On the Admissibility of Evidence in Court

When the police knock on your door and demand entry, we expect them to have a search warrant from a judge before we let them in. Nobody wants their home searched by unknown people and them going through their personal stuff. However, there were times when police and courts did not care that much about respecting a person’s privacy when they were investigating a crime. Many cases were brought to the Supreme Court of the United States dealing with the issue under which circumstances police are allowed to infringe a person’s privacy and when this is not allowed unless a warrant issued by a judge is present.

Mapp v. Ohio, 367 U.S. 643 (1961)

Cleveland police were told by an informant that a wanted person was hiding in the home of Dollree Mapp and that she owned equipment used in illegal gambling. On May 23, 1957, three Cleveland policemen went to her home and demanded entry. Mapp insisted that they had to have a search warrant before she would let them in. A few hours later, more police arrived, they knocked again, then forced the door open and entered. Mapp’s attorney had arrived by then but the policemen, already inside the house, would not let him come in or talk to his client. Mapp again asked to see the search warrant and an officer held up a piece of paper he said was a warrant. Mapp grabbed the paper, put it inside her dress, and refused to give it back. The officers grabbed and handcuffed Mapp for resisting them. Mapp said that they twisted her hand until she yelled with pain.

Terry Mapp, the appellant (Source: Cleveland Law Library)

Police then decided to search the entire house. They looked through photo albums and personal papers as well. In the course of the search, they found books, pictures, and photographs that they decided were obscene and Mapp was arrested. In court, Mapp claimed that most of the articles had been stored in the basement by a former boarder. Under the Ohio law, however, possession was still a crime. Mapp was found guilty and give a sentence of up to 7 years.

Mapp appealed the conviction on several different issues. Her plea to the Ohio Supreme Court was based mainly on the First Amendment – she considered the Ohio statue on obscene literature unconstitutional. The Court left the statute in place but acknowledged that the conviction was based on material „unlawfully seized during an unlawful search of the defendant’s home.“ Nevertheless, such evidence was admissible in a state case, the Ohio Court held. This opinion followed a decision by the SCOTUS in Wolf v. Colorado, 338 U.S. 25 (1949), which said that the exclusionary rule against illegal evidence was not absolutely required in state cases. The Court had referred to that ruling in other cases since 1949, among them even some in which searches had clearly been unreasonable and unfair.

Her following appeal to the SCOTUS raised questions about the First, Fourth, Fifth and Fourteenth Amendments. The justices, however, focused mainly on the Fourth Amendment question of using illegally obtained evidence. The Court reversed the Ohio court’s ruling by a 6-3 majority and revised its 1949 ruling in Wolf. What changed the justices‘ opinions about the exclusionary rule? There was a general feeling that law enforcement officials were going too far in violating citizens‘ constitutional rights in many places. One state court referred to „police lawlessness“.

Lewis Katz, a law professor at Case Western Reserve University in Cleveland, would later write: “The illegal entry of Mapp’s house by the police was nothing extraordinary; it was an everyday fact of life for blacks and other racial minorities. Police throughout America were part of the machinery of keeping blacks ‘in their place,’ ignoring constitutional guarantees against unreasonable arrests and searches and those that barred the use of ‘third-degree’ tactics when questioning suspects.”

Justice Clark explained: “We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court. Moreover, our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense.”

Katz v. United States, 389 U.S. 347 (1967)

Charles Katz, a suspected gambler, used a public phone booth in Los Angeles to place bets in Boston and Miami. This violated a federal statute. The FBI began wiretapping Katz using a listening and recording device on the outside of the booth to intercept his conversations. With this evidence, a grand jury indicted Katz on eight counts of transmitting wagers by telephone. At his trial, Katz objected that this evidence was not admissible as a public phone booth was constitutionally protected by the Fourth Amendment limits on search and seizure without a warrant.

A phone booth as used by Mr. Katz (Source: MEdwords, Wikimedia Commons)

The government argued that the agents had not entered the booth and the listening device was not inside the box. Using the Supreme Court’s ruling in Olmstead v. United States, 277 U.S. 438 (1928), the government maintained that nothing tangible had been seized. Despite his objections, Katz was convicted, and the United States Court of Appeals for the Ninth Circuit confirmed the ruling after he appealed to it.

