tv Supreme Court Landmark Case Mapp v. Ohio CSPAN April 6, 2016 10:00pm-11:34pm EDT
new york and henry clinton that carnegie mellon university in pittsburgh. later, ohio governor john kasich gives his annual state of the state address. collects all persons have a business before the honorable supreme court of the united states admonished to cannot here and give their attention. c-span's cases," series history produced with the national constitution center, explore and the constitutional dramas behind 12 historic supreme court decisions. number 759. against wade. >> quite often in many of our most famous decisions, many of them are quite unpopular.
let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of whomillion different people stick together because they believe in the rule of law. >> good evening and welcome to c-span's "landmark cases." onight's 1961 case of mapp v. ohio woman who refused to let the police search her house without a warrant. it is also a case that involves entry into the supreme court itself. this evolved into a case that wornne of a series in the course that changed policing in america. we welcome you with us this program and we hope you have been with us throughout the series. let me introduce you to my two guests.
we can't actually been enjoying talking about the case a little bit. i think i'll remap -- i think mapp was like that. the carillon, literally wrote the back on the case. the subtitle is called "guarding against unreasonable searches and seizures." she is based at the washington state university of vancouver. welcome to the series. >> renee hutchens is close by. she is codirector of the advocacy clinic and also, a former federal prosecutor and the justice department's tax division. she is working on a book called "learning criminal procedure." start with the basic issue in this decision. -- what did itse ultimately become about? >> what is really fascinating about this is what it started out as it ended up as. it started out as a case about
pornography and obscenity and ended up as a case about whether or not evidence should be admitted into a state trial. >> why is this a landmark decision? >> allow this rule to be extended tto half the states in the union. it had a sweeping effect on police procedure, including an effect on how judges would hear cases. build on that, another reason why it was a landmark is because it shifted the way with about policing. it shifted the professionalism of police forces. it shifted the way we thought about warrants and for the the police could come into our homes and a search for evidence if they thought we were engaged in criminal activity. >> to get us started we are going to listen to some audio. this is the first case in our wayes and we are 2/3 of the
through it, where the court has become recording all of the arguments. this is the first time we can listen to the argument that the lawyer made before the court. >> this lieutenant came and mrs.d a piece of paper and mapp demanded to see the paper. which they refused to do, so she grabbed it out of his hand to look at it. she put this piece of paper into her bosom. and very readily the police officer but his hands into her bosom and remove the paper. and thereafter, handcuffed her. while the police officers started to search the house. now, the evidence in the case discloses that the state claims
they were only seven points officers, some in uniform -- mr. green, who was there and was not permitted entrance to the house, but was kept outside, says there were approximately 12 police of others in all. now, the evidence discloses that no search warrant existed. l currents was her attorney all the way through the supreme court and we will be learning more about him and his role about the case as the program proceeds. with therd, this deals fourth limit of the constitution. thee going to show you principles of stay here. the right of people to be secure in their persons, houses, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause. describing the
place to be searched and the persons or things to be seized. whay was this part of our constitution? >> prior to the founding of the nation, in england there had been these it jail warrants that allowed police a lot of discretion full when we came , theinto colonial america police could do the same thing and the founders did not want that kind of unfettered police discretion. they wanted to rein in what the police could do. the language means, we have the right to be free from unreasonable searches and seizures and it says, but if you are going to get a warrant, you have to base at warrant on probable cause. say who you are looking for and what you are going to seize. those two clauses have been read it together. for the most part in modern
history, with some exceptions in recent years, for the most part, we have said that warned was searches -- that warrantless searches are unreasonable. if the have not gone to a judge and received an affidavit, they can't research. that was the general rule. there are lots of exceptions, lots and lots and lots of exceptions. that was the world that existed prior to mapp. >> have been applied -- he must have a warrant for federal offenses, but only half of the state said this applied to them. there was a discrepancy depending on what state you live d in. what the supreme court ended up doing was resolving this for making it applied to the state. isthat is what mapp v. ohio about.
people should understand that these were open ended warrants. customs officials and anybody they deputized could go into a place of business, they could go into your home, looking for smuggled goods, which was a very serious problem in the colonies. it was egregious also because customs officers would actually get money if they found the smuggled goods. they had an incentive to engage in illegal searches. this motivated these days to look at the provisions within their state constitutions, which closely mirror only have any for the moment about the need for a warrant. passage. motivated >> tonight people will be hearing a lot about the rule.led exclusionary what is that? >> it says that if the police break the law in finding the evidence, it can't be admitted in trial. that is the most basic rule.
again, many exceptions to that rule. a blood thatourt rule only against the federal government, it did not apply -- only apply court that rule against the federal government, it did not apply to the states. the states were permitted to violate the fourth amendment at will. >> we have a map of the states that you did not have to have a warrant in 1957, when his first occurred. if dollree mapp had lived in one of the states where you needed a warrant, this case would never have come to the court. was the court looking for some reason to do this? giving they would have found another vehicle? -- do you think they would have found another vehicle? weredon't think they looking for a vehicle. the search was so egregious that it motivated the court to use the exclusionary rule.
it was almost too good of an opportunity to pass it up. just as john clark maybe have been looking for a vehicle because he had decided a case where he had read a concurring opinion in a case that he did not circulate. was deciding whether the case should be reversed. this was something that was on the court's mind. >> one of the premises behind this series was that there are interesting stories behind the cases that make their way to the supreme court. if you have been watching, you have seen people of all types, from secretaries of state to just ordinary folks, take part. i think dollree mapp is definitely in the category of ordinary folks. the when she died, one newspaper called her "the rosa parks of the amendment." >> i think she was a more colorful character than rosa
parks, which is why that quote is so apt. she was a fighter. she was somebody who was very confident. she was described as arrogant by some, but she knew she had been wronged by this extensive search of her home and that she had been targeted by the police and she really wanted to fight this case. a lot of people say i got to take my case all the way to the supreme court, but shvery few make it. that meeting dollree mapp -- , youeeting dollree mapp knew she could do it. >> she is from shaker heights, east of cleveland. tell us the basic parameters of her story and the crime that was allegedly committed. >> this is a young, african-american woman. she was a single mother. she was married and divorced from jimmy bivens, a great boxer.
