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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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.
It is just the same song that we have heard before.
Troopeyork “Those who cannot remember the past are condemned to repeat it.”
I would also say that those who ignore (or deny) the past are more apt to misinterpret the present
Michael Haz >> “Enforce the law, or be kinder, gentler, compromising police?”
Don’t know about the ‘kinder, gentler” Michael, but if I were giving advice to the NYPD, I’d tell them to enforce the laws, the same way to everyone who is subject to those laws. Because, last time I checked, every citizen had to obey the law. There are no exempt classes.
That’s right zeddy. That was a rich man’s war but a poor man’s fight.
The elites brought on the war because of their beliefs but the working class was put on the line of fire.
Of course that was a fight worth making.
This is not.
Why not deal with the facts pal. Or don’t you know you know your history?
I live in New York. I lived through this. I was at a restaurant on Mytle Avenue last week. I have used the train from that stop many times.
Those who cannot remember the past are condemned to repeat it.
You are right, trooper york, there is nothing new under the sun:
The New York City Draft Riots of July 13-16, 1863, were by some measures the most bloody and devastating riots in American history. At a time when the Civil War was raging on battlefields, rivers and oceans, violence and terror ruled the streets of our largest city, and battle-weary troops had to be rushed from Gettysburg to help restore order. What began as a protest against the Federal draft quickly degenerated into a racial and social struggle as ugly as any in the Deep South – far more Jim Crow than Big Apple.
New York historian Edward Robb Ellis wrote, “The Draft Riots…stand as the most brutal, tragic, and shameful episode in the entire history of New York City. Politicians encouraged mob violence. Law and order broke down. Mobs seized control of America’s largest city. Innocents were tortured and alaughtered [and] the Union army was weakened.”
The riots began because of attempts to enforce the first Federal conscription act, and because of the economic hardships, political ideology and social pathologies of the city’s large Irish immigrant underclass. The great majority of them had welcomed neither the Emancipation Proclamation nor the draft. “They were furious,” wrote historian Philip B. Kunhardt Jr., “at being conscripted into a war [by then] dedicated to freeing slaves.” “Willing to fight for Uncle Sam,” but not “for Uncle Sambo,” wrote one Pennsylvania newspaper.
White folk, go figure.
zedalis – the Draft Riots were about being required to fight for the people who were going to compete with them for jobs. The Irish were already the white ‘ni**ers’, they did not feel they had to be compelled to fight for the black ‘ni**ers’, too. They were too poor to buy a substitute to fight for them, so they were actually going to get killed. However, blacks were not being drafted for the war. So, in a nutshell, they were going to get killed, for people who were going to take their jobs.
There is nothing new under the sun.
In 1995 there was a rent dispute at Freddy’s Fashion Mart in Harlem. A black owned record store was in the process of being evicted for non-payment of rent. The owner of Freddy’s who was Jewish tried to evict the Record Shack, owned by Sikhulu Shange, an African American. Mr. Shange was a subtenant of Freddy’s who was evicting him at the direction of the actual landlord which was the United House of Prayer a black Pentecostal church.
There were ongoing protests and demonstrations where entry to the store was blocked by protesters under the direction of the Reverend Al Sharpton. Reverend Sharpton went on various black media outlets to state: “We will not stand by and allow them to move this brother so that some white interloper can expand his business.”
The Reverend Sharpton and other activists whipped up the outrage and anger of the community to the boiling point as they have done with the current protests regarding Michael Brown and Eric Garner . Roland James Smith, Jr., walked into Freddie’s Fashion Mart nd pulled out a gun. He ordered all the black customers to leave, doused several clothing bins with paint thinner, and lit them on fire.
Eight people died, including a black security guard—who had been labeled a “cracker lover” and “traitor” by protesters of the store—and Smith himself.
These last murders are just an instant replay.
There is nothing new under the sun. We have been here before.
There is just more blood on their hands. The same people doing the same things.
trooper york, are you a phishing site???????
bad troll
There is nothing new under the sun. We have seen all this before.
In 1999 Amadou Diallo was shot dead by four policeman in a very unfortunate incident that was every bit as publicized and exploited as that of Michael Brown. Four undercover policemen tried to stop Mr. Diallo to question him in regard to the search for serial rapist. Mr. Diallo fled from the police most likely because of a language barrier and the fact that he was an illegal immigrant. Mr. Diallo ran into a vestibule where the house light was out and he was silhouetted by the hall light. He took out his wallet and one of the cops panicked and shouted gun. The cops fired 41 times and tragically Mr. Diallo died.
