The death of the “Rosa Parks of the 4th Amendment”

Written by Cara L. Gallagher, Weekend Contributor

It is rare we get to hear the backstories of the people behind the big Supreme Court cases that change history. One of those people, Dollree Mapp, died this week. Technically she died a month ago, but minor coverage of the news didn’t catch up to me until this past week. “Dolly” was the petitioner in the fake-warrant blouse-stuffing 4th Amendment Supreme Court case Mapp v. Ohio. Dolly’s scuffle with police and the subsequent search and seizure of pornographic literature from her home made it all the way to the SCOTUS in 1961. When you’ve stopped trying to imagine what qualified as “pornographic literature” in Cleveland, Ohio in 1957 (medical books with pencil drawings), try to guess how many times detective Lenny Briscoe sassed some ne’er-do-well who asked to see a search warrant before letting him into his home on Law & Order. (By my estimates, 282, as that’s the number of episodes Detective Briscoe appeared.) We can thank Dollree Mapp for that. Her case established the protected right we all have to ask that critical question – Can I see a warrant? – before police search our homes.

Mapp turned out to be right about the fake warrant the Cleveland police showed up to her house with on May 3rd, 1957. How she knew that it was fake still mystifies me, as does the reasoning behind why she thought stuffing the warrant in her bosom was wise. After all, she’s a biracial, unmarried, single parent living in 1950’s suburban Ohio confronting white cops. Put under arrest, police searched her entire home and didn’t come up with either of the things they suspected she was hiding inside: a suspect wanted in a bombing and illegal betting equipment. They did, however, find pencil drawings of nudes inside a book found in the room Mapp was renting out to a tenant. Scandalous? Not by contemporary standards, but all pornography was illegal in Ohio back then. Despite her claim that the pictures and a .22 revolver weren’t hers but were left behind by a tenant, and her statement that it was “terrible what men looked at,” Dolly was found guilty and sentenced to 1-7 years.

The issue in this case is whether or not the evidence (the porn) could be used against Mapp in state criminal proceedings even though her 4th Amendment rights were violated, as no real warrant existed to search her home. So what did the police serve her with? What was on that piece of paper? Her advocate, A.L. Kearns, told the Justices that the cop who served the fake warrant, Lieutenant White, refused to take the stand to testify about what was on the piece of paper and that it had gone missing.

Mapp won her case and the exclusionary rule is now on the legal books, but there is another facet of this case that rarely is addressed and was brought up in oral arguments: the 1st Amendment challenge to Ohio’s law banning pornographic material and the stiff consequences for possession in one’s home. Bernard Berkman represented the ACLU in the case and spoke for a few minutes during the oral arguments about it. Berkman said the government could legislate morals, but not so long as they violate the tests to the 1st Amendment. “The evil sought to be controlled here can be met by less drastic statutory means without limiting the liberties of citizens.”

Gertrude Bauer Mahon represented Ohio in the Supreme Court. Mahon was one of a handful of females to attend law school in the 1940s in the U.S. On the 1st Amendment matter, Mahon’s said the purpose of the Ohio statute was to curb circulation or exhibition of obscene materials. On the suppression of the evidence, Mahon said the Ohio Supreme Court relied on the precedent set in State v. Lindway (1936). In Lindway the fruits of an unlawful search may be introduced but if no contraband is found police may find themselves with a civil action suit for trespassing. The decision of the Ohio Supreme Court reasoned that there might be a reasonable argument for reversing the conviction since the methods of obtaining the evidence “were such as to offend a sense of justice.” However, the evidence had been seized not peacefully but forcibly from Dollree and was thus fair game to use against her.

The 6-3 decision, written by Justice Tom C. Clark, was a victory for Mapp. Thomas referenced Boyd v. U.S. (1886) early in his opinion saying “the Court noted that Constitutional provisions for the security of persons and property should be liberally construed…It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” By 1949, two-thirds of the states were opposed to the exclusionary rule. By 1960, half the states adopted it, which must’ve persuaded the majority to keep up with the speed of changing legal standards. Justice Clark noted “There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine ‘[t]he criminal is to go free because the constable has blundered.’ In some cases this will undoubtedly be the result. But, as was said in Elkins, ‘there is another consideration – the imperative of judicial integrity.’ 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.”

