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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“Always wrong” means never right! The fact is when you play God you make the choice on what life matters. Don’t be a hypocrite; own it.
Great review of the Mapp case!
I’d bet Professor Turley probably isn’t “happy”, as most normal human beings are not happy when any cop is murdered. I hope you weren’t calling him a cop hater for writing the many blog posts regarding ongoing police abuse.
Are you cop haters happy now?
What is pathetic is that you would use this killing to try to make an ideological and political point about abortion. These two grown adult humans breathed air, ate, worked, loved their spouses and children, walked the earth, if you cannot see the difference between the already born and a zygote, well you’re not worthy of anymore of my time.
What part of playing God do you not understand? They are ALL tragedies! Effing pathetic!
Grown already born humans Olly cannot be compared to a zygote or an embryo. I knew you would be the first to put that pathetic argument forward. Go ahead and compare the murder of these cops to an aborted embryo or fetus. That is insulting to the memory of these two men.
“Taking lives as if we are God, is always the wrong thing to do.”
Really!? So, Pro Choice is wrong?
This is sickening.
https://thenypost.files.wordpress.com/2014/12/122014_brooklyn_cops_shotpm-1.jpg
New York Post December 20, 2014
Two uniformed NYPD officers were shot dead Saturday afternoon as they sat in their marked police car on a Brooklyn street corner — in what investigators believe was a crazed gunman’s execution-style mission to avenge Eric Garner and Michael Brown.
“It’s an execution,” one law enforcement source said of the 3 p.m. shooting of the two officers, whose names were being withheld pending family notification of their deaths.
The tragic heroes were working overtime as part of an anti-terrorism drill when they were shot point-blank in their heads by the lone gunman, who approached them on foot from the sidewalk at the corner of Myrtle and Tompkins avenues in Bed-Stuy.
“I’m Putting Wings on Pigs Today,” a person believed to be the gunman wrote on Instagram in a message posted just three hours before the officers were shot through their front passenger window.
The post included an image of silver automatic handgun with a wooden handle. Another post showed camouflage pants and blue sneakers which matched the clothing the dead gunman was wearing as his body was carried from the scene on a stretcher.
“They Take 1 Of Ours … Let’s Take 2 of Theirs,” the post continued, signing off with, “This May Be My Final Post.”
The gunman was a fugitive who had just murdered his girlfriend in Baltimore Saturday morning, sources told The Post.
Minutes after shooting the two officers, he, too, was dead.
He fled to a nearby subway station, the G-train station at Myrtle and Willoughby avenues, where, as pursuing cops closed in, he shot himself on a crowded platform, sources told The Post.
“They engaged the guy and he did himself,” one investigator said of the gunman’s demise.
Both shooting scenes — above and below ground — were scenes of blood and terror.
“I heard shooting, — four or five shots,” ear-witness Derrick McKie, 49, told The Post of the cops’ tragic murder. “It sounded like from a single gun,” he said. Ambulances and police cars rushed to the scene, he said.
“I seen them putting the cop in the ambulance. He looked messed up,” McKie, a barber, added. “He took a high caliber weapon to the face. He was lifeless…I couldn’t see where the holes was that, all I could see was blood. His body was lifeless.”
Modal Trigg Carmen Jimenez, 32, a social worker from Bedford-Stuyvesant, was on the subway platform when the gunman ran inside, pursued by officers.
Everything happened so quick,” said Jimenez, who is eight months pregnant. “We were standing waiting for the G train. We heard arguing from the other end of the platform.
It looked like two cops came in there was lots of yelling and they said, ‘Everybody get down.’
“We tried to get out of there, and there was a lot of shouting, people were screaming, people were trying to run.
“I threw myself on the floor. I was afraid for my life and afraid for my baby.
Anybody with a brain in their head could see this coming. It was only a matter of time.
Those that forget history are doomed to repeat it.
De Blasio can attend his funeral.
OMG. The police union said a couple days ago they didn’t want the coddler De Blasio @ any of their funerals. They saw this coming. I pray this doesn’t turn into a war. But, if it does. Who do you think will win?? My prayers for the family. I just read the shitbird coward killed himself.
[youtube http://www.youtube.com/watch?v=dj4ARsxrZh8&w=420&h=315%5D
I wonder if that college professor who was arrested for throwing a garbage can on the Brooklyn Bridge will protest? Will the hipsters who closed down traffic stop to think about these two men for even one minute? Will De Blasio and Obama go on TV and say “That could have been my son?” Will Rosie O’Donnell and Whoopi Goldberg and Steven Colbert and Jon Stewart and Chris Matthews and Rachael Maddow all talk about how terrible this is on their shows?
Not a chance.
When there is what is described as a ‘war’ by some people, people on both sides will die uneccesarily. What a waste of humanity. What a damn shame. Taking lives as if we are God, is always the wrong thing to do. Revenge doesn’t do anything but add fuel to the fire.
With all the cop bashing that goes on here….how about a little reality.
Two policemen were shot in NYC today. One dead. One critical. They were sitting in their patrol car just like police Officers Joseph Piagentini and Waverly Jones.
http://tribwpix.files.wordpress.com/2013/05/capture7.jpeg
I am old enough to have been around in NYC during those days. It appears that Bill De Blasio wants to bring us back. It’s De Blasio time.
Now back to your regularly scheduled cop bashing.
When I was in Ferguson and the City of Saint Louis proper (not the same place) on my enjoyable visits, a law prof showed me a law review article written about 2008. It was in the Washington University law school journal and it was titled: Taking The Ninth. The author was a law student at the time and is now a lawyer. Her first name was Sarah. I recommend this article to all of you who are interested in privacy and also free speech. I am in Den Haag now. Soon to be back in New Orleans.
BarkinDog,
I didn’t even think of that. Yep he violated her 9th! That cop was dirty dog.
Yeah we had WordPress of sorts in Con Law class forty five years ago only it was not imposed by some machine but by some law prof who would not let you say itchBay but you could say astardBay.