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Privacy Rights in the Digital Age

Mapp v. Ohio, 367 U.S. 495 (1961)

by Nancy McCormack

A 6–3 decision of the U.S. Supreme Court handed down on June 19, 1961, ruling that, under the Fourteenth Amendment of the U.S. Constitution, evidence obtained from an illegal search is inadmissible in a state court prosecution for a state crime. The majority opinion was written by Justice Tom C. Clark, joined by Chief Justice Earl Warren, and Justices Hugo Black, William O. Douglas, and William Brennan, with separate concurring opinions by Justices Hugo Black, William O. Douglas, and Potter Stewart. Justice John Marshall Harlan, joined by Justices Felix Frankfurter and Charles E. Whittaker, wrote the dissenting opinion.

The Fourteenth Amendment prohibits any state from abridging “the privileges or immunities of citizens of the United States” or depriving “any person of life, liberty, or property, without due process of law.” Before Mapp v. Ohio, the Supreme Court had ruled illegal the use of evidence seized in violation of the federal Constitution in federal prosecutions but permitted that same evidence to be used in state courts. The result, according to Justice Clark, was that “a federal prosecutor may make no use of evidence illegally seized, but a State's attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment.”

This inconsistency had its roots in Weeks v. United States, 232 U.S. 383 (1914), which established the federal “exclusionary rule.” This rule stated that where an individual's papers or possessions had been seized in violation of the Constitution, those materials could not be held and used in evidence against that individual. Otherwise, the Supreme Court noted in Weeks, “the protection of the Fourth Amendment, declaring [an individual's] right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.”

Thirty-five years later, however, the Supreme Court in Wolf v. Colorado, 338 U.S. 25 (1949) decided that the Fourth Amendment's right of privacy is not enforceable against the states through the Due Process Clause of the Fourteenth Amendment. In other words, the Court held that the Fourteenth Amendment does not prevent the admission of evidence obtained by an unreasonable search and seizure in a prosecution in a state court for a state crime.

In light of these two seemingly incongruous decisions, Mapp v. Ohio was decided. On May 23, 1957, the police had arrived at Dollree Mapp's house after hearing that an individual wanted for a bombing was hiding there. Mapp refused to allow them entry and called her attorney, who told her that the police must produce a valid search warrant. The police refused to leave the scene and later smashed a glass in the back door, unlocked it, and entered. A piece of paper that was claimed to be a warrant was produced, but Mapp did not retain it, and it disappeared. The police then searched the house. Although the police did not find the individual they were looking for, they found material that they claimed was obscene. Mapp asserted it was the property of a former tenant; nonetheless, she was charged and convicted of being in possession or control of “obscene, lewd, or lascivious” material “of an indecent or immoral nature” in violation of a criminal provision (§ 2905.34) in the Ohio Revised Code.

In his decision, Justice Clark noted that the Supreme Court in 1949 had been very aware of the “‘contrariety of views of the States’ on the adoption of the exclusionary rule set out in Weeks” and had been impressed by the arguments made by the states deeming the “incidence of such conduct by the police too slight to call for a deterrent remedy … by overriding the [States'] relevant rules of evidence.” The problem was, Justice Clark wrote, that the right to privacy, acknowledged by the Court in Wolf twelve years earlier, “could not consistently tolerate denial of its most important constitutional privilege, namely the exclusion of evidence, which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.” The Court decided that the exclusionary rule was an essential part of the Fourth and Fifth Amendments.

Justice Harlan, in dissent, admonished the majority for not following Wolf and for their lack of regard for stare decisis, which requires courts to observe and respect previous cases that serve as precedent. Unlike the majority, he saw the issue as an inconsistency between the relevant provision of the Ohio Revised Code and the “rights of free thought and expression assured against state action by the Fourteenth Amendment.” The majority, he believed, was imposing federal substantive standards of search and seizure and its basic federal remedy, the exclusionary rule (as articulated Weeks) on the states. Justice Harlan insisted that the Supreme Court should not fetter the states “with an adamant rule which may embarrass them in coping with their own peculiar problems in criminal law enforcement.” The states would find, he believed, their own alternatives to the exclusionary rule to protect the privacy of their citizens.

More than fifty years later, Mapp v. Ohio remains controversial for many of the same reasons raised by the dissent and the majority. Nonetheless, it is a landmark case, frequently cited by the courts when considering the Fourteenth Amendment and the prohibition against unreasonable search and seizures under the Fourth Amendment.

The case has also changed the nature of policing in the United States. Before Mapp v. Ohio, Supreme Court Justice (then Judge) Benjamin Cardozo had criticized the constitutional exclusionary doctrine, saying, “[t]he criminal is to go free because the constable has blundered” (People v. Defore, 242 N.Y. 13, 1926). Mapp v. Ohio held that the exclusion was vital because the government cannot be seen to be a lawbreaker. “The criminal goes free,” Justice Clark wrote, “but it is the law that sets him free.”

Further Reading

1 

Bradley, Craig M. “Reconceiving the Fourth Amendment and the Exclusionary Rule.” Law and Contemporary Problems 73 (Summer 2010): 211–238.

2 

Curry, Lynne. Mapp v. Ohio: Guarding against Unreasonable Searches and Seizures. Lawrence: University Press of Kansas, 2006.

3 

Katz, Lewis R. “Mapp after Forty Years: Its Impact on Race in America.” Case Western Reserve Law Review 52 (Winter 2001): 471–487.

4 

Zotti, Priscilla H. Machado. Injustice for All: Mapp v. Ohio and the Fourth Amendment. New York: Peter Lang Publishing, 2005.

See also: Constitutional law; Criminal justice (criminal procedure); Fifth Amendment to the U.S. Constitution; Fourth Amendment to the U.S. Constitution; Legal Evolution of Privacy Rights; Supreme Court of the United States

Citation Types

Type
Format
MLA 9th
McCormack, Nancy. "Mapp V. Ohio, 367 U.S. 495 (1961)." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0137.
APA 7th
McCormack, N. (2016). Mapp v. Ohio, 367 U.S. 495 (1961). In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
McCormack, Nancy. "Mapp V. Ohio, 367 U.S. 495 (1961)." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed December 14, 2025. online.salempress.com.