Tom C. Clark

“ Only a few States had made any changes in their rule of admissibility since Wolf and many of those not following the federal exclusionary rule were, in effect, using Wolf as a license to violate the Fourth Amendment's proscription of unreasonable searches and seizures as applied to the States by the Wolf case itself. As we noted in Mapp 'further delay in (applying the exclusionary rule to the States) could have no effect other than to compound the difficulties' ”

“ The opinion in dealing with the operation of the exclusionary rule said that it 'must be remembered that petitioner is not invoking the Constitution to prevent or punish a violation of his federal right recognized in Wolf * * *. He is invoking it only to set aside his own conviction of crime. * * * Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. * * * (It) does nothing to protect innocent persons who are the victims of illegal but fruitless searches.' At 136, 74 S.Ct. ”

“ In addition, in Irvine, a flag in a concurring opinion warned that Wolf was in stormy weather. On the other hand, the States relied on Wolf and followed its command. Final judgments of conviction were entered prior to Mapp. Again and again this Court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule. In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. ”

“ These 'incredible' circumstances did not sufficiently shock the conscience of the Court into applying the Rochin test. Instead the case went off on the doctrine of Wolf. Mr. Justice Jackson in announcing the judgment of the Court overruled those who urged that Wolf 'applies only to searches and seizures which produce on our minds a mild shock, while if the shock is more serious, the states must exclude the evidence or we will reverse the conviction.' At 133 134, of 347 U.S., 74 S.Ct. ”

“ At common law there was no authority for the proposition that judicial decisions made law only for the future. [6] Blackstone stated the rule that the duty of the court was not to 'pronounce a new law, but to maintain and expound the old one.' 1 Blackstone, Commentaries 69 (15th ed. 1809) . [7] This Court followed that rule in Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886) , [8] holding that unconstitutional action 'confers no rights; it imposes no duties; it affords no protection; it creates no office ”

“ Moreover, coerced confessions are excluded from evidence because of 'a complex of values,' Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960) , including 'the likelihood that the confession is untrue'; 'the preservation of the individual's freedom of will'; and " (t) he abhorrence of society to the use of involuntary confessions." ”

“ Notes
↑ Although Mapp may not be considered to be an overruling decision in the sense that it did not disturb the earlier holding of Wolf that the search and seizure provisions of the Fourth Amendment are applicable to the States, its effect certainly was to change existing law with regard to enforcement of the right.↑ A split of authority has developed in the various courts of appeals concerning the retrospectivity of Mapp. Compare Hall v. Warden, 313 F.2d 483 (C.A.4th Cir. 1963) (retroactive) ; Walker v. Peppersack, 316 F.2d 119 (C.A.4th Cir. 1963) (retroactive) ”

“ It was "compelled to reach that conclusion," we said, quoting California's highest court, "because other remedies have completely failed to secure compliance with the constitutional provisions * * *.' People v. Cahan, 1955, 44 Cal.2d 434, 445, 282 P.2d 905, 911, 50 A.L.R.2d 513. * * *' We went on to find that ' (t) he experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment to the protection of other remedies has, moreover, been recognized by this Court since Wolf. ”