The History of Policing in Cars

the episode for you. We're here to talk about how cars have shaped the history of policing in America and how the space of the car has been fundamental to the definition of your rights under the Fourth Amendment to the Constitution, specifically your right to privacy. To discuss this, we're talking to Sarah Seo. She's a professor at the University of Iowa's College of Law, and she's the author

of Policing the Open Road, How Cars Transformed American Freedom. Sarah, thank you so much for joining me in reading your book. I was really struck. The first thing that struck me and maybe they should have been obvious to me before, but it wasn't. Is that probably cars are the single most significant technological event of the last hundred years in American life. I mean, we talk a lot about the Internet.

We imagine that the transformation of social media is so enormous, none of it seems to hold a candle to the car as a transformative technology. Do you buy that? I mean, do you think of the car is really the be all, in the end all of technological change, making the computer look kind of secondary. Well, in the twentieth century, we call that the automobile age, like the Bronze age, right, and so we've defined that century as defined by the car and how it transformed our life, our culture, the

way our cities look, the way our countryside looks. So my answer would be yes, it completely transformed almost every aspect of our life. I want to talk about the idea of privacy and how it has evolved over the course of our century or the last century, really in relationship to cars. And you say some really fascinating things about this, starting with the idea that the idea of privacy as a fundamental right was really just getting started in the United States around the same time as the

rise of the automobile, probably initially almost by coincidence. But then once those two ideas met up, things got tricky because, according to the pre car conception, if I was inside my home, I had a right to privacy, and if I was outside on the street, I didn't have a right to privacy, And cars raised the question of are you at home or are you on the street. So say something, if you will, about how courts and the society tried to get a grip on that tween nature

of being in your car. So one of the main themes of my book is that cars are just a completely new space, and both judges and ordinary Americans were trying to figure out what this new space exactly was. So the way that ordinary Americans experienced their cars was kind of like an extension of their homes. They saw the car as a parlor or their boudoir. Right, Young people moved from the parlor to the car to date and to get to know each other? Are those euphemisms?

I mean, wasn't there also, just in prior generations to ours? Wasn't there just a lot of sex in cars at a time when people lived with their parents and they didn't have other places to go? I mean, the whole notion of parking, wasn't I mean, it's nice to say that the people are getting to know each other, but that's not all they were doing. Right, So, actually, on that there's one of the first hit songs about cars was composed nineteen oh five where the lyrics ask Lucille

to come away with me in my marry oldsmobile. You can go as far as you like with me in my Mary Oldsmobile. You can far you life with me my maring. So definitely there is a lot of sexual innuendos in that nineteen o five song, dating couples could escape the prying eyes of their parents and their homes and the parlors and go off for a Sunday drive and do whatever they like as far as they want to go, And so that there is a notion of privacy, sexual privacy, the privacy of the family going on Sunday

drives together, bringing the family together. Advertisements actually marketed the car as an extension of the home, as the domestic hearth where the family got together. But the way that government officials, judges, and leaders thought of the car was a bit more complex or complicated. If you go back to the moment when cars first rolled off assembly lines. The assembly line and standardization really allowed a lot of cars to be produced and to be able to be

sold for a very affordable price. So this is the story of forward in the Model T and suddenly there really are cars everywhere exactly. And so this is what was so unprecedented about the mass production of cars is that so many individuals were able to own their own form of transportation. They could know they no longer had

to rely on public transportation or walk. And so what happened was that all of a sudden, there were hundreds and thousands of cars on streets that were really intended for a few carriages or the trolley and mostly pedestrians. And so it created mass chaos on public streets. And when there's public danger to all, then that allows the government to exercise our powers to legislate for the public

safety and welfare. And so the way that lawyers and government officials thought about cars was they pose a threat to public safety, and so we need to regulate the use of motor vehicles, and we need to increase our powers to make sure that we cut down the accident rate, that everybody drives in a coordinative fashion so that traffic can move. And so they were seeing this as something

that needed to be regulated. And so when you have government regulation that starts interfering with individual privacy, so you were saying that the advertisers said, Hey, your car is an extension of your home, and certainly after dark courting couple used their cars as a kind of extension of

the home. But you also pointed out that because of traffic regulation, then that meant that cars came under the regulation of the government in a way that the inside of the home might not or might not in the same way. When are the first times that the courts start grappling with the question of whether when a policeman pulls you over for a traffic violation, the police officer is authorized to use force to either look inside your car or to pull you out of your car right away.

