Ms. Mapp’s rights to deny police entry into her home was indefensible.
Finally, recall that the police physically broke into her home after being denied entry, but for anyone else would have been a criminal act. Ms. Mapp was handcuffed to a police officer and dragged throughout her home, up-stairs and down, and in the basement, searching for a suspect in a recent bombing and for suspected “policy paraphernalia”; gambling records, not pornographically obscene material.
All told, the police conduct in Mapp on so many levels offends notion of fundamental fairness and application of the then-current measure of a violation of Due Process; “shock the conscience” test. See Justice Black’s Concurrence in Mapp, infra.
Despite the police unlawful misconduct, Ms. Mapp was found guilty of possession of obscenity under the Ohio Code. On direct appeal, the Ohio Appeals Court ruled the conviction was valid despite the fact that the evidence used against her was seized during an unlawful search of her home. The Ohio Appeals court considered reversal of the conviction and expressly ruled that “the methods employed to obtain the evidence were such as to offend a sense of justice, ”, but because the actual physical evidence was not taken from Mapp’s person by the use of “brutal or offensive physical force against her’, the conviction stands.
The Supreme Court’s Review:
At first glance, the Supreme Court’s review of the case might appear that the Court was confronted with the issue of what Constitutionally imposed sanction is required for a State’s blatant disregard of the 4th Amendment’s mandates.
This, however, does not appear to be the case. An examination of the dissent opinion of Justice Harlan and the concurrences of Justice Stewart and Douglas, reveals otherwise. Space limitations preclude a detailed analysis herein but suffice to state the imposition of the exclusionary rule to the states was never the central point of contention at the Court. Rather, the apparent contention was that the Ohio Obscenity statute was violative of the First Amendment. See Justice Stuart and Douglas concurrences and Harlan’s dissent.
So how did we arrive at today’s ubiquitous mantra of “Mapp” hearing? Suffice it to say with these space limitations, the solid majority of only four Justices held in 1961 that going forward, any State 4th Amendment violation involving unlawful search and seizures would result in the exclusion of all evidence in all State criminal prosecutions. Prior to Mapp, the States, as Ohio in this instance, were free to use evidence that was unquestionably violative of the 4th Amendment. Only in Federal prosecutions evidence obtained by Federal law enforcement that violated the 4th Amendment required exclusion of all such unlawfully obtained evidence.
The Court in Mapp struggled to explain how it was not being a judicial activist by creating a new Constitutionally mandated evidentiary rule where none was textually imposed in the Constitution and prior precedential rulings of the Court held directly otherwise. The Court’s most prior precedent, “Wolf v. Colorado, 338 US 25 (1949) did indeed hold that, “in a prosecution in a State Court for a State crime, the Fourteenth Amendment does not forbid the admission of evidence obtained by unreasonable search and seizure.” Mapp at 645, citing Wolf. Id.
The Mapp “majority” was required to undo its prior precedent, side-step its own procedural rules, appear not to offend stare decisis o and not become legislatures in judicial robes. No easy task.
The Court reasoned that when the 5th Amendment Fn* [N]or shall be compelled in any criminal case to be a witness against himself …Is read and understood in conjunction with the 4th Amendment, they “run into each other” and the Court’s seventy-five years earlier decision which ruled that the “doctrines of those Amendments ‘ apply to all invasions of . . . government . . .” for protections are provided for the “privacies of life.” Boyd v. U.S. ,116 US 616, 630 (1886).
Next, the Court embraced is prior precedent of Weeks v. U.S. , 232 US 383 (1914) which indeed created and applied an Exclusionary Rule in all Federal Prosecutions involving Fourth Amendment violations. Weeks ruled that to do otherwise would render the 4th Amendment protections meaningless and might as well be stricken from the Constitution. The Court embraced Weeks and noted that the Bill of Rights originally and prior to the selective incorporation of the 4th Amendment were limitations on the power of the newly formed Federal Government, only.
“This Court has ever since required of federal law offices a strict adherence to that command which this Court has held to be a clear, specific and Constitutionality required–even if judicially implied–deterent safeguards without insistence upon which the Fourth Amendment would have been reduced to a ‘form of words.” Mapp at 648 quoting, J. Holmes, Siverthrone Lumber Co. v. United States, 251 U.S. 385, 392 (1920).
