We the People: Search and Seizure

Summary

Throughline: We the People – Search and Seizure

Introduction

In the episode titled "We the People: Search and Seizure," NPR's Throughline delves into the evolution of the Fourth Amendment and its profound impact on American policing and civil liberties. Hosted by Rund Abdelfatah and Ramtin Arablouei, the episode traces the historical roots of the Fourth Amendment, explores landmark Supreme Court cases, and examines how interpretations of "reasonable" searches have expanded governmental authority, often at the expense of individual freedoms and disproportionately affecting communities of color.

Historical Origins: From Writs of Assistance to the Fourth Amendment

The narrative begins by setting the stage in the early 20th century, highlighting the rampant use of writs of assistance during the American Revolution—general warrants that allowed officers to search any location without specific cause. Sarah Seo, a law professor at Columbia University and author of Chokehold: Policing Black Men, provides context:

"These writs of assistance... 'allowed officers to look all over for what they could find,' without specifying what or where." (08:07)

The oppressive nature of these writs galvanized figures like James Otis and John Adams, leading to the drafting of the Fourth Amendment. The amendment was meticulously crafted to protect individuals from "unreasonable searches and seizures." Sarah Seo reads the Fourth Amendment, emphasizing its poetic and interpretative nature:

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated." (10:44)

Automobiles and the Fourth Amendment: The George Carroll Case

Transitioning to the 1920s, the episode examines the advent of the automobile and its unforeseen implications on the Fourth Amendment. The rise of cars introduced new challenges in policing, particularly during Prohibition. The story of George Carroll, a suspected bootlegger, is pivotal:

"They just decided to pull it over because they thought, that's Carol's car, and we know that he's a bootlegger." (03:46)

Despite Carroll's argument that the search was unconstitutional without a warrant, the Supreme Court ruled that if an officer has "reasonably trustworthy information," they could search without a warrant. Chief Justice William Howard Taft stated:

"As long as an officer has, 'reasonably trustworthy information'... that's enough probable cause to search that car without a warrant." (18:18)

This decision shifted the balance, granting police officers the authority to make on-the-spot judgments about searches, effectively expanding governmental power under the guise of reasonableness.

Terry v. Ohio: Expanding Police Discretion and Racial Implications

Fast forward to the 1960s, amidst the Civil Rights Movement and national unrest. The episode highlights the landmark case of Terry v. Ohio, where Officer McFadden's stop and frisk of John Terry and his companions set a precedent for "reasonable suspicion" rather than the higher standard of "probable cause."

"The constitutional basis for objecting to intentionally discriminatory application of the laws is the equal protection clause, not the Fourth Amendment." (42:07)

Sarah Seo underscores the racial undertones of such policing practices:

"The essence of stop and frisk doctrine is the sanctioning of judicially uncontrolled and uncontrollable discretion by law enforcement officers... an instrument of oppression of the unpopular... Especially black Americans." (29:43)

The Terry decision legitimized stop-and-frisk practices, granting officers broad discretion to detain individuals based on vague suspicions, often influenced by racial biases.

Modern-Day Implications: From Traffic Stops to Digital Privacy

The episode transitions to contemporary times, illustrating how the foundational decisions continue to influence modern policing and digital privacy. Traffic stops remain the most common police encounter, with over 1,000 people killed in such incidents since 2017, disproportionately affecting Black individuals.

Sarah Seo reflects on the personal and societal impacts:

"Potentially a lot of black and brown people... if an officer sees your black or brown face, that might be a reason that she wants to investigate you." (44:41)

Rund Abdelfatah points to the ongoing transformation of the Fourth Amendment in the digital age:

"We have smartphones, the Internet... These are all raising new Fourth Amendment questions." (45:57)

Issues such as location tracking, digital searches, and online privacy are now at the forefront of Fourth Amendment debates, mirroring the automobile's historical impact.

Legal Challenges and Continuing Struggles

The episode details ongoing legal battles that further entrench police power. For instance, in the case of Wren v. United States, the Supreme Court upheld the ability of officers to search vehicles based on minor traffic violations, regardless of ulterior motives:

"If you violated any traffic rule, even if that was waiting at a stop sign too long... police can pull you Over." (41:39)

This ruling emphasizes that the Constitution's language permits broad interpretations, often sidelining the original intent to protect individual liberties.

Conclusion: The Fourth Amendment's Dual Role

In wrapping up, the hosts and guests reflect on the paradoxical evolution of the Fourth Amendment. Initially designed to limit governmental power, its interpretations have increasingly empowered law enforcement, frequently at the expense of marginalized communities.

"The Fourth Amendment began as a tool to protect people from the government. And it feels like now it's become a tool for the government, specifically law enforcement." (47:21)

Sarah Seo passionately advocates for the practical application of constitutional rights:

"Martin Luther King once said, all we want is what you wrote on paper... I’m going to fight like hell to see if the Constitution can apply to me." (49:21)

The episode concludes with a somber reminder of the ongoing struggle to balance security and liberty, urging listeners to question and challenge the ever-expanding reach of governmental authority under the guise of reasonableness.

