Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights

by Erwin Chemerinsky

Historically, the Supreme Court’s decisions about police must be seen, not as the result of following a mythical original understanding, but as consistent value choices to favor police power over individual rights. This is the context in which we must see the Supreme Court in relation to policing in the United States.

Between 1850 and 1880, uniformed police departments were created all over the country.35 Recurring riots in many cities seem to have been a key factor.

Available data about arrests suggest that by the 1890s the police were shaking off their welfare responsibilities and concentrating more exclusively on arresting felons and preventing crime.43

A key figure in changing policing was Theodore Roosevelt, who served as president of the New York Police Department’s board of commissioners from 1894 to 1896.

Enforcing the prohibition of alcohol required enormous law enforcement efforts. Courts across the country were “flooded” with Prohibition cases to such an extent that Judge Learned Hand—who served as a federal judge from 1909 until 1961 and was one of the most respected jurists in history—opposed Prohibition because it was turning federal courts into low-level criminal courts.70

In fact, for ninety-five years after the ratification of the Fourth Amendment, no Supreme Court case interpreted it as imposing limits on police searches and seizures; the Court hardly ever mentioned it.

The year before its decision in Olmstead, the Court upheld the ability of states to impose involuntary sterilization on those it deemed to be intellectually disabled. In some of its most offensive language ever, it declared that “three generations of imbeciles are enough.”

Of course, states can create their own liability under state criminal or tort law, but such cases would not come to the Supreme Court,

In Wolf v. Colorado in 1949, the Court considered whether to apply the exclusionary rule to the states through the due process clause of the Fourteenth Amendment.60 The case involved a doctor who was convicted for conspiracy to perform abortions, which were then outlawed. Police obtained the evidence against the doctor through an illegal search. The Court, in an opinion written by Justice Felix Frankfurter, rejected the argument that state courts were obligated to exclude evidence gained as the result of an illegal search: “We hold . . . that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.”61 Not for another thirteen years, or 170 years after the adoption of the Fourth Amendment, would the Court require that all U.S. courts must exclude evidence gained through such police misconduct.