The Court next swept aside the contention of some lower courts that had found the “Weeks rule is to be a rule of only of evidence and not of Constitutional mandate. The Court in Mapp again embraced its precedents which “forbade” evidence if obtained by violation of the 4th Amendment. Its repugnancy was not as a rule of evidence, but Constitutionally mandated by the commands of the 4th Amendment, per se. Byars v. United States, 273 U.S. 28 (1927), Olmstead v. United States, 277 U.S. 438 (1928).
Next, the Court takes on its highest hurdle; it’s then most recent prior contrary ruling in Wolf v. Colorado. Id. The Court notes that even though Wolf denied the Constitutionally required exclusion rule to the States, it still involved the application of the 14th Amendment Due Process requirements upon the States. As such, its ruling was of Constitutional magnitude, but in Wolf, “factual considerations” allowed for States to develop its own measures short of exclusion to protect its own citizens from violations of the 4th Amendment as incorporated by the 14 Amendment’s Due Process.
The Court, sua sponte, revisited the “factual considerations” that previously allowed for the States to craft and enforce their own individual sanction for unlawful search and seizures.
The Court determined that the States had not provided adequate 14th Amendment Due Process protections to its citizens when state law-enforcement officials trampled on the constraints of the 4th Amendment and allowed convictions to stand which were the result of unlawful searches and seizures.
Upon reconsideration and now rejection of the “factual considerations” that heretofore allowed states to police their police when there are unlawful search and seizures, the Court ruled:
As such, a present need now exists, ‘and the purpose of the exclusionary rule is to deter–to compel respect for the Constitutional guaranty in the only effectively available way–by removing the incentive to disregard it.’ Mapp at 656 quoting Elkins v. United States, at 217.
Mapp discounted the prior “factual considerations” that previously allowed the States to fix its own sanctions; for example: police imposed administrative internal punishment of the “blundering constable” or civil action for trespass and the award, most likely, of nominal monetary compensation. The Court expressly found all had proven to be woefully inadequate to provide meaning and “teeth” to the Constitutionally mandated principles of the 4th Amendment prohibition against unreasonable law enforcement conduct.
Next, the Court recognized the absurdity of the “Silver Platter Doctrine”. This principle allowed a repugnant double standard in which State law enforcement officials could with impunity intentionally violate the 4th Amendment’s mandates against unlawfully obtained evidence. Obtain evidence which would be the basis for a Federal conviction by simply “walk across the street “ to the federal courts and present it on “a silver platter” to be admissible in the federal prosecution. Because the federal law enforcement official did unlawfully obtain the evidence used to obtain a federal conviction, the Weeks exclusionary Rule was inapplicable, and the federal conviction would stand.
The Court then applied its own dose of common sense, and ruled that not only was this newly imposed State Exclusionary Rule Constitutionally mandated, but it also “made very good sense.” “There is no war between the Constitution and common sense.” Mapp at 657. A uniformly applied Exclusionary rule will reduce tension between State and Federal needless conflicts, remove the absurdity of the “Silver Platter Doctrine”, the heretofore “double standard”, and promote federal and state cooperation in the war against crime.
Yet one hurdle still remained for the Court. It had to confront and disarm the famous words of then Judge Cardozo, subsequently a Justice of Supreme Court, in the New York case of People v. Defore, 242 N.Y. 13 (1926) where when Judge Cardozo of the New York Court of Appeals, had expressly rejected the Weeks Federal exclusionary rule in New York, and stated that , “the Federal rule as it stands is either too strict or too lax, for when the constable blunders the guilty go free.
The Mapp decision confronted head-on the sentiment that this new Constitutionally required extension of fundamental protection imposed upon the States would only favor the guilty and punish the law-abiding citizens.
There are those who complained, as did Justice (then Judge) Cardozo, that under our Constitutional exclusionary doctrine ‘the criminal is to go free because the constable has blundered.’ (quote and cite omitted). In some cases, this will undoubtedly be the result. (fn omitted). But, as was said ’there is another consideration–the imperative of judicial integrity (quote and cite omitted). The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandisis . . . said . . . : ‘Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example . . .If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to became a law unto himself; it invites anarchy.’
A review of the concurring and dissenting opinions reveal the tensions in the Court in its rendering the landmark decision of Mapp v. Ohio.
