tv Mapp v. Ohio CSPAN August 10, 2017 4:35am-5:31am EDT
landmark cases returns live next february on c-span. join us to hear more stories of the people who sparked ground-breaking cases. and the justices and lawyers who were key to the supreme court's review. thursday night on c-span we take a look at the 1962 case, baker v carr. which framed the drawing of electoral districts as a kns tugal issue and not a political one. join us at 8:00 p.m. eastern here on c-span 3, on-line at c-span.org and streaming on the free c-span radio app. earlier in the day, a conversation on regulatory pro techs with the coalition for sensible safe guards. we will hear stories from people who claim to be harmed by
inadequate regulatory p protections. that's live at 10:00 a.m. more from washington state university vancouver professor onm professor on mappv ohio on illegal search and seizures. before the decision in mapp, the remedy of excludeing evidence was unpredictable at best. now today we sometimes take for granted the fact that courts will protect us against unconstitutional searches or seizures. if a police officers enters or
searches our home, our car, our purse, our cell phone, we expect that the judge will prohibit that evidence from being used in a subsequent prosecution against us. motions to suppress evidence are now expected. they're common. defense lawyers in the o.j. simpson murder trial moved to exclude both blood and hair evidence from the trial of that case. the lawyer for ted kazinski, better known as the unibomber, moved to exclude a bomb, a journal that showed 16 of his bombings and even his manifesto all found within a remote montana cabin. in both of those notorious cases the motions to suppress were denied as they are throughout the country in many cases. but whether denied or granted, motions to suppress play a
significant role in criminal cases. in fact, they're usually determinative of the outcome of a case. especially in drug cases and in begun cases. if the defense prevails and drugs and guns are excluded, usually the government's case is gutted and the case is dismissed. so while mapp versus ohio does not enjoy the household recognition of a case like miranda versus arizona, it effected a profound change in criminal proceed pu. tonight dr. carolyn long examines this decision in part of the discussion as her latest book. titled "map versus ohio guarded against unreasonable searches and seizures." dr. long is from the college of liberal arts, director of public affairs and associate professor in the department of political science at washington state university in vancouver, washington. she earned her bachelor of arts from university of oregon and
her ph.d in political science from rutgers university. she has been a full bright scholar and is the author of many, numerous in fact, scholarly articles and book chapter. the book she presents tonight is her third. please welcome dr. carolyn long. [ applause ] >> thank you for the kind introduction. before we begin i would like to thank the university press of connecticut and university of kansas school of law, kansas city public library, truman library institute and federal court society and the coughman foundation and law firm of spencer feign limb and brown. tomorrow i will visit the
library and as you know president truman played an indirect albeit important role mapp v ohio. a personal friend of the president was one of truman's first key appointments. shortly after taking office president truman appointed him to be attorney general and later elevated him to the position of associate justice on the united states supreme court. there's another connection between the truman presidency and justice clarks jurisprudence. truman was known for advocacy on behalf of civil liberty issues and acknowledge the armed forces and mandate of equal treatment and federal hiring and 1947 report called to secure the rights which laid out his detailed agenda to protect rights and liberty. cases reflect the warm courts attempt to address racial inequality in the criminal justice system because of aggressive police tactics that
targeted communities of color. we can see how truman's appointment of clark advance the cases of injustice. a hard or extreme case is a poor basis for general rule to cover a wiser range of less extreme cases. some may argue dahl v max case, but i would argue the opposite. this was rather a regular practice of the cleveland's department bureau of special investigations and was similar to police investigations and many major metropolitan areas which is one reason why the court's decision had such an important and profound impact on police practices. mapp's personal story sets the foundation from a discussion this evening about the exclusionary rule. so the first part of my talk begins with the description of
circumstances that led to her arrest and a brief review of state and federal court proceedings in part two i will discuss why mapp is landmark decision as melanie subjected and particularly review the impact of mapp on police practices and in part three i will briefly touch on the political and juris pre pou denl decision in 1961. mapp's story begins with the bombing after home of a young don king who many now may recognize as a flashy boxing promotor. in 1960, however, he was known to the police as a clearing house operator who ran an illegal gambling operation. after the bombing, police were led to the home of mapp where they were told they may find some paraphernalia that goes
with illegal gambling. sergeant carl delal was empowered to investigate vice crimes in the city many thought to be connected to organized crime. device crimes in cleveland at the time were minor compared to what we might see in cities today. they predominantly consist of number or policy games which are of a daily lottery. there would be small bets and modest payoffs. as a result the game was often associated with people in the lower socio economic classes including those in the minority communities. because of this there was an undercurrent of racial tension for police who were overwhelmingly white would target african-americans and other minorities during their investigations.
