then lincoln scholar harold holser. on friday we conclude with author t.j. stiles. american history tv civil war special next week beginning at 8:00 p.m. eastern on c-span 3. up next on american history tv on c-span 3, more about the case mapp versus ohio in which the supreme court found that all evidence police obtained through illegal search and seizure is inadmissible in states courts. we'll hear from carolyn long. >> good evening. as a fourth amendment scholar i am delighted to attend tonight's presentation and honored to introduce tonight's speaker, dr. carolyn long. i am sure you know that the united states supreme court decision in mapp versus ohio is

the heart of tonight's program. that decision, as you probably also know, changed the way courts in this country exclude evidence or consider evidence obtained in violation of our fourth amendment rights. before the decision in mapp, the remedy of excluding evidence was unpredictable at best. now, today we sometimes take for granted the fact that courts will protect us against unconstitutional searches or seizures. if a police officer enters or searches our home, our car, our purse, our cellphone, we expect that the judge will prohibit that evidence from being used in a subsequent 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. counsel for ted kaczynski, better known as the unabomber,

moved to exclude evidence of an unexploded bomb, a journal in which mr. kaczynski admitted almost 16 of his bombings and even his manifesto, all found within a remote montana cabin. in both cases the motions to suppress were denied as they are throughout the country in many cases. but whether denied or granted, motions to suppress now play a significant role in criminal cases. in fact, they're usually determinative of an outcome of a case especially in drug and gun cases. if the defense prevails and drugs and guns are excluded usually the government's case is gutted and the case dismissed. while mapp versus ohio does not enjoy the recognition of a case like miranda versus arizona it

effected a profound change in criminal procedure. tonight dr. carolyn long examines the procedure in part of her discussion of her latest book titled "mapp versus ohio, guarding against unreasonable searches and seizures." she is the associate director of the college of labiberal arts, director of the program of public affairs and associate professor in the department of political science at washington state university in vancouver, washington. she earned her bachelor of arts from the university of oregon and her ph.d. in political science from rutgers university. dr. long has also been a fulbright scholar and is the author of many scholarly articles and book chapters. the book she presents tonight is her third. please welcome dr. carolyn long. [ applause ]

>> thank you for the kind introduction. before i begin i would like to thank the co-sponsors of the event, university press of kansas and the university of kansas school of law, and the co-presenters and funders of this talk, the kansas city public library, the truman library institute and the federal court historical society and also the sponsors the kaufman foundation and law firm of spencer bane, brett and brown. tomorrow morning i'll visit the truman university library institute. president truman played an indirect but important role in this case. tom clark was a personal friend of the president and 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 is another connection between the truman presidency and justice clark's juris

prudence. truman was known for advocacy on behalf of civil liberties issues and we acknowledge his executive order deseg gregating the armed forces and laying out his detailed agenda to protect rights and liberties. if one suggests, as i do, that cases like mapp, miranda and gideon attempt to address racial inequalities in the justice system because of aggressive police tactics targeting communities of color we see president truman's appointment of clark, in the majority in the decisions, also advance the causes of racial justice. it's said hard cases make bad law, so a hard or poor case is an extreme case. some might argue that dollree mapp's case was a hard case that made bad law, but i would suggest the opposite.

the search of mapp's person, possessions and homes was not extreme at the time but was rather a regular practice of the cleveland department's bureau of special investigations and was similar to police investigations in many major metropolitan areas which is one reason why the court's decision had an important and profound impact on police practices. mapp's personal story sets the foundation for my discussion this evening about the exclusionary rule. so the first part of my talk will begin with the description of the circumstances that led to her arrest and a brief review of the state and federal court proceedings. in part two i'll discuss why mapp is a landmark decision as melanie suggested and review the impact of mapp on police practices and in part 3 i will touch on the political and legal developments since the decision in 1961. mapp's story begins with a bombing at the home of a young don king who many now -- now may recognize as a flashy boxing