worldeated eight champions, but never had a title fight. she had been engaged to archie moore, a heavyweight fighter himself. she was very familiar with the boxing scene. part of that scene was illegal gambling operations. and in cleveland, like in many cities, they had something called a policy game, or people would engage in almost a daily lottery for small bits of money. dollree mapp was in the periphery of that world and knew people involved in illegal gambling. what led to the case actually was the fact that others who were involved in illegal gambling, most notably donald "the kid" king, had his front porch bombed by people who are trying to shake and down because they were trying to get money from him, as well as other people involved in the gaming business. what happened was there was a informant who said somebody was
who lved in the bombing an knew dollree mapp's mom. the police went to her house and at first, they gently requested they be let in. she said no. they went back and got a search warrant, allegedly. they came back and pried open the door to her home at the time she was descending down the stairs. as kerns said, there was a tussle and she was handcuffed. bed and then to a minister. and then, she was handcuffed to a police up with her. they were looking for a bombing suspect, which they found the first few minutes of the search. they then engaged in the search for three hours in her home. in every room of a house, inside a compartment of her house. they eventually found gambling
paraphernalia in the basement and they found some books that were allegedly obtain and some pencil drawings -- that were allegedly obscene and some pencil drawings that were allegedly obscene. the arrested her on the gambling charge and later it turned into a charge on the obcenscene material. >> just to make sure people got the connection, donald "the kid" king, many americans got to know king, the guy with the crazy hair. the cleveland police department had a bureau of special operations investigations. would you talk a little bit about 1957 and this unit within the police department and whether or not there was tension between it and the african-american community. >> they're absolutely was and that is one of the things i wanted to build on. when we talk about what happened
to dollree map today, it ends of being sterile and removed what probably would have been a very scary experience for a single mother, at home, in a house that upon by laid siege police officer's. 20 police officers do first, -- come,olice officers first they say they need to come in, but the did not go away. the actually waited around her house. she could not leave. she could not exit her home at all. the phone withwas on her lawyer, but when he showed up he could not enter her house. and when you think about what kind of experience this must've been for that woman, and the special bureau of the police force coming into her house -- it was kind of notorious for policing very aggressively, members of the black community.
they routinely went into homes without warrants. violated they fourth amendment with regards to the urban population. if a police force entered your home and does not allow your lawyer to talk to you, and handcuffs you to a bed, reaches done your clothing, goes into your clothing to get a suppose policerant," which the later admit was not a warrant at all, they physically assault you and handcuff you to your bed, i think the trauma that she must have felt as a result of that experience ends up getting underplayed. >> the police say that yes, she was a single mom with a child, but at the same time she was part of the boxing community. there was a suspicion of numbers running the policy came in her world.
she already had a lawyer, but she had some experience with the law. she had been married to a boxer. she was someone who was known to the police. it was not entirely a first-time innocent situation. >> she was well-known and not to say that it excuses law enforcement's behavior in this case, but she had been stopped and questioned by police before. she was well-known as someone who might have been involved in illegal operations. it probably was not a surprise to her that the police showed up. it is important not only how she fell individually, but this was happening in cleveland. the bureau of special investigations really was aggressive and even years later , he i spoke to carl th said, we were aggressive. we constantly engaged in searches without a warrant. it was commonplace. it is important to note the
bureau did target communities of color because if you look at where the policy game was happening, they were in communities of people with lower social economic status. at the time, it was predominantly an african-american community. if you have a targeting of those communities -- and then tyou have the police arresting people so they then have to be in court, which means they are not engaging in illegal behavior, material.ng they used a number of strategies to try and attack what they called a pervasive problem in the community, which was the gambling. >> i don't want to paint dollree mapp with too rosy a brush. asthe lawyer she had was not a result of a criminal case. it was a civil lawyer. it was not at all clear to me that she was on the fringes of a criminal element.
she knew them -- certainly, she was dating a couple of guys who were involved, but i don't know that it is fair to suggest he was a repeat player in this world and therefore, appropriately targeted. >> we're going to hear the next side of the story from the perspective of the cleveland police department. in the cleveland police museum we hav may have a display about. >> you are currently looking at two documents, three pages. one is what we call our daily duty report. it describes what the police officers, working together on that particular date, did it during their tour duty. the second document consisting of two pages is actually the arrest report of dollree mapp and ovaltree. to the best of my knowledge, they are the only existing documents left from this particular investigation. we are looking at the arrest report of dollree mapp and it
details what happened on the evening of may 23, 1957. the sergeant talks about the fact that he had received information from a confidential informant that there was a someone inside of the residence milverton that was involved in a bombing that had taken place at the residence of donald king. based on this information, they set up surveillance on the theyss and while there, attempted to get into the home and were denied access. and according to the report, lieutenant thomas white left the scene and went downtown and obtained a search warrant. with the warrant in their possession, they then gained entrance to the house and it was at that time that they secured dollree mapp and they began a search of the premises. as a side note, they mentioned
the fact they maintained a search warrant in the arrest report, but if you look at their daily duty report, they also specifically mention there that one of the officers went downtown and obtained a search warrant and then returned to dollree mapp's residence before they gained entrance. for reasons we may never know, the search warrant was never presented at the time of trial and never ended up at the supreme court during the arguments there. i don't believe the officers thishad any idea that arrest and search was going to end up in the u.s. supreme court. >> so, what is your reaction? >> it is remarkable how years later there is still a story how there was a search warrant. there was not one. and carl knew that. what they had was an affidavit for a search warrant. what you said was that he hadn't examined it closely when they engaged in the search and when
they had detained dollree map. but they knew after she was arrested there was no warrant, yet throughout the entire lower court history, up until the supreme court case, they insisted there was a warrant, but they didn't have it available. was perpetuated and you can see that not only in the report, but in the retelling of it here. wass you mentioned, she originally arrested on gambling charges because they found paraphernalia, but those charges were dropped. days later she was charged on obscenity charge. that was a serious charge in ohio. >> it went to trial and a quarter of limited jurisdiction. she was acquitted because the material was far away from her, obviously. over the weekend the officers actually went and they went through an arrest report and decided -- >> they indicted her.