Perhaps the other joining Justices felt a need to address or deflect some of the anticipated cries of outrage at the judicial activism and the “handcuffing” of the police in favor of the guilty, thus, joining concurrence opinions followed. The joining, concurrent and dissenting clearly reveal the tension between the Justices in its rendering of Mapp.
Justice Douglas just needed “to add a few words” for his concurrence ostensibly to deflect the sting of the dissent’s criticism that the new exclusionary rule was never even addressed in the briefs or arguments to the Court. This new wide-sweeping rule was the result of improper judicial activism because it was listed as one of the issues in the notice of appeal. Justice Douglas simply, “added a few words” in retort and noted, enough is enough, that there comes a time when all the arguments must cease and the ruling stand, no need for re-argument, re-consideration nor re-briefings.
Justice Douglas continued in his concurrence that he was not troubled by any criticism of judicial activism for he as the majority-minority of four justices was most concerned by the recent odious behavior exhibited by the Police and Prosecution in its “brutish” trampling over private citizens in the name of law enforcement.
In contrast, Justice Black in his concurrence struggled mightily to overcome his prior positions that the 4th Amendment does not require a statewide exclusionary rule, for none is provided in the 4th Amendment. Space constraints do not allow a detailed analysis of the Justice Back’s concurrence, but it is fascinating how Justice Black confronted his prior writings and conceded his prior thinking was misplaced in Irvine v. California, 347 U.S. 128 (1954) :
“Now its force, has for me at least, become compelling,” when confronted with a spate of recent cases involving clear trampling on the rights protected in the 5th and 4th amendments.
Justice Black known for his literal Constitutional interpretations opined that the 4th Amendment standing alone did not Constitutionally require an exclusionary rule for no where in the text of the 4th Amendment does it so state. Contrasty, the 5th Amendment contains it’s a literal self-contained exclusionary rule, for no person can be compelled in a criminal case to provide self-incriminating evidence.
Justice black in Mapp now refined his thinking and revealed that for him when the 5th Amendment is read in conjunction with the 4th Amendment, the newly imposed Exclusionary Rule was required. The offensive evidence no matter be it a confession obtained by a beating or equally offensive police conduct in obtaining a citizen’s papers, is not less Constitutionally infirm. Whether the evidence are the compelled words of the accused or from his own papers, i.e., written words, the result of Constitutionally mandated exclusion should be the same.
Justice Black next confronted and explained that the prior measure of a violation of Due Process, “The Shock the Conscience Test” was applied when the challenged conduct offended a sense of justice and fails to respect certain decencies of civilized conduct. This “shock the conscience test”, had become simply unworkable for “[o]nly when 5 justices are sufficiently revolted by the local; police action, a conviction is overturned and a guilty man may go free.” The “shock the conscience test” failed to provide any predictability, and hence no police deterrence, and its application was at the whim of five sitting justices at the time.
Justice Stewart in Mapp was primed but denied the chance to strike down the Ohio obscenity statue as a violation of the 1st Amendment free speech; hence he voted to overturn Mapp’s conviction under distinct grounds, and “joined” with the court’s majority to do so.
As discussed, supra, Stewart’s concurrence, in reality, a dissenting opinion, agreed with the other dissenting three Justices that it was not proper to impose this new exclusionary rule upon the States. It was not Constitutionally required and never the ostensible focus of the Court, and for him, this was not the case for the issue to be addressed.
For Stewart the question was never how to address police misconduct and the reaches of the 4th Amendment but for him the issue was the underlying Ohio obscenity statute under which Ms. Mapp was convicted.
Justice Stewart contended it was unconstitutional because it unlawfully hampered free expression and improperly defined the unlawful possession of obscene material.
Not surprisingly, three years later Justice Stewart when given another opportunity to rule of this very same Ohio obscenity statute, he again opined in concurrence in the 1964 landmark obscenity case of Jacobellis v. Ohio that the same Ohio statute was void for unlawfully prohibited protected First Amendment free speech:
But I know it when I see it, and the . . . [material] involved . . .” is not hardcore pornography 378 U.S. at 197, J. Stewart concurrence in Jacobellis. Id.
