Civil wrongs.

THE exclusionary rule--which bars the use of evidence said to have been illegally obtained--was established in 1914 in Weeks v. United States but did little harm until it was applied to the states. So long as the Weeks rule was confined to federal cases, as Justice Rehnquist pointed out, its chief "beneficiaries . .. were smugglers, federal income tax evaders, counterfeiters, and the like." State crime is a profoundly different matter. Ninety-five per cent of the crime committed in the United States, and virtually all violent

crime, comes under the jurisdiction of the states. Once the Weeks rule was brought to bear against the states the result was uncounted thousands of robbers, rapists, and murderers set free.

The case which accomplished this was Mapp v. Ohio, decided in 1961. Since then, the exclusionary rule has come to be accepted as a cornerstone of our jurisprudence. That violent criminals go free as a result is now accepted as the price we pay for liberty. But let us turn over this cornerstone and see what lies underneath.

The official version of Mapp v. Ohio, the one accepted by the Supreme Courts of Ohio and of the United States, was the following, put forth by A.L. Kearns and Walter L. Greene in the Jurisdictional Statement they filed on behalf of Dollree Mapp in the Supreme Court of the United States on July 14, 1960:

STATEMENT OF THE CASE

On the 23rd day of May, 1957, police officers, without the benefit of a search warrant, ostensibly looking for an individual who was wanted in connection with an extortion bombing, forced their way into defendant's private residence, which was the upper portion of a two-family house. Twelve (12) police officers had surrounded the private residence of the defendant where she lived with her 13-year-old daughter and forced their way into it. Upon demand of a search warrant, a piece of paper was held before the defendant without giving her an opportunity to view or read same. She was then handcuffed to the banister of the stairway while the search of her private residence was made. This alleged search warrant was never proved or even tendered in the trial court upon request of the defendant. Nor was there any evidence introduced that any search warrant was ever issued.

Thereafter, the police officers, frustrated in their attempt to find any individual involved in an extortion bombing, illegally and in violation of defendant's constitutional rights, searched her private dwelling, and found lewd and lascivious documents belonging to a former roomer. The evidence showed that these documents were found by the defendant while she was cleaning a room which had been vacated by a former roomer. She stored these documents until such a time as the roomer would have returned to claim his property. It was for possession of the roomer's documents that the defendant was convicted of violation of Section 2905.34 Ohio Revised Code, and sentenced to from one (1) to seven (7) years in the Ohio State Women's Reformatory.

The story of the indignities suffered by Miss Mapp would have turned the strongest of judicial stomachs. It was the viscera of Tom Clark that were the most crucial. Justice Clark had always voted against the application of the Weeks rule to the states, but had predicted that this would come about at such time as "five Justices are sufficiently revolted by local police action." Apparently he accepted the official version and became "sufficiently revolted," because he switched sides and provided the swing vote in the 5 to 4 decision. So it is important to know what actually happened in Cleveland that May of 1957.

The real case of Mapp v. Ohio began with a bang at 3:45 A.M. on May 20, 1957. The bang was caused by a bomb planted under the residence of one of Cleveland's leading "policy bankers," Donald (The Kid) King.* The front-page headline of the Cleveland Press reads: "Birns Is Jailed in Bombing; Charge $l,000-a-Week Plot." Also on the front page are photos of a youthful and short-haired Donald King and of Shondor Birns, and the statement that the bomb blast "opened what police believe is a new offensive by Shondor Birns to control Cleveland's numbers racket." The bomb didn't kill the man who, with his famous "electric hair," would go on to become the world's most successful boxing promoter, but it did give him quite a fright. Instead of tending to the matter himself, in the tradition of the numbers racket, he did what a good citizen should--he went to the police. The Cleveland Plain Dealer reported the next day that "King made history when he openly turned to police with information he said would help send someone to jail." "Shondor was one of the five pistols who bombed me," he said to reporters. One of the others he named was Virgil Ogletree, a clearinghouse operator, who was thought to be doing his dearing in the house, and in the company, of one Dollree Mapp.

