Transcripts For CSPAN Landmark Cases Mapp V. Ohio 20180219

Guests will review 12 historic cases featured in the new city. That will be live at 6 30 p. M. Eastern on cspan, cspan. Org, and the cspan radio and give their attention. Landmark cases. Cspans revolutionary series produced exploring the human story and constitutional dramas behind 12 Supreme Court decisions. 759. Mber numberear arguments from 18, roe v. Wade. Some of our most famous decisions are the ones that the court lets go through a few cases that illustrate, very dramatically and visually, what it means to live in a society of 310 million different people who stick together because they believe in the rule of law. Welcome to cspans landmark cases what we have been learning about cases in the Supreme Court that affected the court and the country. Of mapp the 1951 case v. Ohio. Involved in ohio woman named dollree mapp who refuse to let the police searched her home. One of aa case in series that changed policing in america. And we to the program hope you have been here with the series as we have learned so much about the Supreme Court. I think dollree mapp was like was likeause she that, because she was quite a colorful character. Carolyn is based in the Washington State university in vancouver where she is a professor of policy and public affairs. Washingtonins is an is in washington dc and is part of an advocacy clinic and a formal federal prosecutor in the tax division. She is working on a book. Thank you for being with us. Let us start with the basics. What did it ultimately become about . What is fascinating about it is it started out as something it did not end up as. Case about as a whether it should be in state trials. The decision allowed in exclusion rule for half the states in the union. Carolyn it had a sweeping effect on how judges will be hearing cases. Weve been hearing potential cases for decades to come. Host another reason it was a landmark was because it shifted how we thought about policing. It shifted the way we think about policing. Whether police can come into our homes. We will start with audio from the oral argument in the Supreme Court. The court had begun recording all of its oral arguments. So this was the first time we could let you listen into the arguments that dollree mapps lawyer made to the court. This is shown a visa paper shown a piece of paper. Demanded to she read the paper which he refused to do. Of his hands, out a scuffle started, and she put the piece of paper into her bosom. Very readily, the Police Officer put his hand into her bosom and removed the paper. Her. Hereafter, handcuffed while the Police Officers started to search the house. Now the evidence in the case discloses that the state claims there were only seven Police Officers. Some in uniform. Mr. Green was not permitted ,ntrance but was kept outside he says there were approximately 12 Police Officers. Discloses thatce no search warrant exists. From the time she began Legal Proceedings in ohio all the way to the Supreme Court we will learn about him and his role in the case of the program proceeds. This deals with the forced amendment the Fourth Amendment of the constitution. It is the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, not be violated and no warrants issued unless upon probable cause. What why was this part of our constitution . Prior to the founding of the nation, in england there had been general warrants that allowed police a lot of discretion to search house and home. When we came to colonial america, there were writs of assistance that did the same thing. The founders wanted to rein in what the police could do. The language you read says two things. We have the right against unreasonable searches and seizures, and it says if you are going to get a warrant, it has to be based on probable cause and specifically where you are searching and who youre looking for and what you are going to seize. Those two clauses have been read together. For the most part in modern history, with some exceptions in more recent years, we have said warrantless searches are unreasonable. If police have not gone to a judge, sworn affidavit, said this is where i want to search and this is where i am looking, with some particularity, they cannot search. Exceptions to of that rule, but that was the world that existed prior to now. We learned in texas that you must have a warrant for several offenses. But only half of the state said this applies to them. Discrepancy over what state you live did and whether or not a warrant was needed or not. What mapp v. Ohio is about. Not just talk about passages to the amendment but to the state constitution as well. These are open ended warrants. Anybody who was deputized to control into a business, a home, looking for smuggled goods. That was a big problem in the colonies. It was egregious because customs officers would actually get money if they found smuggled goods. They had incentive to engage in illegal searches. The state constitutions which closely mirror what we have in the Fourth Amendment about unreasonable searches. Really, it motivated passage of those. Are we going to hear a lot about these exclusionary rules . What is that . Basic, it says if police break the law in finding evidence, it cannot be admitted in trial against you. Lots of exceptions to that rule. The court, when it created it, apply it only against the federal government, it did not apply against the state. That is what carolyn was talking about earlier. The state is free to essentially violate the Fourth Amendment at will. The Police Officers in the state and the evidence can still come to trial. You did not have to have awards in 1957 when this first occurred. Had lived in a state where this was applied and you needed a warrant, with his never have come to pass . With the court looking for a reason to do this or were they looking for another vehicle . I dont think they were looking for specifically. I think the nature of the search was so egregious that it motivated the court to extend the exclusionary rule to the state. It was almost too good of an opportunity to pass up. The man who wrote the decision was looking for a vehicle. He is written a concurring opinion in a case that had been circulating. Versus a case called wolf v colorado being reversed was on his mind. Host one of the premises behind the series is that there are interesting people stories behind the cases that make their way into the spring court. , secretaries kinds of state all the way through to just ordinary folks, i think dollree mapp is in the category of ordinary folks. One newspaper headline called her the rosa parks of the Fourth Amendment when she had passed away. Would you go that far as calling her that . , that quote is apt. She was a fighter. Carolyn she knew that she had been wronged by this. She had been targeted by the police and she really wanted to fight this case in court. A lot of people say im going to take my case to the Supreme Court and very few make it. , she hadu knew dollree the confidence. She was from shaker heights, ohio. An affluent sub lou suburb of cleveland. Can you talk about how this case that started . This is a young africanamerican woman, a single has a single daughter, married and divorced to a great boxer. He defeated a world champions but never had a title fight. He had been she had been engaged to argue more, heavyweight fighter himself. Part of that scene was illegal gambling operations. In cleveland like in many cities, they had a policy game where people would take an almost the take part in almost a daily lottery. World. Was a part of that what led to the case was the fact that others who are involved in illegal gambling, had hise kid king front porch of by people trying to shake him down. They were trying to get money from him as well as other people involved in the gaming business. There was a confidential informant who said there was someone involved in the bombing. As well as possible evidence of gambling paraphernalia. The police went to her house. They gently requested she let them in. She said that she would not, yelling out of the window saying the would need a search warrant. They went back and allegedly got a search warrant. After a couple of hours, they came back, pried open the door of her home. Paper, anda piece of as it was heard earlier, there was a tussle. She was handcuffed. At one point she was handcuffed to a Police Officer. They were looking for a bombing suspect. A engaged in an search they found him but they engaged in a search for an additional three hours. They eventually found gambling paraphernalia in the basement and they found books that were allegedly obscene. And some pencil drawings in her bedroom that were allegedly obscene. They arrested her primarily on the gambling charge and then later it turned into a charge about the mc material. The obscene material. Dawn the kid king, in later later in life they got to know him as don king, the guy with the hair. Cleveland Police Department had a bureau of special investigations. 