at one time she was briefly engaged to afrpy moore another boxing great. she associated with people involved in illegal gambling. so several others went to mapp's home and asked to speak to her. mapp being save they person she was immediately phoned her attorney. her attorney said it was necessary for police to get a warrant in order to question her and enter her home. when the police told her she didn't have a warrant she the were denied entry. the sarge ept admits that cleveland police conducted hundreds of searches a year so it was a routine endeavor at the time. any evidence could still be admitted in criminal trial. this was the practice of about half the states of the union each of which did not have an exclusionary rule which had exclusion of evidence skissed as result of an illegal search.
he stated we were a well trained innovative aggressive squad working to curtail the numbers racket which which we caused of harm. this aggressiveness is evidence that soon after insisting on the search warrant several pleens cars showed up at mapp's home. they said she the add warrant but did not produce one. oddly, despite having a police warrant, delou used a crow bar to enter the home. when map saw this happening she of course was displeased.
when she confronted the police, she asked to see the warrant. someone produced a piece of paper, they said it was a warrant, and mapp immediately grabbed it and thrust it down the front of her dress. the police looked at each other quizzically and asked sergeant delal, what are you going to do now? and he said i'm going after it. and so, he went after the piece of paper. dollree mapp got increasingly belligerent and as a result was handcuffed to a police officer while the others conducted an extensive three-hour search of her two-family home, including going through every drawer and chest and piece of furniture, ostensively looking for that bombing suspect. police also searched a downstairs apartment of a boarder and the home's basement. and during this time, mapp would be calling out to her attorney asking if he could come in, but police refused him entry. at the end of the search, police produced a trump of policy paraphernalia said to be found in the basement, and dilal produced material that he said was offensive that he suggested
had been found in her bedroom. according to mapp, the stuff was not from her bedroom but belonged to a boarder and was in the basement, but nevertheless, she was arrested for the possession of the policy paraphernalia, misdemeanor and several days later for possession of illegal material. so, why is this not a hard case, according to the legal maxim i started with? because as mentioned previously, in many metropolitan areas at this time there were vice crimes that occurred in predominantly minority communities and police frequently and aggressively used tactics such as the search of mapp's home to combat crime. and the research at the time reveals that warrants, while required, were rarely used because that evidence, again, could be admitted to trial. the police conduct was so common to be seen as legitimate. as one scholar explained, the illegal entry of mapp's home by the police was nothing extraordinary. it was an everyday fact of life for blacks and other racial minorities. police throughout america were part of the machinery of getting blacks in their place and ignoring constitutional guarantees against unreasonable searches and seizures. the constitution itself played little role in the relationship between them and they had little power to seek redress in the political process. so, unsurprisingly, given this story, dollree mapp was furious
at her treatment by the police. she felt targeted, she felt harassed and she was intent on fighting the charges. she was charged of possession of the obscene material and it was a felony crime in ohio, which carried a seven-year sentence. and under ohio law, regardless of where the material was found, just the fact that you had it in a home that you owned meant that you were in possession of it and guilty of the law. interestingly, as the case moved through the state courts, the focus of the legal arguments was on the constitutionality of the state antiobscenity law. and mapp's defense attorneys regularly argued that the seized evidence was there because it was without a warrant -- the search had taken place without a warrant and that it should be excluded from trial. but not only did that not matter, there was also state constitutional precedent that said that illegally seized material could be admitted in trial. so, dollree mapp actually had two legal problems. mapp eventually lost the first amendment challenge in ohio courts and her last chance was a hearing before the united states
supreme court. unbeknownst to mapp, her obscenity case would become a landmark fourth amendment ruling that would extend the exclusionary rule to extend to federal authorities as well as state and local authorities. so, what is the exclusionary rule, why is it important and what was the supreme court's jurisprudence before it handed down this decision? well, the court first formally addressed exclusionary rule in weeks versus united states in 1914, a case that involved a warrantless search of a home for evidence of illegal gaming or gambling. and in that case, the court considered whether the evidence seized should be excluded from trial because it was in violation, the search, of the fourth amendment. in weeks in 1914, a unanimous court declared that searches conducted by federal officers must be done with a warrant issued in accordance with the constitution, meaning based on probable cause, describing in particularity what was being searched, et cetera, and that evidence that was seized that didn't meet these requirements
must be excluded from trial. the court's rationale for this position was that the exclusionary rule was constitutionally required to enforce a mandate of the fourth amendment and that without the rule, if the fourth amendment would be of no value so far as those are concerned, it might as well be stricken from the constitution. a second rationale was provided as well, that of judicial integrity. and the court suggested that if. and the court suggested that if it used illegally seized evidence in order to convict individuals, that would undermine the integrity of the judicial process. according to the majority, law enforcement officers should be able to find no sanction in the judgment of the courts which are charged at all times with the support of the constitution. judicial approval would be to affirm by judicial decision a manifest neglect if not in open p defiance of the prohibitions of the sfugs intended for the protection of the people against such unauthorized actions. so in conclusion, they believed