It was Ogletree for whom Sergeant Carl J. Delau and patrolmen Thomas J. Dever and Michael J. Haney were looking when they arrived at 14705 Milverton Road, Miss Mapp's residence. Perhaps they had been told by King that where Ogletree was, so also would be a large amount of "policy paraphernalia." There is no mention of policy paraphernalia in the "official version" of the case. We are told only that the police were "ostensibly looking for an individual who was wanted in connection with an extortion bombing." And from its opinion we know the Supreme Court believed that but for the obscene material, the police came up empty handed.

But on page 11 of the Cleveland Plain Dealer of May 24, 1957, is a picture of a man in a shirt and tie with a handful of slips of paper. He is peering into a large trunk containing a lot more of the same. Underneath is the caption: "'California Gold' Strike. Sgt. Carl J. Delau examines a trunkful of policy slips found in the home of Miss Dollree Mapp, ex-wife of boxer Jimmy Bivins and former girl friend of Archie Moore, light heavyweight champion of the world."

This is a continuation of a page-one story, which also says: "Ogletree, who had sneaked down the back stairs, was found in the downstairs home. A woman who lived there said he had threatened her." The newspaper account was confirmed much later by Miss Mapp herself, according to Fred W. Friendly and Martha J.H. Elliott, who interviewed her for their book The Constitution:

That Delicate Balance (1984). They state: "Miss Mapp told the authors she knew Ogletree was downstairs." And in the original trial, defense witness Walter Greene gave the following information on cross-examination:

Q. While you were out there, Mr. Green [sic], did you observe somebody being taken away from there?

A. Yes.

Q. Do you know who it was?

A. There were two people.

Q. Do you know who they were?

A. I know, of course, Mrs. Mapp, and I later learned the other was Virgil Ogletree. I saw him the first time in the downstairs suite.

Q. On the first-floor suite?

A. Yes, ma'am.

Q. And he was taken away in a patrol wagon?

A. That would be my best recollection.

Changing Stories

LET US BE charitable and say that Mr. Greene and his law partner A.L. Kearns expressed themselves oddly in their "Statement of the Case" three years later, when they said: "the police officers [were] frustrated in their attempt to find any individual involved in an extortion bombing."

The same is true with regard to the search warrant: "Upon demand of a search warrant, a piece of paper was held before the defendant without giving her an opportunity to view or read same .... This alleged search warrant was never proved or even tendered in the trial court upon request of the defendant." As to the first of those assertions, if you are confronted by a police officer in plain clothes and you question his identity, he will hold his credentials up in front of your eyes. He will not hand them to you, nor permit you to take them from him. This is standard police procedure. Before the advent of the Xerox process this same practice was followed with respect to warrants. With this in mind read the Plain Dealer's description of the "fracas": ... But not without one desperate last-ditch act of defiance from Miss Mapp. She met the policemen on the stairs. She grabbed the warrant from the hand of one of them.

Then she stuffed it down the front of her dress. The raiders were startled, to say the least. But one of them rolled up a sleeve and said to her: "If you don't get it for us, I will." She returned the warrant.

Police reports made contemporaneously with the arrests confirm the existence of a search warrant. A report dated May 23, 1957, by Carl J. Delau states that the "subject would not come to the door but spoke to us through the second floor window .... Mapp stated that she would not let us in unless we had a search warrant. ... Remained in the vicinity of this home until a search warrant obtained by Lieut. Thomas White who then came to this address. With the warrant in our possession we gained entrance..." They found and seized "a large foot locker which contained considerable policy paraphernalia," "four books of a pornographic nature," and a "Colt make 'Bronco' automatic, 7.65(?), serial number 10410." Ogletree was found and arrested in the first-floor apartment. The tenant stated that she was "told by Mapp not to open the door for the police and for her to let Ogletree stay in her quarters."

Now a search warrant is not simply a piece of paper to be discarded when it has served its purpose. A police officer who obtains a warrant must "endorse" it and "return" it within a given time to the judicial authority that issued it. If the search warrant is executed, the "return" must be accompanied by an inventory of what was seized. All courts keep a copy and a record of the warrants they issue and all must be accounted for.

The prosecution of Dollree Mapp for "Possession of Obscene Literature" in the Court of Common Pleas of Cuyahoga County was assigned Docket No. 68326. Many years ago, no one seems to know when, the case files for that year were microfilmed and thereafter destroyed. The files for the cases preceding 68326 are on microfilm in the office of the clerk of that court, as are the files for those that followed. Only No. 68326, Ohio v. Mapp, is missing. The only records that survive are those filed in the appeals to the Supreme Courts of Ohio and of the United States.

