UNIDENTIFIED ACTOR #1: (As James Otis) James Otis - Speech Against Writs of Assistance, 1761.
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UNIDENTIFIED ACTOR #1: (As James Otis) A man's house is his castle.
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UNIDENTIFIED ACTOR #1: (As James Otis) And while he is quiet, he is as well guarded as a prince in his castle.
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UNIDENTIFIED ACTOR #1: (As James Otis) This writ, if it should be declared legal would totally annihilate this privilege. Custom house officers may enter our houses when they please.
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UNIDENTIFIED ACTOR #2: (As character) Open up.
UNIDENTIFIED ACTOR #1: (As James Otis) They are commanded to permit their entry.
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UNIDENTIFIED ACTOR #3: (As character) Quit resisting.
UNIDENTIFIED ACTOR #1: (As James Otis) 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. Bare suspicion without oath is sufficient.
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RUND ABDELFATAH, HOST:
It's now the roaring '20s. 1921, to be exact. Prohibition is in full swing. Selling and transporting alcohol is illegal.
SARAH SEO: 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.
ABDELFATAH: One of the prohibition agents gasps.
SEO: Like, I think that's Carroll's car.
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ABDELFATAH: The car of George Carroll, a suspected bootlegger. Undercover agents had tried to nab him and a partner a few weeks earlier.
SEO: The Carroll brothers must have caught on that this was an undercover sting because they never showed up.
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.
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SEO: Stopped 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.
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SEO: 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.
ABDELFATAH: Sixty-eight 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 Carroll broke any traffic rules.
I just want to zoom in here a little bit more. So they just decided to pull it over?
SEO: They just decided to pull it over because they thought, that's Carroll's car, and we know that he's a bootlegger.
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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.
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SEO: The argument was that this was unconstitutional because the officers did not have a warrant to stop and search their car.
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ABDELFATAH: And that, Carroll 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 U.S. 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?
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ABDELFATAH: I'm Rund Abdelfatah.
RAMTIN ARABLOUEI, HOST:
And I'm Ramtin Arablouei.
ABDELFATAH: This is the next installment in our series looking at amendments to the U.S. Constitution. 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.
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MELBA: Hi. This is Melba (ph) in Springfield, Ga., and you are listening to THROUGHLINE.
MELBA: From NPR.
ABDELFATAH: So take us back to where and when and why the Fourth Amendment was created.
SEO: 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.
PAUL BUTLER: 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.
SEO: 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.
UNIDENTIFIED ACTOR #1: (As James Otis) 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.
SEO: He made this huge important speech on why that was against the common law.
UNIDENTIFIED ACTOR #1: (As James Otis) 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.
SEO: 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 Road: How Cars Transformed American Freedom."
ABDELFATAH: She's one of our guests today. The other is Paul Butler.
BUTLER: Law professor at Georgetown and a former prosecutor. I wrote a book called "Chokehold: Policing Black Men."
ABDELFATAH: Twenty-eight 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.
BUTLER: If the government is going to invade your privacy, looking around at your stuff or touching your body, there need to be rules.
ABDELFATAH: Can you define exactly what the Fourth Amendment actually says?
BUTLER: 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 poem. (Reading) The right of the people to be secure and their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.
SEO: (Reading) And no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched.
BUTLER: (Reading) And the persons or things to be seized.
ABDELFATAH: What kind of things would it have applied to specifically at that time?
SEO: A house or documents, papers - those were the things that the Fourth Amendment protected.
ABDELFATAH: And people got that. So for a long time, there weren't many court cases about what it should do. But that would change.
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SEO: 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.
ABDELFATAH: In the five years between 1914 and 1919, the number of registered motor vehicles in the U.S. quadrupled to nearly 8 million.
SEO: And suddenly, every small town and large city is dealing with the same problem of traffic. All of these cars suddenly flood the streets, a lot of bad driving, and also a lot of traffic fatalities. Children were dying.
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ABDELFATAH: By the 1920s, more than half of all auto fatalities nationwide, 60%, were children under the age of 9. Often, kids playing in the streets in front of their own homes.
UNIDENTIFIED ACTOR #4: (As reporter) 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.
UNIDENTIFIED ACTOR #5: (As reporter) Motor truck kills girl, maims sister.
UNIDENTIFIED ACTOR #6: (As reporter) Two children were killed and several persons were seriously injured yesterday in motor vehicle accidents.
ABDELFATAH: In places like Detroit, traffic accidents and deaths were so frequent that injuries went unrecorded. U.S. Secretary of Commerce Herbert Hoover declared traffic a national crisis.