So what happened was that the mass production of cars

coincided with prohibition. So states were outlawing liquor starting from the mid nineteenth century through the late nineteenth century, and then we had the National prohibition that was ratified in nineteen nineteen, and so really those two things happened at the same time, and so more law enforcement age agencies wanted to stop and search cars for liquor, and so the issue of how much power law enforcement officers had to stop and search a car because they suspected that

there was liquor inside. That was contested from the very beginning. And how did the courts first begin to rule on that. Was there a trend at the beginning that then changed or was it pretty consistent from the start. It was pretty consistent from the start. So I distinguished how courts treat a probition cases from the way they treated car cases, because prohibition was contested from the very beginning. Right, people thought that they had a natural right to drink alcohol,

even Jesus. Even Jesus turned water into wine. Robinson Cristoe had wine to drink too. It was natural. And so courts were starting to change their Fourth Amendment Jews prudence and fourth and then then governs the police's search and seizure powers, and they were starting to provide more protections

to individuals in prohibition cases. And then you have the coincidence of mass production of cars and national prohibition, and so those cases were coming together, and that's when you start having the government argue, this is really not about liquor. These cases are really about a fighting crime. Because cars changed the entire calculus on crime commission and criminal law enforcement.

And that's when you have courts uniformly decide that they need to increase the police's power to stop and search cars. So the outcome, in other words, is from the start that the cops have significant discretion to stop the car and see what's inside exactly. Now, certainly there were vocal descents people who thought a car as private property, and the Fourth Amendment protects private property from warrantless searches and seizures,

and cars fit under that protection. So there were decents, but uniformly throughout the country, and I looked at state court cases and federal court cases, uniformly, they all decided that the police needed the power to stop in search a car without warrants. And did the police have to show that they had any reasonable suspicion to do that or was it enough for them to say, we don't

like the look of you. So that's a really interesting question because courts have held that cops need reasonable or probable cause to believe that there was something illegal inside the car. Now, from the very beginning, commentators criticized that rule because when you say that a cop needs reasonable or probable cause, that's not a standard of certainty, right, And so if you allow for reasonable probable cause. You're also allowing for instances where the cop could be wrong

because they don't have to be certain about it. And if a cop can be wrong, if a standard allows a cop to be wrong, then it sort of allows a cop to make things up a little bit. And that's exactly what happened in fourth Medagers Price. There's a reasonable or probable cause standard that allows a lot of leeway to the police to bolster their case that they

had reasonable or probable cause. So fill that in a little bit, because now we're getting very close to the meat of you know, the the archetypal scene of the cops pull somebody over, probably a young African American mail in our archetype, and the question arises of whether the cop has probable cause to search the car. Fill it in a little bit. What counted historically and what counts in the law today as probable cause, and how has

that changed. Well, So the first thing I should say about what probable cause is is that we don't really know. The courts have refused to put a number on what probable causes. So if you think about knowledge or the standards of proof that the state has to have before they take action. We can start from zero. They have nothing on us to proof beyond a reasonable doubt, right, and the proof beyond reasonable doubt is the necessary standard

to convict someone of a crime. Now, probable causes somewhere below that, and courts have refused to put a number on what that amount of certainty is. The best way that they've described it is it's a matter of probabilities more likely than not. But Sarah, isn't that Let me just ask you about that. I mean, when I hear probable cause, I hear more probable than not, and I hear fifty percent plus a smidge in am I hearing

that the wrong way? That's one way to look at it, except that the courts have refused to say that it's a smidge and more than fifty percent. And here's the reason why all of this matters is because Fourth amend and challenge lenges. A challenge to a police search of a car, for instance, only happens when the person is guilty when the police found something in the car. And so when a Fourth Amendment challenge is made, a judge is looking at a guilty person who was caught red handed.

And of course, when you're faced with that scenario, it's just much easier to say the police had probable cause because obviously they found someone with alcohol in their cars or now today drugs in their cars, and so the whole calculus is biased towards a finding probable cause because judges aren't looking at the cases where an innocent person has been searched or their car has been searched. Well,

we sometimes are right, I mean we sometimes are. I mean the Sandra Bland case is an example of how in a certain outlying cases we do look at an instance where somebody has been stopped, and then when something terrible happens, we say, oh, my goodness, you know, you should never have stopped this person in the first place.

