civil war leadership, at the long wood university civil war seminary, with talks on generals robert e. lee, ulysses s. grant and confederate colonel john mosbey. on thursday, speakers include historian john marsalec. and friday we conclude with t.j. styles. that's on our civil war special, beginning at 8:00 p.m. eastern on cspan 3. >> up next on american history tv on cspan 3, more about in case of mapp versus ohio in which the supreme court found

that all evidence found in illegal search and seizure is inadmissible in state courts. >> good evening, everyone. as a fourth amendment scholar i'm delighted to attend tonight's presentation. and honor tonight's speaker dr. carolyn long. i'm sure that you know that the supreme court decision in mapp versus ohio is our subject tonight. that case as you know, changed the way that courts exclude or enter evidence.

we expect that the judge will prohibit that evidence on a consequence prosecution against us. motions to suppress evidence are now expected, they're common. defense lawyers in the oj simpson murder trial, moved to exclude both blood and hair evidence from the trial of that case. council for ted kaczynski, the una bomber. even in his manifesto were all found in a remote montana cabin. in both of those cases the motions to sue press were denied. as they are throughout the country in many cases, but whether they are denied or granted, motions to suppress now play a significant role in criminal cases, in fact they're

usually derminitive in the outcome of a case, especially in drug cases and in gun cases. if the case prevails and guns and drugs are excluded, usually the case is gutted and the case is dismissed. so in mapp versus ohio, the court does not like the case of miranda versus arizona, it effects a change in procedure. mapp versus ohio regarding against illegal searches and seizures. she is a professor in public affairs and an associate professor at washington state university in vancouver, washington. she earned her bachelor of arts from the university of oregon and her phd from rutgers

university. dr. long has also been a fullbright scholar and is the author of many. please become our first speaker, dr. carolyn long. >> thank you for their kind introduction, before i begin i would like to thank the co-sponsors of the event, the university of kansas school of law and the co-presenters of this talk and also the sponsors, the kaufman foundation. tomorrow morning i will be individuals sitting the truman library.

and as you know, truman played a big part in mapp versus ohio. an he was also one of truman's 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's another connection between the presidency and justice clark's jurisprudence. in particular we acknowledge his executive order desegregating the armed forces, the mandate of equal treatment in hiring and his detailed agenda to protect rights and liberties. cases like america app versus ohio and giddeon versus -- we can see how president truman's

appointment of clark, who's in the majority in these decisions also advanced the causes of racial justice. 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 mapp's case, it was similar to police investigations in many major metropolitan areas, which is one reason why the court's decision had such an important and profound impact on police practices. mapp's personal story -- led to her arrest and a brief review of the state and federal court

proceedings, in part two i'll discuss why -- and in part three i'll briefly touch on the political and the legal developments since this decision in 1961. mapp's story begins with a bombing of a home of a young don king which many may recognize as a flashy boxing promoter. in 1960, however, he was known to police as a clearinghouse operator who ran an illegal bombing operation. after the bombing mapp reached out to police with several suspects. and several days later, those tips led police to the home of dollree mapp. cleveland's special bureau investigations with sergeant

carl dewall at the home 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 were minor compared to what we might see in cities today. they predominantly consisted of numbers or policy games, or a modest lottery. the game was also associated with people in the lower socioeconomic classes. 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. delaw took an interest in the prosecution of dollree mapp. he was at one time married to jeremy bivins, who was regarded

as one of the best light weight boxers of his time. so delaw and others went to mapp's home to speak with her. she immediately called her attorney. her attorney told her it was necessary for police to get a warrant in order to question her and enter her home. the police were surprised at her response. sergeant delaw himself admits that police conducted hundreds of searches a year without a search warrant and 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 was also true in most of the 50 states in the union who did not have a suppressionary rule of evidence seized in an illegal search.

and delaw acknowledges that they were enthusiastic in their work, he said we were a well trained innovative squad in which we caused much 45r7. soon after insisting on the police warrant, several police cars and between 10 and 15 police officers arrived at mapp's home. they told her that they had a search warrant but did not show her. and in spite of the fact that they had a search warrant, they pried off the window with a crowbar. when mapp saw this happening, of course she was displeased. when she confronted the police, she asked to see the warrant. someone produced a piece of paper, and said it was a warrant and mapp immediately grabbed it and stuffed it down the front of her dress.

