Mapp v. Ohio (1961)

Supreme Court of the United States

Dollree Mapp v. Ohio 

Decided June 19, 1961 – 367 U.S. 643


Mr. Justice CLARK delivered the opinion of the Court.

Appellant stands convicted of knowingly having had in her possession and under her control certain lewd and lascivious books, pictures, and photographs in violation of § 2905.34 of Ohio’s Revised Code. As officially stated in the syllabus to its opinion, the Supreme Court of Ohio found that her conviction was valid though “based primarily upon the introduction in evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful search of defendant’s home ….”

On May 23, 1957, three Cleveland police officers arrived at appellant’s residence in that city pursuant to information that “a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of  [gambling] paraphernalia being hidden in the home.” Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.

The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened and the policemen gained admittance. Meanwhile Miss Mapp’s attorney arrived, but the officers, having secured their own entry, and continuing in their defiance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the “warrant” and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been “belligerent” in resisting their official rescue of the “warrant” from her person. Running roughshod over appellant, a policeman “grabbed” her, “twisted [her] hand,” and she “yelled [and] pleaded with him” because “it was hurting.” Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child’s bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.

At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, “There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant’s home.” The Ohio Supreme Court believed a “reasonable argument” could be made that the conviction should be reversed “because the ‘methods’ employed to obtain the [evidence] were such as to ‘offend “a sense of justice,”’” but the court found determinative the fact that the evidence had not been taken “from defendant’s person by the use of brutal or offensive physical force against defendant.”

The State says that even if the search were made without authority, or otherwise unreasonably, it is not prevented from using the unconstitutionally seized evidence at trial, citing Wolf v. People of State of Colorado, 338 U.S. 25 (1949), in which this Court did indeed hold “that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.” On this appeal, it is urged once again that we review that holding. 


[T]he Court in [Weeks v. United States] clearly stated that use of [] seized evidence involved “a denial of the constitutional rights of the accused.” Thus, in the year 1914, in the Weeks case, this Court “for the first time” held that “in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.” This Court has ever since required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required—even if judicially implied—deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to “a form of words.” It meant, quite simply, that “conviction by means of unlawful seizures and enforced confessions … should find no sanction in the judgments of the courts …,” and that such evidence “shall not be used at all.”

There are in the cases of this Court some passing references to the Weeks rule as being one of evidence. But the plain and unequivocal language of Weeks—and its later paraphrase in Wolf—to the effect that the Weeks rule is of constitutional origin, remains entirely undisturbed.


In 1949, 35 years after Weeks was announced, this Court, in Wolf v. People of State of Colorado, again for the first time, discussed the effect of the Fourth Amendment upon the States through the operation of the Due Process Clause of the Fourteenth Amendment. It said:

“[W]e have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment.”

Nevertheless, after declaring that the “security of one’s privacy against arbitrary intrusion by the police” is “implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause” and announcing that it “stoutly adhere[d]” to the Weeks decision, the Court decided that the Weeks exclusionary rule would not then be imposed upon the States as “an essential ingredient of the right.” The Court’s reasons … were bottomed on factual considerations.

While they are not basically relevant to a decision that the exclusionary rule is an essential ingredient of the Fourth Amendment as the right it embodies is vouchsafed against the States by the Due Process Clause, we will consider the current validity of the factual grounds upon which Wolf was based.

The Court in Wolf,/i> first stated that “[t]he contrariety of views of the States” on the adoption of the exclusionary rule of Weeks was “particularly impressive”; and, in this connection that it could not “brush aside the experience of States which deem the incidence of such conduct by the police too slight to call for a deterrent remedy … by overriding the [States’] relevant rules of evidence.” While in 1949, prior to the Wolf case, almost two-thirds of the States were opposed to the use of the exclusionary rule, now, despite the Wolf case, more than half of those since passing upon it, by their own legislative or judicial decision, have wholly or partly adopted or adhered to the Weeks, rule. Significantly, among those now following the rule is California, which, according to its highest court, was “compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions ….” In connection with this California case, we note that the second basis elaborated in Wolf in support of its failure to enforce the exclusionary doctrine against the States was that “other means of protection” have been afforded “the right to privacy.” The experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment of the protection of other remedies has, moreover, been recognized by this Court since Wolf.


It, therefore, plainly appears that the factual considerations supporting the failure of the Wolf Court to include the Weeks exclusionary rule when it recognized the enforceability of the right to privacy against the States in 1949, while not basically relevant to the constitutional consideration, could not, in any analysis, now be deemed controlling.