>> in ohio if one is convicted, the sentence is one to seven years with a $2000 fine. it is a felony and after she was arrested and indicted, it went to a grand jury. they quickly decided to go to trial and it went to trial almost a year later. scott wong: >> 1957, what were the norms about obscenity in the country? >> one of the things that tells you a little bit about that time didod is what dollree mapp with the search warrant. it tells you something about the modesty of that era and our view s about women and femininity. when the police come into her house and she snatches the affidavit out of the officer's hands, she shoves it down her blouse. as if that would somehow protect the police from ever again getting it. because there was this sense
that that was protected and modest. which spills over into the obscenity laws. or is this notion that things that are visually pornographic, the depictions of new bodies, should not be seen by decent, common people. that was a pretty widely held view. >> how with these materials compared to our standards today? >> it is a pencil drawing. it is very modest. it is something you might see in a high school. not that i would recommend it. [laughter] it is important to note that the law around obscenity was not quite settled at this time. the supreme court had only decided two cases, a case in 1957 where the court was trying to determine the proper standard to evaluate what was obscene. and then a case in 1959 called
smith v. california. in that particular case, which is important for the obscenity charge, theyapp said it was unconstitutional to prohibit possession of obscene material if it might be sold. there was not a lot of law around obscenity. was is considered obscene really unsettled, which is one reason why it went to the court. >> why was the time between her arrest and the trial so long? where was she at that time? >> she was out on bail the entire time. but this was a very busy general court. it is in a very large, urban area. it took a long time for cases to move through the system. initially, her lawyer wanted her to plead out and take a plea bargain deal so she could avoid jail time. she at a milley refused. she wanted her day in court. and then she tried to negotiate a plea on her behalf without her
knowing, which infuriated her, but that did not go through because the prosecution did not want it. everybody wanted the kids to go to trial. so, and took long time because of the crowded court system. >> next year are going to hear our only piece of video that has dollree mapp and her own words. before we do that, we hope you will call in with questions or comments about this case. you can do it by dialing this number. if you live in eastern our central timezone. if you live in the mountain o timezone, please direct carefully to get into our studio. we look at your questions in line as they come along. you can also tweet us. please use the #landmarkcases. there is already a conversation underway at this case. -- about this case. -- youup, dollree mapp
will be her. this documentary was produced about the case. dolly. of my friends, a very few calls me dollree. i take care of myself. i felt good. i knew there was something i should do. i did everything i knew how and i felt i had been treated wrong. if the search was illegal, then you have the law on your side. >> and use it that when you met her she still had that determination? -- and you say that when you met her she still had that determination? >> absolutely. >> prodigy me her lawyer? >> he was a criminal defense lawyer, but she had an action for breach of promise against archie moore, the man she was engaged to.
she had secured him for that reason. he was doing both, which was common. >> and would it have been the only case he ever argued before the supreme court? >> almost certainly. [laughter] e went to trial and was found guilty for the possession of the obscene literature. the case was upheld on appeal in the intermediate appellate court and then when it went to the ohio supreme court, they affirmed her conviction. but they also did is they look at the constitutionality of that law that dealt with obscenity. and four of the seven justices said they believed that the law was unconstitutional, that it was overbroad and that it should be struck down for that reason. the stateo under constitution, you need a super super majority. had tothe seven justices
determine it was unconstitutional for it to be struck down. it was a unique work in the constitution -- it was a unique quirk in the constitution. we do not see this often. search also was addressed in the case and the court was concerned about the search being illegal, admittedly illegal actually. but there was an ohio state precedent that said in the state of ohio, illegally seized evidence could still be admitted to criminal trial. which is why in ohio, like the other states that did not have an exclusionary rule, we still had police engaging in such searches without warrants. >> thank you so much c-span for taking my call. i live very close to the home there. i was amazed.
i've heard of the case before, but i did not know it was in -- request is, how relevant is this case today? is it still being -- my question is, how relevant is this case today? is it still relevant and being used today? thank you. host: the short answer -- prof. hutchins: the short answer is yes, it is used all the time in court, routinely. prof. long: it is mapp v. ohio that allows the state court judge to rule that evidence is not admissible. theas been cut back a lot, restrictions on the exclusionary rule, but it is still very much in force. host: you are on the air in maryland. caller: good evening. my question for your guests is, mapp, and decision in the supreme court has followed out a bunch of exceptions,
haven't these exceptions weakened mapps? prof. long: absolutely. i think that is one of the real tragedies here. host: the argument that was before the court was about the issue of excluding the evidence, but the basis for the decision was that it was constitutionally required to exclude illegally seized evidence, and the underpinnings of mapp have been eaten away, as renee suggested, over the years, so that now they look at the exclusionary rules very differently than they did before. right now, the court looks at whether the rule would deter police misconduct, rather than the fact that it is constitutionally required. that's allowed for a tremendous number of exceptions to the rules. it's almost as if the foundation of mapp has been eroded by the decision by the way the court was constructed and questioned before it. host: next, a color from
washington. -- a caller from washington. caller: because it is such a controversial court case and it deals with this very sensitive issue, search and seizures, how would you guys see that the precedent being applied in, let's say, a court case where supreme court -- how would it be applied today? we know we see the court working in cycles, the courts where they don't like to follow rules, they like to apply different president -- precedents. how would they apply it is, let's say, it would come up today in today's court? prof. long: i think what was saying is exactly right. it is much more restrictively than it was -- when it was first announced. when evidence is illegally
obtained and courts engage in admitting the evidence and allowing convictions based upon that evidence, that affects judicial integrity, and we want to deter bad police conduct. in more recent years, the only justification for the rule is the deterrence rationale. that only restricts reckless police behavior, intentional police behavior, knowingly negligent police behavior. it's a much narrower swap of -- that of police behavior actually is being affected by the exclusionary rule. host: on twitter, a question -- did statespp assist feds re: searches since they could do so without a warrant? prof. hutchins: oh, yes. there was a gentleman who the federal government and the state government thought was violating
-- the state police went in initially. the neighbors told them where home.e was in weeks' the police officers, state police officers, turned that over to the u.s. marshal. the u.s. marshal, along with the state police, troop back over to searchhome and they again. police officers, state and federal, were working together in a cooperative spirit to ensure that federal convictions were had based on evidence the state police were seizing. host: can you discuss law enforcement tools for parallel construction allowing illegal ebling to be -- illegal evidence to find a path to legal evidence? prof. hutchins: the primary way that we see this is in the miranda context, when there has been a violation of someone's
miranda rights. the standard right that you hear on every evening -- "you have the right to remain silent. you have the right to an attorney. if you can't afford an attorney, an attorney will be afforded for you." as a result of the miranda violation, that physical violence -- evidence can be admitted. in that sense, yes, there are some constitutional violations that can happen that result in other evidence that is allowed in. host: let's back up a bit to go forward. the ohio23, 1964, supreme court justice voted to -- -- is a technicality that a super majority was required. how do we get from there to the supreme court? is a long: whenever there federal question, you can appeal to the supreme court by filing a write. writ of certiorari.