and so delaw said what are you going to do? he said i'm going to go after it. she was handcuffed to another police officer while those 10 to 15 officers conducted a three-hour search of her extensive three-family home including going through every drawer and chest ostensibly looking for that bombing system. police also looked in the basement. and during this time, mapp would be calling out to her attorney asking if he could come in, but the police refused his entry. delaw produced material that he said was offensive that he suggested had been found in her bedroom. according to mapp the stuff was not in her bedroom but belonged to a board ee eer who lived in basement. so why is this not a hard case

according to the legal maxim i started with? because as mentioned previously, there were vice crimes that occurred in predominantly minority communities and the police used aggressive tactics to search homes, and the police at the time, while warrants while required were rarely used because the evidence could be admitted at trial. as one scholar explained, the illegal industry of mapp's home by police was nothing extraordinary, it was an every day fact of life for blacks and other minorities, police around america were part of the process of getting blackses in their place and ignores the constitutional problems of illegal searches and searchers. they had little power to seek redress in the political process. so dollree mapp felt harassed

and she was intent on filinging the charges. it was a felony crime in ohio which carried a seven year sentence. and under ohio law, regardless of where material was found, just the fact that you had it in a home that you owned meant that you were in possession of it and guilty of the law. interestingly, as the case moved through the state courts, the focus on the legal analysis was on the state constitutional law. the search had taken place without a warrant and that it should be excluded from trial. but not only did that not matter, there was also state precedent that said that illegally obtained evidence could be used at trial. mapp lost her first trial in

district court. unbeknownst to mapp, her case would soon being a landmark ruling, that could create an exclusionary rule. so what is the exclusionary rule, and why is it important and what was the supreme court's jurisprudence before it handed down this decision? the court formally addressed the exclusionary rule after a warrantless search of a home for illegal gaming or gambling. and the court considered whether the evidence seized should be excluded from trial because it was a violation of the fourth amendment. in weeks, a unanimous court declared that meaning based on probable cause, describing in particularity what was being searched, et cetera. and that evidence that was seized that didn't meet these requirements must be excluded from trial.

the courts rationale for this position was that the exclusionary rule was constitutionally require to mandate the fourth amendment. and without the exclusionary rule, the fourth amendment would be of no value, and it might as well be stricken from the constitution. a second decision was made that of constitutional integrity. the court said if it used illegally obtained evidence to convict and individual, that would be a violation of due process. law enforcement officers should be able to find no sanction in the judgment of the court which are charged at all times to the support of the constitution. open defiance of the prohibition of the constitution. and so in conclusion, they believed it was necessary to give teeth to the fourth

amendment and to realize this promise. what's interesting about weekes versus the united states, is that it also recognizes the critique about the exclusionary. benjamin cordozo's repeated lament about the rule the criminalist goes free because a constable has blund erred. the supreme court responded, the efforts of the court and their officials to bring the guilty to punishment are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. the fact that the exclusionary rule was considered a fundamental part of the fourth amendment is important. for 35 years after weeks versus united states the united states would return to the premise when it encountered the exclusionary rule and actions by federal officers. what it didn't do until 1949 was examine whether or not the

exclusionary rule should be applied to states as well as the federal government. the court did this in 1949 in a case involving the search and investigation of an obstetrician who was 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 physician's patients. in wolf a unanimous supreme court determined that the search and seizure was unconstitutional but determined that the fourth amendment prohibition against unreasonable searches and sei seizures should be applied to the states. it was a landmark decision because the court signaled that rights not in the first amendment were incorporated to apply to state and local governments as well as the federal government. under the doctrine of selectiven corporation 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. and the court's rationale for doing so, for incorporating this important right, was that security of one's 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, however, over the question of the exclusionary rule, whether or not it should be applied to the states and the majority in a decision said it should not. according to the majority they reconceptualized how the exclusionary rule should be looked at. rather than be constitutionally mandated it was a jaw dish nael created remedy to correct a fourth amendment wrong. the court suggested for the first time that the reason for the exclusionary rule was the deterrents of police misconduct and that becomes important later on because by taking the rule away from its constitutional

morin morings. he believed that states should be able to decide on their own how you address fourth amendment violations and he saw the exclusion of evidence as one of many types of responses that a state could take. 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 excluded potentially from trial, if a third of the states did it was excluded from trial but the other states didn't have that protection. so you had a patchwork of rules surrounding the exclusionary rules application. it was also at this time that you had a lot of attention tots exclusion of evidence in states including states such as california where a state supreme court justice decided ten years after he decided that the exclusionary rule shouldn't apply that it should apply and he did so because of what he saw

