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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As for the tactic of shoving the warrant down the blouse near the bossum. She was more clever than you folks ordain. She was invoking another portion of the Constitution. She was Taking The Ninth. The right of privacy is derived in part from the Ninth Amendment. When we assert the Fifth Amendment right to not talk then we Take The Fifth. When we assert the Ninth Amendment we are Taking The Ninth. She should be honored for all of her wisdom today. A cop who invades her privacy and shoves his hand down her blouse for a fake warrant needs to have his balls cut off. In Con Law class forty five years ago we called that Taking The allBays.
I once said bu!!$hit. It was deleted. I wonder if it matters which animal’s poo we mention. Horse’s poo ok, bull’s no no. 😕 I think bat$hit was allowed.
As for Carmen Miranda. I had it wrong. She was not the party in the Miranda decision in the Supreme Court. I was listening to the bark coming out of the Dogalogue Machine and got it wrong. So when I barked and growled back at the machine I had it wrong. The NSA has a more accurate Dogalogue Machine but they will not let us use it or buy one. The new Blog Author here today must understand that I am just a guide dog and not a human and I am not accountable for what I bark. But, I was a human in a prior life and do know a thing or two about human activity. Nothing first hand about Carmen Miranda though. Which is all off topic. I now have a current map of Ohio here at the marina. We dogs welcome the new leader of the blog pack.
So. It is clear. You can say horseshit but not astardBay or itchBay on this blog. H is for horses! I is for itShay and itchBay. Sorry to digress from the topic but I need to keep up with the Jones and not get censored. Everything in moderation. Including moderation. itchinBayDog will be depressed. She wanted to come out with her real name today. She can stay in the closet.
Ha. My comment above is awaiting moderation. I will post it again but impose the Pig Latin version.
“I think maybe they are relaxing the WordPress rules here after reading the Nick comment and the use of the word “horseshit”. I am going to try astardBay and itchBay. See what happens.”
Cara, perhaps she shoved the fake warrant in her bosom thinking they wouldn’t go here to retrieve it, which obviously they did anyway. Of course it went missing, lol. Interesting history on this woman and her role in the strengthening of the 4th Amendment. If anyone thinks that people who changed history in a positive way should be saints as well, well that would be silly. People are human with feet of clay. It takes a strong person to stick by what they feel is right when the blowback starts happening.
I always believed that Carmen Miranda was good looking and got her fame from movies. Little did I know that she had been in the Supreme Court until I went to law school. I was a human in a prior life and not a guide dog in those law school days. There are many courts, and by “courts” I mean state supreme courts, situated around the United States which are Unreconstructed. This means that they ignore federal law and federal judicial precedent. For example. In Missoura, the state supreme court held in State v. Samuel Freeman that the standard for an examination of “sufficiency of evidence” in a circumstantial evidence case was a state law only rant which may be described as “I know it when I see it”. Samuel is not a free man and the reason is that Missoura refuses to apply the judicial rules laid out in Jackson v. Virginia and other cases which hold that each element of a criminal offense must be proven beyond a reasonable doubt. That sounds reasonable. But Missoura is Unreconstructed. The term goes back to the post Civil War years when the judges on the Missouri Supreme Court were directed to comply with the 13th, 14th and 15th Amendments or be thrown off the bench. Some of those judges on the bench were Southerners through and through. Some still are. In a place like Missoura, a case like Mapp v. Ohio gets the light of day but it gets obviated under the color of night.
Government has plenty of provocateurs working to subvert our Constiuional rights. I’m tlalkin’ about academia, as is Jim DiEugenio here re: McAdams.
“It seems here that the prof sensed something was up, and so she curtailed the discussion before it got away from her. The proof is what the kid’s cohort did after.
I really hope this investigation focuses on McAdams’ role in all of these disputes on campus at Marquette. Does he recruit young RW students as provocateurs and informants on campus, thereby running a sort of intel/propaganda ring there? I think that will turn out to be the case if the inquiry is full and unbiased… If so, the guy should be fired. But I hope they go all the way to find out who he was doing it for and with.”
Hot dang…4 in a row…do I get a “participation” trophy yet?
And before I forget my manners (frequently crude)…thanks for a stimulating post Cara Gallagher. As a kid of the 50’s and 60’s I remember those days and the issues of those times. However, it never hurts to be reminded…as rafflaw endeavors mightily to do regularly. 🙂
I almost feel sorry (but not quite) as I watch him struggle with the mantle of leadership they only way he knows…his way or the highway. His penultimate narcissism belies his actual lack of self esteem. From my perspective anyway. His book “Dreams of My Father” literally reeks of it. Sad.