that's what she did. we look back at wharton and -- warren and tom clark. eight of the nine justices granted this writ of surgery -- of certiorari frankfurter did something colorado. in wolf v. he declared that the fourth freedom -- the fourth amendment was -- prof. hutchins: the concept of ordered liberty. but theng: nothing -- he said in this next paragraph that the exclusionary rule, which he called a remedy which is judicially created, could not be extended to the states.
he did not find merit in that idea. felix frankfurter did not want to hear this case. he was famous for not wanting to read here his decisions -- to re-hear his decisions. host: john harlan, potter stewart on charles whitaker -- can you talk about how the dynamics of the court changed with these new justices? where are the factions? two. long: you have the branches of the court, justice william brennan, justice hugo black, and the conservative side of the court, which include harlan whitaker -- whittaker and felix frankfurter. then you had tom c. clark, who was the u.s. attorney general. he worked on the korematsu case. he was involved in the exclusion
orders, working with earl warren at the time. ne is a true point -- is a appointee. you have four justices we would characterize as liberal. someone called in judicial activism. themour -- some would call judicial activism. moreour who were conservative. and tom c. clark. host: who wrote mapp. how did she have enough money to pursue this? she didn't.ns: prof. long: she had an unnamed and effector from the beginning, and -- unnamed benefactor from the beginning, and it cost about $800,000 to go to the supreme court. i tried very hard to get a name out of her, but i was unable to do so. host: next, from the oral
argument in the supreme court. this is the first case in our landmark series where we actually can hear the audio of the actual oral arguments from the supreme court, because the supreme court began a taping system, which it maintains to this day, to tape all of their oral arguments. here is mr. kearns making his argument to the supreme court in 1961. >> here is a woman who is lawfully in her own home. she is not exhibiting anything like this. she is not trying to sell it. she is not doing anything. assuming that they did find it in her home, the sentence sevend upon her is one to years for exercising, let us say, her right to look at it. a book that she shouldn't look at. to have in her possession a book that she should not have. not that she is a criminal. not that she has a former record. but one to seven years imposed
upon her for daring to have a book of this sort in her home. susan: so, as you can hear, very important, that was the first amendment argument being made to the justices. next we will hear from the other side. who argued those? prof. long: gertrude mann. she was about 52 years old. she was a longtime prosecutor. this was not the beginning of her career. susan here is the beginning, : making ohio's side of the case. >> ohio does not all of the best does not follow the exclusionary rule, -- ohio does not follow the exclusionary rule, and this court has held that the state has a right and it is not in the violation of the 14th amendment to's -- to seize as evidence, even though
obtained without a search warrant. to -- how did they decide prof. hutchins: ohio was arguing, i think, probably unfairly, in light of another decision, it did not mapper -- matter whether the search was illegal. amendment did not apply in terms of the exclusionary rule to the state at that time. this was a state prosecution. why did it matter. -- matter? host: so, the specific question before the court in map the ohio -- in mapp v. ohio was singular one. we will show you that next. the question before the court was, were the confiscated materials found in mapp's home protected by the first amendment? as we have found, it took a twist and had a different outcome. we will take a look at the
intrigue at the court that changed the direction of the case. hi, greg, you are on the air. caller: yes, i have a question about how mapp applies to the bull collection of data, the the -- the bul-- bulk collection of data. warrantless wiretapping of data has been a big issue for the past decade. does mapp apply? carolyn: the nsa is a federal agency. -- renee: wiretapping for the most part is covered by title iii. there are statutes that cover the collection of data across wireline's. the fourth amendment is relevant, but it would really be the statutory here. susan: ed is watching us.
caller: can you talk about the life of the court outside -- the decision outside of the court? police crime dramas often showed the need for a warrant as an obstacle to getting to justice. they kind of ignore that requirement. do you think that shows are trying to sway public opinion? susan: did this case make its way into the popular culture? carolyn: it has, unfortunately. -- it has, fortunately. i think with miranda, fortunately, because people are familiar with their rights. we have police serials to thing for people misunderstanding their rights. usually there is a case, there is evidence, it has been obtained illegally, it is excluded from trial, and a serial murderer goes free. people have this impression that
this evidence that has been gotten by illegal means has led to criminals being released from prison. a lot of very good social science researcher -- research has been done on the exclusionary rule, and what we find is, it has led to more motions to suppress evidence, but when it's actually used, rarely does it lead to what we call non-conviction. usually, people are convicted of the crime anyway. in the cases where there was somebody who was not convicted, we're talking about low-level crime. drug possession, gun possession. one scholar found that usually sentences were under what year. -- under a year. so, it does not make for a great television show for somebody to have a minor possession charge dropped and go free. instead, these tall tales and this mystique about these criminals running the streets because of this rule is what has been perpetuated in the mass media. renee: there is also this notion that criminals are going free because of the exclusionary rule, but there is another side
that we have to always considered. the language that the court used " the criminal goes free if he must, but it is the law that sets them free. nothing can destroy a government faster than its billiard to obey -- its failure to obey its own rules. our government is supposed to be the omnipresent teacher for good or ill. it teaches people by example. if the government becomes a breaker of the law, it invites contempt for the law and invites every man to do so. in invites anarchy. i think that is at the core of the exclusionary rule and something we should not forget." caller: thank you for another great episode. i wonder, this case originated in ohio. given the era, i would be almost less surprised if i heard it came from the south. did racism play into this case as much as it seems to from
watching the episode? susan: thank you. let me talk to carolyn for a review on that. -- for her view on that. carolyn: i think that race played a rule -- role in that the bureau of investigations was predominantly going after more african-americans. i do think it played a role. i think even carl delisle would say it played a role. we went for the crime was. mapp wasddition to how treated by the police really shows that race was an issue here. this was happening in the late-1950's. ohio -- mapp v. ohio was decided in 1961. these were happening throughout the country. these problems persist today. susan: next, josh is watching us in iowa. hi, josh. josh: thanks for taking my call.