it was necessary to give teeth to the fourth amendment and to realize this promise. what's interesting about weeks versus united states is the majority decision also recognized the netable critique about the exclusionary rule about guilty people going free or as benjamin cardozo often repeated lament about the rule, the criminalists to go free because a con stab elhas blund erred. to answer this question are the supreme court responded the erts of the court and their officials to bring the guilty to punishment praise worthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodied am in the fundamental law of the land. so the fact that the exclusionary rule was considered a fundamental part of the fourth amendment is tremendously important. and for 35 years after weeks versus u.s. the united states would return to this premise when it encountered cases involving the exclusionary rule and actions by federal officers. what it didn't do until 1949 was
examine whether or not the exclusionary rule should be applied to states as well as the federal government. the court finally did this in 1949 in a case called wolf versus colorado. a case involving the search and investigation of an obstetrician who was suspected of performing abortions? violation of law. state officials conducted, as was the case at the time, a warrantless search of the office, seized hiss appointment books and later interrogated the physicians patients. in wolf a unanimous supreme kofrt determined the search and seizure was unconstitutional, but more importantly, determined that the fourth amendment prohibition against unreasonable search and seizures should be applied to the states as well as the federal government through the due process clause of the 14th amend. of the it was a landmark decision in its observe right because the court signalled and did so for the first time that rights not in the first amendment were incorporated to apply to state and local governments as well as the federal government. as you know, under the doctrine of selective incorporation previously the court had
incorporated and applied first amendment rights of press, speech, assembly and also religion to apply against the states. so it was significant. and the court's rational for doing so for incorporating this important right was that once -- security of one's privacy against arbitrary intrusion by police which is at the court of the fourth amendment is basic to a free society. the court was sharply divided, however, over the question of the exclusionary rule, whether or not it should be applied to the states. and the majority in a decision by fee mix frankfurter said it should not. according to the majority they reconcept alliesed how the are rule should be looked at. they said rather than being constitutionally mandated, it was a judicially created remedy to correct a fourth amendment wrong. the other thing that happened in wolf versus colorado is the court suggested for the first time that the reason for the exclusion saer rule was the der terrence much police misconduct. and that becomes important later on, because by taking the rule away from its constitutional
morgz it led to an erosion of the rule later on. and frankfurter based its decision on the principle of federalism because he believed that stays should be able to decide on their own how you address fourth amendment violations. and he saw the exclusion of evidence as one of many times of responses that a state can take. and at the time of wolf versus colorado, about a third of the states had the exclusionary rule, and he wanted them to be able to make their own decision. but this presented a practical problem. in 1949 if the federal government seized evidence unconstitutionalel, it was excluded potentially from trial. if about a thirtd of the states did so it was excluded from trial, but in the other states, they didn't have that protection. and so you had a patchwork of rules surrounding the exclusionary rules application. interestingly, it was also at this time that you had a lot of taxi to the exclusion of evidence in states, including states such as california where a state supreme court justice decided ten years after he decided that the exclusionary
rule shouldn't apply that it should apply and he did so because of what he saw was flagrant police misconduct, particularly against communities of color. so that leads us to matt v ohio in 1961. after losing in state court he only had one option left, the united states supreme court and so in her petition for review arrived at the court, it really emphasized the object senty statute in the state, because that's where the argument had been up until that point. and her attorney suggested that the law was overly broad and it was unconstitutional. and eight of the nine justices on the court stieded to hear the case. and in the legal briefs and in the oral arguments in mapp v. ohio the focus was almost exclusively on the constitutionality of that object senty statute in the state of ohio. there was brief mention in a brief by the american civil lib union but other than is that it was really a first amendment case. so what happened at the conference? well, justice thomas clark's private papers reveals that the
mapp's -- the conference discussion over mapp v. ohio almost focused exclusively on this first amendment iesh and that they said it was clearly unconstitutional under a federal precedent. the question as to whether or not the exclusionary rule should be extended to the states was raised briefly by justice douglas, it was dismissed by the other justices. but something odd happened -- and so the conference ended with the court unanimously agreeing that the object senty statute was unconstitutional. something odd happened after the conference happen. in mapp v. ohio a seemingly straightforward case about the girl with the dirty books turned into a landmark supreme court decision about the fourth amend. in his autoography chief justice earl warren explains that after the conference discussion clark, pondering this idea about the exchewingary rule turned to justices hugh oh black and william brennan in an elevator and remarked wouldn't this be a good case to apply the exclusionary rule and do what
mapp didn't do? we call this issue fluid it in political science. you see the court seizing an opportunity to decide something that isn't formally before them. this decision to consider overwhelming wolf may appear as a surprise. he was after all a former assistant district attorney. he was president trurms attorney general and most would character i'm as prolaw enforcement. he was also a justice that really liked to strongly adhere to precedent and dient lionel the idea of the court reversing himself. but if you look at the private papers of clark you see something else happening entirely. you see him struggling with the wolf decision which he had thought had been wrongly decided, struggling with the idea that people were victims of what he saw were aggressive police tactics and really a need to do something about this. you also see his efforts to try to get that fifth vote. is he knew he already this four from conference but he needed that fifth vote in order to overturn wolf versus colorado.
