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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Bailers said …
My position was always why the h3ll was a guy being arrested, even for the 30th time, over a $0.75 cigarette?
Me too…however my understanding is that the NYPD was responding to a merchant’s complaint about him doing so while loitering in front of his store. Selling “loosies” is illegal, technically, in most jurisdictions, due to laws on the books vis a vis taxation and (literally) stamps certifying tax paid on every pack of cigarettes. If a bad law, then the voters need to change it. Since it involves a tax it is unlikely the legislatures will do so.
Where I live smuggled cigarettes (usually from North Carolina) are big business, even from otherwise legitimate stores…and packs black marketed as such do not have the Michigan stamp on the bottom of the pack. Technically, I suppose, the police could ask to see the bottom of your pack if you show it when pulling out another cigarette. If a female and you kept the pack in your bra, not so much. The state police have intercepted suspicious vehicles carrying 100’s of cartoons at the border…the probable cause requirement for those stops is quite liberal.
None-the-less, when I was a smoker I admit I enjoyed the nearly 40% savings for those cartons from time to time. I also admit that when at Fort Brag I’d sometimes stick a half dozen cartons from there in my suitcase on my way back to Michigan. I was criminal I guess … 🙁
zedalis said …
RE: “His penultimate narcissism…”
Would this be the narcissism before his last narcissism? A Serial Narcissist?
In a word, Yes.
He cannot resist making so many things about him, even imaginary things, & “what I can do” yada yada. A man in way over his head. No reason to “hate” him…he just cannot help it. Being effectively abandoned by both parents before puberty has to leave a mark. At least in my opinion. I hope for his sake that he one day acquires the affirmation he so desperately seeks. Might happen if he is successful in the speech making market. People putting their money where their mouth is, to hear him speak, beats mere “votes” and political contributions any day.
I am pretty sure he won’t do a Hillary and claim to be “dead broke” upon leaving office….so there’s that going for him. He doesn’t seem to be a guy who self-deprecates easily…especially not for mere political sympathy. He does have pride. Google up the WH photograph of his “beer summit” and notice just who is helping the professor down the steps and who is striding ahead oblivious. Mannerisms say a lot at times. His WH photo folks are apparently ignorant about real imagery.
BTW…thanks for your explanation of your use of the word “sigh” elsewhere.
I think NYPD should strike. Then people could see the depravity they deal w/, FOR US, on a daily basis.
The Blue Flu with become epidemic again. People will be on their own to deal with the depravity and it is too bad, because even in the worst urban cesspool there are still many good people just trying to survive, conduct business and do good for their children. They are the ones who will suffer. Not the wanna be hippies who can go home to their nice safe suburban enclaves.
The police are brave and face danger daily. They can’t be expected to sacrifice themselves for nothing. They aren’t stupid.
This police post where these 2 cops were killed[both minorities] was a standing post. It was created because of violence in the housing project nearby. A local resident said it gave him comfort when he walked his kids to school to know there were 2 cops there. I think NYPD should strike. Then people could see the depravity they deal w/, FOR US, on a daily basis.
Very few know cops as well as I. Last night I had a retired homicide detective and his wife for dinner. This is an even tempered, good man. He is sickened by the way people like Di Blasio have handled this. Cop haters have been enabled, by the likes of Di Blasio, a man w/ such a sordid past he cannot even get a security clearance to hear classified information from the Feds. YES there are bad cops, I also know that better than most. But, this is what happens when street thugs are enabled.
Paul I agree. Looking just at the garner case, there are basically two sides: the I can’t breathe side and submit to arrest side. My position was always why the h3ll was a guy being arrested, even for the 30th time, over a $0.75 cigarette? How bad is the leadership and expectations in the NYPD that it warrants 5-6 officers? Or even 1?
There is an estimate that NYPD spends $1.1 million PER DAY on misdemeanor arrests, at a cost of about $1,750 per arrest. So NYPD was willing to spend $1,750 for selling loosies? That’s beyond insane. No reasonable person can justify that. Not when there is still actual crime in the city.
http://www.newsweek.com/embargoeddec-156-pm-policing-costs-291948
Here’s a better idea. Instead of having 5-6 officers arrest the guy, put one officer on the street and stand next to him until he gives up and leaves. Bonus is that the officer can get to know the merchants on the street and really figure out what the area needs. I’m working on a name for this concept.. How does community policing sound?
Bailers – community policing is expensive. Requires more officers. Cops in cars can cover more territory. And in places like Phoenix, summer is no time to be walking a beat. Although we do have officers on bikes.
If there is going to be a war, and I pray there is not, who do you think will win?
Look at the subject matter of this very blogpost to see cops violating the rights of Americans. Violations of the 4th and 9th Amendments. I guess we should just not complain because, they are cops and people should just give cops a pass because they have a dangerous job? I respect ops, I respect the military, but I do see some over the top hero worship going on. We need to hold everyone responsible when they break the law.
Not every single citizen is a criminal. Why should all be treated thusly? The belligerence, the covering up abuses by claiming people “resisted” arrest, the overuse of tasers, shooting at vans full of children, illegal body cavity searches, did we just imagine all that because how two cops have now been murdered in NY?