1957 and speak about the unit within the Police Department, and whether or not there was tension between it and the africanamerican communities . Absolutely there was an that is something i wanted to build on. We talk about what happens to today, it wouldve been a very scary experience for a single mother at home, in a house that is being laid siege upon by Police Officers. When the Police Officers do come, they yelled politely that they need to come in. They dont tell her why but then they didnt go away. They waited around her house. She could not leave, exit her home. Her lawyer shows up and they do not let him in the house. As she is coming down the stairs, the police are breaking in her backdoor. When you think of what kind of experience that must have been for this woman, and the bureau those coming into her house, which was notorious for policing very aggressive members of the , routinely going into homes without warrants and engaging in behavior that violated the Fourth Amendment with regard to the urban population in cleveland and shaker heights, i think thats an important piece to remember. We are in your home. A police force enters your home, does not allow your lawyer to talk to you, and handcuffs you to a bed. Reaches down your clothing to get a supposedly warrant which the police admitted was not a warrant at all. Physically assaulted her, and then handcuffs her to the bed. I think the trauma she must have felt as a result of that experience is getting underplayed. Police say she was a single mom of the child which it was also part of the boxing community. She already had a lawyer. She had experience with the law. She was married to a boxer. Was she someone known to the police . Was it not a firsttime innocent situation . Wellknown, wasnt not to say that excuses Law Enforcement behavior, but it had been no she might be involved in illegal activities. It may not have been a surprise that the Police Showed up. Not just what happened to her individually below is happening in cleveland. The investigation really was aggressive. I spoke withhen the sergeant of that case, he said we were aggressive and it was commonplace. There was no reason for them not to search without a warrant because evidence could be excluding. Its hard to know that the bureau really targeted people of color. If you look at where the policy game was happening, they were looking at people of socioeconomic status, and predominately low income communities were africanamerican. You had intimidation tragedies, the third degree, arresting people so that they then have to be in court, which means they are not engaging in illegal behavior. Confiscating material. A number of strategies to attack what they saw as a pervasive problem in the community. Paint dollreet to with too broad a brush. Its not clear to me that she was on the fringes of criminal element. She was dating some of the guys involved. But i dont think it was fair to say she was a repeat player in this world and therefore targeted by the police. The we will next year from cleveland Police Department perspective. In the Cleveland Police museum, they have a display about it. We will show you that next. You are currently looking at two documents, three pages. One is our daily duty report and it describes what the Police Officers, working together on that particular date, did during their tour of duty. The second document consisting of two pages is actually a rest an arrest report of dollree individual. Ther were looking at the arrest report of dollree mapp added details what happened on the evening of may 23, 1957. Talks about how he had received information from a confidential informant that there was someone inside the residence of who was involved in a bombing that had taken place at the residence of donald king. Based on this information, they went to set up surveillance on the address. While they are, they attempted to get into the home and they were denied access. According to the report, lieutenant thomas white left the tone and went downtown obtain a search warrant. With a warrant possession, they gained entrance to the house. At that time, they secured dollree mapp and began a search of the premises. Gotention a fact that they a search warrant in the arrest report, but if you look at the daily duty report, they specifically mention their veteran officer went downtown, obtained a search resid a search warrant, and returns to dollree mapps residence for entrance. For reason we may never know, that warrants was never presented at time of trial and never was in the Supreme Court during the arguments there. I dont believe the officers ever had any idea that this arrest and this search was going to end up in the u. S. Supreme court. Host what is your reaction . Amazing to hear that there was a search warrant when there was not one. Affidavit for a search warrant, and what was said was that he had not examined closely when they engaged in the search. They knew after shed been arrested that there was no search warrant. Throughout the entire lower court history, up until the case and to the Supreme Court, they kept saying they had a warrant but had not had available, no one could find it. You see that in the report but also the retelling of it here. She was originally rested on gambling charges because of paraphernalia but those charges were dropped. Later she was charged on obscenity. That was a serious charge in ohio, right . Carolyn yes, she was acquitted of the policy charge. She went to trial with limited jurisdiction. She was acquitted because the material is far away from her. Over the weekend, the officers report. Ough an arrest they indicted her and ohio state, if one is convicted of violating the law, the instances one to seven years and a 2000 fine. After she was arrested and indicted, he went to a grand jury. It went to trial sometime later, almost one year later. Host in 1957, what were the norms about obscenity . One of the things that tells you about the time. Is what tells you about that did. Period is what dollree the police came into her house, and she snatched the affidavit out of the officers hand, she shoved it down her blouse. As if that would somehow protect the police from ever getting it again. There was a sense that that was modest, that it was protected. That spills over into the insanity laws. This notion that things that are visually pornographic, depictions of bodies that are offensive, should not be seen by decent, and people. It was a widely held view. Meet how these materials our standards today . Its very modest. The books themselves are something that you would see in a high school most likely. Ist is important to note that the law around obscenity is not quite settled at this time. 1957 wherecase in the court was trying to determine the proper standard for what was obscene. 