Goodbye Dolly: The Slow Death Of The Fourth Amendment

Last week, the U.S. Supreme Court took another swipe at the Fourth Amendment's prohibition against unlawful searches and seizures.  In United States v. Davis, the police conducted an unlawful search of Davis' car after a routine vehicle stop and found a gun.  The Court conceded that under a case it decided after Davis' conviction (Arizona v. Gant), the search violated Davis' Fourth Amendment rights and agreed that Gant retroactively applied to Davis' case.  In what Justice Breyer in dissent referred to as a "fatal twist," however, the majority refused to reverse the conviction.  Instead it applied a "good faith exception" to the exclusionary rule.  Thus, even though the gun was obtained unlawfully, it would not be inadmissible because the police acted in good faith by relying on the law that was in effect at the time.

It has been 50 years since the Supreme Court's landmark decision in Mapp v. Ohio, which applied the Fourth Amendment's prohibition against unlawful search and seizures to the states.  In that case, the Cleveland police forcibly entered the house of Dolly Mapp, allegedly looking for a fugitive, and after searching her house without a warrant found a trunk in the basement containing obscene material.  Dolly Mapp's conviction for possession of this material was overturned by the Supreme Court, which extended the exclusionary rule to state prosecutions.

As the American Constitution Society blog notes, an increasingly conservative Supreme Court has been chipping away at the Fourth Amendment.  ACS cites Alexander Wohl's article in Slate, which contends that the Court is only one conservative vote away from overturning the application of the Fourth Amendment to the states in its entirety.  Yale Kamisar, the leading expert on Mapp and co-author of the casebook, “Modern Criminal Procedure,” agrees.  In a piece commemorating Mapp's 50th Anniversary in The National Law Journal, Kamizar notes that "it is fairly clear that four members of the current Court are quite unhappy with the search-and-seizure exclusionary rule: Chief Justice John Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr.” 

It was not until Mapp and the cases that followed during the heyday of the Warren Court that the Bill of Rights became applicable to the states.  Before then it only applied to federal prosecutions and criminal defendants in state court could not rely on the protections of the Fourth Amendment (right against unreasonable search and seizure), Fifth Amendment (right against self-incrimination) or Sixth Amendment (right to counsel).  Now, instead of Warren, we have Chief Justice Roberts and a court that cares little for individual rights or legal precedent with which they disagree.  As a result, as ACS says, we better celebrate Mapp v. Ohio while we still can.