On May 23, 1957, police officers arrived at the home of Dollree Mapp in response to a tip that an alleged bomber was hiding in her residence. When the law enforcement officials demanded entrance to search Mapp’s home, she immediately contacted her attorney, who advised her to refuse to admit the police without a search warrant. Acting on the advice of her counsel, she denied the officers access to her home. Three hours later, the police again sought to enter Mapp’s residence. When Mapp did not respond to the officers’ commands for admittance, the police forcibly entered her home. At this point, she demanded to view the warrant and the police handed her a piece of paper they claimed was a warrant, which she stuffed into her blouse. After a brief scuffle, the police recovered the “warrant,” took her into custody, and searched her home. While the police found no evidence that Mapp was harboring the alleged bomber, they did find some pornographic pictures, a pencil drawing, and a few erotic comic books focused on the sexual adventures of Popeye the Sailor, referred to in the popular parlance as “Tijuana bibles” (Dickson 2001: 485). Viewing the materials as lewd and lascivious, the police arrested Mapp for violating an Ohio statute that prohibited the possession of obscene materials. Somewhat mysteriously, at her trial, neither the police nor the prosecution produced the warrant. Nonetheless, Mapp was found guilty of violating the obscenity statute.
On October 24, 1960, the Supreme Court noted probable jurisdiction in Mapp v. Ohio (1961). The attorneys for both the petitioner and respondent argued the case on First Amendment grounds. Thus, through the eyes of the litigants, Mapp centered primarily on the constitutionality of the Ohio obscenity statute in light of freedom of speech concerns. However, in an amicus curiae brief filed by the ACLU and the Ohio Civil Liberties Union, a second issue was raised on which the case would ultimately rest. That is, these amici addressed the possibility of extending the exclusionary rule—the dictate that illegally obtained evidence cannot be admitted at trial—to state prosecutions:
This case presents the issue of whether evidence obtained in an illegal search and seizure can constitutionally be used in a State criminal proceeding. We are aware of the view that this Court has taken on this issue in Wolf v. Colorado. It is our purpose by this paragraph to respectfully request that this Court re-examine this issue and conclude that the ordered liberty concept guaranteed to persons by the due process clause of the Fourteenth Amendment necessarily requires that evidence illegally obtained in violation thereof, not be admissible in state criminal proceedings (citations omitted).[fn 122]
The exclusionary rule was created by the Supreme Court in Weeks v. United States (1914). However, it was only made applicable to the actions of federal law enforcement officials in federal criminal trials. Thus, illegally obtained evidence could still be admitted against criminal defendants in state courts, where the majority of criminal trials take place. In Wolf v. Colorado (1949), the Supreme Court had the opportunity to extend the exclusionary rule to state prosecutions but opted not to do so, noting that the exclusionary rule was but one of many methods of enforcing the Fourth Amendment’s protection from illegal searches and seizures. Appropriating the arguments advanced by the ACLU, Mapp overruled Wolf, making the exclusionary rule applicable to both state and federal criminal trials.[fn 123]
Mapp is often celebrated as one of the most important Supreme Court decisions of the twentieth century (e.g., Katz 2001: 475; Long 2006; Stewart 1983: 1368). Moreover, the importance of the ACLU’s amicus brief in Mapp is widely touted as evidence of the significance of amicus briefs in influencing the justices’ decision making (e.g., Day 2001; Epstein and Walker 2004: 544; Spriggs and Wahlbeck 1997). While I agree with both of these assessments, my purpose in addressing Mapp is to highlight how amicus briefs can contribute to dissensus on the Supreme Court. To illuminate this point, consider the events that transpired during the conference at which the justices decided Mapp.[fn 124]
When the justices met to adjudicate Mapp, their discussion began with a treatment of the case as a relatively routine obscenity dispute, a somewhat common occurrence on the Warren Court (Woodward and Armstrong 1979: 192–204). Indeed, five justices voted to reverse Mapp’s conviction on First Amendment grounds, noting that the Ohio statute was unconstitutional. Justice Douglas, however, viewed the case as implicating the exclusionary rule, indicating that he would reverse Mapp’s conviction on both First Amendment and Fourth Amendment grounds. Douglas, in seeking to overrule Wolf, was joined by three other justices: Brennan, Warren, and Clark. Thus, while all of the justices voted to reverse Mapp’s conviction, five based their decision to do so on obscenity grounds, while four sought to do so by extending the exclusionary rule to state prosecutions. Ultimately, Justice Black switched his position and voted to overturn Wolf on both Fourth and Fifth Amendment grounds. So, what began as a 9-0 vote to reverse the lower court ended up as a 5-4 decision to overturn Mapp’s conviction and apply the exclusionary rule to state prosecutions.