promoter. in 1960, however, he was known to police as a clearing-house operator who ran an illegal gambling operation. after the bombing, king reached out to police and directed them to potential suspects. some of whom were his competitors. several days later an anonymous tipster led the police to the home of dollree mapp where king also said they may find some policy paraphernalia, which is material associated with illegal gambling. cleveland's special -- bureau of special investigations, with sergeant carl de lawal was empowered to investigate vice crimes in the city. the vice crimes in cleveland at the time were minor compared to what we might see in cities today and consisted of number or policy games which were forms of a daily lottery. people would make small bets for modest payoffs. the game was also associated

with people in lower socioeconomic classes. there was an undercurrent of racial tension in the city as police would target african-americans and other minorities during investigations. the sar de lawal was familiar with mapp whom he describes as his arch enemy. she was a visible fixture on cleveland's boxing scene and was once married to jimmy bivens, one of the -- regarded as one of the best light heavyweight boxers of his time. at one time she was briefly engaged to archie moore, another boxing great. she also associated with people involved in illegal gambling. so de lawal and others went to mapp's home and asked to speak to her. mapp immediately phoned her attorney. and her attorney told her it was necessary for police to get a warrant in order to question her and enter her home. when the police told dollree that they did not have a warrant

she refused their entry. the police were surprised at her response. sergeant dlaul himself admits cleveland police conducted hundreds of searches a year without a search warrant, 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 is also the practice in about half the states in the union, each of which did not have an exclusionary rule which requires the suppression or exclusion of evidence seized as a result of an illegal search. and de lawal himself acknowledges that they were enthusiastic in their work. he stated, we were well trained, innovative, aggressive squad working to curtail the numbers racket to which we caused much harm. this aggressiveness was evident in the fact that, soon after insisting on the search warrant several police cars and between ten and 15 police officers arrived at mapp's home. mapp's attorney was also there. he was told by police that they had a search warrant, but they did not produce one and they

also barred him from entering the home. oddly, despite the fact that they had a search warrant delawal used a crowbar to peel off the screen door and break the window to enter the home. when mapp saw this happening she was, of course, displeased. she confronted the police and asked to see the warrant. someone produced a piece of paper, said it was a warrant and mapp grabbed it and thrust it down the front of her dress. the police asked the sergeant what will you do now? he said, i'm going after it. so he went after the piece of paper. dollree mapp got increasingly belligerent and as a result was handcuffed to another police officer while the ten to 15 officers conducted an extensive three-hour search of her two-family home, including going through every drawer, chest and piece of furniture ostensibly looking for that bombing suspect. police also searched the downstairs apartment of a

boarder in the home's basement. during this time she would be calling out to her attorney asking for him to come in but the police refused him entry. at the end of the search the police produced a trunk of policy paraphernalia said to be found in the basement and de lawal produced material he said was offensive that he suggested had been found in her bedroom. according to mapp the stuff belonged to a boarder and was in the basement, not in her bedroom, nevertheless she was arrested for the possession of the policy paraphernalia, a misdemeanor and days later possession of illegal material. why is this not a hard case according to the legal maxim i started with? because, as mentioned previously, in many metropolitan areas at this time there were vice crimes that occurred in predominantly minority communities and police frequently and aggressively used tactics such as the search of mapp's home to combat crime. the research at the time reveals that warrants, while required, were rarely used because the evidence, again, could be admitted to trial. the misconduct was so common so

to be seen as legitimate. as one explained, the illegal entry was nothing extraordinary, it was a fact of life for blacks and other racial minorities. police throughout america were part of the machinery of getting blacks in their place and ignoring constitutional guarantees against unreasonable searches and seizures. the constitution played little role in the relationship between them and they had little power to seek redress in the political process. unsurprisingly, given the story, dollree mapp was furious at her treatment of the police. she felt targeted, harassed, and she was intent on fighting the charges. she was charged with possession of the obscene material, a felony crime in ohio carrying a seven-year sentence. under ohio law, regardless of where the material was found, the fact that you had it in a home you owned meant you were in possession of it and guilty of the law. interestingly, as the case moved through the state courts, the focus of the legal arguments was