Three years later Mr. Kearns told the Supreme Court of the United States on oral argument:

We asked during the trial of the case that the search warrant be produced and it was not.

But the prosecutor promised--and we have the prosecutor here--that the search warrant would be produced and it never was.

If that is so further discussion is pointless. But in the real case of Ohio v. Mapp, the lieutenant, Thomas White, from whose hand Dollree Mapp snatched that "piece of paper," was never asked anything by anybody. The existence of a warrant to search the Mapp house was never once challenged at the original trial. Indeed, contrary to what Mr. Kearns told the Supreme Court, the defense never "asked during the trial of the case that the search warrant be produced," or at any other time either. The statements Mr. Kearns made to the Supreme Court of the United States were not just misleading, they were out and out lies.

Suppose they were? This case was decided thirty years ago; Mapp v. Ohio is res judicata. True, but Mapp v. Ohio lives on, in the form of the exclusionary rule, under the doctrine of stare decisis, which makes each settled case a precedent for later ones.

But the validity of stare decisis depends on both sides of a legal argument being fairly and adequately represented by counsel. To suborn the selection or to collude or connive in the prosecution of a case strikes at the integrity of our jurisprudence. The question pressed here is whether the Mapp v. Ohio that affects our daily lives was a genuine "case or controversy" meeting these standards, or a sham, since an attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court. Lord v. Veazie, 49 U.S. 251, 254 (1850).

If you want to believe Mapp v. Ohio was not a "set-up," you have to envision a prosecutor who really wants to put someone like Dollree Mapp in prison for one to seven years--when accommodations are short and there are so many more deserving tenants walking the streets of Cleveland--and who would prosecute a private possessor of "dirty booklets" on a felony statute obviously aimed at those who traffic in pornography.

Miss Mapp was arrested on May 23. Not until September 19 was she indicted for "possession of obscene pictures and books." The following day she pleaded "not guilty" and posted a bail bond. On July 8, 1958, she retracted her plea of "not guilty," and entered a plea of "guilty." She remained free on bond, and her case was "Referred to Probation Dept. for Report." This suggests a disposition in her case had been reached.

Something happened in July to change her mind. On August 1 the court gave her leave to withdraw the plea of "guilty," and plead "not guilty" once again. More than 15 months after the episode at her house, Dollree Mapp was put on trial in the Cuyahoga County Court of Common Pleas for the "possession of obscene material." The assistant prosecutor was Mrs. Gertrude Bauer Mahon. She not only tried the case, but argued it on all levels of appeal. A.L. Kearns and Walter L. Greene did the same for the defendant.

The prosecution is not required as part of its prima facie case to prove the evidence it uses was not unconstitutionally obtained. The defense must first raise the issue. A defendant who wishes to claim evidence was taken from him in an illegal search and seizure "must speak now, or forever hold his peace." He may not let it pass at the trial, and later assert the claim on appeal.

On September 3, 1958, before the trial began, the defendant filed a "motion to suppress evidence." This is the way Mr. Kearns explained it to the trial court:

Now we say that the State of Ohio did not have a search warrant setting forth the items that are mentioned in this indictment, which the State of Ohio intends to use in this case against this defendant, and for that reason we are asking that particular evidence be suppressed.

Note well this does not allege that the State of Ohio had no search warrant to search for Ogletree and policy slips. All Mr. Kearns said was that there was no warrant which specified "lewd and lascivious Books, Pictures, and Photographs," and therefore that these could not be used in evidence. The trial judge overruled the motion and the trial began.

The prosecutor called only two witnesses, Patrolman Michael Haney and Sergeant Carl Delau. Both officers testified that they waited for about three hours until Lieutenant White arrived with what they assumed to be a warrant, although neither of them read it. Miss Mapp testified on her own behalf:

A. When they came in I said, "Inspector, I want to see the search warrant."...

He said, "Here is the search warrant." He held it back from me, and I remember Mr. Green told me that I should see it and read it, and I told him I wanted to see it. He said, "You can't see it." And then I reached over, took the search warrant from his hand and put it down in my bosom.