Some five years after Wolf, in answer to a plea made here Term after Term that we overturn its doctrine on applicability of the Weeks exclusionary rule, this Court indicated that such should not be done until the States had “adequate opportunity to adopt or reject the [Weeks] rule.”

Today we once again examine Wolf’s constitutional documentation of the right to privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.


Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be “a form of words,” valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court’s high regard as a freedom “implicit in the concept of ordered liberty.” ….To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule “is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.”

Indeed, we are aware of no restraint, similar to that rejected today, conditioning the enforcement of any other basic constitutional right. The right to privacy, no less important than any other right carefully and particularly reserved to the people, would stand in marked contrast to all other rights declared as “basic to a free society.” This Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial, including, as it does, the right not to be convicted by use of a coerced confession, however logically relevant it be, and without regard to its reliability. And nothing could be more certain that that when a coerced confession is involved, “the relevant rules of evidence” are overridden without regard to “the incidence of such conduct by the police,” slight or frequent. Why should not the same rule apply to what is tantamount to coerced testimony by way of unconstitutional seizure of goods, papers, effect, documents, etc.? 



Moreover, our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a State’s attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment. Thus the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold. ***

There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine “[t]he criminal is to go free because the constable has blundered.” In some cases this will undoubtedly be the result. But [] “there is another consideration—the imperative of judicial integrity.” The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S.438, 485 (1928): “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. … If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” ***

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.

The judgment of the Supreme Court of Ohio is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.

Mr. Justice BLACK, concurring. [omitted]

Mr. Justice DOUGLAS, concurring.

We held in Wolf v. People of State of Colorado 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. 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.”

When we allowed States to give constitutional sanction to the “shabby business” of unlawful entry into a home, 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, “[s]elf-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. 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. People of State of Colorado in practical effect reduced the guarantee against unreasonable searches and seizures to “a dead letter.”

Memorandum of Mr. Justice STEWART.

Agreeing fully with Part I of Mr. Justice HARLAN’S dissenting opinion, I express no view as to the merits of the constitutional issue which the Court today decides. I would, however, reverse the judgment in this case, because I am persuaded that the provision of § 2905.34 of the Ohio Revised Code, upon which the petitioner’s conviction was based, is, in the words of Mr. Justice HARLAN, not “consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.”

Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting.

In overruling the Wolf case the Court, in my opinion, has forgotten the sense of judicial restraint which, with due regard for stare decisis, is one element that should enter into deciding whether a past decision of this Court should be overruled. Apart from that I also believe that the Wolf rule represents sounder Constitutional doctrine than the new rule which now replaces it.


In this posture of things, I think it fair to say that five members of this Court have simply “reached out” to overrule Wolf. With all respect for the views of the majority, and recognizing that stare decisis carries different weight in Constitutional adjudication than it does in nonconstitutional decision, I can perceive no justification for regarding this case as an appropriate occasion for re-examining Wolf.

The action of the Court finds no support in the rule that decision of Constitutional issues should be avoided wherever possible. For in overruling Wolf the Court, instead of passing upon the validity of Ohio’s § 2905.34, has simply chosen between two Constitutional questions. Moreover, I submit that it has chosen the more difficult and less appropriate of the two questions. The Ohio statute which, as construed by the State Supreme Court, punishes knowing possession or control of obscene material, irrespective of the purposes of such possession or control (with exceptions not here applicable) and irrespective of whether the accused had any reasonable opportunity to rid himself of the material after discovering that it was obscene, surely presents a Constitutional question which is both simpler and less far-reaching than the question which the Court decides today. It seems to me that justice might well have been done in this case without overturning a decision on which the administration of criminal law in many of the States has long justifiably relied.

***In my view this Court should continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems in criminal law enforcement.

I do not believe that the Fourteenth Amendment empowers this Court to mould state remedies effectuating the right to freedom from “arbitrary intrusion by the police” to suit its own notions of how things should be done.***

Notes, Comments, and Questions 

Dollree Mapp, who objected so vigorously to the search of her home in 1957, lived until 2014.72 Her obituary reported that after being convicted of drug possession in New York in 1971, “she pursued a series of appeals, claiming that the search warrant used in her arrest had been wrongly issued and that the police had targeted her because of her role in Mapp v. Ohio.”

The Justices debated two main questions in Mapp v. Ohio: First, would imposing the exclusionary rule on the states be good policy? Second, does the Court have authority under the Constitution to impose it?