He then appealed to the SCOTUS. The issue before the court: Does electronic surveillance of a public phone booth constitute a violation of the defendant’s Fourth Amendment protection from unreasonable search and seizure?

By a 7-1 majority (Justice Marshall did not participate) the court reversed the ruling of the lower courts. The court stated that the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his office or own home, is not subject of Fourth Amendment protection. But what he seeks to preserve as private, also in an area accessible, to the public, may be constitutionally protected. One who occupies a phone booth, shuts the door behind him, and pays the toll that permits him to place a call, is surely entitled to assume that the words he utters into the mouthpiece will not be broadcasted to the world.

The government argued that its agents had relied on the Olmstead decision and had acted with restraint, only listening to Katz’s conversation and never entered the booth. In fact, the court said: a judge probably would have issued a warrant for such a search. Nevertheless, the search was unlawful, and the court was not ready to accept „after-the-event justification“ for electronic surveillance. As the government agents had not gotten a warrant, evidence from the electronic surveillance could not be used to convict Katz and the lower courts‘ rulings were reversed. This case brought up the question of government wiretapping in other cases, especially those allegedly involving national security.

Justice White felt that the President and Attorney General ought to be able to authorize wiretapping without a warrant because the Fourth Amendment protected „spies and saboteurs“ just as much as it did gamblers. Since technology advanced, the possibilities of recording and listening expanded as well. The decision emphasized the court’s belief that law enforcement officers were obliged to obtain a search warrant except in emergency situations. It also emphasized that the protection of the Fourth Amendment covered an individual’s right to expect privacy.

Terry v. Ohio, 392 U.S. 1 (1968)

On the afternoon of October 31, 1963, Detective Martin McFadden of the Cleveland Police Department noticed two men standing together on the street. What he observed seemed to be suspicious behavior: The two men would talk for a while. Then, one of them would walk down the street, gaze into a store window, walk past and then return to the same spot. In a period of 12 minutes, the two men made a dozen trips back and forth to the same store window. By then, McFadden suspected that the men, later identified as Terry and Chilton, were casing the store – checking it out before robbing it. The officer followed them a short distance until they met the third man and began to talk.

McFadden approached the three and identified himself as a Cleveland police officer. He began to pat down Terry’s outer clothing and felt a gun in an inside overcoat pocket. Afterwards, he had Terry take off his overcoat and took the weapon. Then, he frisked Chilton and found a gun concealed in his coat pocket. He frisked the third man but found nothing. The three men were placed under arrest and taken to jail where Terry and Chilton were charged with possession of concealed weapons.

The attorneys of Terry and Chilton asked the judge to suppress the two revolvers and bullets as evidence, charging that they had been obtained by an unlawful search. The judge denied the motion and further ruled that the officer, for his own safety, had the right to frisk for weapons that could be used against him. Terry and Chilton went to trial for possession of concealed weapons. An appeal was denied at the higher courts. Thus, Terry appealed to the SCOTUS (Chilton had died before).

A vehicle is stopped by New Jersey State Police to conduct a short search (Source: versageek, Wikimedia Commons)

Was it proper to admit the guns as evidence or did their admission violate the defendants’ constitutional rights under the Fourth Amendment, as applied to the states by the Fourteenth Amendment? The Court upheld the decision of the Ohio Courts by an 8-1 majority. The search was reasonable, based on McFadden’s experience and the circumstances. He had limited the search to discover whether the suspects were carrying weapons. And it was necessary for the protection of himself and others to take swift measures. Since then, the search for weapons, if there is a suspicion that an individual is armed and dangerous became famous as the Terry Search or Terry Stop.

What should be more important? The privacy of an individual? Or does the investigation of a crime or national security play a more important role, thereby justifying the violation of an individual’s privacy even though that person might be innocent? A general answer in favor of or against is not the solution. The Supreme Court of the United States proved this by deciding case by case whether a violation of privacy was justifiable or not.

You can contact the author at david.berendes@junge-transatlantiker.de.