There is nothing suspicious about the testimony of Patrolman Haney or Sergeant Delau. When Lieutenant White appeared with the warrant there was no reason for him to show it to a junior officer. For either Haney or Delau to have asked to see it would have been quite out of line. Nor is there anything unusual about Miss Mapp's account. Lieutenant White held the search warrant up in front of her eyes close enough for her to be able to snatch it from him. If Lieutenant White did say, "You can't see it," he surely meant, "You can't have it," since he was holding it before her eyes.

Lieutenant White was not a witness to the discovery of the lewd literature. He could .contribute nothing to the state's prima facie case. And the defense did not contend at the trial that the piece of paper Miss Mapp snatched from his hand was anything other than a search warrant. Under these circumstances there was absolutely no reason for the prosecution to call Lieutenant White.

Now, if the police had a warrant based upon "probable cause"--and under the circumstances we are entitled to assume that they did-they acted entirely within the law. The police couldn't reasonably search for Ogletree in a suitcase or a bureau drawer, but they could do so for policy slips; so, when they found the lewd booklets and a .25 caliber automatic pistol, these could lawfully be seized. It has been the law since the 1904 case of Adams v. New York that evidence found during the execution of an otherwise valid search is admissible whether specified in the warrant or not.

However, when Kearns and Greene took the case before the Cuyahoga Court of Appeals, they not only changed the grounds on which they argued, they also changed the facts of the case. And Mrs. Mahon--the only person realistically in a position to refute their lies--disputed only inessentials, allowing them the point that really mattered.

They told the appeals court:

There were from 7 to 12 police officers involved, they came according to Patrolman Haney to find some man for questioning as to a bombing, which some unknown said might be at the address. No such man ever was there. [Emphasis added.]

They painted the same picture to the Supreme Court of Ohio. Since "the alleged 'warrant' was never presented in evidence or shown to exist," said Kearns and Greene, "the conclusion was that the paper was a ruse. There was no proof of any 'person hiding out in her home who was wanted for questioning in connection with a ... bombing--that was a sham proposed to justify the inexcusable conduct of the officers in handcuffing her and going through the home of this mother and her young daughter."

Mrs. Mahon bravely challenged them on the number of police officers and the manner in which Miss Mapp was handcuffed. But she failed to point out that a bombing suspect had been found in Miss Mapp's home, as well as policy slips. Inexcusably she let pass her opponents' misrepresentations. However beastly the behavior of the Cleveland police, was her position, the smut seized had to be admitted as evidence because Ohio did not have the exclusionary rule.

Shell Game

IT WAS at this point that the real shell game was played. The appeal of Ohio v. Mapp was not decided on any search-and-seizure issue. The Ohio Supreme Court indeed found that Miss Mapp had been wrongly convicted--not because of anything to do with the exclusionary rule, but because the "lewd and lascivious materials" statute was "unconstitutionally invalid," since it placed an intolerable burden on the rights of free speech, press, and the dissemination of ideas protected as against the states by the Fourteenth Amendment. Ohio, however, had a provision in its own constitution, quite unique, stating that "No law shall be held unconstitutional and void by the Ohio Supreme Court without the concurrence of at least all but one of the judges." And in this case, "more than one of the judges of this court are of the opinion that no portion of the statute upon which defendant's conviction was based is unconstitutional." So, even though a majority of the Ohio Supreme Court found in Miss Mapp's favor, her conviction stood. And because the state court thus upheld a state statute against a claim that it violated the Constitution, Miss Mapp could appeal to the Supreme Court of the United States as a matter of right. Mapp could have happened "Only in Ohio."

On July 14, 1960, Kearns and Greene filed their Jurisdictional Statement in the United States Supreme Court. Here, as a general proposition, the appellant is required to show that the constitutional question he is now asking the Court to review was raised previously in the trial court. Here is how they fudged it: "The matter of the conduct of the police in procuring the evidence was first raised in the trial court in a 'Motion to Suppress' filed September 3, 1958." Of course, that motion said nothing of the sort. But again Mrs. Mahon let it pass--again inexcusably.

