BOOK REVIEW
HON. GEORGE T. ANAGNOST is the presiding
judge for the Peoria Municipal Court.
The Search for
Meaning Hidden in
Plain View
BY HON. GEORGE T. ANAGNOST
In 1762,
royal messengers, holding a general warrant
issued by King George’s secretary of state, ransacked John
Entwick’s home and removed pamphlets allegedly seditious in
nature. Subsequently, Lord Camden invoked certain arguments
in support of the Englishman’s suit in trespass against the King’s
agents. Entwick—like everyone else—would have had no idea
that those arguments would form part of the Fourth
Amendment’s protection against “unreasonable search and
seizures” and the mandate of particularized warrants based on
probable cause.
In his well-written treatise on the Fourth Amendment,
Professor Tracey Maclin picks up the story a century later on the
American side with the U.S. Supreme Court’s 1886 decision in
Boyd v. United States, wherein the Court cited Entwick v.
Carrington and first began to articulate how the plain wording of
a citizen’s right to be free of unlawful government conduct would
be protected in concrete terms.
While at first blush a book on criminal law might not suggest
relevance for the entire Arizona bench and bar, there is much to
recommend this volume to the general reader.
In sheer numbers, legal issues relating to motions to suppress
and their companion evidentiary hearings are a measurable part of
trial and appellate practice throughout the state. In recent times,
almost every year, a fair portion of Arizona’s reported cases
involve determining what types of traffic stops, pat-down frisks,
roadblocks, home searches, blood or Breathalyzer tests, or affidavits in support of a warrant satisfy the requirements of both the
Arizona and U.S. Constitutions. In this sense, Maclin’s book may
be commended for its concise yet in-depth summary of a multifaceted body of law. That corpus reached a zenith in 1961, when
the Court held in Mapp v. Ohio that the Fourth Amendment prohibition against the use of improperly obtained evidence applied
to the states by way of the Fourteenth Amendment.
The deeper significance of the author’s work is how the
Court’s treatment of this one legal issue opens a pathway to a
more profound question regarding the history and process of
constitutional interpretation. In particular, his careful parsing of
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A R I Z O N A AT T O R N E Y J U N E 2 0 1 3
The Supreme Court and the Fourth Amendment’s
Exclusionary Rule
By Tracey Maclin
Cloth, 416 pages
Oxford University Press
ISBN-13: 978-0199795475
2013, $89.50
Footnotes, table of authorities, table of cases, index
the justices’ internal memos, clerks’ notes, and the briefs and
arguments of the parties reveals a great deal about how intense
the deliberative process really was and how the Court’s final opinions were often the result of compromise. To those committed to
the doctrine of originalism, the derivation of the exclusionary rule
from the plain text of the Fourth Amendment is an exercise in
judicial activism. To those who view the Constitution as dynamic
in nature, exclusion, and not a civil action against the constable
who blundered, is the only rational solution that gives meaning
to the Fourth Amendment’s guarantees.
With Maclin as our guide, the background of the interplay of
independently sourced state and federal law is highlighted with
w w w . a z b a r. o r g / A Z A t t o r n e y
BOOK REVIEW
The justices were not in
agreement as to what the
Fourth Amendment
actually commanded.
the use of the “silver platter doctrine” during the Prohibition Era.
At that time, state law enforcement, engaging in warrantless
seizures, provided usable evidence to federal authorities. As the
notion of selective incorporation of the Bill of Rights under the
Fourteenth Amendment exerted more pressure to apply federal
rights and privileges to state court matters, the exclusionary rule
itself underwent an odyssey, viewed initially as a fusion of safeguards under the Fourth and Fifth Amendment protections
against self-incrimination; it then underwent change in Wolf v.
Colorado (1949), when Justice Frankfurter framed the rule as a
deterrent against improper law enforcement tactics still not applicable to state searches and seizures. The Court’s later divided
opinion in Mapp showed the extent to which the justices were not
in agreement as to what the Fourth Amendment actually commanded.
As Maclin astutely observes, by lifting the exclusionary rule
away from any inherent constitutional or due process underpinnings and re-casting the rule’s purpose as one of deterrence and
cost-benefit analysis, this approach allowed the Burger, Rehnquist
and now the Roberts Court to narrow the scope of the rule in
various settings. Over the decades since Mapp, exclusion has been
held not to apply for purposes of impeachment, grand jury proceedings, deportation hearings, “good faith” efforts of police
A Tale of Two Civil Liberties
The Fourth Amendment of the U.S.
Constitution:
“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.”
The Arizona Constitution Declaration of Rights,
Article 2, Section 8:
“No person shall be disturbed in his private
affairs, or his home invaded, without authority of
law.” (Over its history, this state provision has
received two significant judicial interpretations:
unlike the Fourth Amendment, it creates and
protects a right to privacy; at the same time,
the federal exclusionary rule does not apply
more broadly.)
with a facially valid warrant, or where tainted evidence would
have been discovered independently.
In the final analysis, the author’s assessment is probably accurate: The exclusionary rule has always had a political or ideological backdrop and in the future, if current indications continue, the
Roberts Court will hope to limit the exclusionary rule to situations
involving flagrant or extreme conduct by the police. And
Homeland
Security
issues, GPS location
devices, data mining, and
digital-age technology
It began with an anonymous call—that some believe was from
will continue to change
future boxing promoter Don King—claiming a bomb-threat
society’s fundamental
fugitive was hiding out at the home of Dollree Mapp. When
view of individual rights,
Ohio police arrived, she refused to let them in without a warrant.
expectations of privacy,
When her attorney arrived on scene, he was not allowed to see
and how much intrusion
her or enter the home. Over her protests, a search of a trunk in
by government is too
the basement yielded a book titled Affairs of a Troubadour, along
much. As that occurs,
with three other works that led to a charge of possessing lewd
The Supreme Court and
and lascivious material. At trial, no search warrant was ever prothe Fourth Amendment’s
duced. Because it did not appear that the evidence had been
Exclusionary Rule may
taken from Ms. Mapp by use of “brutal or offensive physical
be recommended as a
force,” the Ohio Supreme Court affirmed her conviction.
worthy reference to
In a 6–3 decision, the U.S. Supreme Court reversed, holding
understand the profound
that the evidence was inadmissible in a state criminal proceeding
legal issues at play and
under the Fourth and Fourteenth Amendments.
what challenges lay
AT
ahead. AZ
A Famous Mapp
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A R I Z O N A AT T O R N E Y J U N E 2 0 1 3
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