on the constitutionality of the state anti-obscenity law. mapp's defense attorneys argued that the seized evidence was there because it was without a warrant -- that the search had taken place without a warrant and that it should be excluded from trial. not only did that not matter, there was also state constitutional precedent that said that illegally seized material could be admitted in trial. so dollree mapp actually had two legal problems. mapp eventually lost her first amendment challenge in the ohio courts. her last chance was a hearing before the united states sproiblt. unbeknownst to mapp her obscenity case would become a landmark fourth amendment ruling to extend the exclusionary rule to apply not only to the actions of the federal authorities but also against state and local authorities as well. so what is the exclusionary rule, why is it important and what was the supreme court's juris prudence before handing down this decision? the court first formally addressed the exclusionary rule in a case called weeks versus

united states in 1914, a case involving a warrantless search of a home for evidence of illegal gaming or gambling. the court in that case considered whether the evidence should be excluded from trial because the search was in violation of the fourth amendment. in weeks in 1914, a unanimous court declared searches conducted by federal officers must be done with a warrant issued in accordance with the constitution, meaning based on probable cause, describing in particular what was being searched, et cetera, and that evidence that was seized that did not meet the requirements must be excluded from trial. the court's rationale for this position was that the exclusionary rule was constitutionally required to enforce a mandate of the fourth amendment and that, without the rule, the fourth amendment would be of no value. so far as those are concerned, it might as well be stricken from the constitution. a second rationale was provided as well, that of judicial integrity. the court suggested if it used illegally seized evidence to

convict individuals, that would undermine the integrity of the judicial process. according to the majority, law enforcement officers should be able to find no sanction in the judgment of the courts which are charged at all times with the support of the constitution. judicial approval would be to affirm by judicial decision a manifest neglect, if not an open defiance of the prohibitions of the constitutions intended for the protection of the people against such unauthorized actions. so, in conclusion, they believed it was necessary to give teeth to the fourth amendment and to realize this promise. what's interesting about weeks versus united states is the majority decision also recognized the inevitable critique about the exclusionary rule about guilty people going free. as benjamin coar doza's lament,a criminal is to go free because the constitution has blundered. the efforts to bring the guilty

to punishment, praiseworthy as they are, are not to be aided by the sacrifice of principles which resulted in embodiment of the fundamental law of the land. the fact that the exclusionary rule was considered a fundamental part of the fourth amendment is very important. in 35 years after weeks versus u.s. the united states would return to the premise when it encountered cases involving 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 finally did this in 1949 in a case called wolf versus colorado, a case involving the search and investigation of an obstetrician 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, more importantly, determined that the fourth amendment prohibition against unreasonable searches and seizures should apply to the states as well as the federal government through the due process clause of the 14th amendment. it was a landmark decision in its own right because the court signalled and did so for the first time, that rights not in the first amendment were incorporated to apply to state and local governments as well as the federal government. as you know, under the doctrine of selective incorporation, 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. the court's rationale for incorporateding 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 over the question of the exclusionary rule, whether or not it should be applied to the

states. the majority in a decision by felix frankfurter said it should not. according to the majority, they reconceptualized how the exclusionary rule should be looked at saying that rather than being constitutionally mandated it was a judicially created mandate to correct a wrong. the other thing that happened in wolf was the court suggested for the first time that the reason for the exclusionary rule was the deterrence of police misconduct. that becomes important later on, because by taking the rule away from its constitutional moorings it led to an erosion of the rule later on. frankfurter based his decision on the principle of federalism. he believed states should decide on their own how to address fourth amendment violations. he saw the exclusion of evidence as one of many types of responses that a state could take. and 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 potentially excluded from trial. if a third of the states did so it was excluded from trial. but the other states didn't have that protection, so you had a patchwork of rules surrounding the exclusionary rule's application. at this time you had a lot of attention to the evidence such as in california. justice warren, ten years after deciding that the exclusionary rule shouldn't apply, that it should apply. he did so because of what he saw as flagrant police misconduct. this leads us to mapp v ohio. after losing in state court, she knew she only had one option left, the supreme court. when her petition for review arrived at the court it emphasized the obscenity statute in the state. her attorney suggested the law

