Injustice for All: Mapp Vs. Ohio and the Fourth Amendment.

Vol. 15 No.5 (May 2005), pp.382-385

INJUSTICE FOR ALL: MAPP VS. OHIO AND THE FOURTH AMENDMENT, by Priscilla H. Machado Zotti. New York: Peter Lang, 2005. 224pp. Paper $22.95. ISBN: 0-8204-7267-0.

Reviewed by David S. Mann, Department of Political Science, College of Charleston. Email: mannd@cofc.edu

I will divide this review into four components, thinking all the while as an undergraduate professor of “con law.” First, I will summarize what we all (probably) know about MAPP v. OHIO. Second, I will highlight what some or most of us know about the case that maybe we have time to mention succinctly in class when we discuss it. Third, I will applaud the author for discussing what few of us know about the circumstances of the case. Finally, perhaps what needs to be addressed most concerns the immediate present and future, in some sense the long-term consequences of MAPP v. OHIO.

How often, especially in an undergraduate course, do we go over cases so quickly that the entire summary can be written on a 5 x 8 card? To wit: Investigating evidence about a bombing that had taken place, police sought entrance into the home of Dollree Mapp, who denied their entrance unless the police produced a search warrant. A “warrant” was waved to her, and she grabbed it and placed it in her bosom, where officers retrieved the paper and handcuffed her. Police found “lewd and lascivious books, pictures, and photographs,” possession of which were in violation of Ohio statute. She was arrested, tried, and convicted. No warrant was produced at trial. She appealed. Ohio courts affirmed conviction. She appealed to the Supreme Court. And then we discuss the issue raised by the Court majority and summarize the opinions. What do we miss when we use this rather typical method of describing the path of the law to our students?

That question is what may entice us to require students to read a case study, whether it be Westin (1958) or Craig (1988) in Constitutional Law, Lewis (1964) or Pohlenberg (1987) for Civil Liberties, or a variety of other well documented case studies. We do this to show students what they would otherwise miss and to develop a personalized reference point for students and for ourselves. Our bland review of cases, like the one above, inescapably and sometimes mistakenly omits a vital component in case law. When we ever so briefly indicate who the parties to a case were, we miss the opportunity to truly know not only the immediate parties to the case but other background that would allow us to understand the case in its entirely.

In MAPP, the most intriguing character to Priscilla Zotti is the police investigator, Carl Delau. The author spends almost an entire chapter, overwriting perhaps, officer Delau’s life story. The relevance of officer Delau I will describe shortly. However, to me the most intriguing character is neither officer Delau nor Dolleee Mapp, to [*383] whom the author pays some but not as much attention. Don King, yes, the now famous or infamous (depending on your attention to sports) boxing promoter to me is the surprise character in this case drama. Whenever I talk about this case, I mention Don King (note: the author refers to him most often as Donald King; no one knows Donald King; but just about everybody in class knows who Don King is; their visual image is typically “the hair”).

I applaud Zotti for describing in detail how these characters, and others were involved in either running or investigating the “numbers racket” in 1950s Cleveland. This is what fewer of us know (I did not, until I read the book). The “numbers racket” leaders were feuding. Don King was among those who were trying to wedge themselves into the “game.” His house was bombed. Police believed that Mapp, who ran numbers, had either evidence of the bombing or was hiding a person in her home who knew about, or maybe committed, the act.

Now we are getting somewhere. While some of us know that police may have been searching for such evidence in Mapp’s home, few might know the details about how the numbers racket worked in Cleveland of the 1950s, brought out in this book. Some readers might be curious enough to acquire and read the book for themselves. I found this part of the book to be fascinating. There is more.

For instance, few of us might be aware that the focus of Mapp’s trial and appeals were not the “warrantless” search. Most of the arguments and briefs concentrated on the vagueness of the Ohio porn possession statute. Still fewer might know that warrantless searches were the typical way that police engaged in investigations, given the outcome in WOLF v. COLORADO (1949). Zotti writes: “The actions of the police on May 23^rd appear to be standard and no more aggressive or invasive than the commonly accepted practice” (p.77). “All took it for granted that the paper brought to the scene by Lieutenant White was an official search warrant to conduct a search of Dollree Mapp’s home for a material witness in the King bombing and for potential possession of gambling paraphernalia” (p.22). So we find that in Cleveland in the late 1950s, a warrant may or may not be among the typical police procedures. We find that there may or may not have been a true warrant at all. The police were proceeding as they always would proceed in the 1950s, given WOLF. Professor Zotti’s documentation not only includes newspaper accounts, trial and appeal documents, but also personal interviews with Officer Delau and Ms. Mapp, among others. Readers get the message that Officer Delau was trying to solve the bombing crime and perhaps obtain evidence about the numbers racket. That officers found alleged porn had nothing to do with either.