Key Takeaways

• Historical Context: The Fourth Amendment was a response to oppressive search practices during the American Revolution, aiming to protect individual privacy.

• Automobiles and Policing: The rise of the automobile introduced new challenges, leading to pivotal court cases that expanded police search powers.

• Supreme Court Decisions: Landmark cases like Carroll v. United States and Terry v. Ohio redefined "reasonable" searches, often increasing police discretion.

• Racial Implications: Expanded search powers have disproportionately affected Black and brown communities, reinforcing systemic biases.

• Modern Challenges: The digital age continues to pose new questions about privacy and the scope of the Fourth Amendment.

• Continued Struggle: Efforts to assert and protect constitutional rights remain crucial in the face of evolving governmental powers.

Notable Quotes

• Sarah Seo: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated." (10:44)

• Paul Butler: "Are we consuming the new living conveniences faster than we can digest them? Are we not like one who overeats?" (13:20)

• Paul Butler: "If you violated any traffic rule... police can pull you Over." (41:39)

• Sarah Seo: "I'm going to fight like hell to see if the Constitution can apply to me." (49:21)

Final Thoughts

"We the People: Search and Seizure" offers a comprehensive exploration of the Fourth Amendment's journey from its inception to its current state, highlighting the tension between individual rights and governmental authority. Through historical anecdotes, legal analysis, and personal narratives, the episode underscores the importance of vigilance in safeguarding constitutional protections against expanding state powers.

Transcript

[James Otis]

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[Paul Butler]

Speech against Writs of Assistance, 1761. A man's house is his castle.

[Rund Abdelfatah]

And.

[Paul Butler]

While he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom House officers may enter our houses when they please. They are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way. And whether they break through malice or revenge, no man, no court can inquire their suspicion without oath is sufficient.

[Rund Abdelfatah]

It's now the roaring twenties. 1921, to be exact. Prohibition is in full swing. Selling and transporting alcohol is illegal.

[Ramtin Arablouei]

So you have three Prohibition agents and a state, basically, traffic law enforcer just hanging out by the highways, watching out for things, being on the lookout, and they see an Oldsmobile roadster driving by. Oldsmobile roadster at the time was about triple the price of a basic Model T. So this was kind of a fancy car that the agents could pick out.

[Rund Abdelfatah]

One of the Prohibition agents gasps like.

[Ramtin Arablouei]

I think that's Carol's car.

[Rund Abdelfatah]

The car of George Carroll, a suspected bootlegger. Undercover agents had tried to nab him and a partner a few weeks earlier.

[Ramtin Arablouei]

The Carroll brothers must have caught on that this was an undercover sting, because they never showed up.

[Rund Abdelfatah]

But they're not going to let him get away this time. The Prohibition agents race to catch up with Carroll, pull the flashy Oldsmobile over.

[Ramtin Arablouei]

Stop the car on the side of the highway, and proceed with investigation. They ask him a few questions. They obviously deny having any liquor. They look in the car. They don't see anything. They're about to let them go. And then one of the agents decides to kind of feel the cushions of the back seat. He feels that it's really hard. It should be plush, but it's really hard. So they rip open the cushion, the upholstery, and they find 68 bottles of whiskey and gin.

[Rund Abdelfatah]

68 bottles of whiskey and gin. A clear violation of the National Prohibition Act. But when it came to the reason why they stopped the car in the first place, the police never said Carol broke any traffic rules. I just want to zoom in here a little bit more. So they just decided to pull it over.

[Ramtin Arablouei]

They just decided to pull it over because they thought, that's Carol's car, and we know that he's a bootlegger.

[Rund Abdelfatah]

And they were right. But George Carroll, he wasn't going to stand for that. He basically said, whoa, I didn't do anything wrong. You didn't have grounds to search my car. Just because you found something illegal shouldn't justify that search after the fact.

[Ramtin Arablouei]

The argument was that this was unconstitutional because the officers did not have a warrant to stop and search their car.

[Rund Abdelfatah]

And that, Carol argued, was a violation of the Fourth Amendment, the part of the Bill of Rights that prohibits, quote, unreasonable searches and seizures. But what is reasonable or unreasonable? That question has fueled a century's worth of court rulings that have dramatically expanded the power of individual police officers in the US it's led to more encounters, and deadlier ones, too, between individuals and police, encounters that disproportionately affect black Americans. And it all started with George Carroll's question, was it reasonable for police to stop and search his car without a warrant? I'm Rund Abdelfatah.

[Sarah Seo]

And I'm Ramtin Arablouei.

[Rund Abdelfatah]

On this episode of Throughline from npr, the Fourth Amendment how an amendment that was supposed to limit government power has ended up enabling it.

[Ramtin Arablouei]

Hi, this is Melba in Springfield, Georgia and you are listening to Throughline from npr.

[James Otis]

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[Rund Abdelfatah]

So take, take us back to where and when and why the Fourth Amendment was created.

[Ramtin Arablouei]

So it actually began during the events leading up to the American Revolution. We all remember the phrase no taxation without representation. Taxes was one of the big issues that led to the divorce between the monarchy and the American colonies. To enforce and collect their taxes, the Crown passed what they called writs of assistance, basically general warrants that gave officers the authority to search anyone, any place, whenever they wanted.

