Abstract

If the right of privacy is defined as freedom from governmental intrusion, as loosely it may be, the Constitution of the United States, federal and states statutes, and court rulings have combined to provide a measure of protection of privacy rights. Until the second half of the twentieth century, however, the protection accorded privacy ranged from ambiguous to ephemeral.

By 1965 Mr. Justice Douglas was able to find "zones of privacy" in the "penumbras" of the first, third, fourth, fifth and ninth amendments. In a passage that soared above the law into the more spacious realm of rhetoric, he concluded that the privacy surrounding the marriage relationship was "older than the Bill of Rights—older than our political parties, older than our school system." In the main, however, the legal perception of the right of privacy has been considerably less rhetorical and more earth-bound. Even the relatively explicit fourth amendment guarantee of the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures" did not receive a generous interpretation until relatively recently. It is the purpose of these comments to note that development, particularly the exclusionary rule of Mapp v. Ohio, as a means of enforcing the fourth amendment limitations on search and seizure, and the not always favorable reaction to that means of vindicating this aspect of the right of privacy. The focus of the discussion is thus on the purpose to be served by the exclusionary rule and not at all upon the complex body of law that surrounds the question of what conduct violates the fourth amendment. What follows is a tripartite investigation of Mapp, first discussing its historical antecedents, second analyzing its underlying principles and finally evaluating its impact.

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