Or those moments of our history where we focus on racial profiling or other illegitimate means of stops, then we take a deep breath and we say, well, wait a second, you know, should these stops have been allowed in the first instance. I mean, I completely agree with you that in an ordinary judicial situation, if the cops searches your car there's nothing in your car, they'll let you go so it doesn't come to court. So I get your point.

I think it's a very powerful and important point. But there are moments, aren't there where we do engage in the question of what should be sufficient cause for a stop in a search. No, I don't think we do. And fascinating and let me try to explain why I feel that way. So Sandra Bland to remind the listeners of that tragic incident. She was arrested and she died in her jail cell three days later, and she was pulled over for a minor traffic violation. Nobody challenged that.

And this is something that I cover my book from the very beginning of mass production of cars, cities, towns, past volumes and volumes of traffic laws governing everything from necessary traffic equipment to when a car can make a right turn, and a violation of any one of those

traffic laws allows a place to stop that car. But I feel like there is a real debate out there in the world today about whether it's okay for police departments to use theoretically neutral rules like you know, you made a turn without signaling, which is I think the case the claim in the Sandra Bland case, and if cops are using those but they're applying them in a discriminatory fashion. They're applying them so that the people who

get pulled over are disproportionately African Americans, let's say, or Latino. Then, you know, I do have the feeling that people do think in the world, that many people think that there's something wrong with that, that maybe having a broken tail light shouldn't be grounds to be potentially arrested. I think many people, and I can include myself, and that agree with you. But that's not where the law is. Right.

The law still assumes that if you've committed even the most minor traffic violation, it's legally justifiable to stop you and potentially but what would it be potentially permissible to search your car under those circumstances. So let me back up.

The court has said in nineteen ninety six in the case ren versus United States, that if a cop pulls over somebody based on pretext so the cop thinks that the driver has drugs in the car but doesn't have probable cause, then the cop can't stop that car right because probable cause is the necessary requirement. But the cop can use a minor traffic violation to pull that car over. That kind of pretextual car stop is aoka according the

Supreme Court. So the cop pulls over a car for a minor traffic violation, then the next question is can the cop start searching the car for the drugs that he or she suspects? And this is where we get to the fuzziness of the probable cost standard. It is really easy to fight facts that support probable cause. I looked at one of the best selling police textbooks on what they call criminal Patrol, how to do drug busts using Traffic law enforcement, and they say, probable cause is

actually a very capacious standard. A lot of things you can think of to meet that standard, like suspicious odors. Right, I smelled marijuana. How are you going to prove that in court? It's the officer's testimony, right, And if the officer finds a marijuana butt, then yeah, it sounds right that the officer smelled it. And so it's really easy to meet the standards for a warrantless car search because

of the volumes of traffic laws that everybody violates. At some point, I get what you're saying, but you're also describing, aren't you a potential distortion? The possibility which always exists of police distorting the truth or were lying in some other way, right, I mean, yeah, as as you know, as the art type. I keep on thinking of the jay Z song Yeah, and which he's he's replicating the structure of a pullover, and he says, you know, do you think that because my hat's real low, that you

know you can search me? You can't? I know my constitutional rights. I mean, I'm paraphrasing now without anything like jay Z's flow, but the basic idea is that the cops don't have the constitutional right to search. And jay Z wants you, the listener of the song, to know that, you know, I teach that song when I teach criminal procedure.

And we go over verse two. Verse two is a car stop that actually happened in real life to jay Z. So he sings a version of that in the song you don't want because I'm young and I'm black in my head's real low, do one look like a modest sir? And we and I go over what he gets wrong about the Fourth Amendment? Can you share that with us? So he's right that there is racial profiling that goes on, especially at the time when he experienced it for himself.