[Sarah Seo]

It didn't have to say where could be searched or who could be searched. It didn't have to say what the police were looking for. It very broadly authorized them to look all over for what they could find.

[Ramtin Arablouei]

So they were going into merchants and people's houses with these general writs. And a lawyer by the name of James Otis, who was basically the lawyer for the Crown, he quit. He resigned, saying, I can't defend these writs. And then he went over to the other side and defended the merchants.

[Paul Butler]

I will to my dying day oppose with all the powers and faculties God has given me. All such instruments of slavery on the one hand and villainy on the other. As this writ of assistance is, it appears to me, the worst instrument of arbitrary power.

[Ramtin Arablouei]

He made this huge, important speech on why that was against the common law.

[Paul Butler]

The writ prayed for in this petition. Being general is illegal. It is a power that places the liberty of every man in the hands of every petty officer.

[Ramtin Arablouei]

John Adams listened to that and declared American independence was then and there born. My name is Sarah SEO. I'm a professor of law at Columbia University and I published a book in 2019 called Policing the Open How Cars Transformed American Freedom.

[Rund Abdelfatah]

She's one of our guests today. The other is Paul Butler, law professor.

[Sarah Seo]

At Georgetown and a former prosecutor. I wrote a book called Chokehold policing black men.

[Rund Abdelfatah]

28 years after James Otis speech, John Adams is now Vice President of a young United States. And as the architects of the Bill of Rights began drafting amendments to the Constitution, these writs of assistance still loomed large in their minds. None of them liked the idea of armed government goons just searching their bodies or homes willy nilly. So they included a specific idea.

[Sarah Seo]

If the government is going to invade your privacy, looking around at your stuff or touching your body, there need to be rules.

[Rund Abdelfatah]

Can you define exactly what the Fourth Amendment actually says?

[Sarah Seo]

I'll be happy to read it. In fact, I have my students read it. I tell them that it's a poem Called the Fourth Amendment. I like thinking of it as a poem because it's subject to so many different interpretations. Here's the point. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.

[Ramtin Arablouei]

And no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be.

[Sarah Seo]

Searched and the persons or things, things to be seized.

[Rund Abdelfatah]

What kinds of things would it have applied to specifically at that time?

[Ramtin Arablouei]

A house or documents, papers? Those were the things that the fourth.

[Rund Abdelfatah]

Amendment protected, and people got that. So for a long time, there weren't many court cases about what it should do, but that would change.

[Ramtin Arablouei]

It's the invention of the automobile. The assembly line for the Model T is perfected around 1914. The mass adoption of the automobile happens pretty quickly after that.

[Rund Abdelfatah]

In the five years between 1914 and 1919, the number of registered motor vehicles in the US quadrupled to nearly 8 million.

[Ramtin Arablouei]

And suddenly, every small town and large city is dealing with the same problem of traffic. All of these suddenly flood the streets. A lot of bad driving and also a lot of traffic fatalities. Children were dying.

[Rund Abdelfatah]

By the 1920s, more than half of all auto fatalities nationwide, 60% were children under the age of nine, often kids playing in the streets in front of their own homes.

[Ramtin Arablouei]

Five children, ranging in age from 2 to 9 years, were injured when a red touring car crashed into the group of little folks while they were playing in the street on Saturday afternoon.

[Rund Abdelfatah]

Motor TRUCK KILLS GIRL Mame's SISTER Two.

[Ramtin Arablouei]

Children were killed and several persons were seriously injured yesterday in motor vehicle accidents.

[Rund Abdelfatah]

In places like Detroit, traffic accidents and deaths were so frequent that injuries went unrecorded. US Secretary of Commerce Herbert Hoover declared traffic a national crisis.

[Paul Butler]

Are we consuming the new living conveniences faster than we can digest them? Are we not like one who overeats?

[Ramtin Arablouei]

And so governments, local governments throughout the country passed traffic laws. They were relying more on police officers to enforce traffic. And they realized that the fines that they got from citations were paying for more police officers. In the 18th century, early 19th century, crimes were usually investigated by private citizens or private detective agencies, or even insurance companies. The fact that the government investigates and prosecutes almost all crimes, that is largely a 20th century phenomenon. One of the huge changes over the centuries is the development of police forces that have a monopoly on criminal investigation.

[Rund Abdelfatah]

And as it pertains to the fourth Amendment on search and seizure.

[Ramtin Arablouei]

Exactly.

[Rund Abdelfatah]

So by the early 20th century, cars are everywhere, and police are everywhere too. And all of a Sudden, there was.

[Ramtin Arablouei]

An explosion of Fourth Amendment cases.

[Rund Abdelfatah]

And right as that happens, comes Prohibition.

[Ramtin Arablouei]

The car is essentially a movable container for hiding and carrying things, which is perfect for bootleggers who need to transport large amounts of liquor.

[Rund Abdelfatah]

Fourth Amendment interpretations said if police searched someone or some place when they were supposed to have a warrant but didn't, then any evidence police found couldn't be used at trial. So bootleggers started bringing Fourth Amendment challenges to cases saying police should have had a warrant when they found illegal booze.