Though Dollree’s own case may have set her free, she would eventually spend ten years in a women’s correctional facility for possession of drugs. Several news outlets covered her death and many recognized her as the “Rosa Parks of the 4th Amendment.” The Huffington Post did a thorough investigation into Mapp’s life after her famous case where it’s fair to say she would’ve reveled in such a comparison. She was described by many as having swagger and a foul mouth, but unapologetic and “very, very, very strong-willed,” according to Dollree’s niece. Dollree Mapp’s case dramatically changed the power of state law enforcement relative to citizens and shaped much of today’s discourse around the 4th Amendment. And it gave Lenny Briscoe 282 moments of sass, of course.

ENDNOTE: The oral arguments from this case are not to be missed. Check out Oyez to time travel back to 1961 to hear them and you’ll quickly discover how different oral arguments were. Advocates speak full minutes before a justice questions them! No more than one, maybe two, questions are asked of an advocate at one time and they get to answer the question before another one is asked. It’s nothing like the “hot bench” we see in today’s Supreme Court.

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138 thoughts on “The death of the “Rosa Parks of the 4th Amendment””

  1. Inga, the Republicans have always respected the entire Bill of Rights. We often seem to be the only ones fighting for them. Your comment about Republicans only supporting Article 1 when they agree with it is completely fraudulent. You owe them an apology. Also, the Civil Rights Act was passed by Republicans. Most of the Democrats voted against it. If black people don’t know that, it’s because black activists don’t want them to. And how much longer do black people want Sharpton around?

  2. Paul > “Federal law does not ably to the cops in NY….”

    Firstly, the federal law I cited was to show the ridiculusness of those that have blamed various city and federal officials for causing criminal action by others. ( please see your question re. “encitement to riot”)

    Secondly, your contenton that federal law does not apply to cops in NYC has me baffled. Has New York City broken off from the Union while I wasn’t looking?

    1. zedalis – I should have been a little clearer when I said that the Federal Riot Law did not apply to the deaths of the cops in NYC. However, some prosecutor might make the case that it covers the deaths since the threats were televised. Could make for an interesting case.

  3. Dogs will seldom eat baloney. If a dog wont eat it then you should be watching and follow their lead. I am a right wing, right leg first kinda dog. I believe in a Choice Not An Echo. I like Ike. The problem is there is no Ike out there. I watched the new Bush boy do the interview and he quietly pitched for more war and our obligation to police the world. Ike is the President, who when on the way out on his last day, warned us about the Military Industrial Complex. I kinda harken back to Charles Lindbergh who preached America First! What is wrong with that?

    1. BarkinDog – If I remember correctly Lindberg was an admirer of Hitler. And Ike was plenty happy with the Military Industrial Complex was he was Supreme Commander in Europe.

  4. Paul:

    Under federal law, a riot is a public disturbance involving an act of violence by one or more persons assembled in a group of at least three people. Inciting a riot applies to a person who organizes, encourages, or participates in a riot. It can apply to one who urges or instigates others to riot. According to 18 USCS § 2102 “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.”

    1. zedalis – Federal law does not ably to the cops in NY. Or the one in Florida, or the one in Baltimore.

  5. Paul >> :…the people who are to blame are people like the Brown family, Sharpton, Obama, Holder, de Blasio, etc. Each shares in the blame of each cops that is killed. ”

    As a matter of law, reason and fact, you are definitetively mistaken. As a matter of empty hyperbole, wonderful job.

  6. Paul >> I appreciate your thumbnail sketch of a historical incident I have read about so often. What is one man’s moral outrage is another mans meaninless and intrinsic or genetic violence. Riots happen around the world everyday involving all races and motivations.

    1. zedalis – my thumbnail sketch of the Draft Riot is historically accurate.

      On your second comment re blaming people, if I encite a riot, should I not be held responsible for it. The people I have mentioned have done their best to inflame the situation. Can you name a calming voice among them?

  7. BarkinDog > > “Perhaps we could start a new blog entitled Burn This itchBay Down!”

    Unfortunately, this subject matter is well covered elsewhere:

    In republicons zealotry to radically change the face of America, it might be wise to see what havoc they wish to inflict upon our country. Various unhinged RWNJ have over the past 18 months called for the destruction of: Social Security, Medicare, Medicaid, IRS, ATF, Education, EPA, Federal Reserve, Health Insurance Exchanges, Energy, Education, Commerce, NLRB, WIC, CFTC, SBA, CFPB, U.S. Export-Import Bank, etc.