was overly broad, unconstitutional. in eight of the nine justices on the court decided to hear the case. in legal briefs and oral arguments, the focus was almost exclusively on the constitutionality of the obscenity 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. other than that, it was really a first amendment case. so what happened at the conference? well, justice thomas clark's private papers reveal that the mapp -- the discussion focused almost exclusively on the first amendment issue and they said it was unconstitutional 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 was dismissed by the other justices. something odd happened -- so the conference ended with the court unanimously agreeing that the

obscenity 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 discussion about the fourth amendment. chief earl warren explains that clark turned to justices black and brannen in an elevator and remarked, wouldn't this be a good case to apply the exclusionary rule and do what mapp didn't do. we call this issue fluidity. you see the court seizing an opportunity to decide a question that is not formally before them. to those familiar with clark's juris prudence, the consideration to overrule wolf was a surprise. he was a former district attorney. he was a justice who liked to strongly adhere to precedent and

didn't like the idea of the court reversing itself. if you look at the private papers of justice clark you see something else happening. 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 had four from conference, but he needed a fifth vote in order to overturn wolf versus colorado. you also see the dissenters trying to dissuade him from taking this approach, which is interesting as well. so what does he do? he overturns wolf v colorado, at least that part. he applies the exclusionary rule to the states. it's important to know when reading mapp v ohio that justice clark and the majority returned to the rationale provided by previous courts 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. he also said it's 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. in regard to the off the-quoted critique that criminals would go free. clark stated in some cases this would be the result but he stated further the criminal goes free if he must, but it is the law that sets him free. and nothing can destroy government more quickly than its failure to observe its own laws or, worse, disregard of the charter of its own existence. so why did clark use mapp v ohio, a clear first amendment challenge to an obviously unconstitutional obscenity law to change the nature of fourth

amendment juris prudence. he gave his explanation years later. stating, i couldn't understand why wolf said the fourth amendment applied to the states but it 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 fringes 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 i'll look at the impact of mapp and its impact on police practices and then talk about its larger significance in launching the criminal due process revolution. prior to mapp half the states did not have an exclusionary rule and would allow illegally

seized evidence into trial. after that they had to exclude the evidence if it met the right marks. so the breadth of the decision was extraordinary. it was an extremely high-profile case as melanie suggested not as much as miranda versus arizona. critics suggested it was a bad time for the court to decide the case. it was the result of judicial activism because the court shouldn't have reached out to decide a fourth amendment decision when it could have rested the case on first amendment grounds. conservative politicians, special interest and members of law enforcement adopted a different critique, one we hear today, which is the decision would be a hindrance to police and ultimately would be a threat to public safety. indeed the immediate reaction to mapp by the law enforcement community was one of dismay. in the focus was always on the cost of the rule, that it would handcuff the police who couldn't do their jobs, the guilty would go free and the guilty were often murderers, rapists,

night-time invaders rather than what we commonly see. there was the concern it would focus on police error as opposed to a focus on the people who are disobeying the law. mapp had its advocates as well. many suggested 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 cost 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 the rule. there was an argument that mapp would force police to become more professional and not fall prey to trying to target individuals in their search for people who might be committing crimes. i think the most important argument made was that supporters of the exclusionary rule reminded people that the

exclusionary rule was 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? despite complaining bitterly, as i suggested, police changed their way of doing business. you saw extensive police training happening in many metropolitan areas, a little less so in rural areas, and you saw an increased professionalism of the police. it revolutionized the administration of the criminal justice system in that regard. what about the resolution of cases? what about the guilty going free? well, first we did know that there was 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 motions. but they were much less than the common tales or myths actually presented. early studies were mixed but the major studies conducted in the mid to late '80s 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 cases did prosecutors decide not to prosecute a crime. in that 1%, a very small percent involved offenses against a person, but rather, most 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. again, the cases involved minor crimes. in those cases where the suppression was actually successful, the study found that the people would have only served less than one year in jail. then, a third major final study duplicated the 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 & order, fabulous show, episodes, we always hear about the murders, rapists and night-time invaders going three. empirically the evidence does not show that to be the case. people are usually convicted anyway because of other evidence or, if they aren't, they are minor cases. not to discount the fact that drug and weapon cases are not important. they are, but it's important to look at what the numbers show rather than just listen to the stories. just looking at that is very narrow. we should also briefly look at why mapp v ohio is important. it is important because it was the first salvo in what we call the due process system. significantly expanding constitutional protections for