[Ramtin Arablouei]

Usually, deciding Fourth Amendment issue was pretty straightforward. You ask, is the thing that the government want to search, is it under the private sphere? And if so, then a warrant is required, or is it under the public sphere? And if so, then a warrant is not required.

[Rund Abdelfatah]

But when it came to cars, the.

[Ramtin Arablouei]

Court really struggled with this.

[Rund Abdelfatah]

Can you just briefly sort of outline what the arguments were to say the car is private versus the car is public.

[Ramtin Arablouei]

So the arguments for the car is private is that a car is property that you own that's movable, and so the Fourth Amendment should protect it by requiring a warrant. And this argument resonated in how individuals experienced the automobile. Early car advertisements were depicting the car as an extension of the home or the parlor, like a parlor on wheels. Young couples were courting each other, no longer on the parlor or the porch, but in the car. So it was an intimate space.

[Rund Abdelfatah]

And it still feels that way. It still does feel like, you know, we belt songs at the top of our lungs in the car as if no one is watching. Yes, yes, because we think of it as a private space.

[Ramtin Arablouei]

On the other side, the public sphere is a sphere where the public's interest requires government regulation. And so the argument that the car is public and in the public sphere was that it's incredibly dangerous. It requires people who are fit, who know how to drive a car, all the traffic laws about when to stop, when, when you can go, when you can turn and how you can turn, speed limits, those are all for public safety. So the argument was that, well, cars are. I mean, I guess they're privately owned, but they're also in the public sphere because they're regulated. And so if they're in the public sphere, then the government need not get a warrant.

[Rund Abdelfatah]

By 1925, the case about George Carroll, the bootlegger with the flashy Oldsmobile, had reached the Supreme Court.

[Sarah Seo]

The question that the Supreme Court confronted in Carroll was whether warrants should be required when the police want to search an automobile.

[Rund Abdelfatah]

So the question the Supreme Court seemed set to weigh in on is the car public or private?

[Ramtin Arablouei]

And so basically what the Supreme Court decides is it's a little bit of both.

[Rund Abdelfatah]

Supreme Court Chief Justice William Howard Taft wrote the opinion.

[Ramtin Arablouei]

He says the Fourth Amendment doesn't prohibit all searches and seizures, it just prohibits unreasonable ones. He discards the whole public private framework instead. The way to answer the question, did the police violate the Fourth Amendment? Will be were they acting reasonably? The true rule is that if the.

[Paul Butler]

Search and seizure without a warrant are made upon probable cause, that is upon a belief reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.

[Rund Abdelfatah]

He says, as long as an officer has, quote, reasonably trustworthy information that would lead a man of, quote, reasonable caution to believe there's contraband in a car, then that's enough probable cause to search that car without a warrant.

[Ramtin Arablouei]

Now that's huge because it shifts the Fourth Amendment decision from a judge who decides whether to sign off on the warrant to an officer on the road or on the street deciding for himself or herself whether they have reasonable belief that there's evidence of a crime. They get to decide on the spot.

[Rund Abdelfatah]

I think the fact that suddenly the officer becomes the face in a lot of ways of the Fourth Amendment is really significant. Right? It's transformed and 40 years down the road during the civil rights movement, another case will take that question of what is reasonable and push it further. Coming up, the Fourth Amendment meets. Stop and frisk.

[Ramtin Arablouei]

Hi, this is Jamie McReynolds from Blacksburg.

[Paul Butler]

Virginia and you're listening to Throughline on NPR.

[James Otis]

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[Paul Butler]

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[James Otis]

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[Sarah Seo]

It's Halloween 1963. A police officer is on a routine patrol downtown. It's about two o'clock in the afternoon. He sees Mr. Terry and another black man walking up and down the street.

[Ramtin Arablouei]

Who seem to be casing a store. They walk back and forth in front of the store.

[Sarah Seo]

They keep looking in the store window. And then the men are joined by a third man who is wife.

[Rund Abdelfatah]

To Officer Martin McFadden in downtown Cleveland. This is weird, kind of suspicious. So he goes up to the men, asks their names. They mumble something inaudible. McFadden grabs Mr. Terry. John Terry spins him around and pats him down.

[Sarah Seo]

He feels a weapon inside of Mr. Terry's coat and so he orders them all to turn around, put their hands on a wall and then he frisk. Frisk is when a police officer puts his hands on your clothing trying to detect a weapon.

[Rund Abdelfatah]

The officer frisk John Terry finds a gun, frisks the other black man, Richard Chilton, another gun. He then frisks the white man, Carl Katz. Nothing.

[Sarah Seo]

The officer says he suspected that Mr. Terry and his friends were casing the joint. But the officer didn't have probable cause or anything grounds to arrest Mr. Terry for that crime.

[Rund Abdelfatah]

But Officer McFadden did have grounds to arrest John Terry after the fact for a different crime when he found that gun. Just like with George Carroll, the bootlegger, evidence of a crime was found after a search in that case. Officers saw Carol and searched him because they recognized him. But here the officer saw three guys that he didn't know and searched them because he got a funny feeling about what they might do. This sequence of events would form the backbone of the Supreme Court case known as Terry versus Ohio.

