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).
The present day mantra of Mapp Hearing may be defense counsel’s best weapon, the bane of the prosecution, and chore of the judiciary. Nonetheless, it all came about in a most unorthodox and unexpected route.
It is contended that few seasoned experienced criminal law practioners, 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 State’s 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 state wide exclusionary rule.
The Majority opinion with its multitude of concurrences, demonstrate how the Court was required to avoid its many precedential land mines to arrive at it 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, whom 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.
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 hence forth 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 to the Justices apparent compulsion to become “activists” and the need for imposition of a “one size fits all” universal state wide 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 her 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 in 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 demand entry, were refused so the police 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 dinerette. Thereafter, the basement of the building was searched and a located truck was opened and also searched.
. 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 violations of the 4th Amendment for the search were unreasonable
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 violation of Due Process; “shock the conscience” test. See Justice Black’s
. 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 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 undue 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*
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.
The Court next swept aside the contention of some lower courts that had found the “Weeks rule is 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; its 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.
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:
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
The Court then applied its own dose of common sense, and ruled that not only was this newly imposed State Exclusionary Rule Consitutionally 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.’
Map at 659; emp added.
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 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 state wide 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) :
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.
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 hard core 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 insure 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.”.
. 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 state wide imposition of the exclusionary rule. Space constrains prevent a detailed discussion of the exceptions and limitations imposed on the applicability of Mapp. See e.g. Good Faith Exception, fn, Inevitable Discovery Exception fn the Purged Taint Exception , and Independent Source Exception
Lastly, to date, the, limits the rules reach. The Exclusionary Rule has been Yet despite the chipping away of Mapp’s bedrock application, it still has stood the test of time, and remains a most potent weapon in every criminal defense attorney’s arsenal.
# 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.