Mapp v. Ohio/Concurrence Douglas
MR. JUSTICE DOUGLAS, concurring.
Though I have joined the opinion of the Court, I add a few words. This criminal proceeding started with a lawless search and seizure. The police entered a home [p667] forcefully, and seized documents that were later used to convict the occupant of a crime.
She lived alone with her fifteen-year-old daughter in the second-floor flat of a duplex in Cleveland. At about 1:30 in the afternoon of May 23, 1957, three policemen arrived at this house. They rang the bell, and the appellant, appearing at her window, asked them what they wanted. According to their later testimony, the policemen had come to the house on information from
- a confidential source that there was a person hiding out in the home who was wanted for questioning in connection with a recent bombing. 
To the appellant's question, however, they replied only that they wanted to question her, and would not state the subject about which they wanted to talk.
The appellant, who had retained an attorney in connection with a pending civil matter, told the police she would call him to ask if she should let them in. On her attorney's advice, she told them she would let them in only when they produced a valid search warrant. For the next two and a half hours, the police laid siege to the house. At four o'clock, their number was increased to at least seven. Appellant's lawyer appeared on the scene, and one of the policemen told him that they now had a search warrant, but the officer refused to show it. Instead, going to the back door, the officer first tried to kick it in and, when that proved unsuccessful, he broke the glass in the door and opened it from the inside.
The appellant, who was on the steps going up to her flat, demanded to see the search warrant, but the officer refused to let her see it, although he waved a paper in front of her face. She grabbed it and thrust it down the front of her dress. The policemen seized her, took the paper [p668] from her, and had her handcuffed to another officer. She was taken upstairs, thus bound, and into the larger of the two bedrooms in the apartment; there she was forced to sit on the bed. Meanwhile, the officers entered the house and made a complete search of the four rooms of her flat and of the basement of the house.
The testimony concerning the search is largely nonconflicting. The approach of the officers; their long wait outside the home, watching all its doors; the arrival of reinforcements armed with a paper;  breaking into the house; putting their hands on appellant and handcuffing her; numerous officers ransacking through every room and piece of furniture while the appellant sat, a prisoner in her own bedroom. There is direct conflict in the testimony, however, as to where the evidence which is the basis of this case was found. To understand the meaning of that conflict, one must understand that this case is based on the knowing possession  of four little pamphlets, a couple of photographs, and a little pencil doodle — all of which are alleged to be pornographic.
According to the police officers who participated in the search, these articles were found, some in appellant's [p669] dressers and some in a suitcase found by her bed. According to appellant, most of the articles were found in a cardboard box in the basement; one in the suitcase beside her bed. All of this material, appellant — and a friend of hers — said were odds and ends belonging to a recent boarder, a man who had left suddenly for New York and had been detained there. As the Supreme Court of Ohio read the statute under which appellant is charged, she is guilty of the crime whichever story is true.
The Ohio Supreme Court sustained the conviction even though it was based on the documents obtained in the lawless search. For, in Ohio, evidence obtained by an unlawful search and seizure is admissible in a criminal prosecution, at least where it was not taken from the "defendant's person by the use of brutal or offensive force against defendant." State v. Mapp, 170 Ohio St. 427, 166 N.E.2d at 388, syllabus 2; State v. Lindway, 131 Ohio St. 166, 2 N.E.2d 490. This evidence would have been inadmissible in a federal prosecution. Weeks v. United States, 232 U.S. 383; Elkins v. United States, 364 U.S. 206. For, as stated in the former decision,
- The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints. . . .
Id. 391-392. It was therefore held that evidence obtained (which in that case was documents and correspondence) from a home without any warrant was not admissible in a federal prosecution.
We held in Wolf v. Colorado, 338 U.S. 25, that the Fourth Amendment was applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. But a majority held that the exclusionary rule of the Weeks case was not required of the States, that they could apply such sanctions as they chose. That position had the necessary votes to carry the day. But, with all respect, it was not the voice of reason or principle. [p670]
As stated in the Weeks case, if evidence seized in violation of the Fourth Amendment can be used against an accused, "his right to be secure against such searches and seizures is of no value, and . . . might as well be stricken from the Constitution." 232 U.S. at 393.