in recent years, how has the supreme court curtailed the mapp v. ohio ruling? host: that's one question i'm going to wait until the -- we are going to entice you to stay with us for another half an hour so we can get an answer for you. next up, ron in texas. ron: hi. i'm a lawyer of 44 years, practicing in texas and in federal court. roe versus wade among others. i'm just wondering if you all are aware that every big city has a judge sitting by all night who rubberstamps the search warrants. in and they just come
the cop swears to whatever and the judge signs his name and then the search becomes, presumably, legal. are you aware of that happening, or is texas kind of bad? [chuckling] but it must be, i am sure it is the case in other cities. susan: did that happen as a result of mapp, when search warrants were required at the state level? certainly, there are judges who sign off and rubberstamp affidavits for search warrants. the beauty of what mapp did was allow that to be excluded. by allowing evidence to be excluded from state trial, the ruling court could decide
whether the judge rubberstamp and should not have. susan: linda from minneapolis. you are on. hello, thank you for taking the call. i have a question. i don't understand this exactly. if the fourth amendment was from the federal government, the central government, guaranteeing rights to legal search and seizure to american citizens, how could any state abdiridge those rights? doesn't the federal government supersede state laws and what states do? i'm confused. renee: it is rightfully confusing. constitution, at the time it was created, was seen as a check on the federal government, because it was federal government that we were most afraid of at that time. we were not particularly concerned about state governments. and so, the first eight
amendments to the constitution are or were seen as limitations or constraints on the federal government. it was not until the 14th amendment was passed and the court began to selectively incorporate -- that's what they called it -- some pieces of those first eight amendments into the 14th amendment, so that it functioned as a limitation on state government, that we then saw both limitations on the federal and state government. susan: this is how our landmark cases are all steady -- starting to fit together. the oral argument happened on march 29, 1961. the next stage in the process, for people who don't understand this part, is judicial conference, where the justices go into closed rooms. no clerks are allowed. they discuss the case. that happened a short time later, march 31. what happened in that conference? potter stewart said
that he thought a caucus had occurred, because the issue had transferred -- transformed so much. the caucus happened in an elevator. what happened after the conference is tom clark was in an elevator with william brennan and hugo black. he turns to them and he said, "i think that this might be a good case to overturn this decision in wolf v. colorado." and when they met in conference to originally talk about the case, the whole issue of the of sanity clause dominated the conversation -- the obscenity clause dominated the conversation. it violated the first amendment and the 14th amendment. but it does raise the issue as to whether or not this illegal search and the circumstances of this case were such that this would be a really good vehicle to revisit that decision in wolf v. colorado. tom clark was thinking about
this since he left the conference. that's when he introduced the idea to hugo and black. -- brennan and black. he had really been thinking about turning this into a fourth amendment question. they said, are you serious had indicated they might be persuaded if he took it that direction. so, he was beginning to count noses to see if he went in that way it would prevail. carolyn: so, oral warren and william brennan, now we have three, provided some -- it was incentive to overturn this. suddenly, you have four votes. the holdout was justice black, who did not oppose the idea, but he also did not jump on board. justice black was a tricky fellow when it came to incorporation of rights guaranteed in the bill of rights. he really wanted the fifth
amendment to be incorporated to apply against state action as well as the federal government action, so he was going to be a tricky vote. the whole process of deciding this case was really the process of tom clark keeping those four justices, who said that this really was a vehicle to extend the exclusionary rule, then winning over justice you joe -- justice hugo black. susan: so, tom clark had been assigned to write the opinion in this case and he began to shape it in this different direction. it began to be circulated among the justices to see who would sign on. felix frankfurter was infuriated, we heard. why? carolyn: because he had -- renee: because he had written wolf, the case that said the exclusionary rule does not apply to the case, and it was about to be overturned, and he did not think there was a reason for it. carolyn: and he knew it was going to be overturned and that is why he voted against. he himself focused on the
obscenity question. what is interesting about oral arguments is he is what we call 01-sho -- call a one-shotter. he spent 15 minutes talking about the case. frankfurter was infuriated. at one point he said, would you just tell me what the issue in this case is? so are youing him, asking us overturning wolf v. colorado? frankfurter was so frustrated at one point, he just turned his back and would not listen any longer. but during the oral arguments, the ohio branch of the american civil liberties union had a lawyer appearing on behalf of the aclu, the first time they an done what is called amicus curiae. they argued briefly that maybe they should reconsider wolf v.
colorado. renee: the of sanity statute was it -- the obscenity statute was a pretty broad, dangerous statute. if you possessed a book that you opened and closed really quickly and never wanted to open again, but you knew there was obscenity in it, you could do seven years in ohio. carolyn: it could be one paragraph decision. instead, it becomes a landmark supreme court case. susan: the decision was issued by the court on june 19, 1961. here is a snippet from what justice tom clark wrote in this decision, changing it into a fourth amendment case from the original thinking of first amendment. he wrote, "having once recognized right to privacy is enforceable against the state and the right to be secure against rude invasions of time -- of privacy by state officers is therefore constitutional in origin, we can no longer permit that right to remain an empty
promise, because it is enforceable in the same manner and to like effect as other basic rights ensured by the due process clause, we can no longer permit it to be revocable by any officer who, in the name of the law enforcement itself, chooses to suspend its enjoyment." how many both stated that? -- how many votes did it get? it was a 5-4 decision. there were four dissenters. it was a dissent by three justices. it was authored by justice harlan, joined by frankfurter and whittaker who said, we are surprised. we thought this was an obscenity case. if this was a case about the exclusionary rule, it should have been briefed, it should have been argued. of course, they disagreed with the outcome. another justice, justice stewart, wrote a memorandum. a first amendment
case, it is a terrible statute, it is unconstitutional. susan: it is a 5-4 case, and there is still controversy, which we are going to talk about later on, about the strict -- among the strict constructionists about what the court did in this. that will be our final half-hour. dollree mapp, single mother, african-american from shaker heights, ohio, has a major victory in the supreme court. what happens to her next? renee: she does have a victory. it was short-lived. she moved to the state of new york in 1968. she moved to cambridge heights -- cambridge -- cambria heits, where she purchased a home. she was already interested in furniture. she was running a furniture store, hired a young man named alan lyons to manage it. one day, a confidential informant said she was selling narcotics and that she was involved in that. the police engaged in surveillance of her home for a number of days. surveillance of lyons.