1959 in a case in california which dealt with possession of of c material by book sellers. They said it was unconstitutional to prohibit the possession of potentially obscene materials if it might be sold. There was not a lot of law around obscenity. Might be decided by the courts was really unsettled. That is why it also might have gone to the Supreme Court. She was out on bail the whole time. Its a very busy general court. Its a very large urban area. Its took a long time for cases to move through the system. Initially, her lawyer wanted her to plea out so that she could avoid jail time. He tried to negotiate a plea on her behalf. It would have infuriated her. But that did not go through because the prosecution did not want it. To gone wanted that case to trial, it seems, so it took a long time because of the crowded court system. Host next up, our only piece of video with dollree mapp in her own words. We hope you will call in with questions or comments about this case. You can do it by dialing this number these numbers. Youll get your questions and as they come along. Also tweet us with the landm arkcases. There is already a conversation underway and you can join us with the comments as well. Next up, this is dollree mapp. By most ofled dollee her friends. Dollree most of my friends call me dollee. I felt good. I knew there was something that i should do. I did everything that i knew how. I felt that i had been treated wrong. If the search was illegal, then the you got the longer side. Youve got the law on your side. Host and when you meet her, shes glad that the termination of the age of 91. Had she find her lawyer . He was a civil lawyer . Know, a criminal defense lawyer but she had him for breach of promise against her former manager whom she was engaged to. He was practicing both, common at the time. Host wasnt the only case he had argued before the Supreme Court . Almost certainly. Host she went to trial and was found guilty of possession of the obscene literature. Hat what did that carry and how to proceed to the next legal stage . Carolyn up to seven years in prison and a 2000 fine. When it went to the ohio Supreme Court, they affirmed her conviction. What they also did is they looked at the constitutionality of that law. Of the sevenur justices on the ohio Supreme Court said the law was unconstitutional. In ohio, in the state constitution, you need a super super majority to strike down a law as unconstitutional. Six out of seven justices had to determine it was unconstitutional for it to be struck down. It was actually upheld even though a majority had formed of the seven deaths of the seven justices. The issue of the search was also addressed in the case. The court was concerned about the search being illegal admittedly illegal, actually. President tate precedent which said that in the state of ohio, evidence could still be admitted to trial. Unlike the other states with exclusionary rules, you could submit that evidence without warrant. Host we have our first caller from cleveland. Cspan for taking my call. Close to that area, and id heard of this case before. I didnt know it was in cleveland. My question is, how relevant is this case today . It is still being used in court cases . We have a case right now in cleveland, similar to this. Is it still being used today . Thank you. The short answer is yes, it is used all the time routinely. Criminal caseis a involving the Fourth Amendment, there is mapp v. Ohio brought up. It is not brought up a lot but it is still very much enforced. Guestsuestion for your the Supreme Court has hollowed out a bunch of exceptions. Have these exceptions weakened the meaning of the decision today . Absolutely, i think that is one of the real tragedies here. Was decided aspp an argument before the court was not only the exclusion of evidence but the basis of the decision was that it was constitutionally required to exclude illegal evidence. Havenderpinnings of mapp been the way over the years. Right now, they look at the rules very different way than they did before. Right now the court looks at the rules that determined conduct. Misconductt police versus constitutional requirements. There are tremendous numbers of exceptions to the rule. Its also that the basis of mapp has been eroded based on court decisions. Host from vancouver, washington, this is stewart. I have a question for this guests for the guests. Controversials a court case and it deals with certain sieges, how would you preceeal see the dent being applied with a Supreme Court case today . We see the court working in cycles where they do not like to follow rules. Like to apply different preced ents. How they apply if, lets say, it would take up come up in todays court . I think that what carolyn was saying was exactly right. Its being applied much more restrictively than it was when it was first announced. What was first announced, the exclusionary rule set that evidence being of the illegally obtained and the courts allow convictions based on that evidence, that affects judicial integrity. Deter bad police conduct. And in recent years, were only seeing the deterrence part. Intentional police behavior. Knowingly bad behavior. Its a much narrower swath of behavior being affected by the seclusionry rule. Prior ost kathy asks, to this did states conduct the searches . Yes. The weekes decision is where the exclusionary rule gets used for he first time. It was in regard to gambling. The state police went in initially and searched weekes home. Actually, the neighbor told them where the key was. They go in search, find some stuff. The Police Officers turn that over to the u. S. Marshal and then the usually marshall along with the state police go back and search again in that sense, yes, Police Officers, state and federal were very much working together in cooperative spirit. To ensure that federal convictions were had based on evidence the state police were seizing. Host along with that, can you discuss Law Enforcement toots for parallel construction, allowing illegal evidence to find a path to eel evidence . Yes, in a couple of different ways. The primary way we see this, is, for example, in the miranda context. Where there has been a violation of someones miranda rights. The standard rights you hear on every evening talk show. You have the tight to remain silent. You have an a right to a an attorney. If the police violate your miranda rights but discover physical evidence as a result of evidence canysical be admitted. Yes, there are some constitutional violations that can happen that will result in other evidence that was allowed in. Host march 1964, the strourt justice vopetted to reverse dollree mapps lower court law. But there was a technicality that a super majority was required. How did we get from there to the security . Whenever theres a federal question, you can file for the Supreme Court by filing and thats what kearns did. He filed for a petition before the ohio Supreme Court and as we were talking about earlier, obscenity was an issue that the court was exploring quite tentatively so it caught their eye. We look back to the records of earl warren and tom clark and we find that eight of the nine justice on the Court Granted it so they really wanted to hear this kay. The one holdout was Justice Felix frankfurter. E wrote a decision called wolf v. Colorado in which he declared that the Fourth Amendment was a ndamental freedom, as much protection as possible but he also then said, in this next paragraph, that the exclusionary rule could not be extended to the states. He didnt find moisture in that idea. Merritt in that idea. Frankfurter didnt want to hear this case. But eight of the nine justices granted youve review. Host and a couple of justices ha have joined since our last landmark case. The new faces on the court. Art and whitaker and how did the court change at this time . You have the