The death of the “Rosa Parks of the 4th Amendment”

It is rare we get to hear the backstories of the people behind the big Supreme Court cases that change history. One of those people, Dollree Mapp, died this week. Technically she died a month ago, but minor coverage of the news didn’t catch up to me until this past week. “Dolly” was the petitioner in the fake-warrant blouse-stuffing 4th Amendment Supreme Court case Mapp v. Ohio. Dolly’s scuffle with police and the subsequent search and seizure of pornographic literature from her home made it all the way to the SCOTUS in 1961. When you’ve stopped trying to imagine what qualified as “pornographic literature” in Cleveland, Ohio in 1957 (medical books with pencil drawings), try to guess how many times detective Lenny Briscoe sassed some ne’er-do-well who asked to see a search warrant before letting him into his home on Law & Order. (By my estimates, 282, as that’s the number of episodes Detective Briscoe appeared.) We can thank Dollree Mapp for that. Her case established the protected right we all have to ask that critical question – Can I see a warrant? – before police search our homes.

Mapp turned out to be right about the fake warrant the Cleveland police showed up to her house with on May 3rd, 1957. How she knew that it was fake still mystifies me, as does the reasoning behind why she thought stuffing the warrant in her bosom was wise. After all, she’s a biracial, unmarried, single parent living in 1950’s suburban Ohio confronting white cops. Put under arrest, police searched her entire home and didn’t come up with either of the things they suspected she was hiding inside: a suspect wanted in a bombing and illegal betting equipment. They did, however, find pencil drawings of nudes inside a book found in the room Mapp was renting out to a tenant. Scandalous? Not by contemporary standards, but all pornography was illegal in Ohio back then. Despite her claim that the pictures and a .22 revolver weren’t hers but were left behind by a tenant, and her statement that it was “terrible what men looked at,” Dolly was found guilty and sentenced to 1-7 years.

The issue in this case is whether or not the evidence (the porn) could be used against Mapp in state criminal proceedings even though her 4th Amendment rights were violated, as no real warrant existed to search her home. So what did the police serve her with? What was on that piece of paper? Her advocate, A.L. Kearns, told the Justices that the cop who served the fake warrant, Lieutenant White, refused to take the stand to testify about what was on the piece of paper and that it had gone missing.

Mapp won her case and the exclusionary rule is now on the legal books, but there is another facet of this case that rarely is addressed and was brought up in oral arguments: the 1st Amendment challenge to Ohio’s law banning pornographic material and the stiff consequences for possession in one’s home. Bernard Berkman represented the ACLU in the case and spoke for a few minutes during the oral arguments about it. Berkman said the government could legislate morals, but not so long as they violate the tests to the 1st Amendment. “The evil sought to be controlled here can be met by less drastic statutory means without limiting the liberties of citizens.”

Gertrude Bauer Mahon represented Ohio in the Supreme Court. Mahon was one of a handful of females to attend law school in the 1940s in the U.S. On the 1st Amendment matter, Mahon’s said the purpose of the Ohio statute was to curb circulation or exhibition of obscene materials. On the suppression of the evidence, Mahon said the Ohio Supreme Court relied on the precedent set in State v. Lindway (1936). In Lindway the fruits of an unlawful search may be introduced but if no contraband is found police may find themselves with a civil action suit for trespassing. The decision of the Ohio Supreme Court reasoned that there might be a reasonable argument for reversing the conviction since the methods of obtaining the evidence “were such as to offend a sense of justice.” However, the evidence had been seized not peacefully but forcibly from Dollree and was thus fair game to use against her.

The 6-3 decision, written by Justice Tom C. Clark, was a victory for Mapp. Thomas referenced Boyd v. U.S. (1886) early in his opinion saying “the Court noted that Constitutional provisions for the security of persons and property should be liberally construed…It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” By 1949, two-thirds of the states were opposed to the exclusionary rule. By 1960, half the states adopted it, which must’ve persuaded the majority to keep up with the speed of changing legal standards. Justice Clark noted “There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine ‘[t]he criminal is to go free because the constable has blundered.’ In some cases this will undoubtedly be the result. But, as was said in Elkins, ‘there is another consideration – the imperative of judicial integrity.’ 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.”

Though Dollree’s own case may have set her free, she would eventually spend ten years in a women’s correctional facility for possession of drugs. Several news outlets covered her death and many recognized her as the “Rosa Parks of the 4th Amendment.” The Huffington Post did a thorough investigation into Mapp’s life after her famous case where it’s fair to say she would’ve reveled in such a comparison. She was described by many as having swagger and a foul mouth, but unapologetic and “very, very, very strong-willed,” according to Dollree’s niece. Dollree Mapp’s case dramatically changed the power of state law enforcement relative to citizens and shaped much of today’s discourse around the 4th Amendment. And it gave Lenny Briscoe 282 moments of sass, of course.

ENDNOTE: The oral arguments from this case are not to be missed. Check out Oyez to time travel back to 1961 to hear them and you’ll quickly discover how different oral arguments were. Advocates speak full minutes before a justice questions them! No more than one, maybe two, questions are asked of an advocate at one time and they get to answer the question before another one is asked. It’s nothing like the “hot bench” we see in today’s Supreme Court.

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