Transcripts For CSPAN3 Mapp V. Ohio 20170810

States Supreme Court decision in mapp v. Ohio is the heart of tonights program. That decision, as you probably also know changed the way courts in this country exclude evidence or consider evidence obtained in violation of our Fourth Amendment rights. Before the decision in mapp, the remedy of excluding evidence was unpredictable at best. If a Police Officer enters or searches our home, our car, our purse, our cell phone, we expect that the judge will prohibit that evidence from being used in a prosecution against us. Motions to suppress evidence are now expected. Theyre common. Defense lawyers in the oj simpson murder trial moved to exclude both blood and hair evidence from the trial of that case. Counsel for ted kaczynski, better known as the unabomber moved to exclude evidence of an unexploded bomb, a journal in which mr. Kaczynski admitted almost 16 of his bombings, and even his manifesto, all found within a remote montana cabin. In both of those notorious cases, the motions to suppress were denied, as they are throughout the country in many cases. But whether denied or granted, motions to suppress now play a significant role in criminal cases. In fact, theyre usually determinative of an outcome of a case especially in drug and gun cases. If the defense prevails and drugs and guns are excluded usually the governments case is gutted and the case dismissed. While mapp v. Ohio does not enjoy the household recognition of a case like miranda versus arizona, it affected a profound change in criminal procedure. Tonight dr. Carolyn long examines the procedure in part of her discussion of her latest book. As you know, its titled mapp v. Ohio guarding against unreasonable searches and seizu seizures. Dr. Long is the associate director of the college of liberal arts, director of the program of Public Affairs and associate professor in the department of Political Science at Washington State university in vancouver, washington. She earned her bachelor of arts from the university of oregon and her ph. D. In Political Science from rutgers university. Dr. Long has also been a fulbright scholar and is the author of many scholarly articles and book chapters. The book she presents tonight is her third. Please welcome dr. Carolyn long. [ applause ] thank you for the kind introduction. Before i begin i would like to thank the cosponsors of the event, University Press of kansas and the university of Kansas School of law, and the copresenters and funders of this talk, the kansas city public library, the Truman Library institute and the federal Court Historical Society and also the sponsors the Kaufman Foundation and law firm of spencer, feign, brit and brown. Tomorrow morning ill visit the Truman University library institute. President truman played an indirect but Important Role in map v ohio. Tom clark was a personal friend of the president and one of trumans first key appointments. Shortly after taking office, president truman appointed him to be attorney general and later elevated him to the position of associate justice on the United States Supreme Court. There is another connection between the truman presidency and Justice Clarks juris prudence. Truman was known for advocacy on behalf of Civil Liberties issues and in particular we acknowledge his executive order desegregating the armed force, his mandate of federal treatment in equal hiring, and a report called to secure these rights which called out his efforts to secure liberal rights and agendas. If one suggests, as i do, that cases like mapp, miranda and gideon attempt to address racial inequalities in the Justice System because of Aggressive Police tactics that targeted communities of color we see president trumans appointment of clark, who is in the majority of these decisions also advance the causes of racial justice. An oft quoted legal maxim is that hard cases make bad law, meaning that a hard or extreme case is a poor basis for a general rule to cover a wider range of less extreme cases. Some might argue that dollree mapps case was a hard case that made bad law, but i would suggest the opposite. The search of mapps person, possessions and homes was not extreme at the time but was rather a regular practice of the cleveland Departments Bureau of special investigations and was similar to Police Investigations in many major metropolitan areas which is one reason why the courts decision had an important and profound impact on police practices. Mapps personal story sets the foundation for my discussion this evening about the exclusionary rule. So the first part of my talk will begin with the description of the circumstances that led to her arrest and a brief review of the state and federal court proceedings. In part two ill discuss why mapp is a landmark decision as melanie suggested and in particular review the impact of mapp on police practices. And in part 3, i will briefly touch on the political and legal developments since the decision in 1961. Mapps story begins with a bombing at the home of a young don king who many now now may recognize as a flashy boxing promoter. In 1960, however, he was known to police as a clearinghouse operator who ran an illegal gambling operation. After the bombing, king reached out to police and directed them to potential suspects. Some of whom were his competitors. Several days later an anonymous tipster led the police to the home of dollree mapp where king also said they may find some policy paraphernalia, which is material associated with illegal gambling. Clevelands special bureau of special investigations, with Sergeant Carl delau was empowered to investigate vice crimes in the city. Many of which were thought to be connected to organized crime. The vice crimes in cleveland at the time were minor compared to what we might see in cities today. They predominantly consisted of what we call number or policy games which were forms of a daily lottery. People would make small bets for modest payoffs. As a result, the game was often associated with people in the lower socioeconomic class, including those in the minority communities. Because of this, there was an undercurrent of racial tension in the city as police, who were overwhelmingly white, would target African Americans and other minorities during their investigations. Delau took the lead in the investigation of mapp. He was familiar with mapp whom he describes as his arch enemy. She was a visible fixture on clevelands boxing scene and was once married to jimmy bivens, who was a regarded as one of the best light heavyweight boxers of his time. At one time she was briefly engaged to archie moore, another boxing great. She also associated with people involved in illegal gambling. So delau and others went to mapps home and asked to speak to her. Mapp being the savvy person she was, immediately foend her