    This seems to be about as much itchBay Burning that old, white males can muster

  8. Bailers > >”You forgot the gunman. Does he share any blame in the deaths, or is it just everyone else that’s to blame?

    All three of those thing have happened before. This time there was just a disturbed individual that acted on his own.”

    You might find that the same people, those most voluble about negating societal influences when used as an explanation for individual crimes, those that whine and moan about people who bring up an oppressed past to attempt to explain some societal ills, those that drone on and on about “individuals taking responsibility for their actions”, are the same people who will expand the meaning of a discrete crime and lay the blame for it on the doorstep of others when their politics and racial attitudes, and apparently their shallow and situational morals, dovetail.

    In any other area of life, some might be tempted to call this flip-flop convenient and hypocritical. Bit in the most recent instances all one must do is to consider the source.

  9. Bail lets, when the store owner called the police it became a crime in process. When the police get there do they know is he armed? Is he “on something? If they let him just walk away and he kills somebody around the corner, well, yes he was armed? They can’t let a potentially-armed person just walk away. Why was the lawbreaker fighting that many police officers? Stupid? Or on something? It took guts to even approach this monster. There was a police officer doing his duty. For you.

  10. DBQ >> Do YOU propose to step in and do their job? I didn’t think so.

    No, I would not “step in” to become a police officer. Neither would I allow others to forget that LEO’s are public servants and as such are subject to citizen review. As far as I know they fulfill their employment on a voluntary basis, not being forced in any way to accept the rules and regulations their employers have promulgated for the efficient and lawful performance of their duties. Because I have not chosen their career path is not to say that there are not hundreds of thousand of others that would be happy to supplant any officer that has found their working conditions unbearable or the rules and laws that must govern their conduct onerous,

  11. Every citizen has a right to petition the government for redress of grievances. An off duty police officer in NYC has this right. At any given moment, meaning 24 hours per day, there are off duty citizens who could exercise this right. If they had a reform they could take it to their government representatives. There is a non government person who has the ear of the President of the United States and the ear of the masses. He even says mass and preaches often. His name is AL Qaeda Sharptongue and he lives somewhere in NYC. There needs to be a demonstration in front of his home 24/7. The police could start off with some mild statements which have First Amendment protection– such as “Burn This itchBay Down!” If they use the pig latin (as is required on this blog) then they can say that it passes Word Press and is not inflammatory. What do you fellow bloggers think?

    Perhaps we could start a new blog entitled Burn This itchBay Down!
    Coming to a theatre near you– one not owned by Sony.

  12. I’m going to support Trooper York’s position. I’ve been through it in Detroit. Detroit is now moving forward, albeit slowly…due to new reinvigorated leadership and private investors. NYC just took a step backwards and the leadership had the chance to make a difference, but they did not take it.

    Living in the midst of the trouble does make your perception a bit more focused. It is all very real to you because it is on your block, virtually if not literally. Unless you’ve had the experience, take a deep breath before you criticize those who have experienced it.

    The deranged individual made it very clear via social media that he was going to kill some cops because of past events he neither witnessed nor was anywhere near….in short, he got his information from some form of leadership …. so it does make a difference. He then decided to be judge, jury, and executioner, of two random samples of police presence that had not done him one iota of harm… and drove quite a ways to do it…to NYC where the day or so before the chants in the street mobs were “What do we want? Dead Cops! When do we want it? Now!” … and no municipal leader made a public comment decrying that theme…in NYC…the city the nut case drove to on purpose. It was an error of omission by cowardly city leadership….more interested in pleasing what they perceive is their base, not the community as a whole.

    I can almost certainly estimate that the majority of the people who live or work around that scene in Brooklyn were pleased that the police were there…just as a presence, which made them feel safer. I doubt the regular working families, from around that scene, even those out of work, were part of the mob making that dreadful chant…that came true. They will rest with less ease in the days ahead.

  13. trooperyork
    Where is the misinterpretation?
    Incendiary rhetoric, political posturing and letting violent crowds “vent” by refusing to enforce the law has directly lead to the death of two police officers.

    ———-

    You forgot the gunman. Does he share any blame in the deaths, or is it just everyone else that’s to blame?

    All three of those thing have happened before. This time there was just a disturbed individual that acted on his own.

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