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Forgotten Legal History: Mapp v. Ohio

October 13, 2021

By Susan Healy

Mapp v. Ohio, 367 U.S. 643 (1961) expanded the exclusionary rule to state criminal cases raising the stakes for warrantless police searches. But long before the case made it to the Supreme Court, it made headlines because of its glamorous defendant, the cast of celebrity supporting players, and the “dirty books” that the police found.

The case began when the Cleveland, Ohio police received a tip about the bombing of a house owned by numbers game operator Donald “The Kid” King. Don King would eventually leave the numbers racket and go on to promote Muhammed Ali’s “Thrilla in Manilla” and “Rumble in the Jungle” fights. Yes, that Don King. The tipster, widely believed to have been King himself, told the police where the bomber was hiding out. It turned out to be Dollree Mapp’s address.

Dollree Mapp was the ex-wife of boxer Jimmy Bivens. Sports Illustrated called Bivens the greatest modern heavyweight to never get a shot at the title. She was also the ex-fiancée of Archie Moore, who got his title fight and became the longest reigning World Light Heavyweight Champion of all time. She frequently appeared on both the society pages and the sports pages of Cleveland newspapers wearing diamonds and furs.

Like Don King, Ms. Mapp moved easily between the worlds of professional boxing and organized crime. She was a confident Black woman who bought a home in a white neighborhood during the 1950s and turned it into a boarding house. Though she vehemently denied it at trial, her house was also the headquarters of one of Cleveland’s most successful illegal gambling operations, the California Gold numbers game.

When the police asked to search her home, Ms. Mapp did what criminal defense lawyers wish all their clients would do – she called her lawyer. He advised her not to let them in without a warrant. Reinforcements were called in to surround the home while a police lieutenant went off to obtain the search warrant. When the lieutenant returned, Mapp’s lawyer told him to let his client read the warrant. The Supreme Court decision describes what happened next. It sounds like a scene from a risqué comedy:

She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the “warrant” and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been “belligerent” [367 U.S. at 644 (italics in original)].

Dollree Mapp told the story better. At her trial she described an all-out farce:

When I grabbed the search warrant off him and put it down my bosom, one of them said, “What are we going to do now?” The one that grabbed me said, “I’m going down after it.” I said, “No, you are not.” He went down any way. (Trial Tr. at 46).

After that, the paper disappeared wasn’t seen again for almost 50 years.

The search turned up four books with quaint titles, like “Memoirs of a Hotel Man” and “Affairs of a Troubadour,” and what the State described as “a hand-pencilled drawing of a very obscene nature.” (Oral Arg. Tr. at 12.) Justice William O. Douglas dismissed it as “a little pencil doodle” in his dissent. (367 U.S. at 668.) Ms. Mapp was charged violating an Ohio statute that made mere possession of “obscene” items unlawful. After her motion to suppress was denied, she was convicted and sentenced to 1-7 years in a women’s reformatory. She was saved from having to serve her sentence by the Supreme Court.

Mapp’s expansion of the exclusionary rule was a controversial decision that seemed to come out of nowhere. The Court had refused to expand the rule to state criminal proceedings just twelve years earlier, in Wolf v. Colorado [338 U.S. 25 (1949)].

In a way, the Mapp decision really did come out of nowhere. The First Amendment challenge to Ohio’s obscenity statute was the centerpiece of the appellate case. It seems the Fourth Amendment issue hadn’t even been raised in the trial court. The motion to suppress was based entirely on state law, claiming only that the evidence “was not procured by a proper search warrant as provided by Section 2905.35 of the Ohio Revised Code.” No federal constitutional violation was alleged.

Mapp’s counsel paid lip service to the Fourth Amendment in his Supreme Court brief, but relied almost exclusively on state court precedent. A confused justice interrupted his oral argument to ask, “May I trouble you to tell us what you deem to be the questions that are open before this Court?” (OA Tr. at 4.) The series of leading questions that followed pulled the exclusionary rule argument out of him. (OA Tr. at 5.)

Justice Potter Stewart described his shock when the majority opinion circulated. At the case conference all nine justices had agreed that Ohio’s obscenity law was unconstitutional. However, the majority opinion that came out of that conference overruled Wolf, which had been mentioned only briefly in a three-sentence paragraph in the ACLU’s amicus brief and had not been discussed at all at the case conference. How and why did an error that apparently was not even preserved at trial create a landmark Supreme Court decision?

That’s just one of the mysteries of this case. What happened to the bombing suspect? Was he hiding in Ms. Mapp’s house? Most commentaries on the case assume that the tip didn’t pan out. But the trial transcript and contemporaneous newspaper accounts show that he was discovered hiding in the basement of the house and was placed under arrest along with Ms. Mapp. The man who had allegedly hired him – Cleveland crime boss Alex (Shondor) Birns – was charged with the bombing. Dollree Mapp met secretly with the Cleveland police and revealed everything she knew, including her own role in the numbers operation. She was supposed to be the prosecution’s “surprise witness” at Birns’s trial, but when she took the stand, it was the prosecution that was surprised. She refused to testify. Birns was acquitted, but fate later caught up with him and he died in a car bombing.

Finally there is the biggest mystery of all: what was the paper that was retrieved from Ms. Mapp’s bosom? At trial, Carl Delau, one of the officers who conducted the search of the Mapp home, testified that the lieutenant had returned with a warrant. (Trial Tr. at 24.) The lieutenant did not testify and the alleged warrant was not introduced into evidence. The Supreme Court echoed the state supreme court’s conclusion that, “There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant’s home.” (367 U.S. at 645.) Ms. Mapp always believed it was a blank piece of paper, but she was wrong. Was the mystery paper a search warrant? The answer is a definite “maybe.”

Priscilla Machado Zotti, a political science professor at the U.S. Naval Academy, wrote the definitive history of the case, “Injustice for All: Mapp v. Ohio and the Fourth Amendment.” She interviewed Carl Delau – the officer who testified about the warrant – for her book. After their last interview, Delau sent her the missing paper, now yellowed with age. It was a search warrant affidavit, made under oath by Lieutenant Tommy White and signed by a judge who found probable cause to issue the warrant. White’s mistake was to skip the final stop at the clerk of court’s office that was needed to convert the affidavit into a formal warrant, as required by Ohio law. Professor Zotti concluded that Lt. White omitted the “crucial last step” in the warrant process. Maybe not.

Professor Zotti has not made the affidavit public, so we can only speculate that it met all the requirements of the Fourth Amendment, which provides that “… 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.” Probable cause determination? Check. Oath or affirmation? Check. Particularized description? We would need to read the affidavit to answer that.

If the affidavit the judge signed met the description requirement, then it satisfied the Fourth Amendment. Failing to obtain a formal warrant from the clerk might have violated Ohio law, but it didn’t violate the Constitution. No Fourth Amendment violation, no basis for the Court’s expansion of the exclusionary rule. If the affidavit had been produced at trial, Mapp v. Ohio might have remained a relatively obscure First Amendment case that struck down an Ohio obscenity statute, as it was always intended to be.

Susan Healy teaches in the Legal Studies Department at Florida Gulf Coast University. She has always been curious about the stories behind famous cases and has turned her obsession into a regular feature in “Experience Matters.” This is the second article in the series.

Source materials for this article:

Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum. L. Rev. 1365, 1394–95 (1983)

Zotti, Pricilla H. Machado, Injustice for All: Mapp v. Ohio and the Fourth Amendment (2005)

Court documents, police records and newspaper articles in the Cleveland Memory Project collection.

The Marshall Project, “Dollree Mapp, 1923-2014: The Rosa Parks of the Fourth Amendment