liberal branch, earl warren, William Brennan, Warren Douglas and hugo black and the conservative side of the court would include the newcomers whitaker and felix frank furter and tom c. Clark sometimes went between the two, liberal and skert. Thom c. Clark was a u. S. Attorney general. He was involved in the seclusion orders, working with earl warren at the time. He was a truman appointee but very interested in civil rights issues but also interested in anticommunism. He was a little bit all over the map. You had the four justices we would call as liberal and then four who remember more conservative. For more interested from jurebl jarblee constraint and clark, who was in between the two. And who wrote mapp. Host how did she have enough money to pursue this . This is not an inexpensive thing. She didnt. She didnt. Benefactor. Nnamed it cost about 8,000 to do this. I tried very hard to get a name from her and i was unable to do so host this is the first case in our landmark series where we can hear the actual oral arguments of the Supreme Court because they began a taping system which they continue to this day. So here is the case to the Supreme Court in 1961. Here is a woman who was lawfulfully in her own home. Shes not exhibiting anything like this. Shes not trying to sell it, not doing anything. Assuming that they did find it in her home, the sentence imposed upon her is one through seven years for exercising, let us say, her right to look at a book that she shouldnt look at. To have in her possession a book that she shouldnt have. Not that shes a criminal. Not that she has a former ecord. But one through seven years imposed upon her for daring to have a book of this sort in her home. Host that was the first argument being made to the justices on the scoumplet who argued the case for ohio . Grer trude mahan. He was a longtime prosecutor, about 52 years old and she was a pioneer in the Legal Profession so this wasnt her first case. Host hes a bit of the recording of her oral argument making ohios side of the case. Ohio does not fool the exclusionary rule and this court has held that the state has a right to, and it is not in violation of the 14th amendment to so admit evidence even though obtained without a search warrant. Host what were hearing that is there is the warrant side rather than the obomanu centicase. Ohio was arguing, probably on fairly strong grounds, that it didnt matter whether the search was illegal, that what the justices should be focused on was the obscenity case, not the warrant case. Who cared if the police went in with or without a warrant . The Fourth Amendment did not apply in terms of the seclusionry rule to the states at the time and it was a state prosecution so why did it matter . Host so the specific question to the court of ohio was a singular one. This is what the case was purported to look at when it went to the court. The question before the court was were the confiscated materials found in the mapp home protected by the First Amendment . After a few calls were going to learn about the intrigue at the courts that changed the direction of this case. Lets hear next from greg, whos watching us in providence, utah. Hi, greg, youre on the air. Caller yes, i have a question about how mapp applies to the data. Host thank you very much. We understand the question. Was wiretapping for personal datza has been a big issue for the past decade so does mapp apply to that . Mapp would be different because n. S. A. Is a federal agency and it would be covered anyway under the weekes decision. Wiretapping for the most part is covered by title three, covering the collection of data across wire lines. Host ed is watching us in denver. Hi, ed. Caller hi. Could you commeblet on the rights of the decision outside the courts, say in the popular media . For example, police crime dramas also show the need for warrant as an obstacle for getting to justice and they paper over, ignore that requirement. Do you think the shows are trying to sway Public Opinion or is it reflecting Public Opinion . Host thanks, interesting question because when he get to miranda, theres a big social come moment component to it. Did this case make its way into the Popular Culture . It has, unfortunately. With the exlutionry rule, we ave police shoals shows ich dont correctly show how it works. People have this impression that the suppression of evidence which has been gotten by illegal means has led to criminals being released in prison, where a lot of Good Research has been done on the exclusionary rule. It has led to obviously more motions to suppress evidence but when its used, rarely does it lead to convictions. In the case where there wasnt a conviction, were talking about lowlevel crimes. Drug possession, gun possession. One scholar found out usual sentences were under a year so it doesnt make for a Great Television show. Instead, these tall tales and this mystique about these criminals running the streets because of the rule is whats been perpetuated in the pass media. Theres this notion that criminals are going free because the exclusionary rule but i think theres another side we have to always consider. The language used in mapp, its the law that sets the criminal free. Nothing can destroy a government more quickly than its failure to observe its own laws. Our government is the omnipresent teacher. For good or for ill, it teams the whole beam by its example. If the government becomes a law breaker it invites anarchy and i think that is at the core of the exclusionary rule. Host larry in colorado. Hi, larry. Caller this case originated in ohio and given the era, it would almost be less surprising that if id heard it came from the south. D racism play into this case as much as it seems to from watching the episode . Host thanks so much. You you talked about that earlier. Carolyn . Carolyn the i think it plays in a role in that the bureau of investigations was going into a there was re predominantly more africanamericans. I think that, in addition to how mapp was treated by the police shows that race was an issue here and we have to remember that this was happening in the late 1950s. Mapp v. Ohio was decided in 1961. Really the issue of Aggressive Police tactics are not unique. They were happening doubt the throughout the country and these problems persist today. Host josh is watching in iowa. Hi, josh. In recent years how that is the has the Supreme Court occur tailed the mapp v. Ohio ruling. Host thanks for asking, that josh. Im going to entice you to stay with you for about another half an hour. Ron in austin, texas. Caller hip. Hi. Ive been a lawyer 44 years practicing in texas and in federal courts. Wade, among others. Im just wondering if yall are aware every big city has a judge sitting by all night who rubber stamps the search warrant. The copthey come in and swears whatever and the judge gns his name and then the you know, the search comes presumably legal. Re you aware of that happening of that texas is kind bad but [laughter] im sure its the case in other cities. Host thank you. Did that happen as a result of mapp that search warrants were required at the state level . Rene certainly there are judges who sign off and rubber stamp that. The beauty of what mapp did was it allowed that record to be reviewed in suppression hearings. By allowing evidence to be excluded from state trials, a reviewing court could then decide whether the judge had rubber stamped and shouldnt have. Host last call from linda in minneapolis. Youre on. Caller thank you for taking the call. I dont understand this exactly. If the Fourth Amendment was from the federal government, central government, a guarantee of rights to legal search and seizure of american citizens, how could any state abridge those rights . Doesnt the federal government supersede state laws and what states do . m confused. Carolyn it is rightfully confusing. The constitution was seen as a