On October 24, 1960, the Supreme Court decided to hear the case of Mapp v. Ohio. Kearns and Greene filed their brief, essentially a rehash of the Jurisdictional Statement, on February 1, 1961. While the brief posed a search-and-seizure question, it was argued most perfunctorily. You cannot tell whether their position was that there was no warrant at all, or that the search was made pursuant to a warrant in which "obscene materials" were not specified. It is deliberately vague.

Mrs. Mahon responded by disputing anew the number of officers involved. Then she said what she should have said in her response to the Jurisdictional Statement. Had she done so earlier, before the Court had agreed to hear the case, there would have been no such case as Mapp v. Ohio. That she did so later must be regarded as a protective measure well known to all bureaucrats by the abbreviation CYA.

There was no request by the defense during the trial for the production of the search warrant or that it be tendered, and their statement to that effect at page 5 of their brief on the merits is unsupported by the record .... No question was raised on the trial that no search warrant had been obtained and Lt. White was as available to the defense on subpoena as to the State ....

There was a third brief filed in Mapp v. Ohio; it opened:

This brief is submitted on the merits of the Appeal. Both Appellant and Appellee have consented to the filing of this brief amici curiae by the American Civil Liberties Union and the Ohio Civil Liberties Union.

Nothing in this brief is any way relevant to the law of search and seizure or the exclusionary rule, except this single paragraph:

D. Use of Evidence Obtained in an Illegal Search and Seizure Violates the Due Process Clause of the Fourteenth Amendment.

This case presents the issue of whether evidence obtained in an illegal search and seizure can constitutionally be used in a State criminal proceeding. We are aware of the view that this Court has taken on this issue in Wolf v. Colorado, 338 U.S. 25. It is our purpose by this paragraph to respectfully request that this Court re-examine this issue and conclude that the ordered liberty concept guaranteed to persons by the due process clause of the Fourteenth Amendment necessarily requires that evidence illegally obtained in violation thereof not be admissible in state criminal proceedings.

Bear in mind that this introduction of the exclusionary rule was submerged in a sea of ink about obscenity. To the outside world Mapp v. Ohio appeared to be a case involving the constitutionality of the Ohio obscenity statute. It was particularly important to keep those in Cleveland who had personal knowledge of the events of May 23, 1957--at least one police officer and one magistrate--from finding out how the case had evolved.

On March 27, 1961, the Cleveland Press & News ran a story under the headline: "OBSCENITY CONVICTION GOES TO HIGHEST COURT."

In 1957 Cleveland police were trying to solve the bombing of the car [sic] of Donald King...

In their search for a suspect, police went to Dollree Mapp's home. Refused entry, they obtained a search warrant for gambling gear.

In the basement detectives found a trunk full of policy slips and other betting materials. In Dollree's room they found four lewd books and obscene pictures. [ACLU attorney Bernard] Berkman said that the basis for his charges of violating the Constitution is that the search warrant did not mention obscene material.

Now did this story "just happen," or was it planted? To find out the answer to this horticultural question we must journey to Princeton, New Jersey. There, in the Seeley G. Mudd Manuscript Library, are kept the archives of the ACLU and its affiliates. In volumne 48, in a file entitled "Ohio--1961," appears correspondence between a Mrs. Vivian Donaldson, Executive Secretary of the Ohio CLU in Cleveland, and Leanne Golden in the ACLU's New York City office.

One item consists of a copy of the above article with a note typed underneath in which "Vivian" tells "Leanne" that the "story was released to the Cleveland Press & News for today 3/27/61." On March 29, the day Mapp v. Ohio was argued, "Vivian" writes: "We have a man at the press who took the facts and wrote the story without more ado." (Emphasis added.) The following Monday, April 3, Alan Reitman, an associate director of the ACLU in New York, wrote the Ohio CLU about the difficulties encountered in their joint press release. He appears milled that the Cleveland article alluded to search and seizure at all. "I think I have a good idea of the problems you face," Mr. Reitman tells Mrs. Donaldson,* "but I would like to suggest the following publicity procedure on joint briefs in the future." To show how the job should have been done he enclosed an article clipped from the New York Times of the day before.

HIGH COURT HEARS OBSCENITY CASE

Weighs Validity of Ohio Law Making It a Crime to Own Salacious Literature

By Anthony Lewis Special to The New York Times

Washington, April l--May a state make it a crime for a citizen to have obscene literature in his own home, with no intention of selling or showing it to anyone . . . ?