they got a search warrant this time. they searched both her home and his apartment. they found some narcotics. they arrested both of them. mapp was connected to the apartment because she was helping pay the rent. they were released the next day. several weeks later, another confidential informant said there were stolen goods and narcotics in mapp's home. so, they obtained a search warrant, surveilled her home, and found narcotics. she was convicted of possession of drugs. she received a sentence of 20 years to life in the state of new york. it was a class a felony, a mandatory sentence. the harshest mandatory sentence at the time. part of it was political. governor nelson rockefeller was contemplating a run for the presidency and he really pushed these strong anti-drug laws. she was convicted and went to prison for a very long time. she went to the correctional
institution for women in bedford hills. she went in in the same way that she went to court for mapp v. ohio, which is that she was sure of herself. she admitted that she had been involved with wrongdoing, but she was unapologetic about it. and while she was in prison, her personality can be described with just a couple of anecdotes. she first weeks when got there, she was coming out of her cell and one of the guards said, hey, dolly! and she said, "who are you? i don't know you from anyone on the street. you can call me ms. mapp." so, she commanded respect from the people around her. she tried to be her own person in prison. there is this wonderful anecdote which kim armstrong -- 10 armstrong captured for the marshall report that said she
would not eat in the cafeteria. she wanted her food to be brought to her because she felt eating in the cafeteria was like pigs in a trough. so, she demanded her food to be sent to her, and she also had people sending food to her. she very much wanted to be her own person. she had this certitude about her. her sentence was commuted. all people who had been sentenced under these draconian law. and there was another fun anecdote. when she was leaving, they said, you know, ms. mapp, we will never forget you. and she said you know something, i have already forgot you. she was in the volunteer service team where they provided legal advice to inmates. she had a number of real estates, seamstress.
she was always looking for ways to improve herself. she really left prison the same way she entered prison, the same way she acted when the police broke into her home and went under her blouse inner the alleged warrants, which is someone who commanded respect. she was very unapologetic. she says, i've lived my life as i see fit. susan: she got involved in legal advocacy. did she make a career on the mapp decision? did she go out and participate, really become a spokesperson for her case? carolyn: she did it a little bit. earlier on she did it more than when i met her in 2004 and 2005. but she was invited to law school because she had a fantastic story to tell. but most of her work was somewhat behind the scenes. she clearly knew that she was
associated the case and people wanted to speak to her, including me. and it was hard for me to get to her. when i reached out to her, i had written her several letters. and then she invited me to her home. i was 30 minutes late to her house. she was waiting for me on her porch. she was so upset. she said she really didn't want to talk to me. i had to cajole her about talking about the case. i said we needed to talk to her to get her story. she relented. she felt sorry for me and let me speak with her and had several interviews later. susan: we're going to talk about the legacy of this decision on policing globeably but also federal law. -- globally also federal law. before we do that let's talk to bruce from arlington, texas.
bruce: from my understanding the mapp vs. ohio and the roev wade established a hearing privacy but some legal scholars disagree. you can't have the freedom right without the right of privacy. i want to see what others think to refute that idea. >> i think it's a misnomer when you talk about the right to privacy because there's no specific right to privacy that's articulated in the fourth amendment. it says you have the right to be free from searches and seizures but that's not the same thing as saying you have a right to privacy. it's important to differentiate the two. there's a case called grisswold vs. connecticut where they created the right to privacy out of the first, the third, and the
fifth amendment and the ninth amendment to the constitution in. roev wade you had it articulated more clearly in the due process amendment. so it's in the 14th amendment and the due process clause rather than the fourth amendment. renee: the only slight modification is that the court has recognized particularly through incorporation that there is, at the core of the fourth amendment is a concern for privacy. susan: robert is on hole. >> you covered the issue -- robertson hold. robert: you covered the issue. it was the american civil
liberties unit and bernie berkman who did the yeoman's work on the fourth amendment issue and it was kearns who confined himself to the first amendment issue the alleged pornography. and my -- if you want to comment further. berkman was looking for this case -- berkman and day -- jack day, his partner, they were looking for this case for a very long way that they knew that wolf could be overruled and when they found dollree mapp's case, hooray. and it was berkman who did all the work. and that's my comment if the commentators want to comment on that, i'm sure they can. renee: it was a group of three attorneys from the ohio civil liberties union that did the work on the the amicus brief. it is true that he wanted the fourth amendment to be argued. there's the paragraph where he's
asking the court to overturn it. but it was one paragraph out of 20 pages of the amicus brief. he wanted it to be longer. he had argued with his colleagues about that having been the focus of his brief. but they wanted to tease out this whole obscenity issue. but berkman said we want to overturn wolf v colorado. and he also and i think that -- this is to your statement, he's the one that wanted time with oral arguments and who hadn't been done before that he would do the argue. and berkman contacted kearns and to say to the supreme court i would like to present oral arguments. so it really was important for that as well. susan: larry is in naples, florida.