the criminally accused. in eight years between mapp v ohio and 1969, warren's final year on the bench, the supreme court incorporated rights guaranteed in the fifth, six and eight amendment. in these efforts were all cases like miranda versus arizona, gideon versus wainwright and others that capture our attention and sometimes our criticism. in miranda the exclusionary rule was extended to involuntary and coerced confessions, which really put the court in the public's eye. moreover, it's important to note that the criminal due process revolution occurred at the same time the court liberalized rules regarding federal writs of habeas corpus, ensuring a steady stream of appeals from state criminal defendants on federal constitutional grounds. the states examined on a case by case basis were someone's due process rights were violated.

with mapp, the court started to systematically and comprehensive address privilege rights for everyone. it's this revolution that makes mapp so significant. if you realize that law enforcement's investigatory activities in the prosecution of criminal defendants happens at the state and local level, you can know that mapp v ohio might come into play with potentially hundreds of thousands or millions of cases a year. it's important to note how the revolution helped provide protection to many whom needed it it the most. those were the lower socioeconomic classes who often don't have resources for protection during the criminal justice process. we cannot ignore the racial tension i mentioned earlier. we saw aggressive police tactics being used in communities of color. chief justice warren reflecting later, after leafiving the benc on his legacy, 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. 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. politically there were multiple attempts for legislatures and particularly congress to either modify it or to eliminate it. mapp in cases like miranda helped to focus how important this was and to help people make the link between at that time what was an increase in crime and the politically volatile decisions by the warren court. during the johnson and nixon administrations there is a great deal of attention on how best to combat crime. many conservative politicians believed the way to do so was to change the rules the supreme court had laid out. so there were a number of

legislative attempts to eliminate the rule, particularly when it came to confessions, which was the lightning rod. it's interesting because the political debate was always about the costs of the criminal due process revolution under the warren court. and again, it was about the bloody knives, murders and rapists and burglars, not about fidelity to the constitution and 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 his first term he tasked his attorney general to look into violent crime. the administration produced reports that directly attacked the warren court. one of the attacks came in the 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 attorney general they continued the attack on the exclusionary rule. incidentally, one of the members of the mease justice department, a young samuel alito, also on the supreme court today. the issue remained live, as we call it, during the bush and clinton administrations. the closest we came politically to getting rid of or modifying the exclusionary rule was in 1994 as part of newt gingrich's contract with america. what's interesting about that 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 conservative groups were concerned about abuse of power by the federal government because of certain events like the ruby ridge and branch da davidians. that made for strange bed

fellows. i suggest we could see the same thing today in the political arena. what about the possibility of legislative reform today? with the declining crime rate the exclusionary rule has moved to the bottom of the agenda. also, 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 study and concluded that the exclusionary rule neither caused serious malfunctioning of the criminal justice system nor promotes crime and 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's led to better police training and has promoted professionalism in police departments across the country. the aba report concluded that it is an important safeguard to the fourth amendment protection of individuals against unreasonable searches and seizures at modest

cost. the impact was greater in the judicial arena because the presidents, nixon and reagan in particular who campaigned strongly against it and the criminal due process revolution decided to use their appointment power to the federal courts and particularly the supreme court to ensure they appointed justices and judges to carry out their vision of how criminal justice should be meted. nixon had an opportunity to appoint four judges to the court and ronald reagan, who campaigned against the warren court, was also able to elevate three additional justices and then rehnquist to the chief justiceship. so what's happened since this occurred? what have these judicial appointments done in terms of fourth amendment juris prudence with the exclusionary rule. the exclusionary rule is dying a death of a hundred 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 decision and other criminal justice decisions. while they haven't outrightly reversed the decisions, by eroding the fundamental nature of the decisions, they have 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 then giving the court the power to decide when to pick and choose, essentially, when it should be applied. so what you see in court decisions -- and i won't bore you with all of them -- there are many. there isn't a focus on it being constitutionally required or needed to protect the integrity of the judicial system. rather, there is a discussion about the reason you had the exclusionary rule was to deter police misconduct. it's a judicial creation as a way to remedy perceived wrongs which actually did exist but there is really no mention of the constitution. so what the court o would then do is use a utilitarian