and you also see the dissen ters trying to dissquad him from taking this approach. so what does he do? he over turns and so mapp v. ohio over turns wolf and applies the exclusionary rule to the states. and it's important to note when you read mapp v high ohio and justice clark ask the majority return to the rational provided by previous court as to why this was necessary. and that rational chls that it was constitutionally required in order to realize the province of the fourlt amendment and this whole idea of the need to preserve judicial integrity, that you shouldn't have the courts aid the police in their misconduct by allowing the evidence to be produced at trial. so it was a significant decision because of that rational. he also said in terms of federalism, it's pretty important to have all the states on the same page in terms of the exclusionary rule because that inconsistency makes it awkward for people tow an understanding of the law. and in regards to the off the quoted critique that criminals would go free, clark stated in
some cases this will undoubtedly be the result but reason further that the criminal goes free if he mugs, but it is the law that sets him free. and nothing can destroy government more quickly than its failure to observe its own laws or worse, it's disregard of the charter of its own existence. so why did clark use mapp v. ohio, a clear first amendment challenge to an obviously unconstitutional object senty law to change the nature of fourth amendment juris presence? jeers later he gave his explanation. he stated, i couldn't understand why wolf versus colorado said the fourth amendment applied to the states, but it just didn't seem to go all the way. in fact, it was just an empty jess stur. sorted of what chief justice hughes used to say. no use to have a constitution. it's pretty, got all sorts of nice fringes around it, but it doesn't mean anything. it's just a piece of paper, unless you really live by it and you enforce it. and that's the truth with mapp
and the fourth amendment. so what was the impact of this landmark decision? and why is it so significant that you invited me here today to talk about it? fist i'll take a look at the the impact of mapp itself and its impact on police practices and then i want to talk about this larger significance in launching the criminal due process revolution. keep in mind that prior to mapp half the cases in the union did not have an exclusionary rule and they would allow illegally seized evidence into trial. after mapp they had to change their way of doing business, and they had to exclude that evidence if it met all the right marks. so the breath of the decision on its own was extraordinary. and it was an extremely high profile case, although as mel own suggested not as high profile as others such as miranda versus arizona. so there was a lot of attention. critics suggested that it was a bad time for the court to decide the case. it was a result of judicial activism because the court shouldn't have reached out to decide a fourth amendment decision whether it could have done so, rested the case on first amendment grounlds.
stev know kevlt politicians, special interests and many members of law enforcement adopted a different critique and one we hear today which is that the decision would be a hindrance to the police and ultimately a threat to pib safety. and inhe had do the immediate reaction to mapp by the law enforcement community was one of dismay ask the focus was always on the costs of the rule, that it would handcuff the police who couldn't do their job, the guilty would go free, and those guilty were often murder ers, rapists, nighttime vards rather than what we actually commonly see which are people possessing weapons and guns. there was also a concern that it would turn the criminal justice system on its head for a focus on police error as opposed to a focus on the people who are disobeying the law. but mapp had its advocates as well. and many suggested that it was a necessary part of the fourth amendment and a natural extension of what was first presented in weeks versus united states. and regarding the costs of the rule, defenders of the exclusionary rule suggest, as justice clark did, that that's the cost of the fourth amendment
itself, not the cost of the rule. and that the rule ensures that the fourth amendment guarantee is more than a dead letter by offering the opportunity of exclusion and by giving teeth to this rule. there was also an argument by advocates that mapp v. ohio would force police to become more professional in its activities and not fall pray to trying to target individuals and in their search for people who might be committing crimes. and i think the most important that was made was that supporters of the exclusionary rule reminded people is that the exclusion aefr rule is not just for people who have allegedly violated the law. the exclusionary rule is there for everybody, for all potential individuals who might be arrested, but it's also there for everybody because it gives us a little bit more in the fourth amendment. it gives us that enforcement that justice clark talked about. so what was a practical impact of mapp? well, despite complaining bitter alley, as i suggested, police did change their way of doing business, and you saw extensive police training happening in
