A few years ago, my family and I visited Cleveland. We spent a great day wandering around inside the Rock and Roll Hall of Fame. I had a good meat at a nearby bar my wife learned about through an episode of Diners, Drive-Ins and Dives. If I swing back to Cleveland, I'd like to take a little time and visit the James A. Garfield Memorial at Lake View Cemetery. I've been fascinated by Garfield since I read the biography, Destiny of the Republic by Candace Millard.
The larger point is that while I have visited Cleveland and enjoyed myself, I have not even scratched the surface of the city. I will, therefore, happily defer to anyone who might be in a better position to speak to today's question. What has made Cleveland a hotbed for the development of search and seizure law?
On June 10, 1968, the United States Supreme court handed down Terry v. Ohio. The case's facts are straightforward. A Cleveland police officer stopped a man he suspected was about to commit a robbery and patted him down. The officer found a gun. The Supreme Court recognized the right of a police officer, with reasonable suspicion based on his or her training and experience, to detain and frisk a suspect. The stop and frisk was born.
The pre-Terry world had two categories of police/citizen contact. A voluntary encounter--an officer has a conversation with a civilian--and an arrest. Terry v. Ohio introduced the concept of a "detention." Consider the consequences. If the police saw a masked man holding a prybar and shining a flashlight outside your house at midnight, the Terry decision is the officer's authority to detain him for an investigation. 
Consider the consequences. If a misguided police officer wants to harass someone, the Terry decision provides a lower bar for the opportunity. (Chief Justice Warren discussed this issue at the time of the decision.)
The Supreme Court gave this round to the police.
I can't count the number of cases I've looked at which were some variation of a Terry stop.
On May 23rd, 1957, Cleveland police got a tip that a bombing suspect might be at the apartment of Dolly Mapp. The police knocked and asked permission to enter. Mapp refused to admit them without a search warrant.
Later, more police returned. They forced their way inside the apartment. The police showed Mapp a piece of paper. She grabbed it and stuffed the "warrant" inside her dress. The police recovered the fake search warrant. The handcuffed Mapp and searched her apartment. They found the suspect, some gambling paraphernalia and a small stack of pornographic books. Mapp claimed an earlier tenant had left the magazines.
After Mapp refused to testify at the trial of gambling higher-ups, she was prosecuted for the pornography. She was convicted even though the search warrant was never produced. The Ohio Supreme Court affirmed. Although the search warrant's validity was sketchy, the police had not used the kind of force which "shocks the conscience." This holding was in line with existing precedent.
The U.S. Supreme Court pivoted. They held that "all evidence obtained by searches and seizures in violation of the Constitution is...inadmissible in state court."
There may be other ways to treat police misconduct, civil liability or increased training and supervision. The court, however, held that without the exclusionary rule, the Fourth Amendment's protections would merely be "form words" that would be "valueless and undeserving of mention in a perpetual charter of inestimable human liberties."
That round to the defendants (Or, perhaps to those who want to be secure in their homes, safe from unreasonable government intrusion.)
Mapp and Terry will be included on most lists of landmark 4th Amendment cases. Both changed the trajectory of the way police operate in this country. Perhaps it's the water, the mix of Lake Erie with a splash of Cuyahoga River which makes the city ripe for 4th Amendment litigation. Maybe we need a resident to weigh in on this one. This much remains clear. Regardless of where they are set, criminal legal thrillers and police procedurals all carry a little bit of Cleveland around in them.
Until next time.
The Garfield Memorial and surrounding cemetery (which includes Eliot Ness headstone) is worth a visit. The Mapp case involved the criminal activity of Don King, a nasty piece of work who kicked a man to death, before becoming a boxing promoter
ReplyDeleteThanks. I aim to get back.
Delete" Although the search warrant's validity was sketchy, the police had not used the kind of force which "shocks the conscience." This holding was in line with existing precedent. "
ReplyDeleteThe trouble is, over time there has grown to be less and less that shocks anybody's conscience.
The "shocks the conscience" standard has always been a slippery slope.
ReplyDeleteI’ve often wondered about Terry Stops. In an Orlando case several years ago, police stopped boys on skateboards and, when they refused to empty their pockets, literally turned the kids upside down and shook them. That surprised me– I had no idea they could do that. (Curiosity note: When they found drugs, they arrested the boys, but, stranger still, they booked one of the boys into jail under his twin brother’s name.)
ReplyDeleteInformative article, Mark. Thank you.