check on federal government because it was federal government that we were most afraid of at the time. We were not particularly concerned about state governments. So the first eight amendments to the constitution are seen or were seen as limitations or con straight con stravenlts on the federal government. It wasnt until the 14th amendment was passed and the court began to sect live selectsively incorporate some pieces of those into the 14th amendment as a limitation of state governments that we then saw both limb takes on the federal and state governments. Intrigue at the court. The oral argument happened on march 289, 1961. The next stage was judicial conference. The justices go into a closed room and discuss the case that. Hatchelled march 31. What happened in that . He thought a caucus was heard between the time the case was heard and between the time it was decided because the issue had changed so much. The conference happened in an elevator. Tom clark, who wrote the mapp decision, was in an elevator with brennan and black and he turned to them and said i think this might be a good case to overturn this decision in wolf v. Colorado. The reason he said that is when they melt in conference to originally talk about the case. The whole issue of the obscenity clause dominated the conversation. L nine justices said this is unconstitutional. But Justice Clark raises the issue of whether or not this would be a really good vehicle to revisit that decision in wolf vs. Colorado. Clark was thinking about that and thats when he introduced the idea to brennan and black. They said are you serious about that . He said yeah, i think so. He really had been thinking about turning this into a Fourth Amendment question. Host he was beginning to count noses as to whether or not if he went that way, he would prevail. Earl warren and William Brennan provided support for this position that they could use this to overturn wolf v. Colorado. And douglas hated wolf because he dissented from it. Thats right. And if you have clark, suddenly you have four votes. The hold outwas justice black, who didnt oppose the idea but he also didnt jump on board. Justice black 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 so the whole process of deciding this case was really the process of tom clark keeping those four justices who said informs a vehicle for exclusionary rule and then winning over justice black. Host so tom chmplet clack had been assigned to write the opinion in this case and he began to shape it in a different direction. Phillip frankfurter was in feweruated, we heard, why . Because he had written wolf, the state that says the exclusionary rule does not apply to the states and it was about toe be overturned and he didnt think there was good reason for you it. And he knew it was going to be overturned, which is why he was against it. He spent 16 minutes talking about the facts of the case. Frankfurter was infuriated. At one point he said could you just tell me what the issue in this case is. And he kept asking kearns, so youre asking us to overturn wolf v. Colorado . And kearns, he said no, he didnt even seem familiar with the case so frankfurter knew something was up. He was so frustrated at one point he just turned his back to kearns while he was arguing the case. During oral arguments, the ohio branch of the american civil iberties yinalyoifpble had a lawyer appearing on behalf of the union and they argued just briefly that maybe the court should reconsider wolf v. Colorado. It was always on the periphery but not straight out to the court. Because the obscenity statute was a broad statute. If you possessed a book that you opened and closed quickly and never opened it again but you knew there was obscenity in it, u could spend seven years in prison. Thats a lot of time. Host the decision was issued by the court on june 19, 1961. Heres a snippet from what Justice Tom Clark wrote in this decision, changing it into a Fourth Amendment case. He wrote having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the states and that the wright to be secure against ruled invasions of privacy by state officers is there there for constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is secured by the due process clause, we can no longer permit it to be revocable at the by any Police Officer. How many votes did it get . It got four votes but the fifth vote was provided by justice black, who agreed with the judgments but in his opinion, it was about the fifth amendment, not the Fourth Amendment standing alone. It was a dissent by three offices. Justices. They said if this was a case about the exclusionary rule, it should have been briefed, argued. Ey wrote the dissent and Justice Clark said this is in constitutional in the First Amendment. Host and there is still controversy among the strict constructionsists about what the court did on this before we get to, that dollree mapp tease life story continues. Single mother, africanamerican from shaker heights, ohio, has a major victory in the support. Hat happens to her next . It is short lived. She moved to Cambria Heights where she purchased a Furniture Store. She feels office in interested in business. She was running a Furniture Store and hired a young man named alan lions who manage to manage it and one day a forminute said she was involved in narcotics. So they got a search walmart warrant and searched baath her apartment. They found something in lyons apartment. She was released the next day. Another confidential informant said there were narcotics and stolen goods in mapps home. They searched begin and found the far cot ins. She convicted of possession of drugs and received a sentence of 20 years to life. In the state of new york, it was a mandatory sentence. It was the harshest temperature. Part of it was political and governor Nelson Rockefeller was contemplating a run for the presidency and he pushed for really strong antidrug laws so she was convicted and went to prison for a very long time. She went to the correction a. M. Institution for women in bedford hills. She went in in the same way she went to court for mapp v. Ohio. Which was she was sure of herself, admitted shed been involved in some wrongdoing but she was unapologetic about it. While she was in prison, her penalty can be described with a couple of an ect dolts. One, a anecdotes. One, a few weeks after she first got, from she was coming out of her cell and one of the guards said hey, dolly. She said who are you . I dont know you from anyone on the street. You can call me ms. Mapp. She demanded respect and also learned the laugh. There was a law library and she tried to be her own person in prison. There was a wonderful anecdote which said that she wouldnt eat in the cafeteria. She wanted her food to be brought to her because she thought eating in the cafeteria was like pigs in a trough. She demanded that the food be brought to her and she also had people sending her food because she had a very specific diet. She had this certitude about her in 1980 her sentence was kerry,d by governor hugh along with 15015 other inmates. 