many metropolitan areas, a little less so in rural yairs. and you saw an increased professionalism of police. so it revolutioned the administration of the criminal justice system in that regard. but what about is the resolution of cases, rlt guilty going free? well, first we did know that there was an increased number of search warrants, which is a good thing because you see that police are following process. we saw the anticipated increase in the number of suppression motions, as mel own suggested, and we also saw an increase in the number of successful suppression motions, but they were much less than the common tails of the common mits actually present. early studies were mixed, but the major studies conducted in the mid to late 80s revealed that the none prosecution of cases because of exclusionary rule issues was actually quite small. one study found that in only about 1% of the cases did prosecutors choose not to prosecute a crime. and of those 1% of the cases, a
very small% involved offenses against a person. but rather most of them were cases about drug possession or weapons. a second very large study found that successful motions to suppress evidence was found in less than a percent of cases and again those cases involved minor crimes. and in those cases where the suppression was actually successful, the study found that those people would have only served less than one year in jail. and then a third major final study duplicated these results, again, few successful motions, convictions based on suppression were minor crimes. yet it's interesting to me that both in the press and also in most all law and order, fabulous show, episodes, we always hear about the murderers, the rapists, the nighttime invards going free, but kberkically the ed doesn't show that that's the case. the the reality is people are often convicted any way because of other evidence or if they aren't convicted, they are minor cases. and that is not to discount the
fact that drug crimes and weapons crimes are not important. they are. but it's important to look kbeerkically at what the numbers show rather than to just listen to the stories. but just looking at that is very narrow. i think we should also just briefly look at why mapp v. ohio is important it's important because it was the first salvo in what we call the criminal due process revolution where the warren court handed down a series of decisions that silg significantly expanded constitutional peksz for the criminally accused in the eight years between the supreme court incorporated rights guaranteed in the fifth amendment, the sixth amendment and the eighth amendment. and in these efforts there are all cases like miranda versus arizona, gideon versus wainwright and others which capture our attention and sometimes our criticism. because in this particular case the exclusionary rule was extended to involuntary and coerced confessions. and that really put the court in a public's eye.
more ever it's important to note that the criminal due process revolution occurred at the same time the court also liberalized rules governing federal writs much habeas corpus there by ensuring a study stream of appeals from state criminal defendants on federal constitutional grounds, you know, the supreme show had tackle the criminal procedural rights before, but they did so on a case by case basis examining whether someone's due process rights were violated. but with mapp, which opened the incorporation floodgates, the court started to systematically and comprehensively address criminal procedure rights for everyone. so it's this criminal due process revolution which makes map v ohio so significant. and if you realize that law enforcement's investigatory activities and the prosecution of criminal defendants happens at the state and local level, then you can know that mapp v. ohio might come into play with potentially hundreds of thousands or millions of cases. it's also important to note how the criminal justice due process
revel laugs hemmed provide frekds to many who needed it the most, those in the lower socioeconomic classes who often do not have the resources for adequate protection during the criminal justice process. and becannot ignore the racial tension i mentioned earlier when we saw aggressive police tactics gs being used in communities of color. chief justice warren reflecting later on what legacy he left noted that it was important to provide equal justice to all and the criminal and due process revolution in his opinion was one way of making it happen. so that is why it's a landmark. let me end by briefly talking about what happened in the political and judicial arena just to bring us up to today. politically there were multiple attempts for legislature's and particularly congress to either modify it or to eliminate it. as mentioned earlier s mapp in cases like miranda versus arizona helped elevate the court into the public's awareness of how important this body of government was in determining
things that might have an effect on you are day life and also help people make the link between at that time what was increasing crime and thighs politically volatile decisions by the warren court. so during the johnson and nixon administrations there was a great deal of attention on how best to combat crime and many conservative politicians believed the way to do that and this also included kevlt southern politician was to change the rules that the supreme court had laid out. so there were a number of these legislative attempts to limit or eliminate the rule particularly when it came to confessions, which was a lightning rod. and it's interesting because the debate politically was always about the costs of the criminal due process revel laugs under the warren court. and again, it was about the bloody knives, the murder ers, the rapists and theburg larceny. it wasn't about fidelity to the constitution or how the fourth amendment and indeed the exclusionary rule protects the constitutional rights of all americans. the debate over these decisions also took place during the reagan administrations.