attorney. And her attorney told her it was necessary for police to get a warrant in order to question her and enter her home. When the police told dollree that they did not have a warrant she refused their entry. The police were surprised at her response. Sergeant delau himself admits Cleveland Police conducted hundreds of searches a year without a search warrant, so it was a routine endeavor at the time, because any evidence that was illegally gotten from that search could still be admitted in criminal trials. And this is also the practice in about half the states in the union, each of which did not have an exclusionary rule which requires the suppression or exclusion of evidence seized as a result of an illegal search. And delau himself acknowledges that they were enthusiastic in their work. He stated, we were well trained, innovative, aggressive squad working to curtail the numbers racket to which we caused much harm. This aggressiveness was evident in the fact that, soon after insisting on the search warrant several police cars and between ten and 15 Police Officers arrived at mapps home. Mapps attorney was also there. He was told by police that they had a search warrant, but they did not produce one and they also barred him from entering the home. Oddly, despite the fact that they had a search warrant delau used a crowbar to peel off the screen door and break the window to enter the home. When mapp saw this happening she was, of course, displeased. She confronted the police and asked to see the warrant. Someone produced a piece of paper, said it was a warrant and mapp grabbed it and thrust it down the front of her dress. The police asked the sergeant what will you do now . He said, im going after it. So he went after the piece of paper. Dollree mapp got increasingly belligerent and as a result was handcuffed to another Police Officer while those 10 to 15 officers conducted an extensive threehour search of her twofamily home, including going through every drawer and chest and piece of furniture extensively looking for that bombing suspect. Police also searched the downstairs apartment of a boarder in the homes basement. During this time she would be calling out to her attorney asking for him to come in but the police refused him entry. At the end of the search the police produced a trunk of policy paraphernalia said to be found in the basement and delau produced material he said was offensive that he suggested had been found in her bedroom. According to mapp the stuff was not from her bedroom, but belonged to a boarder and was in the basement, but nevertheless she was arrested for the possession of the paraphernalia, a misdemeanor and several days later possession of illegal material. Why is this not a hard case according to the legal maxim i started with . Because, as mentioned previously, in many metropolitan areas at this time there were vice crimes that occurred in predominantly minority communities and police frequently and aggressively used tactics such as the search of mapps home to combat crime. The research at the time reveals that warrants, while required, were rarely used because the evidence, again, could be admitted to trial. The Police Conduct was so common as to be seen as legitimate. As one scholar explained, the illegal entry of mapps home by the police was nothing extraordinary. It was an everyday fact of life for blacks and other racial minorities. Police throughout america were part of the machinery of getting blacks in their place and ignoring constitutional guarantees against unreasonable searches and seizures. The constitution itself played little role in the relationship between them, and they had little power to seek redress in the political process. So unsurprisingly given this story, dollree mapp was furious at her treatment of the police. She felt targeted, harassed, and she was intent on fighting the charges. She was charged with possession of the obscene material, a felony crime in ohio carrying a sevenyear sentence. Under ohio law, regardless of where the material was found, the fact that you had it in a home you owned meant you were in possession of it and guilty of the law. Interestingly, as the case moved through the state courts, the focus of the legal arguments was on the constitutionality of the state antiobscenity law. Mapps Defense Attorneys argued that the seized evidence was there because it was without a warrant that the search had taken place without a warrant and that it should be excluded from trial. Not only did that not matter, there was also state constitutional precedent that said that illegally seized material could be admitted in trial. So dollree mapp actually had two legal problems. Mapp eventually lost her First Amendment challenge in the ohio courts. Her last chance was a hearing before the United States Supreme Court. Unbeknownst to mapp her obscenity case would become a landmark Fourth Amendment ruling that would extend the exclusionary rule to apply not only to the actions of the federal authorities, but also against state and local authorities as well. So what is the exclusionary rule, why is it important and what was the Supreme Courts jurisprudence before it hand down this decision . The court first formally addressed the exclusionary rule in a case called weeks versus United States in 1914, a case involving a warrantless search of a home for evidence of illegal gaming or gambling. And in that case, the court in that case considered whether the evidence should be excluded from trial because the search was in violation of the Fourth Amendment. In weeks in 1914, a Unanimous Court declared searches conducted by federal officers must be done with a warrant issued in accordance with the constitution, meaning based on probable cause, describing in particularity what was being searched, et cetera, and that evidence that was seized that did not meet the requirements must be excluded from trial. The courts rationale for this position was that the exclusionary rule was constitutionally required to enforce a mandate of the Fourth Amendment and that, without the rule, the Fourth Amendment would be of no value. So far as those are concerned, it might as well be stricken from the constitution. A second rationale was provided as well, that of judicial integrity. The court suggested if it used illegally seized evidence to convict individuals, that would undermine the integrity of the judicial process. According to the majority, Law Enforcement officers should be able to find no sanction in the judgment of the courts which are charged at all times with the support of the constitution. Judicial approval would be to affirm by judicial decision a manifest neglect, if not an open defiance of the prohibitions of the constitutions intended for the protection of the people against such unauthorized actions. So, in conclusion, they believed it