[Sarah Seo]

So issue before the Supreme Court is there was no probable cause for the seizure of Mr. Terry and there was no probable cause for the frisk the search. Can the police do this now?

[Rund Abdelfatah]

No Supreme Court case is decided in a vacuum. It's a creature of its times. And in the 60s when the Supreme Court was set to weigh in on whether an officer can stop and frisk someone without having probable cause. The civil rights movement was underway and tensions around the country were running high. Really high.

[Sarah Seo]

There are uprisings all over the United States.

[Paul Butler]

Absolutely incredible scene. Gun battle in the middle of streets of Los Angeles.

[Ramtin Arablouei]

First one drops her hands dead man.

[Paul Butler]

The burning and looting, the shooting and beating went on for nearly a week.

[Sarah Seo]

Frequently violent by people in communities who are really mad about something, that the police.

[Paul Butler]

It began as many race riots have begun with the arrest of a negro by white officers.

[Ramtin Arablouei]

There was a scuffle and a crowd gathered.

[Sarah Seo]

He was getting tired of being pushed around.

[Ramtin Arablouei]

But you right this hour.

[Sarah Seo]

There had been an uprising in Detroit about police violence against black people. The story of that riot which left 43 dead, thousands injured and the city in place.

[Ramtin Arablouei]

This is a battle zone.

[Paul Butler]

These are troops.

[Ramtin Arablouei]

It's like war.

[Sarah Seo]

There were people who were killed during these protests. There was a lot of property damage.

[Paul Butler]

President Johnson addressed the nation.

[Sarah Seo]

Law and order have broken down in Detroit, Michigan. Pillage, looting, murder and arson have nothing to do with civil rights. These kinds of uprisings were happening all over the country. We have proclaimed a state of emergency. I threw the firebomb right in the front window. Right in the front window.

[Paul Butler]

I never believed this could happen in.

[Sarah Seo]

Our nation's capital or in my city. The other factor was that there had been this big spike in crime in the late 60s. Crime, especially in cities, went way up. And young black men were thought to be some of the primary perpetrators. Part of the subtext of the Terry opinion is, but when an officer sees these three guys, including two young black men, walking up and down the street and they keep looking in the store window, what do you want the officer to do? Do we really expect the police to wait until these men have possibly burglarized the store before the police can act?

[Rund Abdelfatah]

While the Terry decision was pending before.

[Paul Butler]

The court, news out of Memphis, Tennessee.

[Rund Abdelfatah]

Martin Luther King Jr. Was assassinated.

[Sarah Seo]

A shockwave of looting and arson would sweep through a number of cities and.

[Paul Butler]

Towns from coast to coast.

[Sarah Seo]

Then Senator Kennedy has been shot.

[Rund Abdelfatah]

Bobby Kennedy assassinated. Two shocking the nation. There were calls for more law and order. And when the court released his decision in the Terry case about stop and.

[Sarah Seo]

Frisks, the Supreme Court for the first time in the Terry case allowed a government seizure and search without probable cause. It said a lower standard should apply.

[Rund Abdelfatah]

That lower standard is called reasonable suspicion. Up until this point, the Supreme Court had never okay to search based on suspicion alone. It had always said the fourth amendment meant police couldn't search someone unless they had a warrant or enough evidence to arrest them. But Supreme Court chief justice Earl Warren declares a stop and frisk isn't a full on search. So that lower standard of reasonable suspicion, it applies. He says police need to be able to protect themselves to find weapons before they're used. So a stop and frisk is okay as Long as it's reasonable, as long as an officer can give a good reason why they were suspicious of that person.

[Sarah Seo]

The police officer must be able to.

[Paul Butler]

Point to specific and articulable facts which, taken together with rational inferences from those.

[Sarah Seo]

Facts, reasonably warrant that intrusion.

[Ramtin Arablouei]

It's the logic of Carroll that the fourth amendment doesn't prohibit all government action. It doesn't prohibit all searches and seizures. It only prohibits unreasonable ones.

[Rund Abdelfatah]

So you basically have that standard now that was applied to cars being applied to individual people.

[Ramtin Arablouei]

Yes.

[Rund Abdelfatah]

Thanks to the Terry case.

[Ramtin Arablouei]

Yes. It expands the kinds of searches and seizures that the police do under the fourth amendment.

[Sarah Seo]

Shortly after Terry was decided, the New York Times published an editorial.

[Rund Abdelfatah]

The Times wrote that the decision, quote, will help persuade policemen that the court does not lie awake nights dreaming up ways to increase the hazards of their jobs. The black civil rights organization, the naacp, objected to this kind of expansive police power. In a brief filed with the supreme Court, NAACP lawyers had warned about the potential for stop and frisks to be abused.

[Ramtin Arablouei]

Stop and frisk power is employed by.

[Paul Butler]

The police most frequently against the inhabitants.

[Ramtin Arablouei]

Of our inner cities, racial minorities, and the underprivileged. This is no historical accident or passing circumstance. The essence of stop and frisk doctrine is the sanctioning of judicially uncontrolled and uncontrollable discretion by law enforcement officers. History, and not in this century alone, has taught that such discretion comes inevitably to be used as an instrument of oppression of the unpopular. It was so in the case of.

