We the People: Search and Seizure

The Fourth Amendment is the part of the Bill of Rights that prohibits "unreasonable searches and seizures." But — what's 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. Today on the show, how an amendment that was supposed to limit government power has ended up enabling it. This episode originally published in 2024. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  This message comes from Rosetta Stone, offering an alternative approach to language learning. Without relying on traditional memorization, the platform guides users to intuitively think in a second language. More information at rosettastone.com.

• 0:16Speaker 01

  James Otis, Speech Against Rits of Assistance, 1761.

• 0:30Speaker 01

  A man's house is his castle.

• 0:35Speaker 01

  And while he is quiet, he is as well-guarded as a prince in his castle.

• 0:44Speaker 01

  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.

• 1:46Rund Abdelfatah?

  It's now the roaring 20s, 1921, to be exact. Prohibition is in full swing. Selling and transporting alcohol is illegal.

• 1:56Speaker 03

  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.

• 2:08Speaker 03

  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.

• 2:23Rund Abdelfatah?

  One of the prohibition agents gasps.

• 2:26Speaker 03

  Like, I think that's Carroll's car.

• 2:34Rund Abdelfatah?

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

• 2:43Speaker 03

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

• 2:47Rund Abdelfatah?

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

• 2:57Speaker 03

  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 backseat. 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.

• 3:30Rund 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 Carroll broke any traffic rules. I just want to zoom in here a little bit more. So they just decided to pull it over?

• 3:48Speaker 03

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

• 4:00Rund Abdelfatah?

  And they were right. But George Carroll, he wasn't going to stand for that. He basically said, well, 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.

• 4:19Speaker 03

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

• 4:31Rund 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 centuries' 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

• 5:13Rund Abdelfatah?

  stop and search his car without a warrant? I'm Rande Abdelfattah.

• 5:26Speaker 04

  And I'm Ramtin Arablouei.

• 5:28Rund 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.

• 5:47Speaker 05

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

• 5:55Speaker 06

  Stay tuned for the following announcements and messages from our sponsors. Support for this podcast and the following message come from the Southern Environmental Law Center. No one voted for a dirty air. No one voted for polluted water. That's why... S E L C is fighting back to defend the healthy environment everyone depends on, just as they've done for 40 years. Because clean air, clean water, and a healthy climate aren't political, they're fundamental. Learn more at S E L C dot org. This message comes from Live Right, publisher of John U. Bacon's New York Times bestseller, The Gales of November, a chronicle of the S. S. Edmund Fitzgerald's 1975 shipwreck. Never has it been told better than by Mr. Bacon in this colorful book,

• 6:39Speaker 06

  writes John J. Miller of The Wall Street Journal, while author Hampton Sides proclaims it's destined to be a classic. The Gales of November, now in paperback. This message comes from Quo. You're on a job, in a meeting, slammed, and a customer calls. If nobody picks up, they go to your competitor. That's why over 90,000 companies choose Quo, the business phone system built for busy teams. Smart call routing sends calls to the right person. Shared numbers let your team cover for each other, and an AI agent picks up when nobody can, capturing every lead so nothing falls through the cracks. Always say hello with Quo. Try it free at quo.com slash NPR.

• 7:23Rund Abdelfatah?

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

• 7:30Speaker 03

  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.

• 8:07Speaker 07

  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.

• 8:25Speaker 03

  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.

• 8:45Speaker 01

  "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."

• 9:06Speaker 03

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

• 9:14Speaker 01

  "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."

• 9:30Speaker 03

  John Adams listened to that and declared American independence was then and there born.

• 9:40Speaker 03

  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.

• 9:52Rund Abdelfatah?

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

• 9:56Speaker 07

  Law professor at Georgetown and a former prosecutor. I wrote a book called Chokehold: Policing Black Men.

• 10:04Rund Abdelfatah?

  28 years after James Otis's 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.

• 10:28Speaker 07

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

• 10:41Rund Abdelfatah?

  Can you define exactly what the Fourth Amendment actually says?

• 10:44Speaker 07

  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.

• 11:04Speaker 07

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

• 11:15Speaker 03

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

• 11:24Speaker 07

  "And the persons or things to be seized."

• 11:31Rund Abdelfatah?

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

• 11:36Speaker 03

  A house, or documents, papers. Those were the things that the Fourth Amendment protected.

• 11:42Rund 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.