was necessary to give teeth to the Fourth Amendment and to realize this promise. Whats interesting about weeks versus United States is the majority decision also recognized the inevitable critique about the exclusionary rule about guilty people going free. As benjamin cardozas lament, a criminal is to go free because the constable has blundered. The efforts to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of principles which resulted in embodiment of the fundamental law of the land. The fact that the exclusionary rule was considered a fundamental part of the Fourth Amendment is very important. In 35 years after weeks versus u. S. The United States would return to the premise when it encountered cases involving the exclusionary rule and actions by federal officers. What it didnt do until 1949 was examine whether or not the exclusionary rule should be applied to states as well as the federal government. The Court Finally did this in 1949 in a case called wolf versus colorado, a case involving the search and investigation of an obstetrician suspected of performing abortions in violation of law. State officials conducted, as was the case at the time, a warrantless search of the office, seized his appointment books and later interrogated the physicians patients. In wolf, a unanimous Supreme Court determined that the search and seizure was unconstitutional but, more importantly, determined that the Fourth Amendment prohibition against unreasonable searches and seizures should apply to the states as well as the federal government through the due process clause of the 14th amendment. It was a landmark decision in its own right because the court signalled and did so for the first time, that rights not in the First Amendment were incorporated to apply to state and local governments as well as the federal government. As you know, under the doctrine of selective incorporation, previously the court had incorporated and applied First Amendment rights of press, speech, assembly and religion to apply against the states. So it was significant. The courts rationale for doing so, for incorporating this important right is that security of ones privacy against arbitrary intrusion by police which is at the core of the Fourth Amendment is basic to the free society. The court was sharply divided over the question of the exclusionary rule, whether or not it should be applied to the states. The majority in a decision by Felix Frankfurter said it should not. According to the majority, they reconceptualized how the exclusionary rule should be looked at. They said rather than being constitutionally mandated, it is a judicially created mandate to correct a wrong. The other thing that happened in wolf versus colorado was that the court suggested for the first time that the reason for the exclusionary rule was the deterrence of Police Misconduct. That becomes important later on, because by taking the rule away from its constitutional moorings it led to an erosion of the rule later on. Frankfurter based his decision on the principle of federalism. He believed states should decide on their own how to address Fourth Amendment violations. He saw the exclusion of evidence as one of many types of responses that a state could take. And at the time of wolf versus colorado about a third of the states had the exclusionary rule and he wanted them to be able to make their own decision. But this presented a practical problem. In 1949, if the federal government seized evidence unconstitutionally it was potentially excluded from trial. If a third of the states did so it was excluded from trial. But the other states didnt have that protection, so you had a patchwork of rules surrounding the exclusionary rules application. Interestingly, it was also at this time that you had a lot of attention to the exclusionary evidence in states including california, where a state Supreme Court justice decided ten years after he decided that the exclusionary rule shouldnt apply, that it should apply, and he did so because of what he saw was flagrant Police Misconduct, particularly against communities of color. So it leads us to map v ohio in 1961. After losing in state court, she knew she only had one option left, the Supreme Court. When her petition for review arrived at the court it really emphasized the obscenity statute in the state, because thats where the argument had been up until that point. Her attorney suggested the law was overly broad, and it was unconstitutional. In eight of the nine justices on the court decided to hear the case. In legal briefs and oral arguments in map v ohio, the focus was almost exclusively on the constitutionality of that obscenity statute in the state of ohio. There was brief mention of the exclusionary rule in a brief by the american Civil Liberties union and a brief conversation in oral arguments. But other than that, it was really a First Amendment case. So what happened at the conference . Well, Justice Thomas clarks private papers reveal that the mapp the discussion focused almost exclusively on the First Amendment issue and they said it was clearly unconstitutional under a federal precedent. The question as to whether or not the exclusionary rule should be extended to the states was raised briefly by Justice Douglas but was dismissed by the other justices. Something odd happened so the conference ended with the Court Unanimously agreeing that the obscenity statute was unconstitutional. Something odd happened after the conference discussion. In mapp v ohio a seemingly straightforward case about the girl with the dirty books turned into a landmark Supreme Court decision about the Fourth Amendment. In his autobiography, chief Justice Earl Warren explains that after the conference discussion, clark, pondering this idea about the exclusionary rule turned to justices hugo black and William Brennan in an elevator and remarked wouldnt this be a good case to apply the exclusionary rule and do what mapp didnt do . We call this issue fluidity in Political Science. You see the court seizing an opportunity to decide a question that is not formally before them. To those familiar with clarks juris prudence, the consideration to overrule wolf may appear as a surprise. He was after all a former assistant district attorney. He was president trauma to mane mans attorney general and most would describe him as pro Law Enforcement. He was a justice who liked to strongly adhere to precedent and didnt like the idea of the Court Reversing itself. If you look at the private papers of Justice Clark you see Something Else happening. You see him struggling with the wolf decision which he thought had been wrongly decided, struggling with the idea that people were victims of what he saw were Aggressive Police tactics and really a need to do something about this. You also see his efforts to try to get that fifth vote. He knew