[Paul Butler]

The search and seizure practices which the.

[Ramtin Arablouei]

Fourth amendment was written to condemn.

[Sarah Seo]

The police have been doing stop and frisk in communities of color for decades before the Terry case authorized the practice. Everyone knew, including when the case was argued and when the decision was handed down, that it was profoundly about race. It wasn't only about race. It was, but it profoundly implicated race. The experience of a lot of people in communities of color is that it doesn't take much for the police to mess with you. It doesn't take a whole lot for them to stop you, and for them, once you've been stopped, to put their hands all over your body. What Terry does is to give the police a huge amount of power and a huge amount of discretion to stop who they want to stop. And who they want to stop is often people of color.

[Rund Abdelfatah]

What would the argument be for why police should be the ones to make this call?

[Ramtin Arablouei]

The reason that courts give is because they're the ones who have to think on their feet. They have a very dangerous job, and it's all too easy for judges in their law chambers to second guess what the police have to do. I sympathize with that. I do. It's a hard job. But deference is one thing. It's also true that courts and judges play an important role in reviewing what the police did.

[Rund Abdelfatah]

In the decades after Terry the court kept ruling on Fourth Amendment cases. In some instances, it limited police power. But in public spaces, court rulings would hand individual police officers more and more power until a reasonable stop and search didn't require very much at all. That's coming up.

[Sarah Seo]

My name's Amanda.

[Ramtin Arablouei]

I'm calling from Portland, Maine, and you're listening to Throughline.

[Paul Butler]

This message comes From NPR Sponsor 1Password Protect your digital life with 1Password if you're tired of family members constantly texting you for the passwords to streaming services, 1Password lets you securely share or remove access to logins access from any device anytime. 1Password lets you securely switch between iPhone, Android, Mac and PC with convenient features like autofill for quick sign ins. Right now, get a free two week trial for you and your family at 1Password.com NPR this message comes from Jackson. Let's face it, retirement planning can be confusing. At Jackson, we're working to make retirement clear for everyone, starting with you. Our easy to understand resources and user friendly digital tools help simplify your entire experience. You can have confidence in your retirement with clarity from Jackson. Seek the clarity you [e-mail] Jackson is short for Jackson Financial, Inc. Jackson National Life Insurance Company, Lansing, Michigan and Jackson National Life Insurance Company of New York Purchase, New York. Coming up next, live from the Oval Office, President George Bush addresses the nation. Good evening. This is the first time since taking the oath of office that I felt an issue was so important, so threatening that it warranted talking directly with you, the American people.

[Rund Abdelfatah]

President George Bush, the first one, is sitting at his desk in the Oval Office. Red tie, parted hair, pictures of family behind him. And he has a warning for the American people.

[Paul Butler]

The gravest domestic threat facing our nation today is drugs.

[Rund Abdelfatah]

In 1989, nearly 70 years after Prohibition began, the United States found itself in the middle of another war on vice. Drugs that this time. But the president says we have a powerful tool at our disposal.

[Paul Butler]

We need more prisons, more jails, more courts, more prosecutors. So tonight I'm requesting altogether an almost billion and a half dollar increase in drug related federal spending on law enforcement.

[Ramtin Arablouei]

We're getting into kind of the late 20th century as the war on drugs gears up. The DEA creates this drug courier profile of People who are likely to be drug traffickers. And a lot of the factors that describe this profile have distinct racial overtones.

[Rund Abdelfatah]

And pretty explicit ones, too. One profile used to identify potential drug traffickers lists African Americans and Colombians wearing, quote, unquote, lots of gold as people to look out for. Another was, quote, whites wearing boots.

[Ramtin Arablouei]

Some of the training videos, the actors who played drug suspects were of Hispanic background or had Hispanic names. So there were distinct racial overtones that informed who officers were going to look for. And over decades of all of these cases raising the question, was the officer reasonable in doing this based on these facts? Was the officer reasonable doing that based on these? It builds up a common law of fourth amendment cases.

[Rund Abdelfatah]

Case after case, police find drugs. And then defendants say, well, yeah, but the search to find those drugs was illegal. So judges ask the officer, okay, why'd you search that person in the first place? What kind of suspicion did you have? And officers give lots of reasons, and.

[Ramtin Arablouei]

They often come to contradict each other almost. So there's a case that says, you know, an officer was justified because the suspect was the first to deplane the airplane. There's another case that said the officer was justified because the suspect was the last to deplane and another case saying that they deplane from the middle of the plane. One of the facts supporting suspicion was, you know, the suspect bought one way tickets. In another case was round trip tickets. In another case, it was a nonstop flight.

[Rund Abdelfatah]

And so this body of law grows, giving police the power to search people for all sorts of reasons.

[Ramtin Arablouei]

And so you get hundreds of these fourth amendment cases over time that just slowly, gradually expand the police's discretionary authority. Because they're reasonable here, they're reasonable there, they're reasonable there. A lot of the reasonableness decisions, because they're so vast, they're able to cover up suspicions that are motivated by. By race.