Scholars writing under the banner of “originalism” have argued that the Court lacked authority to hold as it did in Mapp. See, e.g., John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 Nw. U. L. Rev. 803, 806, 850-53 (2009) (“under our theory, the Supreme Court could appropriately discard a substantial portion of current constitutional criminal procedure, such as the exclusionary rule”); Stephen G. Calabresi, “Introduction,” in Originalism: A Quarter-Century of Debate (Stephen G. Calabresi, ed. 2007), at 1, 39-40 (listing, among “good consequences that would flow from adopting originalism,” that “[w]e would be better off if criminals never got out of jail because of the idiocy of the exclusionary rule”); but see Akhil Reed Amar, “Panel on Originalism and Precedent,” in id., at 210-11 (“And yet none of the supposedly originalist justices on the Supreme Court reject the exclusionary rule. Even Justices Scalia and Thomas exclude evidence pretty regularly, and do not ever quite tell us why they do so when it means abandoning the original meaning of the Fourth Amendment.”).

In a provocative essay, Judge Guido Calabresi argues that the exclusionary rule has perverse effects, including encouraging false testimony by police. In particular, he suggests that because finding a constitutional violation—such as an illegal search—often requires a judge to free a dangerous criminal, judges err on the side of finding no violation. “Judges—politicians’ claims to the contrary notwithstanding—are not in the business of letting people out on technicalities. If anything, judges are in the business of keeping people who are guilty in on technicalities. … [Judges do] not like the idea of dangerous criminals being released into society. This means that in any close case, a judge will decide that the search, the seizure, or the invasion of privacy was reasonable. That case then becomes precedent for the next case.”73 After acknowledging that alternative methods of “controlling the police in this area simply do not work,” Judge Calabresi proposes an odd scheme by which convicted defendants could win reduced sentences by proving after trial that the prosecution used illegally-obtained evidence to convict them.74 

Professor Yale Kamisar presented a more straightforward defense of the exclusionary rule, arguing that the rule’s survival should not depend on an “empirical evaluation of its efficacy in deterring police misconduct.”75 Instead, the “imperative of judicial integrity,”76 requires the exclusion of evidence obtained in violation of the constitution.

Professor Kamisar next recounted an anecdote that helped him to appreciate the importance of Mapp, which he recalled as having “caused much grumbling in police ranks” in Minnesota.77 In response to the grumbling, the state’s attorney general reminded police officers that “the language of the Fourth Amendment is identical to the [search and seizure provision] of the Minnesota State Constitution” and that in terms of substantive law—that is, what police are and are not allowed to do—“Mapp did not alter one word of either the state or national constitutions,” nor had it reduced lawful “police powers one iota.”78 Professor Kamisar reported also that after the attorney general’s speech, “proponents of the exclusionary rule quoted [his] remarks and made explicit what those remarks implied: If the police feared that evidence they were gathering in the customary manner would now be excluded by the courts, the police must have been violating the guarantee against unreasonable search and seizure all along.”

Professor Kamisar then recounted how a police officer reacted to the insinuation of longstanding officer misbehavior:

“No officer lied upon the witness stand. If you were asked how you got your evidence you told the truth. You had broken down a door or pried a window open … often we picked locks. … The Supreme Court of Minnesota sustained this time after time. … [The] judiciary okayed it; they knew what the facts were.”79 

In other words, Professor Kamisar wrote, the “police departments … reacted to the adoption of the exclusionary rule as if the guarantees against unreasonable search and seizure had just been written.”80

Noting that police in other jurisdictions reacted in the same way he had observed in Minnesota, Professor Kamisar quoted the chief of the Los Angeles Police Department, who “warned that his department’s ‘ability to prevent the commission of crime has been greatly diminished’ because henceforth his officers would be unable to take ‘affirmative action’ unless and until they possessed ‘sufficient information to constitute probable cause.’”81  Similarly, the commissioner of police in New York City reported that in the wake of Mapp, “[r]etraining sessions had to be held from the very top administrators down to each of the thousands of foot patrolmen and detectives engaged in the daily basic enforcement function.” These sessions covered information not taught to the officers when they first joined the force; the NYPD “was immediately caught up in the entire problem of reevaluating our procedures … and modifying, amending and creating new policies and new instructions for the implementation of Mapp.”82 

If one takes the contemporary statements of police department leaders at face value, Mapp inspired far greater attention to search and seizure law than had previously existed in police departments across the United States.

In our next chapter, we review more recent case law. The Court has limited the application of the exclusionary rule to cases involving particularly egregious official misconduct. This causes less evidence—and fewer cases—to be lost because of judicial intervention. It also, however, decreases the deterrent effect of the rule. 


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