hi, larry. larry: i would like for you to comment on the one week's decision which the police could do no wrong. and starting with weeks going all the way up to mapp was the start of judicial activism. i would like for you to address that and that mapp was thought about the states through the 4th amendment? susan: was this the start of ome of our earlier activism? renee: i think the court was a more activist court than most courts have been in the liberal direction. the warren court was definitely seen as starting the criminal procedure revolution and created a number of cases that expanded the rights of criminal defendants. er would not say it is fair to say that all of the decisions out of that court expanded rights. i think there were a number of
very significant decisions out of that that curtailed the right of criminal defendants in ways that have repercussions of this day. and much of the civil liberties in courts beyond that, they find their footing actually in language from the warren court. susan: senator patrick lahey is the senator democrat in the senate judiciary committee. we spoke to him with both democrats and republicans. we're going to show you a clip now from senator lahey on the impact of mapp on searches today. senator leahy: that's not going to make us safer. we have to go back to the rules. the example i used is this. if you have papers in your desk demand the fully police want to come into your
home and look ott those papers. they're going to get a warrant to come in and look at them if you're holding those same files in the cloud or in the internet, shouldn't they have to follow the same rules? it is your privacy we're talking about. if you collect everything, in many ways you have nothing. learn to do better analysis of it that we have at that time. we had very few people look at this material who could speak the languages of those who were in the wiretaps. we've learned from that. but it doesn't make usless safe to have to follow the rules of law. susan: so senator leahy in the broad schoop thinking about how important warrants are to our civil society. comment on that. renee: i think they're extremely
important. i think the more we sit liberty d safety as oppositional ideas, the more distracted we get from the real issue. there is not inconsistency between liberty and safety. and there's no reason for us to belief that we cannot have -- believe that we cannot have law enforcement with limited powers, limited constitutional powers that are still able to keep us safe. i think, you know, carolyn with us talking about it earlier about the statistical studeies and the cost of the exclusionary rules and they're not as significant as they are made out to be and they're not significant lost convictions as a result of forcing the police to play by the rules. susan: the court continues to take up these cases about the rights of the accused and about warrants. here's just a few of them at
stafford united school district vs. redding which involved a stripped search of a middle schooler. 2013.a v jar deens in city of los angeles v pa tell warrantless search of hotel registries. and as our two guests have suggested there have been limitations on the mapp case. we have three current supreme court justices and their thoughts on this issue. we're going begin with former justices at the time souter and sotomayor which is called the good faith exception. >> if the mistake which leads us to conclude that there has been a fourth amendment violation was a mistake not made by the police but made by the judge or a magistrate who issued the warrant, that should not
preclude the introduction of evidence on the theory described in mapp v ohio. then you gain not guilty in influencing police conduct by keeping the evident out. >> what doctrine it underlays is that you don't want the police violating your constitutional rights without a good faith basis without probable cause and that's why you have a judge to make that determination. it's why you require them to go to a judge. what i had them look at is whether we should make the police responsible for what would be the judge's error, not their error. they gave everything they had to the judge. and they said to the judge, i don't know. even if they thought they knew, that isn't what demands the warrant. it's the judge's review. susan: so interesting renee that these were coming up as
questions following mapp at the court level and what's more likely at an apelant federal level. what's your thopte -- your thought on that? renee: it was intended to encourage the police to use the warrant. the officers in leon which is the case that created the exception had what they thought was a good warrant. it turned out not to be a good warrant. and so the court in encouraging home to rely on warrants in the first instance said, look, if you rely on good faith upon a search twharnt you think is a good warrant, we're not going to penalize you by excluding the evidence. but since leon the exception has been out and out and out to include cases that have nothing to do with warrants at all. so it includes, you know, if the police rely upon a data base that the court isn't maintaining, the good faith exception rule applies. if they are relying upon a data base that they aren't properly
maintaining the good faith exception will apply. it is ballooned out beyond what i think were its original boundaries. carolyn: if you look at the weeks' decision in the constitution rule with the federal government and the mapp decision, they relied on different ones. the reason for it according to the courts is that it was part of the fourth amendment. you couldn't have the fourth amend without this ancillary rule. also what rene referenced earlier is this rationale of integrity. the court said one of the reasons we're not going to allow illegal evident is we don't want to be a party to it. we are a court of law. that's the reashnal that -- -- rationale. and the argue of good faith is that you're not going to deter
police misconduct. and you've completely eviscerated the foundation upon the exclusionary rules relies and it's led to many other exceptions and overall dismantling of the fourth amendment. and so i think people need to understand how these foundations have affected the court's jew is-- juris prudence. renee: they've always had a problem with these decisions. and when meese looked to overturn mapp. we have a clip from the sitting chief justice john roberts where he talks about some of his view of the mapp decision. chief justice roberts: our cases apply under the exclusionary
rule under which the evidence cannot be allowed in court. that is judiciaryly created rule. it is not an individual right but instead aims to deter violations of the fourth amendment. the idea idea is if they cannot use evidence, there is likely to be fewer illegal searches. now given that purpose, our precedence established that the rule does not apply when it will not result in real deterrence or when the benefits of any deterrence are outweighed by the cost. that cost, of course, is the prospect that the guilty and possibly dangerous will go free. susan: your comments, please. >> well, i completely disagree with him obviously based on what i said earlier because you hear in his comment this embracing of this deterrence rationale and the idea that the rule is judiciaryly created. but the scholar said give me any ort of rule that isn't
judicially created. and what roberts misses is the years between weeks and mapp where it says it is roried. tom had this great quote. he said that the case was like an empty gesture. it's like what -- chief justice hughes used to say, it's no use at all to have a constitution. it's pretty. it's got fringes around it. but it is just a piece of paper unless you live by it and you enforce it. and that's what mapp and the fourth amendment is all about which is that you need to have that exclusionary rule or remedy as some have constructed it nod to realize the promise of the fourth amendment. if you don't have it then what you have are people filing a civil suit against the police and they're inevidently going to lose. having the police themselves which may or may not work. we've seen evident of the
latter. or go after them. really there isn't a way that you can realize the fourth amendment without the rule. during the renkis court, i think he's wrong in terms how it came about and how it was original described. >> we have about 12 minutes left. i want to use that to take a few more calls. talk about tim packet on the mapp decision on policing in america. i want to start with that by listen to chief justice earl warren shortly before he retired. this is is in the first of series of cases that the court took on that had to do with criminal rilings and was seen -- rights and was seen as making many changes to police procedure and criminal prosecution in the country. you'll also hear from retired cleveland police sergeant robert
cermak on changes he saw at his level to police procedures. let's listen. chief justice warren: i think the work of the police has improved through the years. it's a higher standard now than when i first went into the law enforcement business almost 50 years ago. and i'm very hopeful that it will continue to improve through the years. >> i was privileged to be able to teach at the police academy here in cleveland and at tric and part of what i taught was search and seizure. and you always had to go back to mapp. that was the bottom line. that was the foundation of where we had to go from this point forward. and it was very important that the reasoning behind the mapp decision was conveyed to the new officers so that they would understand how important it is
to follow these rules. i think as a result of the mapp case it's really forced police officers to work a little harder to be a little bit more conscientious and in the long run whether we liked the decision or didn't like the decision it really made us better cops. when we went to court with that information, when we went to court with the evidence obtained with that search warrant, we were much more likely to get convictions. susan: this is your area of expertise. did it make the police work harder but be more constructive when they went to court? >> i think what we found was there was police professionalism that definitely to the extent that police forces were bound by the exclusionary rule, they did have to up their game, so to speak. right? they did have to become more professionalized. one comment i did want to make is that the rights protected by the fourth amendment are not criminal rights. the expansions that were seen
under the warren court were not expansions of criminal protections. they're all of our rights, all of our protections. so we can't confuse the message with the messengerer. so the message is a fabulous message. it's arbitration of police authority which affects you and me which affects the guy with a ag of her winn in his -- heroin. we can't dislike him as much as we dislike the laws that are them.ting carolyn: that gives them ammunition. there was a tremendous outcry about the handcuffing of police. they learned to train themselves. it did increase the professionalism. there was a study in the 1988 by the american bar association
which concluded and this is police officer, judges, prosecutors that it didn't lead to an increase in crime. it wasn't an obstacle to law enforcement that you can have it and have effective law enforcement. so most law enforcement officers they embraced it and knew how to operate within the bounds of it d they know how to operate around it. one thing i had senior to add about the earl warren court. he's right about police professionalism. he said you have to look at these decisions including miranda which we'll speak about later and how the court looked atish -- at issues of race because they were predominantly communities of color. i think it's important to make that link and what was happening in these community.
