The Downside of Disruption
Cars broke the Fourth Amendment. That's the thesis of Sarah Seo's 2019 book, Policing the Open Road: How Cars Transformed American Freedom. (For a 2021 interview in The Trace, click here.)
Back in the sunny days before World War I, chaos and mayhem came to America's streets in the form of the motor vehicle. I have known for some time what cars did to the fabric of our cities (See Cars and Bikes - the Back Story.) What I didn't know was that they also twisted our criminal justice system into a pretzel.
Professor Seo traces this history from the introduction of the Model T Ford in 1908, noting that the first center line pavement marking - running down the middle of the road to separate traffic going in opposite directions - was painted in Wayne County, Michigan, in 1911. (Seo, p. 49.)
It was part of a panoply of new devices - stop signs (1914), traffic lights (also 1914), and all kinds of painted lines on road surfaces - all brought forth by the need to control the movement of motor vehicles. (For the origins of the stop sign see James Longhurst, Bike Battles, 2015, p. 91. For an overview of early traffic management efforts, see Peter D. Norton, Fighting Traffic, 2011, chapter 2.)
Motorists weren't terribly interested in obeying all the new signals on the street, or the many laws that legislatures were busily passing to try to bring some order out of chaos.
Local governments created licensing requirements, established speed limits, mandated non-glare headlights and rearview mirrors. They established streets where motor vehicles were not allowed to go. They worked out rules for the right-of-way among motor vehicles, pedestrians, horses, and horse-drawn vehicles. A 1905 treatise even had a kind word for bicyclists: "Bicycles, tricycles and automobiles are ordinarily considered vehicles and entitled to the use of that part of the street or highway set aside for them." (Seo, p. 26.)
All of this came as something of a shock to the citizenry, who were entirely unaccustomed to this level of regulation. As Seo explains, the roads had historically been governed by community standards and tort laws. This system did fall apart under the impact of motor vehicles, and so the gaze of your nosy neighbor, and the civil suit by an offended citizen, gave way to the gaze of the police and criminal prosecution of nonconforming behavior on the road. (Seo, pp. 24-27, 39, 60-61.)
Why did the country's roads suddenly need all these rules? After all, the main selling point of cars was freedom - freedom of movement, to be sure, but so much else came along with that. By the 1920s there was clearly the element of romance. As with Emma Bovary's memorable carriage ride in Rouen, in the middle of the nineteenth century, it seems undeniable that the appeal of the motor car had an erotic dimension by the Jazz Age, if not before.
So it was perhaps a natural tendency for drivers to ignore rules that got in the way of their freedom.
Private Space, Public Space
It was at the nexus of booze and cars where the Fourth Amendment started to break down. Let's have a look at the text of the Fourth Amendment:
"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."
Remember that word "unreasonable." It turns out to be the worm in the heart of the Fourth Amendment.
The framers of the Constitution would have viewed this language through the lens of the English common law, which drew a sharp distinction between the public space and the private space of life. The quintessential private space was the home, often romantically described as a castle, presumably equipped with a moat and a drawbridge and a portcullis.
As Professor Seo puts it, "This way of thinking ordered the world into two spheres, public and private. This division, in turn, determined the scope of legitimate state action vis-a-vis individual rights. Put together, government could regulate the public sphere, but free men (and they were men) enjoyed the right to be left alone and do as they pleased in the private sphere. Applied to the Fourth Amendment, officers could not probe the private sphere without a warrant specifying 'the place to be searched, and the persons or things to be seized.' In contrast, no constitutional requirement hampered law enforcement efforts in the public sphere." (Seo, pp. 124-125.)
This does not mean that the government could do whatever it wanted in the public sphere. The common law had rules for when police officers could arrest someone in the public sphere, without a warrant. There were different rules depending on the nature of the crime. "One such situation arose when an officer had reasonable grounds to believe that a person had committed a felony. For misdemeanors, the common law required more: the officer had to actually see the offense take place, and in some jurisdictions, the offense also had to amount to a breach of the peace." (Seo, p. 126.)
Note the words "reasonable grounds."
So is a car more like a home, or more like a person walking down the street?
Carroll v. United States
At the end of 1921, government agents stopped a car on a road in Michigan. They were looking for booze, and they found it. The occupants of the car, George Carroll and John Kiro, were charged and convicted under the National Prohibition Act (also called the Volstead Act), which was the law implementing the Eighteenth Amendment to the Constitution. The Eighteenth Amendment was ratified in 1919, and the Volstead Act took effect in 1920. (For Carroll, see Seo, pp. 113ff.)
