Wednesday, December 10, 2014

"No," She Said, Not Without a Warrant

On May 23, 1957, three Cleveland police officers arrived at appellant's residence in that city pursuant to information that "a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home." Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.
The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened and the policemen gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry, and continuing in their defiance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the "warrant" and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been "belligerent" in resisting their official rescue of the "warrant" from her person. Running roughshod over appellant, a policeman "grabbed" her, "twisted [her] hand," and she "yelled [and] pleaded with him" because "it was hurting." Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child's bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.
The charge, when they arrested Dolly Mapp, was obscenity.  They found books and drawings.  She was convicted and sent to prison.

The U.S. Supreme Court cut her loose.  It's not that they said Ohio's obscenity law was unconstitutional.  (Actually a majority of the Ohio Supreme Court did think the law was unconstitutional, but the majority was only 5 of the 7 justices; at the time, the Ohio Constitution required at least 6 of the 7 to declare a statute unconstitutional.)  Rather, they said the search was.

Back in 1914, the Supreme Court had tossed out the evidence against Fremont Weeks who'd been convicted of sending lottery tickets through the mail.  In Weeks v. United States, Justice Day wrote for the Court that that the feds could not use in court of evidence obtained in violation of the 4th Amendment. 
We therefore reach the conclusion that the letters in question were taken from the house of the accused by an official of the United States acting under color of his office in direct violation of the constitutional rights of the defendant; that having made a seasonable application for their return, which was heard and passed upon by the court, there was involved in the order refusing the application a denial of the constitutional rights of the accused, and that the court should have restored these letters to the accused. In holding them and permitting their use upon the trial, we think prejudicial error was committed.
But that rule didn't apply to the state prosecutions until 1961.  Which is when the Court ruled on Dolly Mapp's obscenity case.  And ignored the obscenity.  And said, in Mapp v. Ohio, that by god the states can't conduct an illegal search and prosecute you with the evidence, either.

Which was a great rule while it lasted.  

Except that the cops and the prosecutors, and ultimately the judges and justices, and the folks like Kent Scheidegger and Bill Otis* forces of lock-'em-up-until-you-fry-'em for that part about not being able to prosecute people based on the use of illegally obtained evidence.  'Cause it's more important to lock up the bad guys than to obey the Constitution.  

And so the exclusionary rule no longer prohibits use of unconstitutionally obtained evidence.  Unless the prohibition would prevent the cops from violating the Constitution.  Which, of course, it won't if they can use the evidence.

But for a while.

Dollree Mapp's booking photo
Her name was Dolly Mapp.  She just said "No."  For that, and while it lasted, she changed our world.

She died a month and a half ago, on October 31, in Conyers, Georgia.  She was, the Times says in its obit, 90 or 91.

Rest in Peace.

*Their blog, Crime and Consequences, currently has fewer votes than any of the criminal defense lawyers' blogs except Matt Brown's in the ABA's annual beauty contest for blawgs.  Go vote for Matt's to see that his blog, too, gets more votes than theirs.  

No comments:

Post a Comment