he had four from conference, but he needed a fifth vote in order to overturn wolf versus colorado. You also see the dissenters trying to dissuade him from taking this approach, which is interesting as well. So what does he do . He overturns wolf v colorado, at least that part. So map v ohio, he overturns wolf and applies the exclusionary rule to the states. Its important to know when reading mapp v ohio that Justice Clark and the majority returned to the rationale provided by previous courts as to why this was necessary. And that rationale was that it was constitutionally required in order to realize a promise of the Fourth Amendment. And this whole idea of the need to preserve judicial integrity, that you shouldnt have the courts aid the police in their misconduct by allowing the evidence to be produced at trial. So it was a significant decision. Because of that rationale. He also said in terms of federalism, its pretty important to have all the states on the same page in terms of the exclusionary rule because that inconsistency makes it awkward for people to have an understanding of the law. In regard to the oftquoted critique that criminals would go free. Clark stated in some cases this would be the result but he stated further the criminal goes free if he must, but it is the law that sets him free. And nothing can destroy government more quickly than its failure to observe its own laws or worse, its disregard of charter of its own existence. So why did clark use mapp v ohio, a clear First Amendment challenge to an obviously unconstitutional obscenity law to change the nature of Fourth Amendment jurisprudence . Years later he gave his explanation. He stated, i couldnt understand why wolf versus colorado said the Fourth Amendment applied to the states, but it just didnt seem to go all the way. In fact, it was just an empty gesture. Sort of what chief Justice Hughes used to say. No use to have a constitution. Its pretty, got all sorts of nice fringes around it, but it doesnt mean anything. Its just a piece of paper unless you really live by it and you enforce it. And thats the truth with mapp and the Fourth Amendment. So what was the impact of this landmark decision . And why is it so significant that you invited me here today to talk about it . First ill look at the impact of of mapp itself and a its impact on police practices, and then i want to talk about its larger significance in launching the criminal due process revolution. Keep in mind that prior to mapp, half the states in the union did not have an collusionary rule and would allow illegally seized evidence into trial. After that they had to exclude the evidence if it met the right marks. So the breadth of the decision was extraordinary. It was an extremely highprofile case, although as melanie suggested, not as high profile as others such as miranda versus arizona. So there was a lot of attention. Critics suggested it was a bad time for the court to decide the case. It was the result of judicial activism because the court shouldnt have reached out to decide a Fourth Amendment decision when it could have rested the case on First Amendment grounds. Conservative politicians, special interests and many members of Law Enforcement adopted a different critique and one we hear today, which is that the decision would be a hindrance to the police and would be ultimately a threat to public safety. Indeed the Immediate Reaction to mapp by the Law Enforcement community was one of dismay. In the focus was always on the cost of the rule, that it would handcuff the police who couldnt do their job, the guilty would go free and the guilty were often murderers, rapists, nighttime invaders rather than what we commonly see. Which are people possessing weapons and guns. There was the concern it would turn the criminal Justice System on its head for a focus on police error as opposed to a focus on the people who are disobeying the law. But mapp had its advocates as well. Many suggested it was a necessary part of the Fourth Amendment and a natural extension of what was first presented in weeks versus United States. Regarding the cost of the rule, defenders of the exclusionary rule suggest, as Justice Clark did, that thats the cost of the Fourth Amendment itself, not the cost of the rule. And that the rule ensures that the Fourth Amendment guarantee is more than a dead letter by offering the opportunity of exclusion and by giving teeth to the rule. There was also an argument by advocates that mapp would force police to become more professional in its activities and not fall prey to trying to target individuals in their search for people who might be committing crimes. I think the most important argument made was that supporters of the exclusionary rule reminded people that the exclusionary rule was not just for people who have allegedly violated the law. The exclusionary rule is there for everybody. For all potential individuals who might be arrested, but its also there for everybody because it gives us a little bit more in the Fourth Amendment, it gives us that enforcement that Justice Clark talked about. So what was a Practical Impact of mapp . Despite complaining bitterly, as i suggested, police changed their way of doing business. You saw Extensive Police training happening in many metropolitan areas, a little less so in rural areas, and you saw an increased professionalism of the police. To revolutionize iing administration of the criminal Justice System in that regard. What about the resolution of cases . What about the guilty going free . Well, first we did know that there was an increased number of search warrants, which is a good thing because you see that police are following process. We saw the anticipated increase in the number of suppression motions as melanie suggested. And we also saw an increase in the number of successful suppression motions. But they were much less than the common tales or the common myths actually presented. Early studies were mixed but the major studies conducted in the mid to late 80s revealed that the nonprosecution of cases because of exclusionary rule issues was actually quite small. One study found that, in only about 1 of cases did prosecutors decide not to prosecute a crime. And of those 1 of the cases, a very small percent involved offenses against a person. But rather, most of them were cases about drug possession or weapons. A second, very large study, found that successful motions to suppress evidence was found in less than a percent of cases. Again, the cases involved minor crimes. In those cases where the suppression was actually successful, the study found that the people would have only served less than one year in jail. Then, a third major final study duplicated the results. Again, few successful motions, convictions based on suppression were minor crimes. Yet, its interesting to me that