Carroll and Kiro appealed, arguing that the search, which had been conducted without a warrant, was illegal. And so, in due course, Carroll v. United States became the Supreme Court's first car search case.
The government initially viewed the case as enforcement of the Volstead Act and the Eighteenth Amendment. The defendants argued that the warrantless search violated the Fourth Amendment.
As "the national debate over alcohol turned into a showdown between two constitutional provisions" (Seo, p. 120), a funny thing happened on the way to the forum. The government switched its argument in the Carroll case from booze to cars.
Solicitor General James Beck argued the case for the government. Here's Professor Seo on page 124: "With the possibility that Prohibition's unpopularity might jeopardize the convictions, he reframed Carroll as a case not about liquor but about how the automobile had completely transformed American society. In his brief to the Supreme Court, Beck asserted that the fact that 'this is a liquor case is accidental.' The import of the case reached 'far beyond the incidental problem of enforcing the liquor laws' to 'the invention, the rapid development, and the general use of automobiles as a means of transportation.' He described how cars had 'produced a more profound effect upon social conditions than any other invention of modern times.' Although this was a case about the illicit haul of alcohol, the next case could involve a murderer or robber fleeing in a getaway. The revolution in the commission and pursuit of crime, Beck argued, compelled the Court to reconsider 'the well-settled rules of the common law' regarding an officer's authority to search and to seize."
Beck's arguments carried the day and, as collateral damage, ripped a gaping hole in the law of search and seizure. Chief Justice William Howard Taft (he had previously served as president of the United States) wrote the Court's opinion, which was handed down in 1925. (For the text of the opinion, and Justice McReynolds' dissent, click here.)
Chief Justice Taft decided not to answer the question: Is a car more like a house or more like a person? Instead he created a new category, the "automobile exception." Seo remarks, "Carroll v. United States held that a warrantless search and seizure was lawful if the 'officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported." (Seo, pp. 137-138.)
As Seo notes, "allowing officers to seize a car and then search it with reasonable or probable cause for believing that the driver may be violating Prohibition laws, many of which were misdemeanor offenses, went way beyond what existing laws permitted. Under the common law for misdemeanors, warrantless arrests required actual knowledge through personal observation, not cause for believing." (Seo, p. 138.)
"In short, the Carroll rule constitutionally legitimized police discretion." Chief Justice Taft gave powers to the police that had formerly been reserved for judges: "Carroll delegated the judicial inquiry of probable cause, at least in the first instance, to the police." (Seo, p. 139.)
Seo concludes, "Carroll marked a turning point in criminal procedure." (Seo, p. 141.)
The Sixties
So how have things worked out?
Let's skip over the next few decades of car stops (cue flashing lights), high-speed chases (sirens and squealing tires), and many, many crashes (screech, BOOM, tinkle of broken glass). Neither the car industry nor the government got very interested in building safe cars until the 1960s, when Ralph Nader forced them to. His book on the Corvair and related topics, Unsafe at Any Speed: The Designed-In Dangers of the American Automobile (1965), was a turning point. NHTSA, the National Highway Traffic Safety Administration, was founded in 1970. (For a good recent story on Nader and the sixties, click here.)
And what about the law? Well, also in the 1960s, a Yale Law School professor found himself becoming troubled by the number of times the police were stopping him. He traveled a bit, and it happened in numerous states. When the professor, Charles Reich, asked why he was being stopped, the usual response was "Just checking." When one officer said he "had the right to stop anyone any place any time - and for no reason," Reich decided to write an article, which duly appeared in the Yale Law Journal in 1966, under the title "Police Questioning of Law Abiding Citizens." (Seo, p. 202. To see the article, click here.)
I'd like to say that Reich's article had the same effect as Ralph Nader's Unsafe at Any Speed. But, instead of things getting better in the world of car stops and searches, they have actually gotten worse. Let's fast-forward again to the 1980s and a writer named Charles Remsberg, who looked at the 1986 Anti-Drug Abuse Act and effectively updated Chief Justice Taft for the modern era.
The Rise of the Pretextual Stop
Remsberg did this by refining the arbitrary stop that police were already addicted to - "just checking," as they said to Professor Reich - and identifying legally acceptable ways to extend the stop into a criminal investigation that might lead to the discovery of illegal drugs. First, he recommended having an actual violation rather than the more amateurish "just checking." Actual violations are often readily at hand - failure to signal a lane change, for instance. The second step was to assess the situation for signs that could provide a reasonable cause for believing that the car contained contraband. Did the driver seem unduly skittish? Were his eyes glazed over? Strange odors? Furtive movements? And the carefully worked-out list of dos and don'ts goes on from there. (See Seo, pp. 254 ff.)