UNIDENTIFIED ACTOR #7: (As Herbert Hoover) Are we consuming the new living conveniences faster than we can digest them? Are we not like one who overeats?
SEO: 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.
ABDELFATAH: And, as it pertains to the Fourth Amendment, on search and seizure.
SEO: Exactly.
ABDELFATAH: So by the early 20th century, cars are everywhere. And police are everywhere, too. And all of a sudden...
SEO: There was an explosion of Fourth Amendment cases.
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ABDELFATAH: And right as that happens comes Prohibition.
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SEO: 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.
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.
SEO: Usually, deciding a 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 in the - under the public sphere? And if so, then a warrant is not required.
ABDELFATAH: But when it came to cars...
SEO: The court really struggled with this.
ABDELFATAH: Can you just briefly sort of outline what the arguments were to say the car is private versus the car is public?
SEO: 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.
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SEO: 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.
ABDELFATAH: And it still feels that way...
SEO: It still does.
ABDELFATAH: ...Right? Like...
SEO: It still does.
ABDELFATAH: You know, we belt songs at the top of our lungs in the (laughter) car as if no one is watching.
SEO: Yes. Yes.
ABDELFATAH: Because we think of it as a private space.
SEO: 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 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.
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ABDELFATAH: By 1925, the case about George Carroll, the bootlegger with the flashy Oldsmobile, had reached the Supreme Court.
BUTLER: The question that the Supreme Court confronted in Carroll was whether warrants should be required when the police want to search an automobile.
ABDELFATAH: So the question the Supreme Court seemed set to weigh in on - is the car public or private?
SEO: And so basically, what the Supreme Court decides is it's a little bit of both.
ABDELFATAH: Supreme Court Chief Justice William Howard Taft wrote the opinion.
SEO: 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?
UNIDENTIFIED ACTOR #8: (As William Howard Taft) The true rule is that if the 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.
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.
SEO: 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.
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?
SEO: It's transformative.
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ABDELFATAH: 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.
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JAMIE MCREYNOLDS: Hi. This is Jamie McReynolds (ph) from Blacksburg, Va., and you're listening to THROUGHLINE on NPR.
ABDELFATAH: We just want to take a moment to shout out our THROUGHLINE+ subscribers. Thank you so much for your support. If you don't already know, subscribing to THROUGHLINE+ means you get to listen to our show without any sponsor breaks, and you also get access to special bonus episodes where we take you behind the scenes, introduce you to our amazing producers and tell you about how we make the show. To get these awesome benefits and support our work here at NPR, head over to plus.npr.org/throughline.
BUTLER: It's Halloween 1963. A police officer is on a routine patrol downtown. It's about 2 o'clock in the afternoon. He sees Mr. Terry and another Black man walking up and down the street.
SEO: Who seem to be casing a store. They walk back and forth in front of the store.
BUTLER: They keep looking in the store window. And then the men are joined by a third man, who was white.
ABDELFATAH: To Officer Martin McFadden in downtown Cleveland, this is weird, kind of suspicious. So he goes up to the men, asked their names. They mumble something inaudible. McFadden grabs Mr. Terry - John Terry - spins him around and pats him down.
BUTLER: 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 frisks. Frisk is when a police officer puts his hands on your clothing, trying to detect a weapon.
ABDELFATAH: The officer frisks John Terry - finds a gun. Frisks the other Black man, Richard Chilton - another gun. He then frisks the white man, Carl Katz - nothing.
BUTLER: The officer says he suspected that Mr. Terry and his friends were casing the joint. But the officer didn't have probable cause or any grounds to arrest Mr. Terry for that crime.
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 Carroll 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 v. Ohio.
BUTLER: So the 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?
ABDELFATAH: Now, 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.
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BUTLER: There are uprisings all over the United States.
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BILL STOUT: Absolutely incredible scene. Gun battle in the middle of streets of Los Angeles.
UNIDENTIFIED PERSON #1: First one who drops their hand is a dead man.
STOUT: The burning and looting, the shooting and beating went on for nearly a week.
BUTLER: Frequently violent by people in communities who are really mad about something that the police have done.
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STOUT: It began as many race riots have begun, with the arrest of a Negro by white officers. There was a scuffle, and a crowd gathered.
UNIDENTIFIED PERSON #2: We was getting tired of being pushed around by you white people, that's all.
UNIDENTIFIED PERSON #3: It's getting complicated now.
BUTLER: There had been an uprising in Detroit about police violence against Black people.
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STOUT: The story of that riot, which left 43 dead, thousands injured and the city in flames.
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UNIDENTIFIED NEWSCASTER #1: This is a battle zone. These are troops. It's like war.'