[Sarah Seo]

We'll hear argument now. Number 955841. Michael A. Horan versus and James L. Brown versus the United States. Client has a very strange name.

[Paul Butler]

Did you not pronounce it?

[Sarah Seo]

Horan Wren. Very well, you may proceed.

[Ramtin Arablouei]

Thank you, Mr. Chief Justice.

[Rund Abdelfatah]

And may it please the court. It's April 17, 1996, a Wednesday. Supreme Court Justice William Rehnquist trips over Michael Wren's name and welcomes oral argument for the case Wren versus United States. It's a case about whether police can use a minor traffic violation to pull someone over who they might suspect of a larger crime. A case about evaluating the whether an individual officer's internal motivations Are actually relevant. The ultimate test under the fourth amendment is reasonableness, not probable cause. Lisa Wright, Michael Wren's lawyer, says, like reasons to search someone, reasons police can give for making a stop are too broad that police can cite something as tiny as string hanging from a mirror as probable cause to pull someone over. So it's important to actually evaluate whether that's reasonable. She sets up this analogy for the court. The floor is the tiniest possible infraction. The ceiling is the most serious one.

[Ramtin Arablouei]

If the floor represents probable cause of.

[Rund Abdelfatah]

A string hanging from the motorist's rear view mirror, or probable cause that the motorist glance at his watch or change.

[Ramtin Arablouei]

The radio station, or probable cause that the motorist signaled for only 2 1/2.

[Rund Abdelfatah]

Seconds rather than 3 seconds before changing lanes. And the ceiling is probable cause of the most serious traffic infraction we can imagine. Then, under the government's view, the police.

[Ramtin Arablouei]

Have complete discretion anywhere between the floor.

[Rund Abdelfatah]

And the ceiling to make that, to make a stop.

[Paul Butler]

Let me ask you this.

[Rund Abdelfatah]

The stop at the center of this case happened in Washington, D.C. not far from the supreme court.

[Ramtin Arablouei]

So it was late at night in a place where the officer said it was a high drug area, or often called a high crime area. The officer sees a car that stopped at a stop sign for what he thinks is an unreasonably long time, like 20 seconds, and then the car drives off. So he pulls the car over, and the reason he gives is because the driver was driving at an unreasonable speed without using a turning signal.

[Sarah Seo]

All they need is reasonable suspicion. And so when they stopped the car in which a young Black man named Mr. Wren was a passenger, they said that they looked inside the car and.

[Rund Abdelfatah]

They saw contraband, two plastic baggies of crack cocaine in the passenger Michael Ren's hands. So they arrest him. But Michael ren and his lawyers argued that the police didn't actually stop the car because of a traffic violation. Instead, they said the police did it because they saw two black guys driving and wanted to see if other crimes were going on.

[Sarah Seo]

What Mr. Rand's lawyer says to the supreme court is the standard for when the police can stop you for a traffic infraction should be when a reasonable officer would think that that traffic infraction is something that you need to get a ticket for. It shouldn't be any old thing.

[Rund Abdelfatah]

But in a unanimous decision, the court disagreed. Justice Antonin scalia wrote the decision saying, if you violated any traffic rule, even if that was waiting at a stop sign too long or switching lanes without signaling, police can pull you Over. And once they pull you over, whatever evidence they find of other crimes is admissible in court. Their initial motivation for stopping you, whatever it is, doesn't matter.

[Ramtin Arablouei]

The court decides that even if a traffic stop was motivated by non safety reasons, including racial motivations, it's not a fourth Amendment violation. I will quote from the case that says, we of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of the laws is the equal protection clause, not the fourth Amendment. Basically, they're saying the Constitution prohibits racialized policing. But you have to bring that challenge under the 14th amendment. Equal protection clause, not the 4th amendment. The amendment that specifically governs the police doesn't address this issue. The fourth Amendment will not look at the subjective motivations of an officer for making that stop, even if that motivation is racial.

[Sarah Seo]

To demonstrate how much power that case gives police officers, a friend of mine who's a police officer invites my students to go on a ride along with him. A ride along is when people sit in the back of a police car and they just observe what it's like to police the streets of the District of Columbia for a couple of hours. So my students are in the back of the car, one or two. The officer plays a game with them. The officer says, point to any car, you lie and I will stop it. So the student might say, well, how about that Ray Toyota Camry over there? He waits until he has a legal reason. He says he can follow any driver for a couple of blocks or a couple of minutes and find a reason to stop that driver.

[Rund Abdelfatah]

Just in our everyday lives, right? I think we've all seen this right, where a cop sort of like chooses a car kind of right, and is like tailing that car for a while and inevitably the lights come on, that car gets pulled over. And if it's you, right, like depending on who you are driving that car, it's a variation of emotions from like, annoyed to like, scared for your life.

[Sarah Seo]

Potentially a lot of black and brown people. I know when an officer is behind you in her car, your heart starts beating faster, you're scared. And it doesn't matter what your level of accomplishment is. It doesn't matter who's in the car with you. You know that if an officer sees your black or brown face, that might be a reason that she wants to investigate you. And as a former prosecutor, as a legal scholar, and as a black man, I know how much power the police have to do that.

