Last year, Edwin Meese, the reigning attorney general, railed against many of the reforms the Supreme Court initiated
under Earl Warren (1953-69). In doing so, Meese attacked the Warren Court's overturning of state arrogance concerning
the Bill of Rights in general, and against its (sic) "infamous" Mapp and Miranda decisions in particular.
In this article, I wish to explain these decisions and their reasonings and to defend them from Meese's demagogic casuistries.
By 1953, the United States had been an urban nations for three decades, yet "small town" minds still held the inertia
on the Supreme Court. This inertia consisted of a general reluctance to come to the aid of the individual when the state
trampled upon his rights. Part of the controversy over this reluctance involved the "incorporation" issue, or just what
the rights of the individual versus the states were.
The rights of the individual versus the federal government exist in the Bill of Rights. When Meese referred to
what the founding fathers meant in the Constitution, he regressed to an agricultural nation with little local government and
an invisible federal government. Until the Fourteenth Amendment was passed in 1868, in which "no state shall deny life,
liberty or property without due process of law", the Bill of Rights only applied against the federal government.
Until the Supreme Court could incorporate the rights of the individual through this amendment against the states, the
rights of the individual depended upon the state supreme courts' interpretations of the state constitutions. Meese forgot
that there are minority rights, hardly subject to the fickle majority, yet he still spewed out nonsense about allowing the
states and their majorities to violate these rights. The founding
fathers knew the specter of mob rule, so they made the terms on the federal judiciary for life. Also, the Supreme
Court writes decisions on the college level and uses some kind of argumentative process , which excludes the vast majority
of the public from understanding, left along reading the decisions. Furthermore, Joh Marshall established federal supremacy
as a founding father, and no Supreme Court has ever denied it, yet Meese had the audacity to cite Felix Frankfurter as a states'
right advocate. Frankfurter's position allowed the states to experiment with civil rights -- but whenever the states
violated standards of decency, he overruled the state. In Rochin vs CA (1952), Frankfurter wrote the opinion
throwing our as evidence morphine capsules pumuped out of the defendants stomach; he had swallowed them when the police broke
into his bedroom at 6 AM!
When Warren became the second greatest chief justice (after John Marshall) in 1953, only the First Amendment with
its case interpretations (the gloss) applied against the states. Here is the background leading to Mapp vs OH
In 1886, under Boyd vs US, the Supreme Court disallowed a subpoena requiring a businessman to provide self-incrinimating
evidence in court. In Weeks vs US(1914), the Court threw out illegally-seized evidence obtained when a federal
marshall forceably searched the defendant's premises without a warrant. The reason for this remedy, developed from Boyd,
was that the Fourth and Fifith Amendment "almost run into each other". Whereas a defendant may not testify against himself
in court, neither should he do so with illegally-seized evidence. Because the Fourth states in absolute terms: "The
rights of the people to be secure in their persons, homes, papers, and effects against unreasonable searches and seizures
shall not be violate...", the Court went further in 1920. Oliver Wendall Holmes prolcaimed in Silverthorn lumber
Co vs US, that the exclusionary rule is absolute. Therefore, illegally-seized evidence "shall not be used at
all". Meese has complained that the exclusionary rule burdens the police, yet notice that the Federal Bureau of Investigation,
the most efficient police force in the nation, came into exisitence in 1924, subject to this rule.
By 1953, there were two schools of thought on the Supreme Court: absorptionists and iincorporationists. Frankfurter
and Robert Jackson, the absorptionists, wanted to use a case-by-case anaysis of state criminal questions to absorb fundamental
individual rights against the states through the due process clasue of the Fourteenth. Hugo Black and William O Douglas,
the incorporationists, wanted to apply the entire Bill of Rights against the states through the due process clause of the
Fourteenth. Thus, neither supported the Meese position to leave the states alone! Earl Warren considered both
positions until 1955 when he drifted toward incorporation. By this time, John Marshall Harlan (the second one) had replaced
Jackson's seat and position with Frankfurter. In 1956, my favorite justice, William J Brennan, joined the Surpeme Court,
and a four-justice incorporation team recoalesced. (In 1949, Black, Douglas, Frank Murphy, and WIley Rutledge were the
incorporationists, but the last two died prematurely.)
Also in 1956, the Warren Court began its move toward Mapp. Using federal procedural rules,
Frankfurter was in the majority in Rea vs US, which threw out evidence that a federal office illegally seized and used
in state courts. Afterwards, a fifth vote became elusive. In Elkins vs US (1959), the newest justice, Potter
Stewart, joined BBD&W in throwing out of federal courts (the McNabb rule) evidence which state officers had illegally
seized. State police could no longer use the Silver Platter doctrine to hand over illegal evidence to federal courts.
Then the Warren Cout met the incorporation issue directly. Someone had tipped the Cleveland ploice that Dollree
Mapp was harboring a fugitive and pornography in her home. Mapp's counselor telephonically advised he not to let the
officers in without a warrant. Hours later, these same officers returned with three more and a blank paper. They
broke in and searched the entire house. When Mapp demanded a warrant, one of the officers threw the paper at Mapp, who
tired to slip in into her dress. The officers then assulted and manacled her, dragging her to the bedroom and repossessing
the "warrant". After an hour's search, the porkers found "pornography" in the basement.
