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Policing the Police

September 2008


Few gay people know who Dollree Mapp was. Yet her 1961 Supreme Court case, Mapp v. Ohio, is at the core of advances in jurisprudence key to gay liberation.


In 1957, Cleveland police, acting without a warrant on an erroneous tip that a bombing suspect was in Mapp’s house, busted down her door and ransacked her home. They did not find their suspect, but did discover a suitcase containing sexually explicit photographs. Mapp was charged with and convicted of possession of pornography.


Mapp appealed to the U.S. Supreme Court, which overturned her conviction. Holding for the first time that the Fourth Amendment’s protections against unlawful searches apply to states as well as the federal government, Justice Thomas C. Clark wrote for the majority, “Nothing can destroy a government more quickly than its failure to observe its own laws.”


The “exclusionary rule” is unique to the United States; it holds that the Fourth Amendment means that police and prosecutors cannot use illegally obtained evidence to convict even a manifestly guilty person. Furthermore, evidence that is subsequently obtained legally — if it flows from an illegal search — is also deemed inadmissible as “fruit of the poisonous tree.”


Gay people benefit from a robust Fourth Amendment. By requiring detailed warrants based on sworn testimony, the Fourth Amendment protects the politically vulnerable from arbitrary and capricious searches. And by excluding evidence obtained without a proper warrant, the exclusionary rule reins in lawless cops and prosecutors (who otherwise can always invent a justifying excuse after the illegal search is done).


Additionally, an expanded understanding of the Fourth Amendment’s protections is at the heart of privacy doctrine. Courts have held, to varying degrees, that those enjoying sex in the woods, or a parked car, or even a toilet stall have a “reasonable expectation of privacy” which cannot be violated by police. Indeed, the privacy doctrine emanating from the Fourth Amendment was key to striking down U.S. sodomy laws in the landmark 2003 Lawrence v. Texas Supreme Court decision.


In today’s computer age, restrictions on Big Brother’s new high-tech means of snooping take on new significance. Thus, we can celebrate a June decision by the U.S. District Court in Indianapolis. That court ruled that the state could not compel so-called “sex offenders,” who had served their time and were not on probation or parole, to hand over their computers on demand to police for warrantless searches. “These plaintiffs have rights under the Fourth Amendment,” District Judge David F. Hamilton wrote. “The state may not force them to waive those rights under threat of criminal prosecution for failing to do so.”


As Americans, we can take pride that even in 1957 Jim Crow America, Dollree Mapp — herself a person of color and thus no doubt well-acquainted with all manner of police misconduct — could successfully assert her Constitutional rights. And in 2008, we can take hope that the wonderful Fourth Amendment will survive the current Supreme Court, even with today’s politicians manufacturing hysteria about terrorist threats and sexual perverts. Nothing, after all, can destroy a government more quickly than its failure to observe its own laws….


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