If a moderate Texan could love the exclusionary rule, why can't judicial conservatives?

The law, lawyers, and the court.
June 7 2011 5:41 PM

Mapp v. Ohio Turns 50

If a moderate Texan could love the exclusionary rule, why can't judicial conservatives?

Tom C. Clark.
Justice Tom Clark

An important measure of success is resilience in the face of attack. If so, the achievement of the Supreme Court in Mapp v. Ohio the decision spelling out the modern meaning of the Fourth Amendment prohibition against "unreasonable searches and seizures" was a singular accomplishment. The Mapp decision celebrates its 50th anniversary on June 19 and conservative judicial activists, still busily trying to get it overturned, have entirely misunderstood that it represents constitutional fidelity and adherence to the rule of law at its best.

Under siege by conservatives since the moment it was decided, Mapp provided for the first time that the exclusionary rulebarring evidence seized without a search warrant applied to state prosecutions. (Like all provisions of the Bill of Rights, the Fourth Amendment applies only to actions by the federal government, unless the court has "incorporated" it through the 14th Amendment's due process clause.) Today, the assault on Mapp continues, led by the current Supreme Court's conservative bloc. But that attack is misplaced, given that the opinion, written by the moderate Justice Tom C. Clark, offers a model for how true conservatives should apply the broad language and meaning of the Constitution. 

Mapp v. Ohio was the first of several important criminal procedure decisions emerging from the judicial ferment known as the Warren Court, which would make history in Chief Justice Earl Warren's first year, 1954, with the landmark Brown v. Board of Education.It was not until the 1960s, however, that the court would launch what became a due-process revolution, blazing a path of progressivism that reshaped individual rights in this countryand unleashing the wrath of conservatives who charged the justices with making, rather than interpreting, the law.

Advertisement

Mapp was arguably the most controversial of the decisions protecting the rights of accused criminals, although it didn't start out that way. Acting under what they said was a tip from an informant, police officers went to the Cleveland home of Dollree Mapp, a single mother of mixed black and Cherokee Indian parents, and demanded entry to the home to search for a local bombing suspect. The police didn't produce a warrant and Mapp, on the advice of her attorney, told them they could not enter. More police arrived, eventually forcing their way in, searching the house, and taking the man in question into custody. They also arrested Mapp after turning up what they said was illegal gambling-related material and several allegedly obscene books and pictures.

Mapp's attorneys argued that the obscene material had been unlawfully seized and should not be allowed at trial as evidence. That legal principle, known as the exclusionary rule, had been applied in federal criminal trials since 1914. But unless states applied that rule independently, they were not required to follow it. At the time of Dollree Mapp's trial, approximately half of the states used it. Unfortunately for her, Ohio was not one of them. She was found guilty and sent to prison.

After exhausting her state appeals, Mapp faced the usual long odds to have her case heard by the U.S. Supreme Court. A claim unrelated to the evidentiary question—that the Ohio obscenity law violated the federal Constitutiondid the trick. The court, after hearing argument, voted to overturn her conviction on First Amendment grounds.

That might have been the end of the story, and there would be no 50th anniversary party this month, were it not for Justice Tom Clark, who had been assigned to write the opinion. After writing a draft adopting the agreed-upon analysis, Clark found himself in a Supreme Court elevator with Justices William Brennan and Hugo Black. He suggested that Mapp represented an opportunity to make the exclusionary rule doctrine consistent throughout the nation. With their agreement, Clark assembled a narrow majority, transformed the opinion, and overturned Dollree Mapp's convictionthis time on the grounds that the evidence used to convict her had been seized in violation of the Fourth Amendment, which for the first time, was held applicable to the states.

How and why an easygoing Texan managed to engineer this historic decision with a court comprised of brilliant prima donnas, including another southerner who happened to be a former member of the KKK, is almost the best part of the story. Although he was good friends with two of the court's leading liberals, Warren and Brennan, Clark was no liberal, no judicial activistand no pushover. A former assistant district attorney and later Harry Truman's attorney general, Clark was as pro-law enforcement as they came. As attorney general he had come under fire from civil libertarians for his stewardship of aTruman anti-Communist law known as the Attorney General's List of Subversive Organizations. So when Clark talked about "judicial integrity" and the problems resulting from federal officers who "were invited to and did … step across the street to the state's attorney with their unconstitutionally seized evidence," there is reason to respect his understanding of law enforcement practices. And that's why, in that elevator, Justice Black, who would become the key fifth vote for incorporation of the exclusionary rule, was willing to listen to him.

As Clark explained the problem in his opinion in Mapp, "a federal prosecutor may make no use of evidence illegally seized, but a state's attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment."  This discrepancy, he wrote, "serves to encourage disobedience of the Federal Constitution." In closing "the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse" of the basic right to privacy, Mapp relied on principles of deterrence and judicial integrity, as well as logic.

In response to criticism that the decision would "handcuff" the police and allow criminals to go free, Clark replied that clearly defining the constitutional requirements forced police to be more disciplined and would actually lower the risk of evidence being disallowed. Recalling Judge (later Justice) Benjamin Cardozo's famous comment about whether "the criminal is to go free because the constable has blundered," Clark noted, "In some cases this will undoubtedly be the result," but reasoned further that, "The criminal goes free if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."

The Mapp decision galvanized opposition from those who objected to the "nationalization of the Bill of Rights," particularly in the area of criminal procedure, at a time of increasing crime and social unrest. Yet its critics never have been able to demonstrate that the decision lets large numbers of criminals "go free." In fact, studies show the rate of suppression was remarkably low and even in most of those cases, convictions were achieved. It turns out that police with proper training and a better understanding of the law actually do follow it, with little interference on their law enforcement abilities.

But this hasn't stopped conservative judicial activists from advancing arguments with little basis in reality. Since the 1970s, an increasingly conservative court has issued numerous rulings slowly chipping away at Mapp and now appears to be within one vote of overturning it entirely.  A 2006 decision, Hudson v. Michigan, created yet another significant exception to the exclusionary rule, while its author, Justice Antonin Scalia went so far as to suggest that the rule itself was outdated and no longer required. Never mind that his explanationthat this was due in part to "the increasing professionalism of police forces"was a direct consequence of Mapp itself.  More recent decisions in this area, such as a 2009 ruling in Herring v. United Statescreated an even larger exception to the exclusionary rule by allowing faulty evidence from other police officers, the very group the exclusionary rule is designed to deter. In short, as former New York Times Supreme Court correspondent Linda Greenhouse, discussing a decision from this term that added yet another exception to the warrant requirement wrote, "It's worth wondering what planet the justicesmost of them, anyway … have been living on when it comes to encounters between the police and the rest of us."

Whether the end of Mapp comes from death by a thousand cuts or its actual overruling, either conclusion is problematic for the integrity of our Constitution and system of justice. This is not a proposition that should be embraced by liberals alone. As Justice Clark explained in penning the opinion, Mapp "gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and to the courts, that judicial integrity so necessary in the true administration of justice." Fifty years later, these are still words any true conservative should keep posted next to his or her copy of the Constitution.

Alexander Wohl, a former Supreme Court judicial fellow, is writing a biography of Justice Tom Clark and his son, former Attorney General Ramsey Clark, and their impact on the balance between government power and individual rights.

  Slate Plus
Slate Picks
Dec. 19 2014 4:15 PM What Happened at Slate This Week? Staff writer Lily Hay Newman shares what stories intrigued her at the magazine this week.