was flagrant police misconduct. so that leads us to mapp v. ohio in 1961. mapp knew she only had one option left, the united states supreme court. when her petition for review arrived at the court it really emphasized the on sent statute in the state because that's where the argument had been up until that point. her attorney suggested that the law was overly broad and it was unconstitutional. in aid of the nine jest suss on the court decided to hear the case. in the legal briefs and oral argument in mapp v. ohio the focus was almost exclusively on the constitutionality of that on sent 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 clark's private papers reveals that the conference discussion over mapp

v. ohio also focused almost exclusively on this first amendment issue and they said it was clearly unconstitutional under a state -- 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 it was dismissed by the other justices. but something odd happened after -- and so the conference ended with the court unanimously agreeing that the on sent 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 auto dying gravy chief justice earl warren explains clark pondering this idea about the exclusionary rule turned to justices hugo black and william brennan in an elevator and remarked wouldn't this be a good case to apply the exclusionary rule and do what mapp didn't do.

you see the court seizing an opportunity to decide a question that isn't really formally before them. to those familiar with clark's jurisprudence this decision to consider overruling wolf may appear as a surprise. he was a former district attorney, he was president truman's attorney general and most would characterize him as pro law enforcement. he was also a justice who really liked to strongly adhere to precedent and didn't like the idea of the court reversing himself, but if you look at the private papers of justice tom clark you see something else happening entirely, 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 already had four from conference, but he needed that fifth vote in order to overturn wolf versus colorado. and you also see the dissenters trying to dissuade him from

taking this approach. so what does he do? he overturns wolf v. colorado, at least that part. so mapp v. ohio he overturns wolf and applies the exclusionary rule to the states. it's important to know when you read mapp v. ohio that justice clark and the majority returned to the rationale provided by previous court 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 shouldn't 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 it's 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. and in regard to the quoted critique that criminals would go free clark stated in some cases this will undoubtedly be the

result but right hand further that the criminal goes free if he must, but it is the law that sets him free. and nothing can destroy government more quickly than it's failure to observe it's own laws or disregard of the charter of its own existence. so why did clark use mapp v. ohio a clear first amendment challenge to an on sent law to change the nature of fourth amendment jurisprudence? he stated, i couldn't understand why wolf versus colorado said the fourth amendment applied to the states but it just didn't 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, it's pretty, got all sorts of nice fridges around it, but it doesn't mean anything. it's just a piece of paper unless you really live by it and you enforce it and that's 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 of all, take a look at the impact of mapp itself and its impact on police practices and then i want to talk about this larger significance in launching the criminal due process revolution. keep in mind that prior to mapp half the cases in the union did not have an exclusionary rule and they would allow illegally seized evidence into trial. after mapp they had to change their way of doing business and they had to exclude that evidence if it met all the right marks. so the breadth of the decision on its own was extraordinary and it was an extremely high profile case although as melanie suggested not as high profile as others. so there was a lot of attention. critics suggested that it was a bad time for the court to decide the case, it was the result of judicial activism because the courts shouldn't have reached out to decide a fourth amendment decision when it could have done so 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. the focus was always on the costs of the rule. that it would handcuff the police who couldn't do their job, the guilty would go free and those guilty were often murderers, rapists, nighttime invaders rather than what we actually commonly see which are people possessing weapons and guns. there was also a concern that 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 and many suggested that 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 costs of the rule, defenders of the exclusionary rule suggest as justice clark did that that's 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 this rule. there was also an argument by abacus that mapp v. ohio would force the police to become more professional and not fall prey to trying to target individuals and their search for people who might be committing crimes. i think the most important argument that was made was that supporters of the exclusionary rule reminded people that the exclusionary rule is 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 it's 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? well, despite complaining bitterly as i suggested, police did change their way of doing business and you saw extensive police training happening in many metropolitan areas, a little less in rural areas and

you saw an increased professional zags of the police. it revolutioned the criminal justice system in that regard. what about the resolution of cases? what about the guilty going free? first we did know that there was an increased -- 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 moments but they were much less than the common tales of the common myths presented. the major studied conducted revealed that the non-prosecution of cases because of exclusionary rule issues was actually quite small. one study found that in only about 1% of the cases did prosecutors choose not to prosecute a crime. 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 and again those cases involved minor crimes and in those cases where the suppression was actually successful, the study found that those people would have only served less than one year in jail. and then a third major final study duplicated these results, again, few successful motions, convictions based on suppression were minor crimes, yet it's interesting to me that both in the press and also in most all law and order fabulous show episodes we always hear about the murders, the rapists, nighttime invaders going free but the evidence doesn't know that that's the case. people are often convicted anyway because of other evidence or if they aren't convicted they are minor cases. that is not to discount the fact that drug and weapons crimes are