Bailers,
You ask legitimate questions and this blog is very good at exposing just how difficult it is finding common ground. We are a nation of entrepreneurs and while that is good for any number of reasons, it is not what we want with regard to constitutional law. “Laws are meant to be broken” is something you want to hear from scientists trying to discover better battery technology; not from politicians, not from police, not from Wall Street and certainly not from Main Street.
I believe the Framers of our constitutional system were the “good” entrepreneurs of law. They designed the best system imaginable to deal with the inevitable failures of human nature and the “bad” entrepreneurs that it would produce. But when those “bad guys” get inside the structure that creates, enforces and adjudicates the laws; well, that is what Bastiat calls a complete perversion of the law:
“The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.”
I’ll believe common ground can be found but it won’t be in defense of ideologies that conflict with the rule of law. As long as we have those willing to defend “bad” entrepreneurs of the law, then we can expect more injustice. And here we are left wondering; who are the good guys anymore?
End crime and police will start respecting rights and the people they police?
Classy.
Bailers – if they end crime they will just have to create new crimes to keep the under used police busy.
Why can’t we have a police force that protects the public and allows the officers to go home safely?
Because criminals commit crimes. End that and everything else you want will fall into place. Good luck.
By the way, Tarpon Springs, Florida, police officer shot and killed overnight.
Link
Michael Haz
Are you cop haters happy now
__________
About as happy as cop apologists were when Akai Gurley was shot and killed by a nypd officer who then called his union rep instead of an ambulance. Is that the answer you were looking for?
It’s not an either /or proposition. There can be good cops and bad cops. We can’t tell because the hero worship in this country is out of control, the good cops are cowed by the bad ones and the unions into silence, and the extremists on the other side aren’t helping one bit.yelling and protesting for dead cops is incredibly horrible and unproductive.
There is by any objective viewing two systems of justice and law enforcement isn’t usually subject to the one we all are. That’s a huge problem. How can you hope to convince the usual “cop haters” of the validity of the justice system when police aren’t subject to it?
People can criticize police without being haters. And police and their blind supporters undermine their support by the comments about the mayor of N.Y. (who I am not a supporter of), calling in sick, or other recent statements that sound more like my 5 year old would make instead of supposedly professional adults.
About 5 years ago I came back from work to find police around my car and two others in the parking lot. They told me their drug dog”hit” on my car and asked to search it. Having grown up learning to support police and having nothing to hide, I of course agreed. There was no dog there and they could have been lying to me for all I know. When all was said and done and the police were 0-3, they just left. No apology for wasting our time or delaying us from getting home. No admission they were wrong. No admission that they wasted hundreds of dollars with nothing to show for a day of waiting for three people to get off the 9pm train without any drugs. The point is police can be wrong. Why can’t they and police apologists admit that? Why can’t we meet in the middle with the haters and figure out a system that protects constitutional rights as well as law enforcement needs to investigate crimes? Why can’t we have a police force that protects the public and allows the officers to go home safely? Why does one have to take a backseat to the other?
Ah yes, Rosa Parks. But…But…But, OBAMA.
Aridog > > “His penultimate narcissism…”
Would this be the narcissism before his last narcissism? A Serial Narcissist?
Paul C. Schulte > Your vivid descriptions are, I am sure, thoroughly researched and certainly provided a little background and zest to Supreme Court precedents over the years. Perhaps, if you find the time, you might at some future date provide an account of the villiany of those that brought that whole Habeus Corpus episode to a head. You know, something like: “The Assize of Clarendon was in direct response to a syphlitic serving wench having petitioned for Freemans rights when being charged with witchcraft”, something along those lines.
As most all precedents in criminal law usually have to do with, ahem, criminals, please don’t leave out any extraneous personal histories. It really brings the law alive. Thanks.
zedalis – thank you for the prompt. I have long thought the need for such a book, I will start on it right away.
Nick> “what would the headline be if it were a Republican”
One need only go back as far as Nixon to read those headlines, mo?. And there also seem to be quite a few lately about the Executive suborning torture, which, please correct me if I am wrong here Nick, the Eighth Amemndment covered rather conclusively.
Trooper … (You commandeering villain you ) … I expected today’s events after the marching sing along in NYC recently where the chant was: “What do we Want? Dead Cops! etc” …That kind of stuff will bring out the Kathy Boudin & Bill Ayers in assorted lunatics. I’m very sorry I expected it, especially in your neighborhood…but my experience said it was highly likely sooner than later. Please take care and stay safe…which used to be hard here, and may be again in NYC. The police there, & in Ferguson, IMO, will take a step back, or two, because their job description (let alone their families’ expectations) does not include a duty to die….or be charged with a crime….in the ordinary course of their work. It happened here 1975-1985. A very similar case (but one officer not two) occurred in the White Castle parking lot, not far from our house, a few years ago.
Olly,
You don’t define when ‘life’ begins, neither do I. Neither you or I cannot control another’s person’s body or choices. I would not have an abortion, but it isn’t my right to dictate to those who would. Nor is it your right. I don’t think that this thread which has already been commandeered should veer off topic yet further.