in rag answer fist term he tasked his attorney general to look into violent crime and prusd a series of are courts that directly attacked the warren court. one of these attacks came in the form. a mommy oh written in 1983 bif a young lawyer in the regular an white house. that young lawyer in the reagan white house, john roberts, now chief justice of the united states supreme court. in his second term he stemmed up his attack and under attorney general edwin mees the department of justice released a series of reports continuing to blame warren court due process revolution and also continuing to attack on the exclusionary rule. incidentally, one of his justice, a young samuel alito also on the united states supreme court today. the issue even remained live as we call it during the bush and clinton administrations. and the closest that we came politically to getting rid of or modifying the exclusionary rule was in 1994. it was part of newt gingrich's contract with america. what's interesting about that particular case is that the
effort to end that legislative to modify and get rid of the exclusionary rule came about when liberal and conservative groups came together and said that limiting the rule abolishing it would be a bad idea, because at the time there were kesht dprups who were concerned about what they saw as abuse of power by the federal government because of certain events like the are ruby ridge and the branch did i have i had yans. so that made for strange bed fellows and i would suggest we might see the sale thing today at least in the political arena. so what about the possibility of legislative reform today? i would say that with the declining crime right, the interest of lengs laifbl modifying the exclusionary rule has moved to the bottom of the political agenda. what's tauls interesting is people don't care as much about the rule in terms of being critical of it, including those in law enforcement. and in 1988ment american bar association conducted a sprenssive study on this issue and concluded that the rule neither causing serious malfunctioning of the criminal justice system nor promotes
crime. and also that law enforcement officials toward whom the rule is directed report that the exclusionary rule is not a serious obstacle to their job. rather they believe it has led to better police training and has promoted professionalism in police departments across the country. and the aba report concluded that it is indeed an important safeguard to the fourth amendment protection of individuals against unreasonable searches and seizures at a modest cost. but the impact was greater when you look at the judicial arena. because these presidents nixon and reagan in particular who campaigned strongly against a warren court and in particular the criminal due process revolution decided to use their appointment power to the federal courts and particularly the u.s. supreme court to ensure that they appointed justices and judges that would carry out their vision of how criminal justice should be meet. and so nixon had an opportunity to elevate four justices to the court including willian reign quist and ronald reagan who
campaigned against the warren court was also able to elevate three additional justices and then reign quist to the chief justice ip. so what has happened since this occurred? what have these judicial appointments done in terms of fourth amendment juris pruns in relation to the exclusionary rule. what's ham happened is that the rule is dying a death of a hundred cuts. the the supreme court in a number of decisions have been able to erode, whilgts down or chip away at the warren court's mapp v. ohio decision and other criminal skbruft decisions. while they haven't out rightly reversed these decisions, by ereading the fundamental nature of the decisions, they have been able to restrict its applicability in the criminal justice system. so houd did they do this? they did this by rekansas ael juvgsz for the exclusionary rule and then giving the court the power to decide when to pick and choose essentially when it should be applied. so what you see in court decisions, and i won't bore you
with all of them, there are many. if you read the court decisions, there isn't a focus on it being constitutionally required or needed to protect the integrity of the judicial of the system. rather a discussion about the reason you have the rule is to dough terr police misconduct, that it's a judicial creation, that judges sort of came up with it as a way to remedy perceived wrongs, which actually did exist, but there's really no mention of the constitution. and so what the court would then do is use a u till terryian balancing test in order to evaluate when the exclusionary rule should be applied. so they would look at the costs and the benefits. what's the cost of the exclusion of evidence, what is the benefit of having the exclusion of evidence. and it was all done in the context of this deterrence rational. so the court would evaluate whether or not police misconduct would be deterred by exclusion of evidence. if the answer was no, then they would allow illegally seized evidence into trial. if the answer was yes, they would allow the exclusion. so ultimately by discussing the
exclusionary rules of judicially created remedy rather than a personal constitutional right, the court weakened the foundation provided in weeks and mapp and empowered the supreme court to decide its applicability. and so if you look at the court's juris presence you see a number of exceptions to the rule. so there's a category of cases where the court declined to apply the rule in what they called collateral cases. so they said you can apply the exclusionary rule to the prosecutions case in chief, but in these collateral settings, it was unnecessary because to exclude the evidence wouldn't deter police misses conduct, so why bother. so it doesn't apply top grand jury proceedings, civil tax proceedings, habeas korms proceedings, civil deportation proceedings, parole revocation proceedings, the list goes on. there's another category of cases where the kwort also believed that the exclusionary rule shouldn't be applied and those involve what they call good faith exceptions. so there were a series of decisions where the court decided that when police were acting in good faith, maybe they
got a warrant that they thought was constitutional and conducted a search or maybe they conducted a search that they were lejs laibl allowed to do and when we found out later that maybe that wasn't okay under the fourth amendment, the court said but the police were acting in good faith. it was somebody else mistake, somebody else's mistake in the judicial branch unconnected to the police, somebody else's mistake in the legislative branch not connected to the police. the reason why that's important enthis the police were acting in good faith. the purpose of the rule is to deter police misconduct, you can't really exclude the evidence because it's not going to achieve that result. so what they did is they laid a different foundation for the rule and in so doing were able to kavl out these exceptions which limited their applicable. so what about the roberts court? i gave you a teaser with my comment about samuel alito and john roberts. there have been two important cases. and i mention them to bring us up to speed with the
exclusionary rule and also to end with comments before where i think we're going to go from here. there's a case in 2006 called hudson versus michigan which dealt with what's called knock and announce when people have to nong for a pefrt before they enter into the room. what's important in the decision although it was a smaller part of the decision is justice scalia as's comments that he thought it was pretty much time to evaluate the exclusionary rule. and one of the reasons earned re-evaluate it is ironically because the need tore is it no longer existed because the police had been professional iced and because the police were acting professionally you don't need the exclusionary rule. he also suggested there were other remedies that you could use if people had their evidence seized from an illegal search. so criminals could always sue the police or maybe the mills can police themselves. and these have been remedies that folks have always talked about and there is proof which shows that this can be an effective remedy in certain instances. but it was ska leeas very direct
attack on the us cleeksary rule that bears note. the most significant care is herring in 2000 the. in this particular case it was very interesting pause a member of the law enforcement not in the jurisdiction where the arrest took place but a member of law enforcement in sfloer jurisdiction made an error and it was an error in terms of whether somebody had an outstanding warrant. and in this particular case chief justice john roberts said that the police officer that actually executed what he thought was a warrant was acting in good faith, because he didn't know that the warranted actually should have been pulled. so it was the first time we had a case before the kofrt where a member of the law enforcement community participated in the error, and in this particular case the court said, despite the fact that the person was from the law enforcement community, rather than the legislature or the courts, that evidence should still be excluded from trial. why? because the police officer making that arrest didn't know about it, acted in good faith.