both in the press and also in most all law order, fabulous show, episodes, we always hear about the murders, rapists and nighttime invaders going three. Empirically the evidence does not show that to be the case. The reality is people are often convicted anyway because of other evidence, or if they arent convicted, they are minor cases. That is not to discount the fact that drug crimes and weapons crimes are not important. They are. But its important to look empirically at what the numbers show rather than to just listen to the stories. Just looking at that is very narrow. We should also briefly look at why mapp v ohio is important. Map v ohio is important because it was the first salvo in what we call the criminal due process revolution, where the warren court tant handed down constitutional protections for the criminally accused. In eight years between mapp v ohio and 1969, warrens final year on the bench, the Supreme Court incorporated rights guaranteed in the fifth, six and eight amendment. In these efforts were all cases like miranda versus arizona, gideon versus wainwright and others that capture our attention and sometimes our criticism. Miranda vrz arizona bears special mention, because in this particular case, the exclusionary roel rule was extended to involuntary and coerced confessions, and that really put the court in the publics eye. Moreover, its important to note that the criminal due process revolution occurred at the same time the court liberalized rules regarding federal writs of habeas corpus, thereby ensuring a steady stream of appeals from state criminal defendants on federal constitutional grounds. They did so on a casebycase basis, examining whether someones Due Process Rights were violated. But with mapp, which opened the incorporation floodgates, the court started to systematically and comprehensively address criminal procedure rights for everyone. So its this criminal due process revolution that makes mapp v ohio so significant. If you realize that Law Enforcements investigatory activities in the prosecution of criminal defendants happens at the state and local level, you can know that mapp v ohio might come into play with potentially hundreds of thousands or millions of cases a year. Its also important to note how the criminal drew process revolution phelped provide protection to many whom needed it it the most. Those were the lower socioeconomic classes who often dont have resources for protection during the criminal justice process. We cannot ignore the racial tension i mentioned earlier. We saw Aggressive Police tactics being used in communities of color. Chief Justice Warren reflecting later, after he had left the bench on what legacy he left the bench noted it was important to provide equal justice to all. And the criminal due process revolution in his opinion was one way of making this happen. That is why its a landmark. Let me end by briefly talking about what happened in the political and judicial arena after mapp v ohio to bring us up to today. Politically there were multiple attempts for legislatures and particularly congress to either modify it or to eliminate it. As mentioned earlier, mapp in cases like miranda versus arizona helped elevate the court into the publics awareness of how important this body of government was in determining things that might have an affect on our everyday life, and also help people make the link between what at that time was an increase in crime and these politically volatile decisions by the warren court. During the johnson and nixon administrations there is a great deal of attention on how best to combat crime. Many conservative politicians believed the way to do so was to and this also included conservative southern politicians was to change the rules the Supreme Court had laid out. So there were a number of legislative attempts to eliminate the rule, particularly when it came to confessions, which was the lightning rod. Its interesting because the political debate was always about the costs of the criminal due process revolution under the warren court. And again, it was about the bloody knives, murders and rapists and burglars. It wasnt about fidelity to the constitution or how the Fourth Amendment and indeed the exclusionary rule protects the Constitutional Rights of all americans. The debate over these decisions also took place during the reagan administrations. In his first term he tasked his attorney general to look into violent crime. The administration produced reports that directly attacked the warren court. One of the attacks came in the form of a memo written in 1983 by a young lawyer in the reagan white house. That young lawyer in the reagan white house, john roberts, now chief justice of the United States Supreme Court. In reagans second term he stepped up his attack. Under the attorney general they u. S. Department of justice released a series of reports continuing to blame warren for due process revolution and also continue to tag on the exclusionary rule. Incidentally, one of the members of meeces justice department, a young samuel alito, also on the United States Supreme Court today. The issue remained live, as we call it, during the bush and clinton administrations. The closest we came politically to getting rid of or modifying the exclusionary rule was in 1994 as part of Newt Gingrichs contract with america. Whats interesting about that particular case is that the effort to end that legislative effort to modify or get rid of the exclusionary rule came about when liberal and conservative groups came together and said that limiting the rule or abolishing it would be a bad idea. Because at the time there were conservative groups who were concerned what they saw as abuse of power by the federal government because of certain events like the ruby ridge and the branch davidians. That made for strange bed fellows. I would suggest we might see the same thing today, at least in the political arena. So what about the possibility of legislative reform today . I would say that with the declining crime rate, the interest in legislatively modifying the exclusionary rule has moved to the bottom of the political agenda. Whats also interesting is people dont care as much about the exclusionary rule in terms of being critical of it in terms of including those in Law Enforcement. In 1988 the American Bar Association conducted a study and concluded that the exclusionary rule neither caused serious malfunctioning of the criminal Justice System nor promotes crime and also that Law Enforcement officials toward whom the exclusionary rule is directed report that the exclusionary rule is not a serious obstacle to their job. Rather, they believe its led to better Police Training and has promoted professionalism in Police Departments across the country. The aba report concluded that it is an important safeguard to the