That tragedy was also gleefully exploited by many of the same bad actors that involved in the current attacks on the police. There were daily demonstrations at One Police Plaza and the usual collection of progressive demagogues such as Al Sharpton, Susan Sarandon, Tim Robbins, David Dinkins, Basil Patterson. Harry Belafonte and the rest of the band were arrested daily and freed in ten minutes with a desk appearance ticket in a no cost day of outrage. Every day the outrage and hate was flamed and the police department was once again under siege. The officers were brought to trial by a multiracial jury in Albany and acquitted. They could not get a fair trial in NYC because of the racial inferno incited by these “activists.” Still a jury of their peers acquitted them. Not that it mattered to the racial arsonists and poverty pimps and the politicians who represent and coddle the criminal class.
The progressive left reveled in their protests at the time. But a few short years later something else happened. 911.
Suddenly cop and fireman hate was not fashionable. There was a rally at MSG to “support” the cops and fireman. Hillary Clinton came and was booed off the stage. Sarandon and Robbins and De Niro and bunch of others were told to take a walk. They wanted to pretend that they actually supported the uniform services and wanted accolades for their pretend concern. They were rightfully scorned and ignored.
You see you need to step up and speak up when the crowd is shouting against the law. When the pro criminal crowd was shouting “Kill the Police”….that was the time for De Blasio and Obama and Holder to speak up. When hipsters and liberal college professors are blocking traffic so ambulance can’t get through and people die…well that is the time to say something. When the protesters were fighting and beating those two police lieutenants on the bridge. When that college professor was throwing a garbage can into ongoing traffic. Not now. It is too late.
Obama and De Blasio will never say “That could have been my son” about these cops. Because you know that their children or the children of any of the professors or journalists or pundits will never be cops or fireman or soldiers. Cops and fireman come from the working class. Contrary to Obama and Holder and Sharpton and De Blasio they are not all racist white guys from Long Island. They are Spanish and Asian like the two cops who died. They are black like the sergeant who was in charge when Garner died. Working class men and woman with families who put their bodies between you and the criminal class like Michael Brown.
Those are the people who they hate. Those are the people who they want dead. Those are the people that they scorn. These murders are directly due to their actions. To hateful rhetoric and political posturing. They have blood on their hands.
Zedalis- I agree, but what will the prevailing sentiment be in NYC? Enforce the law, or be kinder, gentler, compromising police?
The latter, I think.
Michael Haz > > They should do what they are paid to do or find another line of work.
A group that calls itself Palestinian Resistance is demonstrating in NYC now. They are in the street, screaming and shouting at the police. They are throwing things at police officers, possibly bricks or rocks. they are damaging property. The demonstrators are clearly breaking the law.
What should the NYPD officers do now? Arrest the law breakers? Stand by while they are targets of bricks and rocks? Watch people’s businesses be damaged or looted? What? Be kinder and gentler? Compromise with anarchists?
Good find Darren.
http://en.m.wikipedia.org/wiki/Taylor_Law
Nick >>> “Cop haters have been enabled, by the likes of Di Blasio”.
When trying to lay blame for the percieved hatred of cops, one would think there are more direct routes to the source of this attitude, ones that more likely have to do with the accretion of actions by police that are contrary to the rights of citizens,
I have also seen folks blaming people, other than the actual perpetrators of heinous crimes. for their role in causing the crime, no matter how tenuous the connection between the actor and the percieved “influencer”. I am sure the police have also seen quite a bit of blame shifting. The thing about laying responsibility for someones crimes at any door but the perpetrators is that it usually says more about the person shifting the blame, than it does reality.
I believe the Taylor Law would prohibit the NYPD from striking.
Nick >>” I think NYPD should strike. ”
Thankfully, they still have that right. What would the point be though, do they want a travel ban on passengers coming from Baltimore?
Nick,
I understand police are frustrated. But striking isn’t the answer. It’s juvenile. And striking cops should remember the air traffic controllers in the 80’s. If they’re going to take their ball and go home, then they can stay there.
