First Among Equals (25 page)
As with affirmative action, the Court has left unanswered questions. New cases will provide occasions for the Court to take up these questions—if it chooses to accept the cases in the first place. This Court tends to move incrementally, making no bold strokes but proceeding cautiously. By doing so, it is able to further elaborate principles—with more time for lawyerly reflection—than it has previously announced.
For now, the Court is only slightly less wary of the use of race in redistricting as it is in affirmative action. It recognizes the demographic reality of race when districts are mapped. There are communities made up mainly of persons of one race or ethnic background. But the Court clearly urges caution in drawing new districts. It is acceptable to craft a plan aimed at improving the chances that a minority might be elected. But a plan deemed extreme when measured against traditional redistricting principles is unlikely to pass muster. Only more moderately drawn plans are going to survive. That became clear, finally, in the spring of 2001 when the Court at long last approved, albeit by a divided vote, a much more moderate plan for North Carolina's Twelfth District. The new Twelfth District, which continues to be represented by Congressman Watt, was more compact than its predecessor plans. Although the new district was more moderate, and thus represented a step in the direction of more traditional line-drawing, the vision of Ruth Shaw and Mel Shimm— restoring a genuine sense of community based on traditional criteria for the sensitive process of drawing political boundaries—was never achieved.
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OURT BROUGHT ABOUT
a revolution in what is known as “criminal procedure.” The term refers in part to the policies that govern police and other law-enforcement officials as they investigate crimes. The Court began this revolution in 1961 in
Mapp v. Ohio,
which extended the Fourth Amendment exclusionary rule to the states. Five years later, the Court handed down
Miranda v. Arizona,
requiring law-enforcement officials to provide warnings to individuals taken into custody.
There were other important criminal procedure cases decided by the Warren Court during the 1960s, but none were as controversial as
Mapp and Miranda.
Both decisions provoked vigorous dissenting opinions, academic criticism, and editorial applause. Both required immediate adjustments on the part of police.
Mapp
meant that fully half the states had to change their law-enforcement policies.
Miranda
meant that all the states did.
Miranda,
as one supporter of the decision has observed, “galvanized opposition to the Warren Court into a potent political force.” In the 1968 presidential campaign, Richard Nixon sought to ride this opposition into the White House. Nixon criticized the Court and promised to use his appointment power to change it. His ideal justice would not be a “super-legislator with a free hand to impose … social and political view-points upon the American people,” but “a strict constructionist” who saw his “duty as interpreting and not making law.” Against a backdrop of rising crime rates, Nixon emphasized that his kind of justice would “strengthen the peace forces against the criminal forces of the land,” would appreciate the basic tenets of “law and order,” and would be “thoroughly experienced and versed in the criminal laws of the country”—as some others, then sitting on the Supreme Court, by implication were not.
Implicit in Nixon's agenda was the creation of a new Court that would not extend the revolution in criminal procedure and might even roll it back. Among his four appointees were two unstinting critics of
Mapp
and
Miranda:
Chief Justice Warren E. Burger and Associate Justice William H. Rehnquist. Burger wanted to overrule
Mapp
during his seventeen years on the Court but could never summon the necessary votes. Rehnquist, many years later as the chief justice, not only declined an opportunity to overrule
Miranda
but actually wrote the Court's opinion reaffirming its viability.
Mapp
and
Miranda
are here to stay. They have survived. In understanding the Court, the question is how, seemingly against the odds, they survived, and why. We examine
Mapp
in this chapter and then, in the following chapter, turn to the remarkable saga of Ernesto Miranda and the case that bears his name.
Mapp
was a case about the Fourth Amendment, which secures the freedom from “unreasonable searches and seizures.” In particular,
Mapp
was a case about whether this Fourth Amendment right requires the states to adopt the “exclusionary rule,” a rule that excludes from admission as evidence items (say guns or drugs) seized illegally by law enforcement.