balancing test to evaluate when the exclusionary rule should be applied. they would look at the costs and 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, then it would allow illegally seized evidence into traiial. if yes, they would allow the exclusion. by discussing the exclusionary rule as a judicially created remedy rather than a constitutional right, the court weakened it and empowered the supreme court to decide its applicability. if you look at the court's juris prudence you see a number of exceptions to the rule. there are a category of cases where the court declined to apply the rule in what they called collateral cases. 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, would not deter police misconduct, so why bother. it doesn't apply in grand jury proceedings. tax procedures. parole revocation, and 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. there are 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 it wasn't okay under the fourth amendment the court said the police were acting in good faith. it was somebody -- somebody else's mistake. somebody else's mistake in the judicial branch unconnected with police or somebody else's mistake in the legislative branch not connected to the

police. that's important because the police were acting in good faith. the purpose of the rule according to the court is to police misconduct, and you can't exclude the evidence because it won't achieve that result. so they laid a different foundation for the rule and were able to carve out of the exceptions to limit the applicability. what about the roberts court? i gave you a teaser with my comment about alito and roberts. there were two important cases. i mention them to bring us up to speed with the exclusionary rule and also to end with comments about where i think we go from here. hudson versus michigan dealt with knock and announce where police knock for a period of time before entering into a room. what's important with the decision, though it was a smaller part of the decision, is justice scalia's comments that he thought it was pretty much time to re-evaluate the exclusionary rule. and one of the reasons he said we should re-evaluate it is

because the need no longer was needed because the police were asking professionally. he also suggested there were other remedies you could use if people had their evidence seized from an illegal search. criminals could sue the police, or maybe the police can police themselves. and these have been remedies that folks have always talked about. there is proof which shows this can be effective in certain instances. but it was scalia's direct attack on the exclusionary rule that bears note. herring versus united states in 2009 was written by justice roberts himself. this case was interesting. 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. in this case chief justice john roberts said the police officer that actually 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 the arrest didn't know about it, acted in good faith. so that's a significant evolution because you are expanding the number of good faith exceptions but 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 roberts said, this is for the first time, that police mistakes have to be systematic error or reckless disregard of constitutional requirements and not mere negligence.

so he is essentially asserting if it's just mere negligence than the evidence should be admitted to trial. so i would suggest the roberts court, even more so than the court in -- under burger 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 is 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. that'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 quite fascinating, would actually make thomas 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. the argument in favor of the criminal due process revolution in the first place that you wanted the states on the same page. you didn't want a patchwork of laws governing how people should be treated constitutionally. what's interesting is because of the new judicial federalism and increasing conservativism of the supreme court you have state courts now looking at their constitutions and hopefully carving a pathway for greater protection under their own constitution. in 2005, 16 states allowed for the exclusion of evidence despite that evidence being attained by a mistake that would have been ex clcluded under the good faith exception. so you see a fascinating thing happening at state level, which is a good development for people who like the fourth amendment but it's a difficult challenge because you might have the inconsistency in the administration of justice which is not a good thing.

let me end by saying this. 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 pr changed the way police did their business but also in launching a criminal due process revolution. and the implications of the landmark decision are going to be felt for decades to come. so i understand you're a smart group. you're looking forward to your questions. >> carolyn, everyone said they were going to be great and they were right. if you have a question, come to the microphone over here. we have time for about three or four. now there's a big national as well as international focus on the apprehension of terrorists,

has 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 involve the possible exclusion of the evidence. i don't know. i actually -- and i'm embarrassed to say this, there was a case in oregon involving several terrorists. there were some particular suppressed motions in that case. i don't recall if they're a success. i can't answer it conclusively. the high profile cases, and there's a whole list of them. in those high profile cases, there's a tendency for judges to find ways around the exclusionary rule. indeed, some of the exceptions are because they were hard cases. and you found a judge who was reluctant to imply the rule and