so that's a significant evolution, because you're expanding the number of good faith kpepgz, but you're also expanding is it to law enforcement. and some would suggest it might be a little bit of tension there. the second thing that's important in herring versus the united states is that robert said and this is for the first time that police mistakes have to be systematic error or reckless disregard of constitutional requirements and not mere negligence to warrant exclusion of that evidence from trial. so he's essentially asserting that if it's just mere negligence, then the evidence should be admitted to trial. so i would suggest that the roberts court, even more so than the court under burger and reign quist, is probably closer top limiting the exclusionary rule even further with p comments like this. but we don't have as much data, so it's difficult to say that conclusively, but it's an interesting development. but as i say to my daughter, it all comes down to math. there are four justices on the court who would get rid of the
exclusionary rule, and it just takes one. it's always five. and so that's why judicial appointments are important. that's why presidential elections are important and why we have to pay attention to these things. so let me end on a happier note. so what is going to happen? one thing that's happening which is really quite fascinating, would actually make thomas clark, i think, roll over in his grave is that states are actually more aggressively protecting fourth amendment rights against unreasonable searches and seizures more so than the federal government and the federal dorts and that's a very interesting development because the argument actually in favor of the revolution in the first place was you had to have all of the states on the same page that you don't want to have a patchwork of laws governing things how people should be treated stushlgel when they're at their most vulnerable. what's interesting because of this new judicial federalism and the increase lg kechbltism of the supreme court. you have state courts now looking at their own
constitutions and hopefully carving a pathway for greater protection under their own constitution. in 200516 states allowed for the exclusion of evidence sfiet that evidence being attained by a mistake that would have been excluded under the good faith exception. so you see this fascinating thing that's happening at the state level, which is a good development for people who like the fourth amendment, but it's a difficult challenge because you might have an consistency in the administration of justice, which isn't a good thing. so let me end by saying this. mapp v. ohio, a first amendment case about a woman with some dirty books turned awe buy landmark decision of grand proportions, not only in how it professional iced the police and changed the way police did their business, but also in its launching of the criminal due process revolution. and that the implications of this landmark decision are going to be with us for decades to come. so i understand you're a smart audience and i really look forward to your questions.
[applause] zoo carolyn, everyone said you were going to be great, and they were right. if you have a question, please come to the microphone over here. we have time for about three or four. and so fire away. >> now that there is a big national as well as international focus on the apprehension of terrorists, have there so far been any cases that have gone to the case that you're mentioning relating to the obtaining illegally of evidence. >> so the question was whether or not there have been cases involving suspected terrorists that involve the possible exclusion of evidence. i don't know. and i'm embarrassed to say this, but there was a case in oregon involving several potential
terrorists and i know that there were suppression motions in that particular case, but i don't recall whether or not they were successful, so i'm afraid i can't answer that conclusively. i will suggest that in cases, particularly the high profile cases, and there's a whole list of them, in those high-profile cases there is a tendency for judges to find ways around the exclusionary rule. and indeed some of these exceptions are because they were hard cases. and you found a judge who was reluctant to apply the rule and that let maybe the criminal go free. so i would suggest in there were that potential scenario that that's probably something that happened, but i couldn't tell you conclusively. but i'll get back to you because i'll look it up because i hate not knowing the answer. >> of course, this was decided before the internet and before cell phones so how are we protected from sour conversation on cell phones, things that we tweet, put on internet which apparently we're not protected. >> you're not protected. no, it's not, actually. 89 fourth amendment does not ploy a great deal of protection.