15 other inmatz iven mates. As she was leaving one of the guards said you know, ms. Mapp, we will never forget you. She said you know something, ive forgotten you already. She returned to queevens. Started a voluntary Legal Service team. She had a number of business ventures. Real estate. She was a seamstress so she was engaged in a little bit of that trade. She was also look for ways to improve herself. She left prison the same way she entered prison, the same way she acted when this police broke into her home and went into blast for the alleged warrant. She was very unapologetic of the choices shed made. Host so she got involved in egal advocacy. Did she golf out speaking about it and becoming a spokesperson for her case . She did it a little bit. Early on more than later in her life when i met her and interviewed her in 2004 and 005. But most of her work was done behind the scenes. She clearly knew that she was associated with the case this and that people want told speak so to her, including me. It was hard to get to her. In fact, when i reached out to her, id written several letters and she invited me to her home. I was 30 minutes late to her house. She was waiting for me on her porch. She was spitting naflse. She was so upset. She said she didnt want to talk to me and i really had to cajole her into talking about the case. I told her about the importance of and it that we really needed to get the story out to this new generation. Finally she relented and let me speak with her and i had several interviews with her later. Host were going to talk about the legacy of this and also on federal laugh. Before we do narnings lets talk to bruce in arlington, texas. Youre on the air. Caller thanks for having me on. From my understanding, the mapp wade e and the roe v. Established the right to privacy but some legal scholars disagree with that might oovet right. And and the court has dom the right to privacy rather slowly and the case versus connecticut where you had he create the right to privacy out of the whole crop out of the fourth,he third, the the fifth amendment. You had the prf sy right and articulated more clearly in the process clause that is what we sort of see the court returning for the generalized prophecy so it the due process clause but then, in the, a liberty component of liberty process clause rather than the Fourth Amendment. Modification,ight i would make of that. The court has recognized corporation through there is at the core of the Fourth Amendment is a concern privacy. Sure. In your home, on your person,. Lake. Host robert is in new york city. Hi, robert. Caller hi, i have been on here. You covered the issue you i wanted to ask about and acquired about. To distinguish in the mapp case. Celebritieserican and Bernie Berkman who did the on the Fourth Amendment issue and it was kerns confined himself to the First Amendment issue the pornography and if the people want to comment further, then, he was looking for and jack, berkman daye, the partner. They were looking for the case a long while and knew that overruled ande found the mapps case and onkman who did all the work the Fourth Amendment issue. Thats my comment if the commentators want to add to this. I am sure they can. Thanks. Earlier. Ioned i was not a group of three tornado from ohio that really of the work on the brief this case. Then, is true that wanted think issue to bement argued and there is a paragraph toare asking the court overturn in the brief but it really was one paragraph out of pages of the brief. The friend of the court brief. He waned it. You are right. Longer. D it to be having to be the focus of the brief and also wanted to tease out the whole issue as well, so that dominated it. But berkman stood out first he said was we want to overturn colorado and also saved kerns because he was floundering so much on this issue. That thisnd i think, is in the statement. He this is one who asked to have arguments about of the u. S. Sue people are court and had not been done before that a member who had been where would actually do the argument andberkman took it upon himself to contact then to right the u. S. Supreme court and the state of the supreme cort i would like to resent oral arguments and really was important for that reason as well. Florida, hi,n larry. Hi. I would like to comment on the starting and the decision and the one set verdicts and which police could do no wrong. I think the Supreme Court starting with leek leeks going start ofp was the judicial activism. I would like you to address that 4th mapp was on the amendment where i which is led us to where he were now. Correct. Ot host thanks very much. Was this seen as the start of judicial activism. That the court was certainly a, certainly more activist support than previous courts had liberal direction so i think that the court definitely was seen as starting criminal procedure revolution and created a number thendicateses that expanded rights and defendants. I would not say it is there to of the decision expanded rights and a um ber of very significant decision out of that significantly curtailed and the rights of ways thatefendants in have repercussions this day and much of the unwinding of the Civil Liberties that we see in future courts and the further courts and the be beyond that they find the footing actually in language are the warren court. Senator Patrick Leahy is the senior democrat and the senate ju ary committee. Him and other members of those democrats and republicans in preparation thorn shoe. To show you a clip now on them pact of mass on searches today. Well, the idea we have a blanket sweep from all of us, run, that is going to hurt us. That is not going to mack us safer. If example i used is this you have papers in your desk at home, you fully expect that the police want to come into your papers, look at those they will have to get a warrant, to come in to look at them. Those sameholding it files, in the cloud, you have it internet or come machine caught like that. Shown they have to follow the rules. It is your privacy were talking about. If you collect everything, then, many ways you have nothing. Better now anddo analysis it and we had very few looking at this who could speak the languages of those who in, in the wiretaps, and we learn interested that. Doesnt make us less to follow the rules of law. So senator lay hi still important war how raps are to the Civil Society and how much is on that . They arei think extremely important. Upy the more we sort of set liberty and safety as oppositional ideas and the more distracted we great the real issue. There is not inconsistency between liberty and safety. And there is no reason for us to believe that we cannot have Police Forces and Law Enforcement with limited powers and limited constitutional toers that are still able keep us safe. I think you know, carol was talking about it earlier about the studies and what they have shown with regard to the costs andhe exclusionary rule they are not as significant adds they are made out to be. Numbers not significant of lost convictions as a result play byng the police to the rules. Host the Court Continues to cases about the rights of the accused and about ofrants, this is just a few them. As stafford United School 200rict versus redding in which involved the strip of the middle schooler and part of it and dog sniffing at home doe election of dna at a lawful arrest and the pate in 2013. And then, as the two guests sung guested there have been limitations placed on the mapp decision over the time. Threep we listen to Supreme Court justices, two current, one forker, and their thoughts on tissue. We are going to begin with at thes former justice time and the good faith exception. Lets listen. Leadsthe mistake, which us to conclude, that there has been a Fourth Amendment violation, was a mistake not made by the police, but made by madge trait who issued the warrant, that should not preclude the production of evidence on the theory described in mapp versus ohio. Not theistake is polices his take, then you gain in, in unnewence conduct out. Eping the evidence that you dont want the police violating your rights without a god faith basis, without probably cause, that is why you thata judge make determination. You require them to go to a judge. Look at wasi had to whether we should make the police reresponse for what would otherwise the judgeser o are. Not their error. Everything they had to and they side the judge. I dont know. Even if they thought they knew. That is not what commands the warrant. S the judges review. So interesting. These are coming up with questions following the aftermath at the Supreme Court thel and more likely in appellate federal level. Your thought on that. Well, the