There is nothing in the Constitution that establishes this rule. It is entirely the product of judges. Early in the last century, the Supreme Court fashioned a rule of evidence— not of constitutional law—that would apply in federal courts only. Under that rule, evidence seized in the course of an unlawful search or seizure (arrest) could not be used in federal court proceedings.
Not surprisingly, resourceful defense lawyers began urging adoption of the rule in state proceedings. The issue languished for years, but in the 1949 case of
Wolf v. Colorado,
the Court rebuffed the effort to extend the rule to the states. Shortly before Earl Warren's arrival, the Court, in its view, was powerless to impose a
federal
rule of evidence on
state
courts. In its
Wolf
decision, the Court recognized a basic principle of federalism and federal judicial power. Federal courts could set their own procedural rules. Those rules would apply in federal courts, but would not be binding on state courts. State court systems thus enjoyed not only their own power but an autonomy not subject to direct control by the federal courts. Thus, the power of the Supreme Court over state courts was limited, reaching
constitutional
but not other matters. So long as they respected basic principles of fairness (due process), state courts were free to order their proceedings as they saw fit. If states wanted an exclusionary rule, they could adopt one legislatively (or through the state supreme courts); indeed, when
Mapp
was decided, half the states had enacted one version or another of the rule. It was not, however, the business of the Supreme Court to impose this or any other procedural rule upon the states.
So matters had stood for decades. Year after year passed with the one rule of evidence governing the federal courts while in many states less stringent rules applied. This was deliberate on the part of the Court. The renowned Benjamin Cardozo made this point emphatically as a judge on New York's highest court. To Judge Cardozo, whom President Hoover appointed to the Supreme Court in 1932, the exclusionary rule made no sense. Why, the judge asked rhetorically, should the criminal go free because the constable blundered? The social cost was too high. Other remedies, such as fines imposed by police-review boards, would be better suited to protecting individual liberties without punishing society.
This was the oddity of the exclusionary rule's operation: It protected only the guilty. It did nothing for an innocent victim of an illegal search. Only if, say, the person subject to a police search was carrying drugs (or some other evidence of criminal activity) would the exclusionary rule be of any help. If, on the other hand, the person subjected to an illegal search (one without probable cause or one, even if probable cause existed, in which there was no justification for dispensing with a search warrant) had nothing pointing to criminal conduct, then no “remedy” was triggered.
But the rule, with its heavy incentive for law enforcement to conduct itself properly, did have the practical effect of enhancing professionalism in federal law enforcement. Thus, FBI agents and other law-enforcement personnel took pains to learn how to conduct themselves in accordance with the rule.
The challenges facing state and local law-enforcement officials, in contrast, were often more formidable. In the gritty world of street crime, snap judgments had to be made by the cop on the beat. Did probable cause exist? The officer needed it to make an arrest or to conduct a search. If probable cause did exist, another question arose: Was there justification for dispensing with a warrant and making a warrantless arrest and then a search (all without the involvement of a detached, neutral judicial officer)? Quite apart from philosophical issues of federal judicial power over the states, the practical effect of imposing the exclusionary rule on all state and local law-enforcement agencies would be enormous. Motions to suppress evidence would become the order of the day in state courts where most criminal cases were tried, for the simple reason that most crimes were state, not federal, offenses.
The Warren Court, however, decided that the states, too, must embrace the exclusionary rule. It did so in a case that started out as a pornography prosecution in state court in Ohio. In Cleveland, police searched the home of Dolly Mapp. They were looking for a fugitive wanted in a bombing. They were acting on a tip that Mapp might be hiding the fugitive. They said they had a warrant but never produced it. The police didn't find their suspect. But they discovered in a trunk allegedly obscene publications. Mapp was convicted under a state law outlawing possession of such materials. She appealed, arguing that the Ohio anti-pornography law was “unconstitutionally vague.” She lost in the state supreme court but then took her case to the U.S. Supreme Court. In oral argument in the case, with Dolly Mapp's lawyer in a rather unfocused presentation pushing for exclusion of the evidence admitted at his client's trial, Justice Felix Frankfurter leaned into the microphone and challenged Mapp's lawyer: “Well, Counsel, are you asking us to overrule
Wolf v. Colorado?”