The dissent authored by Justice Harlan is respectfully scathing and poignant. He took the Court to task for ignoring its own internal procedural rules, over-reaching by finding an issue where none had been in the briefs and oral arguments. More offensive yet, he complained the decision disregarded viable established precedents. The dissenting opinion also does not let go unnoticed the clear fact of the “majority’s” unmitigated and unapologetic judicial activism. He highlights that this unnessary new and revolutionary state-wide imposed exclusionary rule is a creation by the sitting Justices, the result of improper judicial activism, and worse yet Constitutionally groundless. He laments that the rule is in fact counter-productive and will erode the respect and reverence of the Constitution; the Nation’s founding Charter.
Furthermore, Harlan states that the result in Mapp is improvident. The states should be free to develop its own rules and procedures to counter claims of unlawful search and seizure. Justice Harlan retorted, that a “one size fits all” universal State-imposed Exclusionary Rule is not required and reminds him of the Bed of Procrustean. A bed used by a tyrant in Greek Mythology in which all occupants were required to perfectly fit in the bed, and to ensure a “perfect fit” their bodies were either stretched or their limbs cut off. Either way the resultant death was accomplished, in the need for “one size fits all.”.
In conclusion Harlan laments that Wolf should not be overruled for the issue of the state-wide exclusionary rule was never briefed nor argued, and not properly considered. He reminds the Court that it has forgotten the requisite sense of judicial restraint and has improperly created its own laws and rules.
I regret that I find so unwise in principle and so inexpedient in policy a decision motived by the high purpose of increasing respect fo for Constitutional Rights. But in the last analysis I think this Court can increase respect for the Const only if it rigidly respects the limitations which the Constitution places upon it and respects as well the principles inherent in its own processes.
In the present case I think we exceeded both, and that our voice becomes only a voice of power, not of reason. Mapp id. at 686.
Perhaps in recognition of the Mapp’s Court’s judicial activism, the Supreme Court over time has chipped away at the statewide imposition of the exclusionary rule. Space constraints prevent a detailed discussion of the exceptions and limitations imposed on the applicability of Mapp.
Summarily, the strict application of the State imposed universal State exclusionary rule has been diluted: Good Faith Exception, Davis v. US, 564 (2011); Herring v. United Sates, 555 Us. 135 (2009) Illinois v. Frull, 480 U.S. 340 (1987); Illinois v. Rodriguez, 497 US 117 (1990); Maryland v. Garrison, 480 U.S. 79 (1987); Arizona v. Evans, 514 U.S. 1 (1995); Massachusetts v. Sheppard, 486 U.S. 981 (1984); all variations of the inapplicability of the State exclusionary rule where the produced evidence came about by unintended police conduct.
Likewise, the Inevitable Discovery Exception has reduced the universal applicability of the exclusionary rule in that if it can be shown the evidence which was subject to a 4th Amendment violation nonetheless would have “inevitably” been discovered by lawful means. Nix v. Williams, 1984).
Similarly, the Purged Taint Exception limits the Rule’s reach. If it can be shown that even a clear violation of the 4th Amendment has been purged by the defendant’s own subsequent voluntary acts will dissipate the initial taint. Taylor v. Alabama, 457 U.S. 687 (1982); Brown v. Illinois, 4222, U.S. 590 (1975), Wong Sun v. Untied Sates (19630.
Lastly, to date, the Independent Source Exception, limits the rules reach. The Exclusionary Rule has been declared inapplicable when the initially unlawfully obtained evidence was also obtained from an independent source not connected with the initial unlawful search and seizure. See generally, Criminal Procedure Law and Practice 10th Ed. Rolando V. Del Carmen & Craig Hemmens, Cengage Learning Pub, Ch 4, at pages 99-110.
Yet despite the chipping away of Mapp’s bedrock application, it still has stood the test of time, and remains the most potent weapon in every criminal defense attorney’s arsenal.
Whether the creation of the Mapp Exclusionary Rule was a creative stretch for a judicial activist Court, “ a majority” of four, or an awakening to the importance of embracing and empowering the fundamental rights and principles contained in the 4th and 5am and imposed upon the States by the 14th Amendment’s Due Process Clause is a debate that continues today and will do so for an eternity: when the constable blunders should the guilty go free ?
# Karl C. Seman, founding member of Grunwald & Seman established 1988; former Nassau County Assistant District Attorney, Felony Trial Bureau, practice with an emphasis on criminal defense and civil litigation. He is also an adjunct professor for Constitutional Case Law, Comparative Criminal Justice and other related course work. He can be reached at KCS@GSLAWYERS.com.