Mapp v. Ohio (1961): full transcript

Cold open

Cleveland, May 23, 1957. Three police officers knock on a woman's door. She calls her lawyer, then refuses to let them in without a search warrant. Three hours later, more officers arrive and force a door open. One of them holds up a paper, "claimed to be a warrant." At her trial, the prosecution produced no warrant.¹

I'm your host, and this is Supreme Dicta: one decision, the majority and the dissent, side by side, straight from the opinions. Quick note: this is general information, not legal advice.

The case

The case is Mapp v. Ohio, decided June 19, 1961. Justice Clark wrote the opinion of the Court. Six justices voted to reverse, and three dissented.²

The facts

The woman was Dollree Mapp. The officers said they were looking for a person "wanted for questioning in connection with a recent bombing," and for illegal betting materials, what the opinion calls "policy paraphernalia."³

When her lawyer arrived, the officers would not let him see her or enter the house. She grabbed the so-called warrant and "placed it in her bosom." The officers took it back and handcuffed her because she had been "belligerent."⁴

They searched her bedroom, the child's bedroom, the kitchen, and the basement. In that "widespread search," they found the materials behind her conviction under an Ohio law against possessing "lewd and lascivious books, pictures, and photographs."⁵

Ohio's Supreme Court upheld the conviction. Four of its seven judges thought the obscenity law itself violated the Fourteenth Amendment. But Ohio's constitution required all but one of the judges to agree before striking down a law, so the court had to uphold it.⁶

The court also said the evidence had not been taken "from defendant's person by the use of brutal or offensive physical force." And the State relied on a 1949 case, Wolf v. Colorado. Wolf held that in a state prosecution, the Fourteenth Amendment "does not forbid the admission of evidence obtained by an unreasonable search and seizure."⁷

The best case for the majority

The Court overruled Wolf. Justice Clark wrote: "We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court."⁸

His starting point was the federal courts. Since 1914, evidence seized illegally by federal officers could not be used in federal trials. Without that rule, the Fourth Amendment would be reduced to "a form of words."⁹

Wolf had applied the right to privacy to the states, but not the rule that enforces it. To Clark, that made no sense: "To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment." The rule's purpose is "to deter," by "removing the incentive to disregard it."¹⁰

The facts had changed, too. More than half of the states that had looked at the question since Wolf had adopted the rule, at least in part. California did so because, its highest court said, "other remedies have completely failed to secure compliance with the constitutional provisions."¹¹

Then there was the double standard. "Presently, a federal prosecutor may make no use of evidence illegally seized, but a State's attorney across the street may." As Clark put it, "There is no war between the Constitution and common sense."¹²

Last came the famous objection. Justice Cardozo, then a New York judge, had written that under this rule "the criminal is to go free because the constable has blundered." Clark answered: "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." He quoted Justice Brandeis: "If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."¹³

The best case for the dissent

Three justices dissented, and Justice Harlan wrote for all three. He made three arguments.¹⁴

First, the Court decided a question nobody argued. The case was mainly about Ohio's law making it a crime simply to possess obscene material. The Wolf question was "briefed not at all and argued only extremely tangentially." Mapp's own lawyer "expressly disavowed" asking the Court to overrule Wolf. So, Harlan wrote, five justices had "simply 'reached out' to overrule Wolf."¹⁵

Second, let the states decide. The exclusionary rule, he wrote, "is but a remedy." And "Problems of criminal law enforcement vary widely from State to State." About half the states still let this kind of evidence in. The Court, he said, should not force on them "an adamant rule which may embarrass them in coping with their own peculiar problems."¹⁶

Third, a fair trial is about guilt or innocence. Harlan did not see how a trial "becomes unfair simply because" a state lets the jury weigh relevant evidence, "regardless of how it was obtained."¹⁷

He closed with a warning. In this case, he wrote, the Court's "voice becomes only a voice of power, not of reason."¹⁸

What happened next

Mapp's conviction was reversed.¹⁹

Eight years later, in Stanley v. Georgia, the Court took up the kind of question Harlan had pointed to. It held that the Constitution forbids making mere private possession of obscene material a crime.²⁰

And the rule has limits. In 1984, in United States v. Leon, the Court held that evidence can still be used when officers reasonably relied on a search warrant from a neutral magistrate that later turned out to be invalid.²¹

Close

So here are the two sides. The majority saw a right without its remedy as an "empty promise," and it closed the courtroom door to illegally seized evidence in every state. The dissenters saw the Court reaching out to decide a question no one had argued, and they would have let each state choose its own remedy.¹⁹

Two years later, Gideon brought the right to a lawyer to state courts. Three years after that came Miranda. The full opinion is linked below, so you can read it and decide for yourself. I'm your host, and this is Supreme Dicta.