Mapp's lawyer seemed blissfully unaware of the Court's earlier holding (in 1949) rejecting the exclusionary rule's application to the states. Unabashed, the lawyer replied simply: “Well, Your Honor, if it goes against my client, then you should overrule it.”
The Warren Court did exactly that in 1961. A five-justice majority, over vehement dissents (including Justice Frankfurter's), reached out to raise and then resolve the Fourth Amendment exclusionary-rule issue even though it had not been raised by the parties and thus had not been briefed on the merits. Not only did the Court inject into the case an issue that Dolly Mapp and her lawyer had not seen fit to raise, but the Court overruled
Wolf v. Colorado.
The
Wolf
decision had been on the books since 1949. But that didn't matter. The Warren Court did as it wished. It had the raw power to impose the exclusionary rule upon the states, and the Court was prepared to use this power in order to reform the criminal-justice system.
This somewhat forced birth gave the exclusionary rule, as applied to the states, a shaky parentage. Even so, the rule remained year after year as part of American constitutional law. Editorial pages and civil libertarians hailed it as a good thing because it constrained police. For its part, law enforcement complained that the rule carried an un-acceptably high cost. Courts spent much time and attention on motions to suppress the evidence. These motions determined whether the case would die at the outset for lack of evidence or end in a guilty plea when the motion to suppress failed.
Law enforcement bridled at the spectacle of guilty defendants going free due to a legal technicality. And critics of law enforcement said that officers compensated by bending their sworn testimony to conform with the rule's strictures. For example, so-called dropsy cases abounded in narcotics prosecutions. An arresting officer would testify that the suspect threw away the “dropped” contraband and began to run from police, whereupon he was able to catch up to and capture the fleeing suspect. In these cases, the throwaway made the officer's “seizure”—the Fourth Amendment event—perfectly legal, since the suspect could be said to have abandoned any interest in the drugs.
For more than one reason,
Mapp
wasn't good for law enforcement.
Miranda,
handed down five years later in 1966, only compounded the problems for peace officers. Soon after his election in 1968, having campaigned against the Court's criminal procedure decisions, President Nixon replaced the retiring Earl Warren with Warren Burger, who had given every indication that he would be the kind of judge the new president wanted. A judge on the U.S. Court of Appeals for the District of Columbia Circuit, Burger had been a strong defender of judicial restraint. In dissent after dissent, Judge Burger, who had served as head of the Justice Department's Civil Division under President Eisenhower, railed against opinions flowing from an appellate court dominated by liberal judges such as J. Skelly Wright, a genuine hero from his days as a district judge presiding over New Orleans desegregation issues.
Early on, the new chief justice demonstrated his opposition to
Mapp
and indeed to the entire approach to judging that had produced
Mapp, Miranda,
and the rest. In
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
(1971), a case whose name was destined to strike terror in the hearts of law-enforcement officers, Burger set out the most comprehensive, searching critique of
Mapp
in the entire body of judicial literature. The case before the Court was a hard one. Bivens was an innocent man. But he had been subjected to grossly invasive indignities at the hands of overzealous federal law-enforcement officers. Because he was entirely guiltless, Bivens had no remedy. The exclusionary rule offered no succor, since the misguided federal agents who got the wrong man had, naturally, found no incriminating evidence. And, as we have seen, the exclusionary rule helps only the guilty. Why, then, not sue for damages, for the “tort” (or crime) of violating the individual's privacy interests? Bivens did exactly that, but not under a federal statute. Rather, he invoked the Constitution. Bivens used the Constitution because Congress had not created a remedy for his sort of injury as it had for other kinds of federally caused injuries. For example, if the attorney general's security car injures a visitor otherwise enjoying a trip to the nation's capital, the victim has a remedy for compensatory damages under a duly enacted law, the Federal Tort Claims Act.