Nothing in Mr. Lewis's article of 23 paragraphs would give the reader the slightest inkling it involved a search-and-seizure question.

To those interested in constitutional cases bearing on law enforcement--an organization like the National District Attorneys' Association, for example--Mapp v. Ohio looked like a real yawner. They would have no reason to suspect that it would become, along with Weeks v. United States, one of the two most important cases in our Fourth Amendment jurisprudence.

Endgame 

MAPP v. Ohio was argued on Wednesday, March 29, 1961. As we have seen, Mr. Kearns in his opening argument said:

We asked during the trial of the case that the search warrant be produced and it was not.

But the prosecutor promised--and we have the prosecutor here--that the search warrant would be produced, and it never was.

Moving along we see:

The Court: Did you raise the question of no search warrant in the trial court?

Mr. Kearns: I did. I even filed a motion to suppress the evidence in the trial court, which motion was overruled.

The ACLU's Mr. Berkman opened by saying he was "asking this Court to reconsider Wolf v. Colorado and to find that evidence which is unlawfully and illegally obtained should not be permitted into a state proceeding." The amicus curiae did not say how he arrived at the conclusion that any evidence against Miss Mapp was "unlawfully and illegally obtained." Aside from these remarks, his argument was directed toward the obvious unconstitutionality of the Ohio obscenity law.

This should not have distracted Mrs. Mahon. With respect to the search-and-seizure question her duty was clear. She was under an obligation to make absolutely certain the Court understood that: a) the bombing suspect and a trunk full of policy slips were found in Miss Mapp's house; b) the statements of the defense attorneys in this regard were false and misleading; c) the "motion to suppress evidence" made in the trial court did not place in issue the question of whether or not there existed a lawful warrant to search for Ogletree and "policy paraphernalia"; d) the defendant is therefore limited to asking the Court to reconsider the doctrine established in Adams v. New York that evidence incidentally found during an otherwise lawful search may be seized and used in court.

Mrs. Mahon did none of these things. Instead she merely repeated her assertion that "in the Ohio Constitution and under the Ohio laws, the fact that there was a search warrant would not make the evidence any the more competent or the fact that there was no search warrant would not make it any the less competent." That was a formulation that in effect endorsed the defense's account of the facts of the case.

On June 19, 1961, the Court handed down its decision. The constitutionality of the obscenity statute, the basis on which the case was briefed and argued, was airily dismissed in a footnote along with "other issues" not worthy of mention. While the decision did not get the headlines accorded the bomb blast which began this chain of events, Mapp v. Ohio nevertheless made the front pages of the Cleveland newspapers. The Press & News editorial saw it for exactly what it was:

A LANDMARK DECiSiON

No one would have dreamed it, but a filthy book and picture case originating in Cleveland in 1957 has just resulted in a decision by the U.S. Supreme Court that will influence law enforcement all over the country.

Carl Delau felt the decision was "devastating': "If we have a search warrant for clearing-house material and find a counterfeiting operation, are we to disregard it?" But Mrs. Mahon took her loss with good grace. The Plain Dealer of June 20 reported:

Mrs. Gertrude Bauer Mahon . . . admitted there was never any evidence that a search warrant was issued.

She said she was happy the decision was based on the seizure of evidence rather than the constitutionality of the Ohio law.

Sad to say, there were some sore losers. The National District Attorneys' Association filed an unsportsmanlike petition for a rehearing. It was denied October 9, 1961 (368 U.S. 871). Too late, I guess. If they wanted to appear amicus curiae they should have come forward earlier. But then maybe they thought it was a case involving free thought and expression.

But. the ACLU's Bernard Berkman had a more accurate take on the case: "The decision in the Mapp case now prevents evidence obtained by official lawlessness from being used in a state court and we hope this ruling will deter official efforts in the future from obtaining evidence by unconstitutional methods." Or to translate Mr. Berman's ACLU-speak, robbers, rapists, and murderers have now been loosed to prey upon society--with the unwitting acquiescence of the Supreme Court.

* He also said, "I gather that you are getting some help from a reporter on the Cleveland Press-News in the preparation of news releases."