The Magazine

End of a Supreme Court Blunder?

The exclusionary rule hangs on by one vote.

Aug 21, 2006, Vol. 11, No. 46 • By WILLIAM TUCKER
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In June, the Supreme Court decided that Detroit police did not violate the Fourth Amendment rights of a drug dealer named Booker Hudson when they entered his home in August 1998 only five seconds after announcing their presence at his door. Hudson's lawyers argued that--although he had a loaded gun hidden in the couch next to him--police should have waited to enter for at least 20 seconds after knocking. The four dissenting justices in Hudson v. Michigan complained that the decision repealed a "knock and announce" rule that has been part of common law since the 13th century. Newspapers around the country echoed their lament.

Justice Scalia, writing the majority opinion, took aim at a rule of more recent vintage--the "exclusionary rule," enshrined by the Supreme Court only a generation ago, which holds that evidence must be excluded from trial if it has been obtained improperly. Dismissing key evidence on such a minor point as the number of seconds police wait at the door is the equivalent of giving the defendant a "get-out-of-jail-free card," wrote Scalia. The suppression of evidence should be "our last resort, not our first impulse."

Unfortunately, Justice Anthony Kennedy, who otherwise sided with the majority, did not endorse Scalia's rejection of the exclusionary rule. In a separate opinion, Kennedy called this rule "settled" and "not in doubt," but held that in this particular case the police did not overstep. Scalia's frontal assault on the exclusionary rule, though, now has the support of four justices. Before long, this judge-invented rule that redefined American law enforcement over the past half-century may reach the end of its long run.

Its origins were certainly humble. On May 23, 1957, three Cleveland police officers came to the door of Dollree Mapp, who was suspected of harboring a suspect in a bombing case. (The bomb had gone off on the front porch of Don King's house--a warning to the future boxing promoter from rivals in the numbers racket.) Mapp called her lawyer, who told her not to allow the police to enter without a warrant.

The officers departed. Three hours later they returned with reinforcements, waving a piece of paper in front of her face and saying it was a warrant (whether it was remains in dispute). Mapp grabbed the paper and stuffed it in her dress. The police wrestled it back and put her in handcuffs. Her lawyer arrived but was not allowed to speak to her or enter the house. For the next few hours, police ransacked Mapp's home but didn't find their fugitive. In the basement, however, they did discover a suitcase that Mapp said belonged to a former tenant. Inside were four pamphlets, a couple of photographs, and a pencil doodling alleged to be obscene. Mapp was convicted of possession of pornographic material and sentenced to two to seven years in prison.

When Dollree Mapp's case came before the Supreme Court in 1961, search and seizure was not even the issue. Her conviction was appealed as a challenge to Ohio's strict pornography laws, and that was the subject of oral arguments. But President Kennedy had just elevated his secretary of labor Arthur Goldberg to the bench to replace Felix Frankfurter, and for the first time the liberal faction led by Chief Justice Earl Warren had a majority. Without any preliminaries, the new majority seized on Mapp v. Ohio as an opportunity to do something it had contemplated a long time--extend the federal exclusionary rule on search and seizure to state criminal cases.

The Fourth Amendment to the Constitution reads as follows:

The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Until the 20th century, however, the Bill of Rights was interpreted as applying only to the federal government, not the states. This limited the scope of the Fourth Amendment, since most criminal investigations are conducted at the state and local level.