• 11:53Speaker 03

  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.

• 12:06Rund Abdelfatah?

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

• 12:16Speaker 03

  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.

• 12:36Rund 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.

• 12:49Speaker 05

  Five children ranging in age from two to nine 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. Motor truck kills girl, maims sister. Two children were killed and several persons were seriously injured yesterday in motor vehicle accidents.

• 13:07Rund 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."

• 13:20Speaker 05

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

• 13:32Speaker 03

  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.

• 14:17Rund Abdelfatah?

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

• 14:21Speaker 03

  Exactly.

• 14:22Rund Abdelfatah?

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

• 14:29Speaker 03

  There was an explosion of Fourth Amendment cases.

• 14:33Rund Abdelfatah?

  And right as that happens, comes prohibition.

• 14:39Speaker 03

  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.

• 14:50Rund 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.

• 15:10Speaker 03

  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 under the public sphere? And if so, then a warrant is not required.

• 15:26Rund Abdelfatah?

  But when it came to cars?

• 15:29Speaker 03

  The court really struggled with this.

• 15:31Rund Abdelfatah?

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

• 15:39Speaker 03

  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.

• 15:54Speaker 03

  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.

• 16:18Rund Abdelfatah?

  And it still feels that way.

• 16:19Speaker 03

  It still does.

• 16:20Rund Abdelfatah?

  You know, we belch songs at the top of our lungs in the car as if no one is watching.

• 16:26Speaker 03

  Yes, yes.

• 16:27Rund Abdelfatah?

  Because we think of it as a private space.

• 16:31Speaker 03

  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.

• 17:18Rund Abdelfatah?

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

• 17:26Speaker 07

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

• 17:38Rund Abdelfatah?

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

• 17:45Speaker 03

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

• 17:52Rund Abdelfatah?

  Supreme Court Chief Justice William Howard Taft wrote the opinion.

• 17:57Speaker 03

  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?"

• 18:16Speaker 01

  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 to

• 18:34Rund Abdelfatah?

  Destruction, the search and seizure are valid.

• 18:40Rund 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.

• 18:57Speaker 03

  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.

• 19:22Rund 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?

• 19:31Speaker 03

  It's transformative.

• 19:39Rund 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.

• 20:05Speaker 06

  Hi, this is Jamie McReynolds from Blacksburg, Virginia, and you're listening to Throughline on NPR. Stay tuned for the following announcements and messages from our sponsors. Support for this podcast and the following message come from the Southern Environmental Law Center. No one voted for a dirty air. No one voted for polluted water. That's why S E L C is fighting back to defend the healthy environment everyone depends on, just as they've done for 40 years. Because clean air, clean water, and a healthy climate aren't political, they're fundamental. Learn more at S E L C dot org. This message comes from Live Right, publisher of John U. Bacon's New York Times bestseller, The Gales of November,

• 20:48Speaker 06

  a chronicle of the S.S. Edmund Fitzgerald's 1975 shipwreck. "Never has it been told better than by Mr. Bacon in this colorful book," writes John J. Miller of The Wall Street Journal, while author Hampton Sides proclaims it's destined to be a classic. The Gales of November, now in paperback.

• 21:06Speaker 00

  This message comes from Saatva. Have a big day coming up. Remember, tomorrow starts tonight with the restorative sleep you need to perform at your best, the kind every Saatva mattress is designed for. So whether it's a new job, a marathon, or an important presentation, Saatva helps you be the best version of you. And now save 15% off purchases of $100 or more at saatva.com/NPR. That's S-A-T-V-A dot com slash NPR.

• 21:40Speaker 07

  It's Halloween, 1963.

• 21:45Speaker 07

  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.

• 21:58Speaker 03

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

• 22:04Speaker 07

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

• 22:13Rund 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.

• 22:32Speaker 07

  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.

• 22:59Rund Abdelfatah?

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

• 23:11Speaker 07

  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.

• 23:25Rund 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 bootlicker, 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.

• 23:54Rund Abdelfatah?

  This sequence of events would form the backbone of the Supreme Court case known as Terry versus Ohio.

• 24:01Speaker 07

  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?

• 24:17Rund 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.

• 24:42Speaker 07

  There are uprisings all over the United States.

• 24:53Speaker 05

  First one drops their hands, dead man.

• 24:57Speaker 05

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

• 25:02Speaker 07

  Frequently violent by people and communities who are really mad about something that the police have done.