BUTLER: There were people who were killed during these protests. There was a lot of property damage.
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UNIDENTIFIED NEWSCASTER #2: President Johnson addressed the nation.
LYNDON JOHNSON: Law and order have broken down in Detroit, Mich. Pillage, looting, murder and arson have nothing to do with civil rights.
BUTLER: These kinds of uprisings were happening all over the country.
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SPIRO AGNEW: We have proclaimed a state of emergency.
UNIDENTIFIED PERSON #4: I threw the firebomb right in the front window, Right in the front window.
UNIDENTIFIED PERSON #5: I never believed this could happen in our nation's capital or in my city.
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BUTLER: 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, well, 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?
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ABDELFATAH: While the Terry decision was pending before the court...
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UNIDENTIFIED NEWSCASTER #3: Tragic news out of Memphis, Tenn.
ABDELFATAH: Martin Luther King Jr. was assassinated.
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UNIDENTIFIED NEWSCASTER #3: The shockwave of looting and arson would sweep through a number of cities and towns from coast to coast.
ABDELFATAH: Then...
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ANDY WEST: Senator Kennedy had been shot.
ABDELFATAH: Bobby Kennedy assassinated, too, shocking the nation. There were calls for more law and order. And when the court released its decision in the Terry case about stop and frisks...
BUTLER: 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.
ABDELFATAH: That lower standard is called reasonable suspicion. Up until this point, the Supreme Court had never OK'd a 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 OK as long as it's reasonable, as long as an officer can give a good reason why they were suspicious of that person.
ARABLOUEI: (As Chief Justice Warren) The police officer must be able to point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
SEO: 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.
ABDELFATAH: So you basically have that standard now that was applied to cars being applied to individual people...
SEO: Yes.
ABDELFATAH: ...Thanks to the Terry case?
SEO: Yes. It expands the kinds of searches and seizures that the police do under the Fourth Amendment.
BUTLER: Shortly after Terry was decided, The New York Times published an editorial.
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.
UNIDENTIFIED ACTOR #9: Stop and frisk power is employed by the police most frequently against the inhabitants 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 the search and seizure practices which the Fourth Amendment was written to condemn.
BUTLER: 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, 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.
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ABDELFATAH: What would the argument be for why police should be the ones to make this call?
SEO: 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.
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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.
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ABDELFATAH: That's coming up.
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AMANDA: My name's Amanda (ph). I'm calling from Portland, Maine. And you're listening to THROUGHLINE.
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UNIDENTIFIED ANNOUNCER: Coming up next live from the Oval Office President George Bush addresses the nation.
GEORGE H W BUSH: 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.
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.
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BUSH: The gravest domestic threat facing our nation today is drugs. Drugs have...
ABDELFATAH: In 1989, nearly 70 years after prohibition began, the United States found itself in the middle of another war on vice - drugs this time. But the president says we have a powerful tool at our disposal.
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BUSH: We need more prisons, more jails, more courts, more prosecutors. So tonight, I'm requesting all together an almost billion-and-a-half dollar increase in drug-related federal spending on law enforcement.
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SEO: We're getting into 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.
ABDELFATAH: And pretty explicit ones, too. One profile used to identify potential drug traffickers lists African Americans and Colombians wearing, quote, "lots of gold" as people to look out for. Another was, quote, "whites wearing boots."
SEO: 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 facts? - it builds up a common law of Fourth Amendment cases.
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, OK, why did you search that person in the first place? What kind of suspicion did you have? And officers give lots of reasons.
SEO: And they often come to contradict each other almost.
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SEO: So there's a case that says, you know, officer was justified because the suspect was the first to deplane the airplane. There's another case that said officer was justified because the suspect was the last to deplane, and another case saying that they deplaned from the middle of the plane. One of the facts supporting suspicion was, you know, the suspect bought one-way tickets. In another case, it was round-trip tickets. And another case was a nonstop flight.
ABDELFATAH: And so this body of law grows, giving police the power to search people for all sorts of reasons.
SEO: 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.
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SEO: A lot of the reasonableness decisions because they're so vast, they're able to cover up suspicions that are motivated by race.
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WILLIAM REHNQUIST: We'll hear argument now number 95-5841, Michael A. Whren v. - and James L. Brown v. the United States. Your client has a very strange name. Do you know how it's pronounced? Is it Hor-rren?
LISA WRIGHT: Whren.
REHNQUIST: Whren.
WRIGHT: As if the H isn't there.
REHNQUIST: Very well. You may proceed.
WRIGHT: Thank you, Mr. Chief Justice, and may it please the court.