Lately this President has jumped on virtually everything he can shamelessly…IMO just to stay in the spotlight and deflect from other issues. May he have an unnoticed but happily distracted holiday in Hawaii and better yet, extend it through Easter. He’s just less damaging and distracting that way.
Nick….Professor Turley is right, no matter the coverage, the Democrats “will rue the day” and still squeal like stuck piglets.
DBQ and Ari, JT says Dems “Will rue the day” when a Republican prez usurps the Constitution like Obama. That is naïve. The press will do it’s job if that were to ever occur. I always look @ horseshit this prez pulls and ask myself, what would the headline be if it were a Republican.
DBQ said …
The government’s flaunting of its own laws.
Amen. It was one of the serious bones of contention I had while working as a military “Fed.” It’s not just at the highest levels, it is also at the operational level at times. You’d think that the military at least would be more attentive to law. Not necessarily so. It is why I was a undisclosed whistle-blower 3 times…the last time, although undisclosed, the SES types knew who I was by dint of our arguments they day before they were ordered to cease and desist by a Major General. The issue was relatively simple, but illegal…none-the-less I had a target on my back ever after…and not just me, they also tried to harm my subordinates, one being the best example of a conscientious and honest “Fed.” One of the reasons I retired early was to protect her position…since without me they more or less had to keep her in her position and eventually promote her to mine. I’d promised to do so if necessary, but she was stunned when I actually did it. She deserved every bit of my faith and support…and she was not a party to my disagreements. We remain good friends to this day, co-celebrating our birthdays recently to boot on my daughters dime. She was one of those people you did not have to oversee 24/7…eminently trustworthy and can’t be dissuaded from what she knows is right and the law…not to mention a very hard worker who always arrived a half hour early and worked a full day as well…and now, as I did, from home as well during off hours. There really are good people in civil service, but there also those who are lazy, in the SES particularly (appointees, not civil servants per se), who just want their way, law be danged. You either resist or become an accomplice.
Paul, who cares? What is important is the protection or destruction of Constitutional rights. No one shoukd be concerned about the nature of the parties involved. Constitutional rights apply to all or they do not exist.
alicefayharris – I care! Let’s start with Roe v Wade. Do you think the SC would have taken the case if they had known that Roe got pregnant during consensual sex with her boyfriend? Given the times, I think not. According to Roe, her attorney told her to lie because he thought it would give them the stronger case.
Rosa Parks was deliberately arrested by a friend, but the myth was that her feet were tired and she just refused to move that day. Actually, most of those buses had moveable signs. Depending on the number of whites and blacks on the bus the sign would be moved forward and back. And whites and blacks conversed on the bus during the ride. But that is not the myth, is it?
Ernesto Miranda kidnapped and raped an 18 year old girl. After a 2 hour (and for all of our torture fans, only two hours and no water boarding) signed a typed confession. After Miranda v Arizona he was convicted again, released from prison is 1972 and made his living signing Miranda cards for cops. He was stabbed to death in a bar fight.
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.”
This is a very important and timely observation. I fear that this is the situation that we find ourselves, as a country, in at this moment in time.
The governments flaunting of its own laws. Refusal to enforce the laws. Enforcing only parts that they want and enforcing unevenly or ignoring the laws as evidenced in the New Black Panther’s voter intimidation incident. The President of the United States is shredding the Constitution. Making up laws as he goes along.
When the President, rest of the governmental departments, and even our police and local bureaucracies are becoming ever more lawless……the people notice this and are paying attention. If anyone thinks that there will not be eventual ramifications and rebellion against this lawless government, they need to read some history books and get out and actually talk to people outside of their own spheres.
This is why I fully support Professor Turley’s participation in the House of Representative’s law suit. We MUST get our government to observe the laws and not disregard the Constitution…..or else the wheels will fall off of our system and chaos will prevail.
Miranda was a local sleazebag in Phoenix. He was hardly the Rosa Parks of anything. BTW, Rosa Parks was a set up. She volunteered to be arrested and the officer who arrested her had already agreed to do it. He was in on it to make sure nothing bad happened to her. Roe lied about being raped, she got pregnant by her boyfriend of the time.
Good article!
JT hired an ace! Great piece. I had read a summary of this case but, as you noted, the back story is often fascinating. The fake warrant reminds me of the great movie, Training Day. A memorable scene is where the crooked cop played by Denzel Washington[Oscar winner for this role] serves a fake warrant on a drug dealer, played perfectly by Macy Gray. Denzel flashed a Chines takeout menu to rob the drug dealer of cash.