As it stood then, and should now, there were only three ways the police could initiate a search: with a valid warrant,
exigency, or consent. There was no warrant, and certainly no emergency nor consent. The Ohio Supreme Court let
the conviction stand! Such crooked cop coddling in the heartland of America remained unpunished!
Warren assigned the opinion to Tom Clark. With Stewart, BBD&W had six votes for overturning conviction on First
Considerations -- Ohio's pornography laws were too vague.
(If you really want to figure out what went on in this case, check Irvine vs CA (1954), in which both Earl Warren
and Tom Clark coddled crooked cops in the ineffective note that federal prosecutors would punish state police for violating
federal law. Clark very reluctantly supported the decision. Afterwards, he doubted the wisdom of it, opting to
put the exclusionary rule against the states, as the Court did NOT do in Wolf vs CO (1949)).
With incorporation influence, Clark decided to use the Fourth as his basis for the decision, and Stewart deserted us
for concurrence via the First. (Stewart had originally the opinion, in which he was going to strike down the law.)
Clark soon had Douglas , Warren, and Brennan for incorporation. Black had trouble with the exclusionary rule, yet he
concurred in total incorporation. It was that close.
In Mapp, the exclusionary rule as part and parcel of the Fourth applied against the states through the Fourteenth.
Other remedies -- civil suits and public outrage -- had failed to uphold the right. In essence, the poor and the unpopular
needed exclusion , an easy and effective remedy to Fourth violations. Exclusion replaced the civil suit because
it placed both parties back to their original position before the violation. Obviously, had the police not conducted
the search, they would not have seized the evidence. Because such evidence is lost forever, exclusion deterred opolice
misconduct. Finally, judicial integrity demanded exclusion for two reasons -- the state judges could now enforce the
same standard as the federal judges, and if one judge did not allow the search through a warrant, another judge did not allow
the fruits of that search into court. So it was until 1971. (Here I'd add that the police could now know what
constituted a legal search, and the penalty for a violation in any court.)
In 1953, the problem of self-incrimination had led to a "voluntariness test", a arbitrary examination of the circumstances
of a confession. Under this test, no one knew either the standards of voluntariness nor when the adversary process began.
Many times the police would short circuit their job of gathering evidence in the field by tricking the suspect into confessing
to the crime. Once again, the poor and ignorant lost out under this system.
With Stewart, the fab four commence to assault this arbitrariness, first by limiting interrogation time , then by Spano
vs NY (1959). Here the cops interrogated the suspect for eight continuous hours after he surrendered, until he led
them to the murder weapon. The neighborhood bully had picked a fight with the defendant, resulting in severe head injury.
Spano returned to the bar and blew the bully away in front of witnesses, yet the cops still needed a confession and the
gun to prove third-degree murder!
The Court divided in its opinion. Warren abhorred the false friend who had induced the confession. Douglas
concurred the entire interrogation illegal due to the defendant's head injury. Stewart, who wrote the opinion,
deplored the confession because the interrogation had occurred after indictment and without a lawyer.
The same five plus Arthur Goldberg established Stewart's principle in Messiah vs US (1963). Coming right
after Gideon vs Wainwright (1963) incorporated the right of counsel to indigents in a felony trial, Messiah
required the suspect have a lawyer during questioning because the adversry process -- when the police suspect a person of
a crime -- definitely begins after indictment.
We lost Stewart but pushed the porcess further forward in Escobedo vs IL (1964). After Malloy vs Hogan
incorporated the right again self-incrimination (against the states), Escobedo placed the right to counsel to portect
the Fifth rights at post-arrest interrogation.
Abe Fortas replaced Goldberg in both seat and vote in 1965 to give us the next decision. Ernesto Miranda robbed
and raped several women. Holding Miranda incommunicado for several hours elicited a "voluntary" confession from the
mental patient. At last, Warren had the case to overthrow the voluntariness test and the confession. Miranda susequently
went to jail for six years through legal evidence. Using the FBI's procedure in Miranda vs AZ (1966), Warren
throughly explained the standards for a fairly obtained voluntary confession. Here are the four famous warnings:
1) "You have the right to remain silent." Police could no longer elicit confessions by implying silence means
2) "Anything you say can and will be used against you in a court of law." The penalty for waiving the right
is clear. It also reminds those knowing their rights to keep quiet.
3) "You have the right to consult with an attorney." A lawyer balances the adversity process during interrogation,
established in Messiah and confirmed in Escobedo.
4) "If you cannot afford an attorney, the state will provide one for you." Through Gideon, both Fifth
and Sixth rights of indigents stand out.
Miranda threw the adversary process back to arrest. Warren hinted this process actually begins ":when a
reasonable person knows he cannot leave the interrogation" (quasi-arrest). Orozco vs TX (1968) confirmed this
when the Court threw out both the confession and the murder weapon as a fruit of the confession, when police questioned the
defendant in his bedroom at 4 AM, but had not yet arrested him.