[Ramtin Arablouei]

Ultimately, we're left asking the question, whose amendment is this anyway? It really does seem to be an amendment that empowers discretionary policing rather than limit it.

[Rund Abdelfatah]

All. The power that the police and government have accrued in the past 100 years is now pushing into the digital realm.

[Ramtin Arablouei]

The automobile was the first new technology that kind of blew up the Fourth Amendment, right? Now we have smartphones, the Internet, even meta right. These are all raising new Fourth Amendment questions.

[Rund Abdelfatah]

Is your location tracking info okay for police to look at? Are Google searches fair game? How do you know when police or the government have violated your digital privacy?

[Ramtin Arablouei]

There's a debate about which test we should be using to answer or Fourth Amendment questions. Is it public, private, or is it reasonableness?

[Rund Abdelfatah]

100 years after the first stop and search case about a car went to the Supreme Court, police power in the US has expanded dramatically.

[Ramtin Arablouei]

Everybody's being pulled over for a traffic violation. It is still the number one type of encounter between individuals and the police. The difference is what kind of experience people have when they're pulled over.

[Rund Abdelfatah]

It's an encounter that can range from embarrassing. Let me see your license and registration. To frustrating. Did you know you were swerving between lanes? To deadly.

[Paul Butler]

Step out of the vehicle for me.

[Sarah Seo]

Get the car.

[Paul Butler]

I can't do anything.

[Sarah Seo]

Unlock.

[Rund Abdelfatah]

According to the nonprofit Mapping police violence, since 2017, US police have killed over 1,000 people in police encounters that involved a traffic stop. A disproportionate number of the people killed, nearly one third were black. And it's not just cars. Police can stop you in public for almost any reason. One thing that I'm struck by, you know, in this conversation that I find, I guess, deeply ironic, is that the Fourth Amendment, you know, began as this sort of, you know, tool to protect people from the government. And it feels like now it's become a tool for the government, for police, law enforcement specifically. And so I'm curious what you make of that evolution.

[Sarah Seo]

I want to be careful not to overstate the power of the police. Even given the Supreme Court's interpretations of the Fourth Amendment, it still sometimes protects ordinary people from the vast power of the police. As a black man, I'm kind of a walking issue spotter with regard to the Fourth Amendment.

[Rund Abdelfatah]

Paul's had his share of police encounters, which he says underscores the larger point. When an officer stops you, maybe there's not always a search or a seizure, but there's always a possibility. And either way, that experience can leave you shaken.

[Sarah Seo]

There's a legal scholar who says The Fourth Amendment is not for wimps. You have to be willing to assert your rights. It's better that the Fourth Amendment exists than that it doesn't exist. Martin Luther King once said, all we want is what you wrote on paper. It would be wonderful if the protections of the Constitution and the great Bill of Rights, which is where the Fourth Amendment appears, how great it would be if black people could actually experience those rights as realities and then we can have the opportunity to be as free as any other person. So for me, I'm going to fight like hell to see if the Constitution can apply to me.

[Rund Abdelfatah]

That's it for this week's show. I'm Rund Abdelfatah. I'm Ramtin Arablouei and you've been listening.

[Paul Butler]

To Throughline from npr.

[Rund Abdelfatah]

This episode was produced by me and.

[Ramtin Arablouei]

Me and Lawrence Wu, Julie Kane, Anya Steinberg, Casey Miner, Christina Kim, Devin Kadayama.

[Paul Butler]

Peter Balanon Rosen, Irene Noguchi.

[Ramtin Arablouei]

Fact checking for this episode was done by Kevin Voelkel.

[Rund Abdelfatah]

This episode was mixed by Robert Rodriguez. Thanks to Johannes Durgi, Greta Pittenger, Edith Chapin and Colin Campbell. And a special thanks to Dan Girma, Molly Rosen, Marissa Balanon Rosen, Alma Balanon Rosen, Dean Antonio, Brendan Schwartz, Peter Balanon Rosen and Lawrence Wu for their voiceover work. Music for this episode was composed by Ramtin and his band Drop Electric, which includes Anya Mizani, Navid Marvi, Sho Fujiwara.

[Paul Butler]

And finally, if you have an idea.

[Rund Abdelfatah]

Or like something you heard on the.

[Paul Butler]

Show, please write [e-mail].

[Rund Abdelfatah]

Thanks for listening.

[Sarah Seo]

Foreign.

[James Otis]

Support for this podcast and the following message come from Cunard Sailing to destinations Worldwide on Queen Mary 2, Queen Victoria, Queen Elizabeth and Queen Anne. Each voyage offers wellness and relaxation, culinary indulgence and unique enrichment. [e-mail] this message comes from NPR sponsor Dana Farber Cancer Institute. Dana Farber Scientists laid the foundation for CDK4.6 inhibitors, new drugs that are increasing the survival rate for many advanced breast cancers. Learn [e-mail] Everywhere this message comes from Bombas Socks, underwear and T shirts are the top three requested clothing items by people experiencing homelessness. Bombas makes all three and donates one item. For every item purchased, go to bombas.com NPR and use code NPR for 20% off.