susan: which brings us right up to contemporary times where we're discussing police tactics in the country. so this is a very fresh issue for us again in that regard. wild and wonderful asks, which of the exceptions of the exclusionary rules are use? inevitable discovery, ndependent source? renee: there are three exceptions. if the police can prove that the bad act, the illegal and unconstitutional act that happened is so far removed from the discovery of the evidence that's considered attenuation. inevitable discovery require as little bit more in order to establish it. so the police would have to show that they wouldle have almost certainly discovered the illegally gotten evidence anyway. so it is a bit more difficult
or them to demonstrate inevitable discovery. another option is independent source. so if they can show, sure, we busted down the door of this person's house. but we had an anonymous tip so we would have been able to get to this evidence in another way. hat is another way to get to it. i would say inevitable discovery is the toughest. susan: joe paulsen asks, why didn't the dissenters concur on the judgment on first amendment grounds? stewart's memorandum basically did that. renee: why didn't it concur? i know i didn't explore that in my book. renee: it was not a first amendment basis for the decision. it was about the fourth amendment not the first
amendment. carolyn: i thought he was asking why didn't they join -- i think he's asking about the dissenters. susan: so why didn't the dissenters find a common ground? >> he wrote a mem random and said he just thought there was some sort of reason to get there. susan: it was just a memo. carolyn: we don't see it very often. so that might be part of the confusion. susan: let's go to paul. hey, paul, good evening. paul: it's a pleasure to thereon all of you. -- to listen to all of you. i have seen a few of the programs and i think some decisions by the supreme court should be carefully protected. the mapp case and many others demonstrate how some decisions the same or out by subsequent courts.
do you think the citizens of his country benefit? carolyn: i think it's interesting how the different courts led to different outcomes. about 2/3 of the decision during the warren court, they fivered the person bringing the challenge. they may be considered liberal. and then of the 200 search and seizure cases in burger and rehnquist, about 75% of them favored the state. and so you see a real reversal of the terms of the win-loss rate. we're seeing this plan continue, although a little less so. so i completely agree with you. susan: we have three more cases in our landmark series. if you just joined us, we did produce a brief book that's available to you that outlines all of the cases written by veteran supreme court tony
mauro, available for $8.95. we'll get it to you out quickly. this series is likely to re-air in its entirety. you can have the book ready for you. it also is archived on our website each program after it airs. so there's an opportunity to watch it online. so if that book is of interest it's easily available to you and we'll get it to you pretty quickly. i'm going to take two more calls and that will be it. d next is pete in fortson, georgia. hi, pete. pete: hello, hi. thank you for this program. i try to catch it whenever i see it. thank you. my question is about i guess what we can expect in the fourth amendment juris prudence. thrches some comments how the execution nair rule is being considered a judge-made rule and there's a lot of exceptions to it. what do you think about the warren preference in the fourth
amendment? is that also going to be under ttack going forward and -- because of course, there's that tension in the fourth amendment between, you know, preference of the warrant or just a reasonableness requirement. >> thanks very much. >> that's a great question if qu look at the history of fourth amendment cases including the one about exclusionary rule you see the preference construction of the fourth amendment. and what that construction means is the idea that searchs that are accompanied by a warrant are consider reasonable and searches conducted without a warrant are considered unreasonable with a few exceptions. what the early court said are carefully delineated. what i would say is that the burger court is the court embracing this generalized reasonable construction of the fourth amendment which is not focusing on the warrant but
focusing on whether or not the police officer's action are consider reasonable. this has done more damage to the fourth amendment because if you're saying that law enforcement has to show they did something reasonable, that's a low threshold and that's what the courts are showing today. >> it starred with warrant at terry vs. ohio. they put the chip on that court. susan: i find myself with only 30 seconds left. i apologize to our final caller. in two programs from now we're going to be dealing with the miranda decision and the warren court. we're going to spend a half hour talking about the warren court overall and their approach to these reviews and what it has done to the judicial process and talk about that in a big picture way. so he'll be with us for that program. as we close here i want to ask mapp. ut dollree
she was the focus of a landmark case in the supreme. renee: there's always going to be a story behind these cases. they involve real people with real challenges. in the case of dollree mapp it involves a lot of people with personal strength to really see a situation and go to the courts for relief and to fight her way all the way to the supreme court. so really cases about individuals that have lasting impact upon all americans and any one of us could be that individual. although frankly, nobody could be like dollree mapp. susan: and what are your final thoughts about this case and it's importance? thrine we all have a role to play in the protection of our constitutional rights, that we all have to stand up and give voice every day to the constitution because it ends up bag dead letter and dollree mapp did that. susan: our thanks to carolyn long and renee hutchesness.
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