• 25:11Speaker 05

  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. People getting tied up, you know, pushed around, but you like to put it so. There come.

• 25:23Speaker 07

  There had been an uprising in Detroit about police violence against black people.

• 25:31Speaker 05

  The story of that riot, which left forty-three dead, thousands injured, and the city in flames.

• 25:40Speaker 05

  This is a battle zone, these are troops, it's like war.

• 25:44Speaker 07

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

• 25:50Speaker 05

  President Johnson addressed the nation. law and order have broken down in Detroit, Michigan. Pillage, looting, murder, and arson have nothing to do with civil rights.

• 26:04Speaker 07

  These kinds of uprisings were happening all over the country. We have proclaimed a state of emergency.

• 26:10Speaker 05

  I threw the firebomb right in the front window, right in the front window.

• 26:14Speaker 04

  I never believed this could happen in our nation's capital or in my city.

• 26:24Speaker 07

  The other factor was that there had been this big spike in crime. In the late sixties, 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

• 27:08Speaker 07

  before the police can act?

• 27:15Rund Abdelfatah?

  While the Terry decision was pending before the court,

• 27:19Rund Abdelfatah?

  Martin Luther King Jr. was assassinated.

• 27:27Rund Abdelfatah?

  Then 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.

• 27:41Speaker 07

  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.

• 27:56Rund Abdelfatah?

  That lower standard is called reasonable suspicion. Up until this point, the Supreme Court had never okayed 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.

• 28:15Rund Abdelfatah?

  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.

• 28:41Speaker 03

  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. 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.

• 29:05Rund Abdelfatah?

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

• 29:09Speaker 03

  Yes.

• 29:10Rund Abdelfatah?

  Thanks to the Terry case.

• 29:11Speaker 03

  Yes. It expands the kinds of searches and seizures that the police do under the Fourth Amendment.

• 29:21Speaker 07

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

• 29:29Rund 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.

• 29:55Speaker 01

  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.

• 30:33Speaker 07

  The police have been doing stop and frisk in communities of color for decades before the Terry case authorized the practice.

• 30:45Speaker 07

  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.

• 31:01Speaker 07

  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.

• 31:27Speaker 07

  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.

• 31:56Rund Abdelfatah?

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

• 32:00Speaker 03

  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 difference is one thing. It's also true that courts and judges play an important role in reviewing what the police did.

• 32:39Rund 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 in search didn't require very much at all.

• 33:05Rund Abdelfatah?

  That's coming up.

• 33:16Speaker 05

  My name's Amanda. I'm calling from Portland, Maine. And you're listening to Throughline.

• 33:22Speaker 00

  Stay tuned for the following announcements and messages from our sponsors.

• 33:26Speaker 06

  Support for this podcast and the following message come from the Southern Environmental Law Center. No one voted for a dirty air. No one voted for polluted water. That's why S E L C is fighting back to defend the healthy environment everyone depends on, just as they've done for 40 years. Because clean air, clean water, and a healthy climate aren't political, they're fundamental. Learn more at S E L C dot org. This message comes from Live Right, publisher of John Hugh Bacon's New York Times bestseller, The Gales of November, a chronicle of the SS Edmund Fitzgerald's 1975 shipwreck. Never has it been told better than by Mr. Bacon in this colorful book, writes John J. Miller of The Wall Street Journal,

• 34:09Speaker 06

  while author Hampton Sides proclaims it's destined to be a classic. The Gales of November, now in paperback. This message comes from BetterHelp, an online therapy platform that gives you space to talk about what's taking up too much of your brain. BetterHelp is now in-network with more than 125 health plans. Visit betterhelp.com/NPR. Cost and coverage may vary.

• 34:36Speaker 04

  Coming up next, live from the Oval Office, President George Bush addresses the nation.

• 34:43Speaker 01

  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.

• 34:55Rund 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.

• 35:09Speaker 01

  The gravest domestic threat facing our nation today is drugs.

• 35:13Rund 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.

• 35:28Speaker 01

  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.

• 35:49Speaker 03

  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.

• 36:06Rund 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."

• 36:23Speaker 03

  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.

• 36:52Rund 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.

• 37:09Speaker 03

  And they often come to contradict each other almost.

• 37:14Speaker 03

  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 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. In another case, it was a nonstop flight.

• 37:40Rund Abdelfatah?