not important, they are, but it's important to look em peer clee at what the numbers show rather than just listen to the stories. just looking at that as very narrow, i think we should also briefly look at why mapp v. ohio is important. it is important because it was the first salvo of what we call the criminal due process revolution where the warren tort handed down a series of decisions that expanded constitutional protections for the criminally accused. in the eight years between mapp v. ohio and warren's final year on the bench the supreme court incorporated rights guaranteed in the fifth, sixth and eighth amendment and in these efforts are all cases like miranda, versus arizona, gideon versus wane right. miranda versus arizona bears special mention. in this case the exclusionary rule was extended to involuntary and coerced confessions and that really put the court in the public's eye. moreover, it's important to night that the criminal due

process revolution occurred at the same time the court liberal lies the rules of habeas corpus. the supreme court this tackled criminal procedural rights before but did so on a case-by-case basis, examining whether someone's 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. it's this criminal due process revolution which makes mapp v. ohio to significant. if you realize that law enforcement's investigatory activities and the prosecution of criminal defense -- defendants happens at the state and local level then you can know that mapp v. ohio might come into play with potentially hundreds of thousands or millions of cases. it's also important to note how the criminal justice due process revolution helped provide protection to many who needed it

the most. those in the lower socioeconomic classes who often don't have the resources for criminal protection during the process. we cannot ignore the racial tension i mentioned earlier when we saw aggressive police tactics being used in communities of color. chief justice warren reflecting after he had left the bench on what legacy he left 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. so that is why it's 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. there were multiple attempts for legislatures and particularly congress to either modify it or to eliminate it. as mentioned earlier, mapp in a case like miranda helped elevate the court into the public awareness of how important this body of government was in determining things that might have an affect on our every day

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. so during the johnson and nixon administrations there was a great deal of attention on how best to combat crime and conservative politicians believe that the way to do this -- and this also included conservative southern politicians -- was to change the rules that the supreme court had laid out. so there were a number of these legislative attempts to limit -- or eliminate the rule particularly when it came to confessions which was a lightning rod. it's interesting because the debate politically was always about the costs of the criminal due process revolution under the warren court. again, it was about the bloody knives, the murders, rapists and burgla burglars, it wasn't about fidelity of the constitution or how the fourth amendment and the exclusionary rule protects the constitutional rights of all americans. the debate over these decisions also took place during the reagan administrations. in reagan's first term he tasked his attorney general to look

into violent crime and the administration produced reports that directly attacked the warren court. one of these attacks came in the or 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 reagan's second term he stepped up his attack. under the u.s. department of justice released a series of reports continuing to blame warren court due process revolution and also continued to tack on the exclusionary rule. incidentally one of the members of please's 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 and the closest that we came politically to getting rid of or modifying the exclusionary rule was in 1994, it was part of newt gingrich's contract with america. what's 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. at the time there were conservative groups who were concerned about what they saw as abuse of power by federal government because of certain events like the ruby ridge and branch difdians. so that made for strange bedfellows. 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 of legislatively modifying the exclusionary rule was moved to the bottom of the political agenda. people don't care as much about the exclusionary rule in terms of being critical of it including those in law enforcement. in 1988 the american bar association conducted a comprehensive study on this issue and concluded that the exclusionary rule neither causes serious malfunctioning of the criminal justice system more promotes crime. 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 it has led to better police training and has promoted professionalism in police departments across the country. the report concluded that it is indeed an important safeguard of the fourth amendment protection of individuals against unreasonable searches and seizures at a modest cost. but the impact was greater when you look at the judicial arena because these presidents nixon and reagan in particular who campaign strongly against a warren court and in particular criminal due process revolution decided to use their appointment power to the federal courts and u.s. supreme court to ensure that they appointed justices and judges that would carry out their vision of how criminal justice should be met. so nixon had an opportunity to elevate four justices on the court including william rehnquist and ronald reagan who campaigned against a warren court was also able to elevate