let a criminal go free. i suggest if there were that potential thescenario that coul happen. i couldn't tell you conclusive. i'll get back to you. i'll look it up. i hate not knowing the answer. >> of course, it was decided before the invent of cell phone. how are we protected from conversations on cell phones and things we tweet and put on the internet. >> you're not protected. it's funny -- actually, it's not. the fourth amendment doesn't provide a great deal of protection. we're hearing a lot about the fourth amendment in the news these days. we're hearing about activities that the federal government is engaged in in terms of collecting data. and so what we're hering and it's regrettable we're hearing about it rather than knowing about it. there are reasons for that. is that some of what the government is doing is constitutional. so, for instance, they can keep track of numbers that people ca call. there's a supreme court case

about it. it doesn't violate the rule of amendment. there's the federal intention surveillance act it allows a certain amount of surveillance, including domestic surveillance if it's linked toward international terrorism. so i don't have any of the 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 the statutory protections we have have really been, i think, limited by the decisions of the court. and one example is that the fisa court has heard thousands of cases where people were asked for warrants in order to engage in furthinvestigations of indivs suspected of having ties to individuals. to me, even though i don't know all the cases, it doesn't show there's been firm enforcement of the fourth amendment. at the level.

>> does this thing going on in new york city the stop and frisk come into this at all? >> can i come back for another night? [ laughter ] stop and frisk is a great fourth amendment issue. it's interesting i'll talk about a little bit longer to answer your question. terri v. ohio which was the case where the supreme court said that police would be able to stop somebody summited of committing a crime and doing a limited pat down. the stop and frisk. of course, that was constitutional. and some would argue, and i think they're right, that the reason why the court allowed this is because the political backlash it's involved to something completely different. so now even if you were stopped

for a traffic offense, you can be stopped and frisked by law enforcement and that's considered constitutional. even if you were a passenger in a car that has been stopped by law enforcement, you can be frisked by law enforcement. so it shows you how much that original ruling has changed throughout the years. and what is interesting is original ruling in terry v. ohio you stop and frisk someone because of officer safety. it makes complete sense. you don't want to stop somebody and have them injure you when you're trying to protect public peace. . it somebody is being frisked and they're a passenger in a car, it's a little bit more difficult to make the argument. there has 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. the idea of the rationale has gone away and the court

continues to expand the numbers or the opportunities in which it will allow law enforcement to this. i don't see it changing. i really don't. because you have so many precedents now, which allow it. so we talk about death of 100 cuts. did i answer your question? >> become our neighbors 38 miles up the river eleven worth on our penny. i hope he becomes a cell mate of chelsea -- [ inaudible ] is this country possibly super, super, super -- [ inaudible ] today? [ laughter ] >> so the question is are we super, super, super over

lawyered today? actually people suggest that we have something the disease called hyperlexia. we have too many lawyers. per capita we 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're producing fewer lawyers today. [ laughter ] yeah. and they're 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 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. [ laughter ] [ applause ] >> thanks, carolyn. thank you for being here. she'll be signing copies out there. we'll see you next time!

american history tv in prime time continues tonight on c-span3 with our original series landmark cases. at 8:00 p.m. eastern, we'll look at baker v. 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 v. carr tonight on c-span3. 8:00 p.m. eastern.

a civil war special featuring american history tv highlights. on monday, we're at the emerging civil war blog symposium. where we look at the great defenses of the civil war. including gettysburg and the siege of vicks burg. tuesday we focus on civil war leadership at the longwood university civil war seminar with talks on generals robert e. lee, ulysses s grant. on friday we conclude the conference with t.j. styles. american history tv civil war special all next week beginning at 8:00 p.m. eastern on c-span3.

american history tv continue ours look at supreme court cases regarding the rights of criminal defendants. in the 1963 case gideon v. wane wright the states are to provide defense lawyers to criminal defendants who cannot afford to hire their own attorney. up next a discussion on the case from the supreme court historical society and the supreme court alumni association. delighted to welcome you to the interesting program we're having tonight. before we get too far into it, however, i must ask everybody to be sure your cell phones, tablets, whatever you are totally off. because otherwise it