Talk:Fourth Amendment to the United States Constitution

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February 22, 2014 Featured article candidate Not promoted

Mapp v. Ohio is cited just a tiny bit incorrectly[edit]

I don't want to be mean-spirited so this is the last time I will raise the issue, but as a very regular user of Wikipedia who cares deeply about its reliability I feel compelled to voice my objection to my correction being reversed on this point.

Every legal scholar- and every Supreme Court case that has considered the history of the amendment (and the Wikipedia page on the case)- posits that Wolf v. Colorado stands for the proposition that the Fourth Amendment is applicable to the States through the doctrine of "selective incorporation" via the Fourteenth Amendment. Mapp v. Ohio stands for the closely related proposition (and it is very close, so I can understand the confusion) that the FEDERALLY mandated Exclusionary Rule (that is, evidence discovered as a result of a Fourth Amendment violation cannot be admitted into evidence at trial) announced in Weeks v. United States would also be required in STATE prosecutions.

If this difference isn't important to your readers, so be it, but again I just have to tell you, hopefully politely, that the site as it stands now is wrong. I would fix it but I would be afraid of my edit being undone again or coming across as a boor. So please, I just hope someone reads this who is managing the page and at least takes a look at what I raise. (talk) 20:31, 3 March 2016 (UTC)

Actually, the IP editor is correct. Wolf is a somewhat strange case, but scholars agree that the Court ruled that Fourth Amendment protections against the arbitrary invasion of privacy by police were incorporated to the states via the Fourteenth Amendment. In his majority opinion, Justice Frankfurter wrote: "The security of one's privacy against arbitrary intrusion by the police -- which is at the core of the Fourth Amendment -- is basic to a free society. It is therefore implicit in "the concept of ordered liberty," and, as such, enforceable against the States through the Due Process Clause."(Wolf, 388 U.S. at 27-28.) If you don't believe me, see this law review article at p. 498, this law review article at p. 130, and this law review article at p. 52. Best, -- Notecardforfree (talk) 22:06, 3 March 2016 (UTC)
Wolf was decided during a period when the Supreme Court repeatedly held that the Bill of Rights did not apply to the States, but that certain rights applied to the States to the extent that right was "fundamental to the concept of ordered liberty." In Wolf, the Court ruled that the privacy interest at issue applied to the States, not the Fourth Amendment. When Wolf was decided, the exclusionary rule was treated as being a requirement of the Fourth Amendment (see Weeks v. United States); this ended in United States v. Calendra (1974). So when Wolf was decided the Court held that the principles at the "core of the Fourth Amendment", but not the Fourth Amendment itself, applied to the States and so it held that the exclusionary rule did not apply to the States. In Mapp, the Court changed course and held that when a right enumerated in the Bill of Rights is held to apply to the States, the specific provision/amendment in the Bill of Rights applies to the States to the same extent as it does against the federal government, not merely to the extent it is "fundamental to the concept of ordered liberty." Because of this change in course, the Court in Mapp overruled Wolf, holding that the Fourth Amendment and the exclusionary rule completely applied to the States. Wolf is no longer good law. Mapp is why the Fourth Amendment applies to the States and why the exclusionary rule so applies. SMP0328. (talk) 03:46, 4 March 2016 (UTC)
@SMP0328.: your characterization of Justice Frankfurter's theory of selective incorporation is correct. However, your assessment of Wolf seems to create an unnecessary distinction between (1) Fourth Amendment protections against unreasonable searches and seizures and (2) "the Fourth Amendment itself" (in your words), by which I assume you mean the full Fourth Amendment, including the exclusionary rule. I think it is certainly fair to say that the Fourth Amendment was not fully incorporated until Mapp, but scholars agree that the fundamental ("core") protections enumerated in the Fourth Amendment (against unreasonable searches and seizures) were incorporated in Wolf. See, for example, the law review articles cited in my previous comment above and this article by Richard Re at pp. 1934-35, in which he explains that Wolf incorporated the Fourth Amendment but that the Court "considered the Due Process Clauses as a potential source of exclusionary rights, apart from the Fourth Amendment itself."
Furthermore, the plain language of Supreme Court opinions following Wolf indicate an understanding that Wolf incorporated the Fourth Amendment to the states (sans exclusionary rule). In his majority opinion in Mapp, Justice Clark wrote: "At the time that the Court held in Wolf that the Amendment was applicable to the States through the Due Process Clause, the cases of this Court, as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions" (367 U.S. at 655). In his dissenting opinion in Mapp, Justice Harlan wrote: "Wolf held that the 'privacy' assured against federal action by the Fourth Amendment is also protected against state action by the Fourteenth Amendment" (Id. at 678). Additionally, in Elkins v. United States, Justice Stewart's majority opinion stated that in Wolf, "it was unequivocally determined by a unanimous Court that the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers" (364 U.S. at 213). Therefore, I think it is appropriate for this article to say that Wolf incorporated Fourth Amendment protections against unreasonable searches and seizures but that the exclusionary rule was not incorporated until Mapp. Best, -- Notecardforfree (talk) 07:19, 4 March 2016 (UTC)
The part of Wolf referring to the Fourth Amendment's "core" applying to the States was dicta, because it wasn't necessary to the decision. Once the Wolf majority rejected the relief sought (exclusion of evidence), it was moot whether the Fourth Amendment applied to the States; the evidence was admissible regardless. Dicta is not binding precedent, so nobody was required to treat the Fourth Amendment as applying to the States. Mapp officially applied the Fourth Amendment, along with the exclusionary rule, to the States. We could add a reference to the dicta in Wolf, but Mapp is when the Fourth Amendment was officially incorporated. See this 1961 law review article. SMP0328. (talk) 17:33, 4 March 2016 (UTC)
@SMP0328.: Strictly speaking, you are correct that the portion of Wolf that discussed the "core" of the Fourth Amendment was not necessary to the Court's ultimate holding. However, the Court often discusses and explains the contours of the Constitution, even when such explanation is not necessary to the holding of a case. Although the distinction between holdings and dicta is a matter of considerable scholarly debate (see this article, this article, and this article), most scholars agree that Justice Frankfurter's pronouncement about the enforceability of the "core" of the Fourth Amendment against the states was binding precedent (see the law review articles cited in my prior comments). Subsequent SCOTUS decisions agree with this conclusion as well; in his dissent in Mapp, Justice Harlan said that Wolf "held" that privacy secured by the Fourth Amendment is "protected against state action." Likewise, in Elkins, Justice Stewart said that this Wolf "unequivocally determined" that the "core" of the Fourth Amendment was incorporated. That said, I think it might be worth including a footnote in this article to explain that some scholars think the incorporation discussion in Wolf was dicta, but per WP:WEIGHT, we should also explain that most scholars think Wolf incorporated the "core" of the Fourth Amendment, but not the exclusionary rule. Best, -- Notecardforfree (talk) 22:29, 4 March 2016 (UTC)
We could place in the article that Wolf or Mapp incorporated the Fourth Amendment followed by the footnote you described. We shouldn't say that one or other is selected by most scholars. We obviously haven't reviewed all applicable scholarly writings. That would leave it to the readers to decide. Then refer to Mapp as applying the exclusionary rule to the States. SMP0328. (talk) 00:50, 5 March 2016 (UTC)