and we're hearing a lot about the fourth amendment in the news these days because we're hearing about activities the federal government is engaged in in terms of collecting data. and so what we're hearing and it's regretable that we're hearing about it rather than knowing about it, but of course there are reasons for that is that some of what the government is doing is constitutional. so, for instance, they can keep track of numbers that people call. it's called -- there was a supreme court case about that and that doesn't violate the fourth amendment. there's also fies athe federal intelligence surveillance act which allows a certain amount of surveillance including domestic if it is linked towards international terrorism. and so i don't have an easy answer pause it involves so many potential issues. but i would just say that the fourth amendment doesn't really have significant teeth in terms of constitutionally protecting us. and if he statutory protections that we do have really been, i think, limited by the decisions of the fiesa court. and one example i'll provide you
is that the fiesa court has heard thousands of cases where people are asking for warrants in order to engage in further investigations of individuals suspected of having ties to terrorism and in all but a handful of cases the warrants have been gchb out. so to me s even though i don't know all of the cases, that doesn't show that there's really been firm enforcement of the fourth amendment at the level that i would like. it's a great question. >> does this things going on in new york city, this search, stop and frisk come into this at all? >> can i come back for another night? stop and frisk is a great -- it's a great fourth amendment issue and what's interesting and i'll take a little bit longer to answer your question, but i'll get to it. tae versus ohio which is a case where the supreme dort said that police would be able to stop somebody suspected of committing
a crime and do what's called a limited pat-down, the stop and frisk the court said it was constitutional. and so some argue that i think that they're right that the reason why the court allowed in this taer versus ohio is because of the political bash lash that the court of the getting because of miranda versus arizona and mapp versus ohio. but what's interesting about the stop and frisk as we saw in taer versus ohio is that it is has evolved to something completely different. so noul, even if you are stopped for a traffic offense, you can be stopped and friskd by law enforcement, and that's considered constitutional. and even if you are a passenger in a car that's been stopped by law enforcement, you can be friskd by law enforcement. and so it shows you how much that original ruling has changed throughout the years. and what's interesting is the orange ruling in terry versus ohio was that you stop and frisk someone because of officer safety. it makes complete rational
sense. you don't want to stop somebody is have them injury when you're trying to protect public peace. but if somebody is being friskd and they're a passenger in a car, it's a little bit more difficult actually to make that argumentment and there have also been cases where people are actually in the police car and they are isolated and there's absolutely no way they can get to their own car and the car is being searched and the individual is being frichkd. so this whole idea of the rational for stop and frisk has gone away and the court continues to expand the number or the opportunities in which it will allow law enforcement to engage in this practice. and i don't see that changing. i really don't. because you have so many precedents right now which allow it and so we talk about death of a hundred cuts. it's still continuing. >> did i answer your question? actually? >> i'm an old occur muj yon who can't exist without the morning newspapers in my hand. this very morning a scum bag
from fort hood texas will become our neighbor 38 miles up the river in 11 worth on our penny. i sort of hope he becomes a cell mate of chelsy to be. my question is this country possibly super, super, super, super over lawyered today? >> so the question is are we super, super, super, over lawyered today? actually, people suggest that we have something a disease called hyper leksa. i think you've heard of this in law school. so we have too many lawyers. in fact, per cap at that we do have more lawyers in the united states than most other countries. but maybeic give you a statistic that will make you a little happier, which is that applications for law schools have gone down and we're producing fewer lawyers today. and they're unable to find jobs today and many are choosing not to go into law school because
it's so expensive. so maybe we don't have super, super, super too many lawyers. maybe just super too many lawyers. i don't know if we're there yet. i don't know if i answered your question. >> thanks, carolyn. thanks for being here. carolyn's book on mapp v. ohio is for sale courtesy of the ku bookstore. she'll be signing copies out fl. and we'll see you next time. thursday night on c-span three while take a look at the case chief justice earl warren called the most important case of my tenure on the court. baker v car framed the drawing
of electoral districts as a constitutional issue and not a political one. join us at 8:00 p.m. eastern here on c-span3. online at c-span dot organize and streaming on the free c-span radio app. saturday, beginning at 6:00 p.m. eastern on american history tv, robert oh her ara talks about the life of civil war quarter master general. at 10:00 p.m. real america shows two add voes teams from the mid 1950's about traffic and road safety. >> we need proper traffic regulations to promote efficient travel. and we need one more thing too. we're talking of safe driving. cars and roads have kblooufd, but the driver must improve too. almost a greater challenge. just how can community did about about a safety program. >> sunday starting at 6:00 p.m. on american art i facts, a hyped the scenes tour of the sit
seasonian calf on the national mall. and at 6:45 paerm, the u.s. commission on civil rights marks the anniversary of the americans with zablts act with a report on its history and the work that remains. american history tv, all weekend, every weekend, only on c-span3. you're watching american history tv, all weekend, every weekend on c-span3. to join the conversation, like us on facebook at c-span history. next, hour focus on the supreme court continues as a panel of jurists and attorneys discuss gideon v. wane would it, the 1963 supreme court decision that ruled criminal defendants at the state level have a right to counsel. the supreme court historical society and the supreme court fellows alumni association hosted the event. well,oo