ABDELFATAH: It's April 17, 1996. A Wednesday. Supreme Court Justice William Rehnquist trips over Michael Whren's name and welcomes oral argument for the case Whren v. 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 whether an individual officer's internal motivations are actually relevant.
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WRIGHT: The ultimate test under the Fourth Amendment is reasonableness, not probable cause.
ABDELFATAH: Lisa Wright, Michael Whren'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.
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WRIGHT: If the floor represents probable cause of a string hanging from the motorist's rearview mirror or probable cause that the motorist glanced at his watch or changed the radio station or probable cause that the motorist signaled for only 2.5 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 have complete discretion anywhere between the floor and the ceiling to make that - to make a stop. Let me ask you this.
ABDELFATAH: The stop at the center of this case happened in Washington, D.C., not far from the Supreme Court.
SEO: 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.
BUTLER: All they need is reasonable suspicion. And so when they stopped the car in which a young Black man named Mr. Whren was a passenger, they said that they looked inside the car and they saw contraband.
ABDELFATAH: Two plastic baggies of crack cocaine in the passenger Michael Whren's hands. So they arrest him. But Michael Whren 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.
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BUTLER: What Mr. Whren'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.
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.
SEO: 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. It says, (reading) 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 Fourteenth Amendment Equal Protection Clause, not the Fourth 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.
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BUTLER: 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 like, and I will stop it. So the student might say, well, how about that gray 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.
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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, potentially.
BUTLER: 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.
SEO: 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.
ABDELFATAH: All the power that the police and government have accrued in the past 100 years is now pushing into the digital realm.
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SEO: 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.
ABDELFATAH: Is your location tracking info OK for police to look at? Are Google searches fair game? How do you know when police or the government have violated your digital privacy?
SEO: There's a debate about which test we should be using to answer Fourth Amendment questions. Is it public private or is it reasonableness?
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ABDELFATAH: A hundred years after the first stop and search case about a car went to the Supreme Court, police power in the U.S. has expanded dramatically.
SEO: Everybody's being pulled over for a traffic violation. It is still the No. 1 type of encounter between individuals and the police. The difference is what kind of experience people have when they're pulled over.
ABDELFATAH: It's an encounter that can range from embarrassing...
(SOUNDBITE OF YOUTUBE VIDEO, "THE CORRECT WAY TO HANDLE A TRAFFIC STOP")
UNIDENTIFIED ACTOR #10: (As police officer) Let me see your license and registration.
ABDELFATAH: ...To frustrating...
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UNIDENTIFIED ACTOR #10: (As police officer) Did you know you were swerving between lanes?
ABDELFATAH: ...To deadly.
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UNIDENTIFIED ACTOR #10: (As police officer) Step out of the vehicle for me.
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UNIDENTIFIED POLICE OFFICER #1: Get the f*** out of the car. Get the f*** out of the car.
TYRE NICHOLS: Damn, I didn't do anything.
UNIDENTIFIED POLICE OFFICER #2: Unlock the doors now.
ABDELFATAH: According to the nonprofit Mapping Police Violence, since 2017, U.S. police have killed nearly 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.
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ABDELFATAH: 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.
BUTLER: 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.
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.
BUTLER: 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.
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ABDELFATAH: That's it for this week's show. I'm Rund Abdelfatah.
ARABLOUEI: I'm Ramtin Arablouei, and you've been listening to THROUGHLINE from NPR.
ABDELFATAH: This episode was produced by me.
ARABLOUEI: And me and...
LAWRENCE WU, BYLINE: Lawrence Wu.
JULIE CAINE, BYLINE: Julie Caine.
ANYA STEINBERG, BYLINE: Anya Steinberg.
CASEY MINER, BYLINE: Casey Miner.
CRISTINA KIM, BYLINE: Cristina Kim.
DEVIN KATAYAMA, BYLINE: Devin Katayama.
PETER BALONON-ROSEN, BYLINE: Peter Balonon-Rosen.
IRENE NOGUCHI, BYLINE: Irene Noguchi.
ARABLOUEI: Fact-checking for this episode was done by Kevin Volkl.
ABDELFATAH: This episode was mixed by Robert Rodriguez. Thanks to Johannes Doerge, Greta Pittenger, Edith Chapin and Collin Campbell. And a special thanks to Dan Girma, Molly Rosen, Marissa Balonon-Rosen, Alma Balonon-Rosen, Dean Antonio, Brendan Schwartz, Peter Balonon-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: Anya Mizani.
NAVID MARVI: Navid Marvi.
SHO FUJIWARA: Sho Fujiwara.
ARABLOUEI: And finally, if you have an idea or like something you heard on the show, please write us at [email protected].
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ABDELFATAH: Thanks for listening.
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