thing that i think is important to remember about it is it was intended to encourage the police yews warrants that was the point of the good faith exception. The officers unleon which is the days created the exception had goodthey thought was warrant. It turned out out to be a good so the court coveraging them to rely on warrants in the first instance on goodk, if you rely faith upon a search warrant that we think is a good warrant will not penalize you for that boy excluding the evidence but exception hashe been expanded out, now, and out and outandout to include cases to do with rarg wants at all. So it includes the police rely dat base this the court is not maintaining and the good if they arepply relying on the database they are not properly maintaining the good faith exception rule will ally so it is, it has ballooned think werend what i original boundaries. Well, think it is torn note why this happened. Look at the decision in 1914 and was the excollusion governmenthe federal then the decision they relied on Different Foundation than the cases the reason for it according to the courts was that it was part of the Fourth Amendment. The fourthe amendment without this rule obtain illegalou evidence it should be exclude then also, what reason nay was referring to earlier. Rigsal about judicial integrity. One of the reasons we are not legal evidence we dont want dobb a part of allowing illegal evidence ap trial. Law. E a court of we come buy the constitution, then those rationals have give only this idea, that you exclude evidence in cases which deter Police Misconduct and the argument about the good faith exception are you north going to deter Police Misconduct when you away the running and you bring it to the idea and this benefit analysis as to whether or not Police Misconduct theeterred you completely Foundation Upon which the excollisionary rule relies and also led to money other in the, overall dismantling of the Fourth Amendment. So i think people need understand, how these foundations have affected the court and some of the dangers we incur when the court changes the mind about how it decides cases. Well, lets talk about that. They always had a problem with this decision. And when the attorney general, epped to overturn mapp and looked for vehicles to do that. We have a clip from the sitting Justice John Roberts where he takes about some of his views of the decision. Our cases have applied what executionaryhe rule under which illegally seized evidence cannot be admitted in court. This is a creative rule. It is not an individual right but unstead aims to doe ter violation of the Fourth Amendment. The idea that is if the lis evidence from the illegal search there is likely to be fewer illegal searches. Now give in that purpose, our precedent establish that the not a ply when it will not result in real did he the trance or the benefits are outweighed by the costs. That costs of course is the prospect that the guilty and the possibly dangerous will go free. Your comments, please. Well, i disagree him, obviously. Based on what i said earlier because you hear in his comment this embracing of the deterrents rational and the createdt the rule is buts said, the scholar, give me of rule that is not ju arailroad created. Created. Ese rules are and so i think that what robert smith says is the years between weeks and mapp where it was really about how this is required and tom clarke had the great quote once crittizing wolf if i colorado. Empty justs like an ture. That was what used to say. It is no use at all to have a contution. Pretty. It has fridges around it. But it is, it is just a piece of paper, unless you leave by it, and you end force it. That is what mapp and the fourth about. Nt is all which that is you need to have that ex collisionary rule or em r room dy and some constructed it to realize the rom miss of the Fourth Amendment. If you dont vit. Then what you have are options of people maybe filing a civil and against the policing inevitably going to also and having the Police Police the selves which my or may not work we have seen evidence to the latter or having prosecutors go misbehalfpolice who that does not happen often. There is not any other way that without thealize rule and so yes is correct about the course of the prudence burger court which is the Fourth Amendment, and i term of howwrong in it came about and how it was originally described. Ok. So we have 12 minutes left and use that to take a few more calls but also talk about the impact of the mapp decision on policing in america. Can we start with that by listening to chief just is earl warren shortly before he weireed from the court and told you from the beginning this was the first in a sr. S are of courtk to on that had to do with criminal right making manyscene as changes to the police proceed procedures, criminal right and criminal prosecution in the country so we listen to earl warren talk about that then you clevelandfrom retired Police Sergeant robert on changes he followed his level to procedures. Lets listen in. I think that the work of the improved through the years. Higher it is on hire, a standard now, than it was when i lawt went in to the enforcement business, almost 50 years, 50 years ago. And, and i am very hopeful that to, to improvee log to the years. To be able toed teach at the Police Academy here tric andand and at part of what i taught was search go aboutre and had to k to mapp. Line. The bottom mass that he foundation of where we had to go from this point forward. Was very important that the running behind this mapp newsion was conveyed to the officers, so they would understand how important it was to follow the rules. The think as a result of mapp case, it is really forced a littleficers to work harder, to be a little bit more cious and in the long run, whether we like the decision or didnt look the it really made us better cops. When we went to court with that toormation, when we went court with the evidence obtained with that search warrant we were to getre likely convictions. This he is your area of expertise. It did make the police work harder and be constrictive when they went to snout so i think what we found there was in creased profession. Of the Police Forces that definitely to be ex havent the by theforces were bound excollisionary rule they did have to up the game so to speak. Become moree to professionalized. The one comment i did want to make is the right to be protected by the Fourth Amendment are not criminal rights the expansions that were were notr the court expansions of criminal protection but all of the rights. All of the protections so the limits that we cannot confuse messengere with the so the message of the fabulous message aint is about on osh tary Police Authority which affects you and me as much as it affects the gy of heroinner the bag the pocket. He just happens the messenger we dislike him and therefore dislike the right protecting for all of us. Well, i completely agree. I always tell my students these has. Ights that everybody it is really we forget about that because we focus on the criminal and i think the crit the rules as well. That gives them ammunition. But when it was handed down tremendous outcry from Law Enforcement about the calling of the criminals hand cuffing the police what we found is they learned to train themselves so it did in crass the professionalism and there was study in the 1688 boy the American Bar Association which concluded this is police judge, prosecutors, that the rule didnt hurt the administration of justice. To in crease in crime. Was not obstacle to Law Enforcement that you could have it and still have effective Law Enforcement so most Law Enforcement officers they dont em praise the is collusionary but know how to operate within the bounced of it to operate within the bounds of these limitations of the exclusionary rule so they around it. O operate and one second, i