Fourth Amendment protection of individuals against unreasonable searches and seizures at modest cost. The impact was greater in the judicial arena because the president s, nixon and reagan in particular who campaigned strongly against the warren court and in particular the due process revolution decided to use their appointment power to the federal courts and particularly the Supreme Court to ensure they appointed justices and judges to carry out their vision of how criminal justice should be meted. And so nixon had an opportunity to elevate four justices on the court, including william rehnquist, then an associate justice. And ronald reagan, who campaigned against the warren court, was also able to elevate three additional justices, and then rehnquist to the chief justiceship. So whats happened since this occurred . What have these judicial appointments done in terms of Fourth Amendment jurisprudence with the exclusionary rule. The exclusionary rule is dying a death of a hundred cuts. The Supreme Court in a number of decisions have been able to erode, whittle down or chip away at the warren courts mapp v ohio decision and other criminal justice decisions. While they havent outrightly reversed the decisions, by eroding the fundamental nature of the decisions, they have been able to restrict its applicability in the criminal Justice System. So how did they do this . They did this by recasting the justification for the exclusionary rule and then giving the court the power to decide when to pick and choose, essentially, when it should be applied. So what you see in Court Decisions and i wont bore you with all of them there are many. If you read the Court Decisions, there isnt a focus on it being constitutionally require order needed to protect the integrity of the judicial system. Rather, there is a discussion about the reason you had the exclusionary rule was to deter Police Misconduct. Its a judicial creation as a that judges sort of came up with it as a way to remedy perceived wrongs which actually did exist there, but is really no mention of the constitution. So what the court would then do is use a utilitarian balancing test to evaluate when the exclusionary rule should be applied. They would look at the costs and benefits. Whats the cost of the exclusion of evidence. What is the benefit of having the exclusion of evidence. It was all done in the context of this deterrence rationale. So the court would evaluate whether or not Police Misconduct would be deterred by exclusion of evidence. If the answer was no, then it would allow illegally seized evidence into trial. If yes, they would allow the exclusion. So ultimately by discussing the exclusionary rules as a judicially created remedy rather than a personal constitutional right, the court weakened the Foundation Provided in weeks and mapp and empowered the Supreme Court to decide its applicability. If you look at the courts jurisprudence, you see a number of exceptions to the rule. There are a category of cases where the court declined to apply the rule in what they called collateral cases. They said you could apply the exclusionary rule to the prosecutions case in chief, but in these collateral settings it was unnecessary because, to exclude the evidence, would not deter Police Misconduct, so why bother. It doesnt apply in grand jury proceedings. Civil tax proceedings, habeas corpus proceedings, parole revocation proceedings, the list goes on. There is another category of cases where the court also believed that the exclusionary rule shouldnt be applied, and those involve what they call goodfaith exceptions. There are a series of decisions where the court decided that, when police were acting in good faith, maybe they got a warrant that they thought was constitutional and conducted a search or maybe they conducted a search that they were legislatively allowed to do and when we found out later that maybe it wasnt okay under the Fourth Amendment the court said the police were acting in good faith. It was somebody somebody elses mistake. Somebody elses mistake in the Judicial Branch unconnected with police or somebody elses mistake in the legislative branch not connected to the police. The reason why thats important is because if theyre unconnected to the police, then the police were acting in good faith. If the purpose of the rule according to the court is to Police Misconduct, and you cant exclude the evidence because it is not going to achieve that result. So what they did is laid a different found gaation for the rule and in so doing were able to carve out the exceptions to limit the applicability. What about the Roberts Court . I gave you a teaser with my comment about alito and roberts. There were two important cases. Ill just mention them briefly. I mention them to bring us up to speed with the exclusionary rule and also to end with comments about where i think we go from here. There was a case in 2006 called hudson versus michigan which is called knock and announce, where police have to knock for a period of time before they enter into the room. Whats important with the decision, though it was a smaller part of the decision, is Justice Scalias comments that he thought it was pretty much time to reevaluate the exclusionary rule. And one of the reasons he said we should reevaluate it is ironically because the need for it no longer existed because the police had been professionalized. Because police were acting professionally, you dont need the exclusionary rule. He also suggested there were other remedies you could use if people had their evidence seized from an illegal search. So criminals could always sue the police. Or maybe the police can police themselves. And these have been remedies that folks have always talked about. There is proof which shows this can be effective in certain instances. But it was scalias direct attack on the exclusionary rule that bears note. But the most significant case is one called herring versus the United States in 2009 written by Justice Roberts himself. This case was interesting. A member of Law Enforcement not in the jurisdiction where the arrest took place but a member of Law Enforcement in another jurisdiction made an error. It was an error in terms of whether somebody had an outstanding warrant. Aged in this particular case, chief Justice John Roberts said that the Police Officer that actually executed what he thought was a warrant was acting in good faith, because he didnt know that the warrant actually should have been pulled. So it was the first time we had a case before the court where a member of the Law Enforcement community participated in the error, and in this particular case the court said, despite the fact that the person was from the Law Enforcement community rather than the legislature or the courts, that evidence should still be excluded from trial. Why . Because the Police