Many have noted the role of America’s original sin of slavery, and the sad legacy of racism that survived Appomattox, in explaining what appears to be the uniquely abusive treatment of black men by police. Another part of our history though – Prohibition – explains why the law has failed to adequately address our recurring problem with excessive force. America’s Noble Experiment left us with a system of criminal procedure well suited to prevent illegal searches, but poorly equipped to define or deter excessive force.
Prohibition led to outrage over frequent police searches for liquor. Major newspapers in the 1920s reported the sometimes violent accounts and described search and seizure law with the depth one would expect in a legal treatise. Courts in about half of the states began to exclude the fruits of illegal searches. If officers in these jurisdictions wanted to ensure that their cases would result in convictions, they were required to abide by the limits courts imposed on their power to search.
Soon after Prohibition ended in 1933, however, concerns about search and seizure dropped from national headlines and a new concern about police began to emerge. By the end of the 1950s, police brutality, especially against those living in minority communities in major cities, became the focal concern of civil libertarians.
Remarkably, though, the mechanism that gained acceptance in the 1920s as a remedy for unlawful searches would emerge as the primary method of preventing police misconduct during an era of police brutality. In 1960, the United States Supreme Court agreed to hear Dollree Mapp’s claim that she had a First Amendment right to possess pornography seized in a warrantless search of her Ohio home. The Court would, however, use Ms. Mapp’s case to make a rule about police misconduct.
Though none of the parties to the case raised this issue, the Court decided to address the manner by which officers discovered the pornography rather than Mapp’s right to constitutional right to possess it. The timing was peculiar for a search and seizure decision. Incidents of police brutality were attracting far more headlines than unlawful searches.
Events in California would loom large in the Court’s decision to address this particular type of misconduct. The Supreme Court in Mapp observed that at it was “significant” that the Golden State had recently reversed course and embraced the exclusionary rule.
In 1954, the United States Supreme Court refused to require a California court to exclude audio recordings obtained by unlawfully entering the home of a suspected Los Angeles gambler, planting recording devices in his dwelling, and drilling holes in the homeowner’s roof to allow audio surveillance from the neighbor’s roof. The following year, the famed Chief Justice Traynor wrote an opinion for the California Supreme Court adopting the exclusionary rule in a case involving identical facts from the same police department.
Concerns unique to California, or more specifically its largest city, had an undue influence on the regulation of police throughout the nation. Outside Los Angeles County, where Police Chief William Parker was gaining notoriety for unlawfully installing recording devices in the homes of suspected gamblers in the 1950s, there was no widespread concern about illegal searches.
Questions about the use of force were, however, becoming quite common and Los Angeles’ experience would again loom large. Claims of police brutality were frequently heard throughout the nation in the 1960s but especially acute in minority communities where Chief Parker insisted on aggressive policing. Less than five years after the Mapp decision, the Watts community would go up in flames with 34 souls losing their lives and property damage exceeding $400 million, the worst riots in L.A.’s history until the beating of Rodney King.
Unlike the purely local concern about searches in the 1950s, neither the State of California nor the City of Los Angeles had a lock on concerns about police brutality in the 1960s. Cleveland, Detroit, and Newark all experienced serious rioting, and the Black Panther Party, formed in Oakland to protect black citizens from police, formed chapters throughout the country.
Clouds of this coming storm were gathering when the Supreme Court decided Mapp. A reading of the fact in the Mapp case suggests that the Court itself had greater concern about the physical interactions officers had with residents of minority communities than it did about unjustified searches for evidence of a crime. The Court’s opinion spent more time discussing officers’ manhandling of Ms. Mapp than it did the warrantless search of her home.
Mapp’s holding, which required all state courts to embrace the Prohibition era’s exclusionary rule, did nothing to address excessive force but nevertheless demonstrated the role judges could play in defining and thus preventing police violence. A court must, if requested by the defendant, rule on the legitimacy of the methods by which officers obtain every piece of evidence in a trial. As a result of Mapp, every court hearing a criminal case has a duty to define and enforce the limits of an officer’s power to search under the Fourth Amendment.
At present, however, for police departments not under consent decrees, there is no similar mechanism that requires judges to routinely apply the limits of the Fourth Amendment to the use of force. A judge is not put upon to evaluate the means by which an officer arrested the defendant who appears before him in a criminal case.
Courts only the appropriateness of police force when the victim of excessive force files a lawsuit. And in these cases, courts do not identify where the force was unreasonable, only whether it was so clearly unreasonable as to overcome a police department’s qualified immunity from a citizens’ lawsuit.
Our process of criminal procedure produces a rich body of line-drawing decisions that assists officers, and police academies, in understanding the limits of their powers to search. An officer, therefore, knows when it is appropriate to search the trunk of a car for drugs. No similar mechanism provides guidance on the use of lethal force. The law speaks with much less clarity on the circumstances permitting an officer to shoot a man dead.
This is backwards and fixable. At no point since Prohibition has police violence been regarded as less troubling than improper searches. Mapp’s anachronistic decision, and missed opportunity, needs to be revisited.
The exclusionary rule should be replaced with an injunction prohibiting all police from violating the Constitution’s prohibition on unreasonable searches and seizures. Officers could then be held in contempt for illegal searches as well as unlawful uses of force. The limits on the use of force by police would then be more easily established, the threat of sanction would still deter illegal searches, and criminals would not go free because of constables blunder.
Wesley M. Oliver is the Associate Dean for Academic Affairs, Criminal Justice Program Director, and Professor of Law at Duquesne University School of Law. He is also the author of The Prohibition Era and Policing: A Legacy of Misregulation (Vanderbilt University Press 2018).
Suggested citation: Wesley M. Oliver, Prohibition’s Legacy: Judicial Regulation of Searches Not Use of Force, JURIST – Academic Commentary, June 8, 2020, https://www.jurist.org/commentary/2020/06/wesley-oliver-improper-searches-persist/.
This article was prepared for publication by Brianna Bell, a staff editor for JURIST. Please direct any questions or comments to her at commentary@jurist.org.