have to add about the earl long quote. Is right. What he said in the at toby oh grf if i. Hes to look at the did including ma dran which he will speak about later and also look how the court looked at issues of race and inequality, and communities which were target body though police because they were predm aptly come machine tis of color so it important that you make that revolution and what was happening and the emphasis on race. Us again. Issue for willed and wonderful is on twitter and asked which of the exceptions to the rule are most used inevitable discover are and independent force. That is tough to answer. Is probably a continuation, so there are three exceptions to in exclusionary rule addition to good faith so if the about can prove that thed act illegal unconstitutional act removedpened is so far from the discovery of the evidence that is considered a exception toand the exclusionary rule. Bitovery requires quite more to establish this so the police really have to be able to almostat they would have certainly discovered the illegally gotten evidence anyway and so it is a bit more to demonstrate another can showrce so they sure we bust done the door of persons hus and got the andence, but we had anonymous tip that we would have been able. We would have been able to get way,is evidence in another then that is another way for them to get to it. It is difficult to say which used most equiply. I would say it is the toughest. Wantings to go back to decision reported pod the cort y didnt they incur in the judgment on first grounds. The me memorandum did that. Why doesnt see . It is a great question. I dont know. I didnt explore than the book. I think it was was not a First Amendment basis. Decision wasty entirely about the Fourth Amendment. I thought he was asking why join. Idnt well, on First Amendment grounds why did they join . Thee is asking about center . Why didnt they find Common Ground on the First Amendment of the says no because he didnt write. Hes where he memorandum and said joining the opinion. Yes. Some sort of other reasons. A moment memo. Yeah. We dont see it. We dont site very often. Part of the confusion. Yeah. All right. S take a call from paul. That is in fort lauderdale. Hi, paul. Good evening. Hi. It is a pleasureing to all of you. And i seen a few of the think deedees by the Supreme Court should be carefully protected and the mapp case and how theers demonstrates decision are written or hollowed by the same court. Country,tizens of the how do you see this point . I completely agree with you. Just in terms of raw numbers, i think it is interesting to look at how the different courts have lead to different outkopps during the warren court rear. Twothirds of the decisions are prodefended they favored the was bring the challenge then may be considered search andn the 200 seizure cases that were decided during the tenure of burger and then about 75 of them favored the state. So you can see a real reversal in terms of the rate. It is a cost of liberty of personal individual and seeing g this trend continue although a little less though. I completely agree with you. Cases in our more landmark ser res this is a 12week program. Produce a book that is available to you that outlines by of the cases written veteran Supreme Court journalst ap available on the website for just 8. 95 and we git out to you quickly during the next few mons reaaronies likely to the entirety so you can watch it andtell and the weeks ahead have the back ready four. Is archived on the website each program after it airs so there an opportunity to watch it online if that book of interest to you. Easily available and well get it to you quickly. I will take two more calls and that will be it. In georgia. S pete hi, pete. Caller hello, hi. Thank you for this program. I really enjoy it. I try catch it whenever i see it. About, i guess, what we can expect in the Fourth Amendment jurisprudence, this was comments about the rule is judgemadeonsidered rule and there is a lot of exceptions to it. What do you think about the warrant preference in the Fourth Amendment . That is also going to be under attack. Going forward and you should of there is that, that tension in the Fourth Amendment preference ofnow, the war rent or just a reasonableness requirement. Thank you very much. That is a great question. If you look at the history of cases including the ones about the exclusionary rule. To ase what you referred a preference construction of the Fourth Amendment. What that construction means is our companya that reasonable. With a few exceptions. Right. Court saw was sort of carefully delineated. Hot pursuit. Thing like that. Have seen, really, since court, say the burger the court embracing this generalized reasonableness construction of the fourth not focusingch is on the warrant but rather folk season on whether the Police Officers actions are considered reasonable so this is actually the fourthamage to amendment than we are been talking about today. For just saying Law Enforcement has to show they have done something reasonable that is a low threshold with the court embraced today you are seeing it the court and it startedded with the burger court. Warrentarted with the court with terry versus ohio. They sort of really set the shift on that court. Yeah. Yeah. Absolutley. I find myself with 30 seconds left. I apologize the time caller. Nu. Wo programs for well deal with the warren court which is another in the sr. S are of case and spend our final talkhour in that program about the Court Overall and the reviews andthese what it has done to this judicial process and talk about that in a bigger way. We hop you will be with us for that program. We close here. I want to ask you about what people should talk away the fact , the citizen like dollree a land lane focus of mark case. The first point there is a story behind the cases they real people with real challenges and they in the case mapp involve people who have personal strength tot situation and to go to the courts for relief and to fight her way all the way to the court. So really our cases are about individuals that have lasting americans andl anyone of us could be that individual although frankly, like dollreebe mapp. Host what are your final thoughts about this case and the importance . Caroline. We all have a troll rain in protection of the Constitutional Rights inwe have to stand up and thoughvoice everyday constitution or it endeds up being a dead letter and dollree that. Id host thank you for being our guest tonight on mapp versus thank for your questions and comments it makes the program interesting. Thanks for being with us. [music] cspans history series, land mark cases, season two, with a look at the significance of divisionsurt mccullough versus maryland. Areoring this case with us peterson, at the university of atginia, and law professor the university of arkansas. Watch landmark cases live monday, february 26, at 9 00 cspan. Tern on cspan. Org or listen with the free the cspan radio app. For background on each case, a copy of the landmark companion book at cspan. Org landmark cases. And for an additional resource, a link on our website to the National Constitution centers interactive constitution. Here we are live at the National Constitution center in launch ofia for the the Second Season of landmark president , cspan susan swain, National Constitution Center Center jeffreyt and c. E. O. , rosen, and constitution scholar, they prepare to preview the series. You can see the crowd is there and we will be under way live, here on cspan. Here we are, live from the National Constitution center in philadelphia, just a moment away from the launch of landmark cases. Live coverage here on cspan. I am jeffrey rosen. The president of this wonderful institution. Only institution in america chartered by congress to disseminate information about the u. S. Constitution on a nonpartisan basis. Beautiful