Officer making the arrest didnt know about it, acted in good faith. So thats a significant evolution because you are expanding the number of good faith exceptions but also expanding it to Law Enforcement. Some would suggest there might be a little bit of tension there. The second thing thats important in herring versus United States is that roberts said, this is for the first time, that Police Mistakes have to be systematic error or reckless disregard of constitutional requirements and not mere negligence. To warrant seclusion of that evidence from trial. So he is essentially asserting if its just mere negligence then the evidence should be admitted to trial. So i would suggest the Roberts Court, even more so than the court in under burger and rehnquist, is probably closer to limiting the exclusionary rule even further with comments like this, but we dont have as much data so its difficult to say that conclusively. But it is an interesting development. As i say to my daughter, it all comes down to math. There are four justices on the court who would get rid of the exclusionary rule, and it just takes one. Its always five. So thats why judicial appointments are important. Thats why president ial elections are important and why we have to Pay Attention to these things. So let me end on a happier note. So, what is going to happen . One thing thats happening, which is quite fascinating, would actually make thomas clark, i think, roll over in his grave, is that states are actually more aggressively protecting Fourth Amendment rights against unreasonable searches and seizures more so than the federal government. And the federal courts. And thats a very interesting development. The argument in favor of the criminal due process revolution in the first place that you wanted the states on the same page. You didnt want a patchwork of laws governing how people should be treated constitutionally. When theyre at their most vulnerable. But whats interesting is because of this new judicial federalism and because of the increasing conservatism of the Supreme Court, you have state news looking at their own constitutions and hopefully carving a pathway for greater protection under their own constitution. In fact, in 2005, 16 states allowed for the exclusion of evidence, despite that evidence being attained by a mistake that would have been excluded under the good faith exception. So you see this fascinating thing thats happening at the state level, which is a Good Development for people who like the Fourth Amendment. But its a difficult challenge because you might have inconsistency in the administration of justice, which isnt a good thing. So let me end by saying this. Mapp v ohio, a First Amendment case about a woman with some dirty books, turned into a landmark decision of grand proportions, not only in how it professionalized the police, changed the way police did business, but also in the launching of the criminal due process revolution. And that the implications of this landmark decision are going to be with us for decades to come. So i understand youre a smart audience, and i really look forward to your questions. [ applause ] carolyn, everyone said you were going to be great and they were right. If you have a question, please come to the microphone over here, we have time for about three or four. So fire away. Now that there is a big national as well as International Focus on the apprehension of terrorists, have there so far been any cases that have gone to the case that youre mentioning relating to the obtaining illegally of evidence . So the question was whether or not there have been cases involving suspected terrorists that involved the possible exclusion of evidence. I dont know. And im he embarrassed to say this, but there was a case in oregon involving several potential terrorists and i know that there were suppression motions in that particular case, but i dont recall whether or not they were successful. So im afraid i cant answer that conclusively. I will suggest that in cases particularly the high profile cases, and theres a whole list of them, in those high profile cases there is a tendency for judges to find ways around the exclusionary rule and indeed some of these exceptions are because they were hard cases and you found a judge who was reluctant to apply the rule and let maybe a criminal go free. So i would suggest that if there were that potential scenario that thats probably something that happened, but i couldnt tell you conclusively, but i will get back to you because i will look it up because i hate not knowing the answer. Of course, this was decided before the internet and before cell phones so how are we protected from our conversations on cell phones that things that we tweet and put on the internet which apparently we are not protected. You are not protected. Its funny no, its not actually. The Fourth Amendment does not provide a great deal of protection. Were hearing a lot about the Fourth Amendment in the news these days because were hearing about activities that the federal government is engaged in in terms of collecting data. What were hearing and its regrettable that were hearing about it rather than knowing about it but there are reasons for that is that some of what the government is doing is constitutional. For instance, they can keep track of numbers that people call, its called pen registers, there was a Supreme Court case about that and that doesnt violate the Fourth Amendment. Theres also fisa, the federal linked towards international terrorism. And so its i dont have an easy answer because it involves so many potential issues but i would just say that the Fourth Amendment doesnt really have significant teeth in terms of constitutional protecting us. That the statutory protections that we have have been limited by the decisions of the fisa court. One example ill provide you is that the fisa court has heard thousands of cases where people are asking for warrants in order to engage in further investigations of individuals suspected of having ties to terrorism. In an all but a handful of cases the warrants have been given out. So to me, even though i dont know all of the cases that doesnt show that theres really been Firm Enforcement of the Fourth Amendment. At the level that i would like. Its a great question. Does this thing thats going on in new york state, this search, stop and frisk, come into this at all . Can i come back for another night . Stop and frisk is a great its a great Fourth Amendment issue. And whats interesting ill take a little bit longer actually to answer your question but ill get to it. Terry versus ohio, the case that the Supreme Court said that police would be able to stop somebody suspected of committing a crime and doing whats called a limited patdown. The stop and frisk. The court said it was constitutional. And some would argue