Zotti walks us through several rather short chapters on the trial, Ohio appeals, and Supreme Court oral argument. Best is the chapter on the opinion writing, where Zotti documents from collected papers, docket books, memos, and rough draft opinions. This chapter provides readers/students with a great example of how the Court really works: the coalition building, the ideological dispositions of the justices, the give and take of draft opinions. The draft [*384] opinions are not reproduced, as they are so seldom, leaving this reviewer to wonder if the book would have been better if an editor or publisher made the commitment to the additional pages.

Another chapter of note is Zotti’s history of the Fourth Amendment. Again, nicely researched, this discussion is a great example of the historical approach to constitutional understanding. She begins with Cicero and takes readers to a place I had never been. My reading of the chapter suggests that the Fourth as drafted and amended by Congressman Benson was actually voted down: “it appears, Benson reinstated his version which had previously been voted down by the Committee of Eleven” (footnote and emphasis omitted, p.57). No one noticed. The key word to a complete understanding (or misunderstanding) of the Fourth Amendment is the word and, as in “and no warrants shall issue.” Though written like a part of a dissertation, and located after the search and personal history of Officer Delau and Ms. Mapp and before the trial discussion, I nevertheless liked this chapter and learned a lot.

Some case study books briefly consider the case and explore the aftermath in great detail. Some do the opposite. Professor Zotti made a good choice to focus on the people and the case and leave most of the aftermath discussion to case law books on criminal procedure, where we all know that courts have been tweaking MAPP v. OHIO ever since its announcement. She devotes a little more time on the people and where they are now, even spending a paragraph or two on Don King. A footnote is interesting to quote: “Delau knew Officer Marty McFadden, the police officer involved in another famous Cleveland search and seizure case, TERRY VS. OHIO (1968). The two had discussed their fame or infamy, and both agreed that what occurred in Washington, while significant, felt remote at the time of the decision. Neither was ‘watching’ the Court in anticipation of a decision” (p.156, fn.2). Mapp, who was at the Court for oral argument, was eventually arrested, tried, and convicted for possession of heroin and served nine years. The author also wrote about the immediate press reactions to MAPP, which I had never seen before. Though the book has a 2005 copyright, there is no reference at all, even in passing, on my last thought that reading this book provokes.

We all know the outcome of MAPP, and how the Supreme Court’s ruling changed everything for police investigators and in fact for judges, who now as a matter of routine sign (or not) search warrants. Unless we start thinking about the USA Patriot Act. Should the threat of terrorism permit searches where warrants have been held in abeyance, under Section 213? Is the mandated Congressional oversight of such searches taking place? Should we fear that the content of our e-mails, lists of books that we have purchased, and phone calls that we have made to, hypothetically or not, relatives that we might have in the Middle East, are being examined under the auspices of the Patriot Act without a warrant, as Section 215 seems to suggest? Is that what we want?

REFERENCES:

Craig, Barbara Hinkson. 1988. CHADHA: THE STORY OF AN EPIC CONSTITUTIONAL STRUGGLE. Berkeley, CA: University of California Press. [*385]

Lewis, Anthony. 1964. GIDEON’S TRUMPET. New York: Vintage Press.

Polenberg, Richard. 1987. FIGHTING FAITHS: THE ABRAMS CASE, THE SUPREME COURT, AND FREE SPEECH. New York: Penguin Books.

Westin, Alan F. 1958. THE ANATOMY OF A CONSTITUTIONAL LAW CASE: YOUNGSTOWN SHEET & TUBE CO. V. SAWYER: THE STEEL SEIZURE DECISION. New York: Macmillan.

CASE REFERENCES:

MAPP v. OHIO 367 U.S. 643 (1961).

TERRY v. OHIO 392 U.S. 1 (1968).

WOLF v. COLORADO 338 U.S. 25 (1949).

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