That’s not a sign of disrespect. But police have a duty to fulfill their oath. Not act like spoiled children because they’ve been called bad names. As tragic as these two officer’s deaths is, it is not an epidemic. Assuming the fixed post had been in place for at least a year and is round the clock, that means that there have been 8760 hours without a shooting. In other words, only in .0001 percent of the time did something terrible happen. The last time a NYPD officer was shot was three years ago, or 26,280 hours ago. In three years it’s been a percentage of safe hours to shootings my calculator won’t even calculate. I understand things can go badly at any time. But if the rest of us lived our lives expecting the.0001 percent to occur we’d be institutionalized. Police unions, academies, and politicians are doing officers no favors by glossing over the numbers in favor of sensationalized the rate occurrence.
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?
A very good question.
We live in a society that has made a compact: We elect to office officials who make laws, and who are then charged with enforcing those laws. Laws are made for the common good, and we agree, in our social compact, to obey those laws. Or if there are laws we dislike, we seek to change them by working through the processes created for that purpose.
There are calls for “compromise” of some sort between the police and citizens. What does that even mean? Does it mean that laws will be only selectively enforced; that one segment of society will be subject to them, while another isn’t, or is subject to a “lite” version of the law? That flies in the face of the idea of equal protection.
Whose constitutional rights are not being protected?
It seems like our system does an excellent job of protecting the rights of the accused. It does a poor job in some neighborhoods of protecting citizens’ rights to live free from crime. That is a profound problem, and its solution comes only in part from law enforcement. The larger part has to come from they way citizens conduct themselves. Is that where there should be “compromise”? I doubt the law abiding residents of those areas think so.
Finding “compromise” with hardened criminals in urban neighborhoods will not solve the problem of hatred of the police. It will only serves to make crime worse, to the detriment of the rest of society.
How should the police have treated Eric Garvin? He was breaking a law that Deblasio wanted enforced. What should the police have done, disregard their chain of command? Had Garvin turned his back to the police so he could be cuffed, he’d be alive today, right? That would have been a meeting in the middle, but there was no interest on his part.
My sister, in her late 50’s a the time was arrested in Hartford, WI for “sassing” a cop. Put in handcuffs and taken to the Police Station. Her crime? An expired license plate.
Inga – it is just plain silly to ‘sass’ a cop over an expired plate. One she should have not been driving the car with an expired plate. Two she should not have been sassing the cop over it. Three SOP is cuffs when you put them in the police car regardless of the charge.
hey trooperyork, if police are not held accountable for their murderous actions what do you think will happen? choking out eric garner for selling loose cigs, pulling up in squad car in aggressive manner upon 12 yr old tamir rice and shooting and killing him within 1 minute, the killing of an unarmed homeless man for illegal camping in arizona, killing of an obviously mentally unstable man in st louis area 2 minutes after pulling up upon him aggressively with patrol car…
if it appears to the citizenry that cops are above the law, the lawless will take punitive actions upon innocent cops, and the law abiding, like myself, will lose respect and fear law enforcement as i have come to. it’s no longer as in my childhood where i was taught that the police are there to help you…i now fear the police because they are not held to the same laws that i am.
cops now have a militaristic, us vs them attitude. they are no longer your neighbors, there to keep the peace, they are now part of a surveillance state looking at everybody as perps who are guilty until proven innocent.
i do not condone killing cops, but YOU GUYS BETTER CHECK YOURSELVES, and your SOP’s, cause it’s not gonna get better until you guys change.
Paul,
How expensive are lawsuits for excessive force or false arrest? How expensive is it to incarcerate someone? How much is it worth to have better police community relations?
For 30-40 years police have mostly been in cars, and interacted with the public generally only when something bad happens. That doesn’t set up good relations. Contrast that to what I see near my office in Chicago. Up and down State Street and Michigan police are out walking the beat. They talk to people. Laugh and joke with children. Call me old fashioned, but that’s what i want police to be. Not sitting in cars. Not swooping in tires squealing because a crime had taken place or it’s a drug team coming in to make another pointless arrest in the never ending war on drugs.
I get it isn’t going to work everywhere. I live in a suburb that barely had sidewalks. But it has to start somewhere. Things aren’t going to get better unless someone acts like the adult and commits to make changes. Fair or not police have to be the adults.