three additional justices and then rehnquist to the chief justiceship. so what has happened since this occurred? what have these judicial appointments done in terms of fourth amendment jurisprudence in presentation to the exclusionary rule? >> the exclusionary rule is dying a death of 100 cuts. the supreme court in a number of decisions have been able to erode, whittle down or chip away at the warren court's mapp v. ohio decision and other criminal justice decisions. while they haven't reversed these decisions by eroding the fundamental nature of the decisions they've 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 giving the court the power to decide when to pick and choose essentially when it should be applied. so what you had in court decisions and i won't bore you with all of them, there are many, if you read the court decisions there isn't a focus on

it being constitutionally required or needed to protect the integrity of the judicial system. rather there is a institution about the reason you have the exclusionary rule is to deter police misconduct. that is a judicial creation that judges came up with it as a way to remedy perceived wrongs which actually did exist but there is no mention of the constitution. so what the court would then do is use a utilitarian balancing test in order to evaluate when the exclusionary rule should be applied. so they would look at the costs and the benefits. what's 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 they would allow illegally seized evidence into trial. if the answer was yes they would allow the exclusion. so ultimately by discussing the exclusionary rule of jaw dish

alley created remedy rather than a personal constitutional right the court weakened the foundation provided and allowed the supreme court to decide its a plick ability. there is a category of cases where the court declined to apply the rule in what they called collateral cases. so they said you could apply the exclusionary rule to the prosecution's case in chief but in these collateral settings it was unnecessary because to exclude the evidence wouldn't defer police misconduct so why bother. it doesn't apply in grand jury proceedings, civil tax proceedings, habeas corpus proceedings, civil deportation proceedings, the list goes on. there is another category of cases where the court also believed that the exclusionary rule shouldn't be applied and those involve what they call good faith exceptions. so there were 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 that wasn't okay under the fourth amendment, the court said that the police were acting in good faith. it was somebody else's mistake. somebody else's mistake in the judicial branch unconnected with the police, somebody else's mistake in the legislative branch not connected to the police. the reason why that's important is because if they are unconnected to the police then the police were acting in good faith. if the purpose of the rule according to the court is to defer police misconduct you can't exclude the evidence because it's not going to achieve that result. so what they did is they laid a different foundation for the rule and in so doing were able to carve out the exceptions which limited their applicability. so what about the roberts court? i gave you a teaser with my comment about saccule owe leto and john roberts. there have been two important cases and i mention them to bring us up to speed with the exclusionary rule and also to end with comments about where i think we're going to go from

here. there was a case in 2006 hudson versus michigan which dealt with knock and announce, police have to knock before they enter into the room. what was important in this decision is justice scalia's comments that he thought it was pretty much time to reevaluate the exclusionary rule and one of the reasons he said we should be evaluating it is because ironically the need for it no longer existed because the police had been professionalized and because people were acting professionally you don't need the exclusionary rule. he also suggested there were other remedies that you could use if people had their evidence seized from an illegal search. so criminals could also sue the police or maybe the police can police themselves, and these have been remedies that folks have always talked about and there is proof which shows that this can be an effective remedy in certain instances, but it was scalia's direct attack on the exclusionary rule that bears note. the most significant case,

herring versus united states written by chief justice roberts. 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 and in this particular case chief justice john roberts said that the police officer that constituted executed what he thought was a warrant was acting in good faith because he didn't 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 that arrest didn't know about it, acted in good faith. so that's a significant evolution because you're expanding the number of good

faith exceptions but you're also expanding it to law enforcement. some would suggest there might be a little bit of tension there. the second thing that's important in herring versus united states is that robert said and this is for the first time that police mistakes have to be systemic error or reckless disregard of constitutional requirements and not mere negligence to warrant exclusion of that evidence from trial. so he's essentially asserting if it's just mere negligence then the evidence should be admitted to trial. so i would suggest that the roberts court even more so than the court under berger and rehnquist is probably closer to limiting the exclusionary rule even further with comments like this, but we don't have as much data so it's difficult to say that conclusively, but it's 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.