Mapp provides useful insight on the role of amicus briefs in contributing to a justice’s decision to write a separate opinion, highlighting how the ACLU’s amicus brief contributed to two types of uncertainty with regard to the correct application of the law for the justices. The first issue related to this involves the appropriateness of using Mapp as a vehicle for extending the exclusionary rule to state prosecutions. This point was raised in the dissenting opinion of Justice Harlan, which was joined by Justices Frankfurter and Whittaker. Harlan indicated his belief that the Court’s majority violated its long-standing tradition of refusing to consider issues sua sponte; that is, without having been presented by the parties to litigation. While Harlan acknowledged that the exclusionary rule issue was advanced in the ACLU’s amicus brief, citing its argument in its entirety (367 U.S. 643, at 675), he nonetheless contended that Mapp was a bad vehicle for applying the rule to state court proceedings. Instead, he proposed that the Court should either schedule the case for rehearing, directing the litigants to focus on the constitutionality of Wolf, or wait until a more appropriate case arrived to determine the applicability of the exclusionary rule to the states. In light of this, the ACLU’s amicus brief contributed to the dissenting justices’ decision to address whether Mapp was an appropriate opportunity to overrule Wolf. In so doing, the dissenters made clear their uncertainty as to whether the case was suitable for extending the exclusionary rule to state criminal trials.
Second, the case illustrates the justices’ uncertainty as to the legal basis for the exclusionary rule. In its amicus brief, the ACLU suggested that the Court make the exclusionary rule applicable to state criminal proceedings but did not address the legal foundation for the exclusionary rule with regard to the Fourth and Fifth Amendments. In Mapp’s majority, four justices viewed the exclusionary rule as grounded in the Fourth Amendment. However, Justice Black, the crucial fifth vote in the case, wrote in a concurring opinion that the exclusionary rule was not grounded solely in the Fourth Amendment but instead found its footing in both the Fourth and Fifth Amendments (367 U.S. 643, at 662).[fn 125] As such, there was substantial uncertainty with regard to the correct application of the law in the case as evidenced by the fact that even the justices in the majority were not of like mind as to the legal basis for the exclusionary rule. Taken as a whole, Mapp illustrates that amicus briefs can play a transformative role by lobbying the justices to consider the legal and policy issues implicated in the Court’s jurisprudence through different perspectives than those of the parties to litigation. In so doing, amicus briefs can create ambiguity for the justices, at the same time providing the justices with legal argumentation that can be used as the basis for a separate opinion. The purpose of this chapter is to investigate the role of amicus curiae briefs in contributing to a justice’s decision to author or join a separate opinion.
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[fn 122] See amicus curiae brief of the ACLU and Ohio Civil Liberties Union, Mapp v. Ohio (1961).
[fn 123] While both of the litigants’ attorneys addressed the Fourth Amendment aspects of the case as a secondary issue, they did not focus on the exclusionary rule’s applicability to state prosecutions. Rather, they concerned themselves with whether the police officers’ behavior violated the “shock the conscious standard” articulated in Rochin v. California (1952). This rule holds that, if the police behavior in question would shock the conscious of a reasonable person, that behavior violates the Due Process Clause of the Fourteenth Amendment. In fact, during oral arguments, Ohio’s attorney general was questioned about the applicability of Wolf v. Colorado and responded that he was not familiar with the case (Stewart 1983: 1367).
[fn 124] The discussion that follows is based on the conference notes of Justices Brennan and Douglas, as reported in Dickson (2001: 485–487).
[fn 125] This fact was addressed in Justice Harlan’s dissenting opinion, in which he opined that the majority’s decision was limited to the judgment to overrule Wolf since only four justices viewed the Fourth Amendment as the basis for the exclusionary rule (367 U.S. 643, at 685).