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

• 37:48Speaker 03

  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.

• 38:03Speaker 03

  A lot of the reasonableness decisions, because they're so vast, they're able to cover up suspicions that are motivated by race.

• 38:19Speaker 05

  We'll hear argument now, number 955841, Michael A. Horen versus, and James L. Brown versus the United States. Client has a very strange name. Did you know it's pronounced as Horen? Ren. If the H is in there. Very well, you may proceed.

• 38:38Speaker 03

  Thank you, Mr. Chief Justice, and may it please the Court.

• 38:40Rund Abdelfatah?

  It's April 17th, 1996, a Wednesday. Supreme Court Justice William Rehnquist trips over Michael Ren's name and welcomes oral argument for the case Ren 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 whether an individual officer's internal motivations are actually relevant.

• 39:09Speaker 03

  The ultimate test under the Fourth Amendment is reasonableness, not probable cause.

• 39:13Rund Abdelfatah?

  Lisa Wright, Michael Ren'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 a 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."

• 39:40Speaker 03

  If the floor represents probable cause of a string hanging from the motor's rear-view mirror, or probable cause that the motor's glances watch or change the radio station, or probable cause that the motor is signaled for only two and a half seconds rather than three 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.

• 40:07Rund Abdelfatah?

  The stop at the center of this case happened in Washington DC, not far from the Supreme Court.

• 40:13Speaker 03

  So, it was late at night, in a place where the officer said was a high-drug area, or often called a high-crime area.

• 40:23Speaker 03

  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.

• 40:44Speaker 07

  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 they saw contraband.

• 41:03Rund Abdelfatah?

  Two plastic baggies of crack cocaine in the passenger Michael Wren's hands. So they arrest him. But Michael Wren 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.

• 41:29Speaker 07

  What Mr. Wren'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.

• 41:51Rund 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.

• 42:20Speaker 03

  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 Fourteenth Amendment Equal Protection Clause, not the Fourth Amendment."

• 43:04Speaker 03

  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.

• 43:20Speaker 07

  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 fly, and I will stop it." So the student might say,

• 44:04Speaker 07

  "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, for a couple of minutes, and find a reason to stop that driver.

• 44:28Rund 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 annoyed to scared for your life, potentially.

• 44:54Speaker 07

  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.

• 45:33Speaker 07

  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.

• 45:47Speaker 03

  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.

• 46:01Rund Abdelfatah?

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

• 46:09Speaker 03

  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.

• 46:23Rund 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?

• 46:35Speaker 03

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

• 46:48Rund Abdelfatah?

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

• 47:00Speaker 03

  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.

• 47:16Rund 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. Step out of the vehicle before we...

• 47:33Rund 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.

• 48:01Rund Abdelfatah?

  One thing that I'm struck by in this conversation that I find, I guess, deeply ironic is that the Fourth Amendment began as this sort of 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.

• 48:35Speaker 07

  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.

• 49:14Rund 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.

• 49:33Speaker 07

  There's a legal scholar who says the Fourth Amendment is not for whips. 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.

• 50:16Speaker 07

  Then we can have the opportunity to be as free as any other person. So for me, I'm gonna fight like hell to see if the Constitution can apply to me.

• 51:02Rund Abdelfatah?

  That's it for this week's show. I'm Randa Abdel Fattah.

• 51:06Speaker 04

  I'm Ramtin Arablouei, and you've been listening to Throughline from NPR.

• 51:10Rund Abdelfatah?

  This episode was produced by me.

• 51:13Speaker 04

  And me and... Lawrence Wu.

• 51:15Rund Abdelfatah?

  Julie Kane.

• 51:17Speaker 03

  Anya Steinberg. Casey Minor. Christy.

• 51:19Speaker 01

  Deven Kadyama. Peter Balanon Rosen.

• 51:24Speaker 04

  Irene Noguchi. Fact checking for this episode was done by Kevin Vogel.

• 51:28Rund Abdelfatah?

  This episode was mixed by Robert Rodriguez. Thanks to Johannes Derge, Greta Pittenger, Edith Chapin, and Colin Campbell. And a special thanks to Dan Germa, 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. Naveed Marvi. Sho Fujiwara.

• 52:04Speaker 04

  And finally, if you have an idea or like something you heard on the show, please write us at [email protected].

• 52:14Rund Abdelfatah?

  Thanks for listening.

• 52:22Speaker 00

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