it's always five. so that's why judicial appointments are important, it's why presidential 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 that's happening which is really quite fascinating would actually make troms 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 federal courts. that's a very interesting development because the argument actually in favor of the criminal due process revolution in the first place was that you had to have all the states on the same page, that you don't want to have a patchwork of laws governing things like how people should be treated constitutionally when they are at their most vulnerable, but what's interesting is because of this new judicial federalism and because of the increasing conservativism of the supreme court you have state courts now 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 that's happening at the state level, which is a good development for people who like the fourth amendment, but it's a difficult challenge because you might have that inconsistency in the administration of justice which isn't a good thing. 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 and changed the way police did their business but also in the launching of the criminal due process revolution. the implications of this landmark decision will be with us for decades to come. so i understand you're 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 you're 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 don't know. and i'm 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 don't recall whether or

not they were successful. so i'm afraid i can't answer that conclusively. i will suggest that in cases particularly the high profile cases, and there's 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 that's probably something that happened, but i couldn't 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. it's funny -- no, it's not actually. the fourth amendment does not provide a great deal of protection. we're hearing a lot about the fourth amendment in the news

these days because we're hearing about activities that the federal government is engaged in in terms of collecting data. what we're hearing and it's regrettable that we're 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, it's called pen registers, there was a supreme court case about that and that doesn't violate the fourth amendment. there's also fisa which allows a certain amount of surveillance including domestic surveillance if it is linked towards international terrorism. and so i don't have an easy answer because it involves so many potential issues, but i would just say that the fourth amendment doesn't really have significant teeth in terms of constitutional protecting us and that the statutory protections that we do have have really been, i think, limited by the decisions of the fisa court. one example i will 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 all but a handful of cases the warrants have been given out. to me even though i don't know all of the cases that shouldn't know that there has been firm enforcement of the fourth amendment at the level i would like. that's a great question. >> does this thing that's going on in new york city, this search, stop and frisk, come into this at all? >> can i come back for another night? stop and frisk is a great -- it's a great fourth amendment issue. and what's interesting and i will take a little bit longer to answer your question, terry versus ohio which was a case where the supreme court said that police would be able to stop somebody suspected of committing a crime and do what's called a limited pat down, the stop and frisk, the court said

it was constitutional. some would argue and i think that they're right that the reason why the court allowed this in terry versus ohio is back of the political backlash that the court was getting because of miranda and mapp. what's interesting about the stop and frisk as we saw in terry versus ohio is that has evolved to something completely different. so now even if you are stopped for a traffic offense, you can be stopped and frisked by law enforcement and that's considered constitutional. even if you are a passenger in a car that's 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. what's interesting is original ruling in terry versus ohio is that you stop and frisk someone because of officer safety. it makes complete rational sense. you don't want to stop somebody and have them injure you when you're trying to protect public

peace. if somebody is being frisked and a passenger in the car it's more difficult to make that argument. there have been cases where people are in the police car and they are isolated and there's absolutely no way they can get to their own car and the car is being searched and the individual is being frisked. so this 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. and i don't see that changing, i really don't. because you have so many precedence which allow it. you talk about death of 100 cuts, it's still continuing. did i answer your question? >> okay. >> i'm an old kerr muj i don't know who can't exist without the morning newspapers in my hand. this very morning a scumbag from ft. hood, texas, will become our

maybe 38 miles up the river in leavenworth on our penny. i sort of hope he becomes a cellmate of chelsea. my question: is this country possibly super, super, super, super overlawyered today? >> so the question is are we super, super, super overlawyered today? actually, people suggest that we have something -- a disease called hyper lengths i can't, i think you've heard of it this that we have too many lawyers. per capita we do 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 we are producing fewer lawyers today. and they are unable to find jobs today and many are choosing not to go into law school because it's so expensive. so maybe we don't have super,

super, super, super too many lawyers, maybe just super too many lawyers. i don't know if we're there yet. i don't know if i answered your question. [ applause ] >> thanks, carolyn. thanks for being here. carolyn's book on mapp v. ohio is on sale courtesy of the ku bookstore, she will be signing copies out there and we will see you next time. american history tv in prime time continues tonight on c-span 3 with our original series landmark cases. at 8:00 p.m. eastern we will 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 c-span 3, 8:00 p.m. eastern. >> next week at 8:00 p.m. eastern on c-span 3, a civil war special featuring american history tv highlights. on monday we are at the emerging civil war blog symposium where we look at the great defenses of the civil war, including gettysburg antidum and the siege of vicksburg. tuesday we focus on civil war leadership with talks on jebls robert e. lee, ulysses s. grant

and colonel john mosby. wednesday through friday we are at the gettysburg college civil war institute conference, wednesday features harold holzer, thursday speakers include john marsalak and on friday we conclude with author t.j. styles. american history tvs civil war special all next week beginning at 8:00 p.m. eastern on c-span 3. american history tv continues our look at supreme court cases regarding the rights of criminal defendants. in the 1963 case gideon versus wane right 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