And there is no question that this treatment has fallen disproportionately on people of color. A 1996 state case arising from traffic stops on the New Jersey Turnpike settled this issue definitively. In State v. Soto the New Jersey court, reports Seo on pages 264-265, "excluded evidence of drugs against seventeen black motorists based on the equal protection and due process clauses of the Fourteenth Amendment. The defense had compiled data showing disparities in traffic law enforcement 'so wide, so big' that the computer would not even 'spit out a number,' recalled the professor who had conducted the survey. Nearly every driver sped past legal limits, but blacks were stopped at a disproportionate rate - to be precise, between 16.35 and 22.1 standard deviations above the median, depending on the segment of the New Jersey Turnpike. The opinion helpfully explained that statisticians consider standard deviations over 2 to be statistically significant. To put this in layman's terms, it was 'highly unlikely [that] such statistics could have occurred randomly or by chance.' Even more damning, the defense's expert demonstrated that state troopers using radar stopped black drivers in proportion to their motoring population, while troopers not using radar arrested many more blacks. The witness commented, 'As they got more discretion, they stopped more blacks.'"
It's worth noting that this case was about the Fourteenth Amendment, and not the Fourth Amendment. Perhaps this is a sign of how badly the Fourth Amendment had been broken, way back in the 1920s, basically by a bunch of overeager car salesmen who, careless of the consequences, launched an armada of cars on an unsuspecting country, causing grievous damage to our laws and to the fabric of our cities.
What to Do?
As Professor Seo notes on page 266, "The problem with pretextual policing is not only that the police treat groups differently; it is, just as importantly, that they have that much discretionary power at all."
So how do we limit the use of police discretion? There's an old religious maxim: "Avoid the proximate occasion of sin." I think we have a huge opportunity to radically reduce the amount of time that police spend policing motor vehicles. Red-light cameras and speed cameras change our thinking about how to administer the many, many rules of the road. Do we need a uniformed officer with a 9-mm pistol, a Taser, pepper spray, a wooden baton, or perhaps one of those fancy collapsible metal ones - oh, and a badge? Or do we need a civilian technician staring at a computer screen?
Instead of selective enforcement, this administrative approach can provide 100 percent enforcement, which removes the game aspects of driving - the thrill of transgression, the need for wily stratagems to evade punishment. No more hide and seek, cops and robbers, cowboys and Indians. Just know if you speed, you pay.
How dull, you say. To which I say, speed kills. I know too much about what happens to a child's body when it's hit by a drag-racing car on Roosevelt Boulevard.
People often say that the red-light cameras and the speed cameras are just a money grab, and have nothing to do with safety. Well, when speed cameras first went in on Roosevelt Boulevard in Philadelphia, a gargantuan number of tickets were issued. Nine months later, the number of tickets issued had fallen by 93 percent, indicating that people were actually changing their behavior.
Crashes are also way down. There are still way too many crashes, but changes to the design of the road are in the works and should eventually help lower crashes even further.
We could also revisit some of our many, many traffic laws. If the laws are not changing behavior, does it make sense to have them? Take, for instance, the law requiring motorists to signal a lane change. Many people are highly compliant. I try to do it, but occasionally forget. And there are people who will never, ever signal a lane change. Does pulling people over and writing tickets actually change this behavior?
I could go on about laws that don't do any good, and about how we can redesign our roads so they don't encourage dangerous behavior, but this is a story about the Fourth Amendment, so I think I will end with this thought.
We live in a modern state; it has many rules - perhaps too many. But we do need a lot of rules so that our very complex modern society can function. The idiocracy that seeks to govern us likes to bray about freedom without ever mentioning that we are all answerable for our actions. Freedom always came with responsibility. Those responsibilities are different now, but they do not prevent freedom; they seek to prevent reckless endangerment.
I would like to suggest that our choice is not between freedom and an oblivious bureaucracy. Our choice is between an administrative state and a police state. I'll take the nanny state.
Policing is not imposed from above; it is a service to the community, and the community can take the initiative in seeing that police service is what we want it to be. Legislatively or administratively, it is possible for a community to establish guidelines for police and citizens as well. - Charles Reich, 1966
See also Rugged Individualism, The Supreme Court and Parking, What the Greeks Knew.
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