i think theyre right that the reason why the Court Allowed this in terry versus ohio is because of the political backlash that the court was getting because of miranda versus ohio and whats interesting about the stop and frisk as we saw in terry versus ohio its evolved to something completely different. So now even if youre stopped for a traffic offense, you can be stopped and frisked by Law Enforcement and thats considered constitutional. Even if youre a passenger in a car thats been stopped by Law Enforcement, you can be frisked by Law Enforcement. And so it shows you how much that original ruling has changed throughout the years. And whats interesting the original ruling was that you stop and frisk someone because of officer safety. It makes complete rational sense. You dont want someone to injure you when you protect peace. But when someone is being frisked and theyre a passenger in a car its difficult to make that argument. And then people are actually in the police car and they are isolated and theres absolutely no way they can get to their own car and the car is being searched and the individual is being frisked. So the whole idea of the rationale for stop and frisk has gone away and the Court Continues to expand the number or the opportunities in which it will allow Law Enforcement to engage in this practice. I dont see that changing. I really dont. Because you have so many precedents right now which allow it. So we talk about death of a hundred cuts. Its still continuing. Did i answer your question . Im an old curmudgeon who cant exist without the morning newspapers in my hand. This morning a scumbag from ft. Hood, texas, will became our neighbor 38 miles up the river in leavenworth on our penny. I sort of hope he becomes a cell mate of chelsea to be. My question is this country possibly super, super, super, super overlawyered today . [ laughter ] so the question is, are we super, super, super overlawyered today . Actually, people suggest that we have something a disease called hyper lex ya. I think you have heard of this in law school. We have too many lawyers. Per capita, we have more lawyers in the United States than most other countries. But maybe i can give you a statistic that will make you a little happier. Which is that applications for law schools have gone down and were producing fewer lawyers today. And theyre unable to find jobs today and many are choosing not to go into law school because its so expensive. So maybe we dont have super, super, super, super too many lawyers. Maybe just super too many lawyers. I dont know if i answered your question. Thanks, carolyn. Thanks for being here. Carolyns book on mapp v ohio is on sale. Shell be signing copies out there. Well see you next time. American history tv in primetime continues tonight on cspan 3. With our original series, landmark cases. At 8 00 p. M. Eastern, well look at baker versus carr. In the 1962 case, the Supreme Court ruled that federal courts have the authority to intervene in cases about redistricting. The defendants in the case had argued that drawing legislative districts is a political question, not a judicial one. But the justices ruled courts have a role in deciding the fairness of electoral maps. Landmark cases on baker versus carr tonight on cspan 3, 8 00 p. M. Eastern. Saturday night on book tv, beginning at 9 00 p. M. Eastern, former marine Corps Officer tracy crowe and jerry belle former naval officer talk about the history of women in their milltory in its my country too. For so long, womens stories, womens military stories have just been discounted. Or appropriated by others. And so she just felt like the timing was right. It is time to give these women a voice. Were not a social experiment. We were soldiers. We were sailors. And we ended up in iraq and afghanistan doing the same jobs in many cases as the men and coming home to a country that did not recognize many of us as veterans but with the same physical and moral injuries as the men. At 10 00 p. M. , jeff flake calls for a return to core conservative principles in his book conscience of a conservative. Hes interviewed by se kupp, daily news columnist. How do you maybe the case that health of conservatism is an urgent matter that has real world consequences. You can win elections and if you do it for the same of winning elections then yeah we can do that. But if we as conservatives want to enact conservative policy, then you have to treat an election like how do we set this up for governing and ways that we can move forward with our agenda. Then at 11 00 p. M. , Robert Oneill who participated in the killing of Osama Bin Laden on his military career and his participation in 400 other missions in his book the operator, firing the shots that killed Osama Bin Laden and my years as a s. E. A. L. Team warrior. The guy that ended up bringing me up to the bedroom, he pulled me aside and said, dont take this the wrong way im going, but if we know were going to die, why are we going . Which is legit. And i said, well, you know, were not going for fame. Were not going for bra have a doe. Were going for the single mom who dropped her kids off at school on a Tuesday Morning and then 45 minutes later she jumped to her death out of a skyscraper because that was a better alternative than dying live inside. Watch saturday night at at clock p. M. Followed by afterwards with senator jeff flake at 10 00 p. M. Eastern and Robert Oneill at 11 00 p. M. On cspan 2s book tv. Next week at 8 00 p. M. Eastern on cspan 3, a civil war special featuring American History tv highlights. On monday, were at the emerging civil war blog symposium where we look at the great defenses of the civil war. Including gettysburg, antietam and the surge of vicksburg. Thursday, we focus on the civil war leadership at the civil war seminar. With talks on generals robert e. Lee and grant and mosby. Wednesday through friday, were at the Gettysburg Civil War Institute conference. On thursday, speakers include historian john marz alack and on friday we conclude the conference with tj styles. American history tv civil war special all next week beginning at 8 00 p. M. Eastern on cspan 3. American history tv continues our look at Supreme Court cases regarding the rights of criminal defendants. In the 1963 case, gideon versus wane wright the High Court Ruled that states are required under the sixth amendment to provide defense lawyers to criminal defendants who cannot afford to hire their own attorneys. Up next here on American History tv, a discussion on the case from the Supreme Court Historical Society and the Supreme Court fellows alumni association. Well, good evening to everybody. Im im a Vice President of the Supreme Court Historical Society. Im delighted to welcome all of you here to this very Interesting Program were having tonight. Before we get too far into it however i must