When we allowed States to give constitutional sanction to the "shabby business" of unlawful entry into a home (to use an expression of Mr. Justice Murphy, Wolf v. Colorado, at 46), we did indeed rob the Fourth Amendment of much meaningful force. There are, of course, other theoretical remedies. One is disciplinary action within the hierarchy of the police system, including prosecution of the police officer for a crime. Yet, as Mr. Justice Murphy said in Wolf v. Colorado, at 42,
- Self-scrutiny is a lofty ideal, but its exaltation reaches new heights if we expect a District Attorney to prosecute himself or his associates for well meaning violations of the search and seizure clause during a raid the District Attorney or his associates have ordered.
The only remaining remedy, if exclusion of the evidence is not required, is an action of trespass by the homeowner against the offending officer. Mr. Justice Murphy showed how onerous and difficult it would be for the citizen to maintain that action, and how meagre the relief even if the citizen prevails. 338 U.S. 42-44. The truth is that trespass actions against officers who make unlawful searches and seizures are mainly illusory remedies.
Without judicial action making the exclusionary rule applicable to the States, Wolf v. Colorado, in practical effect, reduced the guarantee against unreasonable searches and seizures to "a dead letter," as Mr. Justice Rutledge said in his dissent. See 338 U.S. at 47.
Wolf v. Colorado, supra, was decided in 1949. The immediate result was a storm of constitutional controversy which only today finds its end. I believe that this is an appropriate case in which to put an end to the asymmetry which Wolf imported into the law. See [p671] Stefanelli v. Minard, 342 U.S. 117; Rea v. United States, 350 U.S. 214; Elkins v. United States, supra; Monroe v. Pape, 365 U.S. 167. It is an appropriate case because the facts it presents show — as would few other cases — the casual arrogance of those who have the untrammelled power to invade one's home and to seize one's person.
It is also an appropriate case in the narrower and more technical sense. The issues of the illegality of the search and the admissibility of the evidence have been presented to the state court, and were duly raised here in accordance with the applicable Rule of Practice.  The question was raised in the notice of appeal, the jurisdictional statement and in appellant's brief on the merits.  It is true that argument was mostly directed to another issue in the case, but that is often the fact. See Rogers v. Richmond, 365 U.S. 534, 535-540. Of course, an earnest advocate of a position always believes that, had he only an additional opportunity for argument, his side would win. But, subject to the sound discretion of a court, all argument must at last come to a halt. This is especially so as to an issue about which this Court said last year that "The arguments of its antagonists and of its proponents have been so many times marshalled as to require no lengthy elaboration here." Elkins v. United States, supra, 216.
Moreover, continuance of Wolf v. Colorado in its full vigor breeds the unseemly shopping around of the kind revealed in Wilson v. Schnettler, 365 U.S. 381. Once evidence, inadmissible in a federal court, is admissible in [p672] a state court a "double standard" exists which, as the Court points out, leads to "working arrangements" that, undercut federal policy and reduce some aspects of law enforcement to shabby business. The rule that supports that practice does not have the force of reason behind it.
^ . This "confidential source" told the police, in the same breath, that "there was a large amount of policy paraphernalia being hidden in the home."
^ . The purported warrant has disappeared from the case. The State made no attempt to prove its existence, issuance or contents, either at the trial or on the hearing of a preliminary motion to suppress. The Supreme Court of Ohio said:
- There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home. . . . Admittedly . . . there was no warrant authorizing a search . . . for any "lewd, or lascivious book . . . print, [or] picture."
170 Ohio St. 427, 430, 166 N.E.2d 387, 389. (Emphasis added.)
^ . Ohio Rev.Code, § 2905.34:
- No person shall knowingly . . . have in his possession or under his control an obscene, lewd, or lascivious book, magazine, pamphlet, paper, writing, advertisement, circular, print, picture . . . or drawing . . . of an indecent or immoral nature. . . . Whoever violates this section shall be fined not less than two hundred nor more than two thousand dollars or imprisoned not less than one nor more than seven years, or both.
- The notice of appeal . . . shall set forth the questions presented by the appeal. . . . Only the questions set forth in the notice of appeal or fairly comprised therein will be considered by the court.
Rule 10(2)(c), Rules of the Supreme Court of the United States.
- Did the conduct of the police in procuring the books, papers and pictures placed in evidence by the Prosecution violate Amendment IV, Amendment V, and Amendment XIV Section 1 of the United States Constitution . . . ?