There was a drug courier profile with traits that were associated with black men that highway patrollers were instructed to look for when they pull over in their drug interdiction programs. And so he's right as a matter of social reality that they were profiled. As a matter of law, that's okay under the rent case that I just mentioned. The other thing that he gets really wrong, he seems that the cop needs to go get a warrant to search his car, and that is absolutely not true. The cops

do not need a warrant. They don't if they need, if they have probable cause, If they have a probable cause, they don't need to actually go and get a warrant for that probable cause exactly. But according to the textbook, the Police Textbook on Criminal Patrol, getting probable cause for a warrantless car search is super easy, and in fact, the textbook says the Fourth Amendment is your tool in

criminal patrol. The cop or the highway patroller who it does a good job, doesn't see the Fourth Amendment as an impediment. They see the Fourth Amendment as opportunities. And that's actually one of the main arguments of your book as I read it, that especially lawyers like to tell, maybe especially law professors, we like to tell heroic stories about how the law protects people. But in fact, the law that regulates search is as much a law that enables the cops to search as it is a law

that limits those searches. I think that's a hugely important point. But it has a kind of complex interaction with the car, doesn't it. I mean, the car has never really in a true sanctuary. It's always an in between space that subject to a fair amount of police surveillance and governmental regulation.

Isn't that a fair description exactly? And that's one of the tensions that animates my book is that in American culture we celebrate the car as a freedom machine, but when we look at the legal history the law's treatment

of cars, it's heavily regulated and heavily pleased. And you bring in You mentioned the conventional story that we've told about constitutional law, about the Fourth Amendment, and that was one of the questions that I had when I first started this project, is that the conventional story that I've always learned as a law school student is that the court has been the protector of our individual liberties, especially the Warren Court, the Warren Court was considered one of

the most liberal courts in our history. That's the Supreme Court under the under the Chief justiceship of Rural Warren in the nine fifties, sixties, and into the very early seventies. Yeah, exactly right. And the war On Court started what we now refer to as a due process revolution revolution right, a revolution to give individuals more rights under the Constitution. And this was a progressive triumphal story that I've always learned,

starting in law school through grad school. But I was always confused because I was starting to also read about problems with the criminal justice system, a mass incarceration that disproportionately affects minorities and the poor. And I was so confused because the Warren Courts due process revolution was supposed to help those groups. But a generation after the due process Revolution, those groups are the ones who are disproportionately

affected in the criminal justice system. And so what happened? And that was one of the questions that I had when I started this project. And I've realized our conventional story history that I've been told we only looked at certain landmark cases. We only looked at the cases that dealt with invasions to the home. We never looked at the cases that involved the police's power to stop and

search cars. And so if we look at those cases, we see courts from state courts to district trial courts all the way up to the US Supreme Court, they've always reliably granted the police more power, more discretionary power.

So I want to ask you for a final question, Sarah, just to put on your futuristic goggles and picture the driverless cars or the self driving cars that you may not be right around the corner, but are they're on the way, And imagine writing you after your book becomes a bestseller and wins all the prizes, they ask you to publish an updated edition in fifteen or twenty years with a new chapter on driverless cars in the law.

What do you imagine the big issues are going to become for regulation in a world where I'm not actually controlling the car anymore. Well, it's going to really change Fourth Amendment practice, not necessarily the law, but practice. Because much of criminal law investigation, the investigation of drug laws specifically happens with a minor traffic violation. And if autonomous driving cars, our program never to violate the traffic laws. I sure hope they will be programmed for Yeah, right,

me too. Then that means that the police will need probable cause of some sort of violation other than the violation of a traffic law. They will need probable cause that the car contains contraband or other illegal substances. If I want to if I want to buy drugs in Florida and drive them up the five Card or to the northeast, what I should do right away is buy

myself at Tesla exactly. That never violates the traffic violations because the police need probable cause that you have drugs in it, And how will they know unless they saw you actually putting drugs into the car. That's really the only situation that I can think of that amounts to probable cause. And so the whole criminal patrol that's based

on a minor traffic vlation that will cease. But the privacy intrusions can come in in really unexpected places, right, and so I imagine these autonomous cars will be outfitted with GPS devices and all sorts of the Internet of Things. Right, they'll have to talk to all the other cars. I mean, it won't work unless these cars talk to each other, right exactly, and all of that talking to other cars, interacting with a greater network that's connected through the Internet

and cloud and all of that. And you know cars basically have new cars today basically have computers installed in them, right that are connected to the Internet. All of that

is connecting to the to the greater public right. And so the way that courts are dealing with questions about what is public and private that I talk about in the history of cars, they are struggling with that still today when it comes to smartphones, the cloud, and the Internet and all of that will be bundled with autonomous driving cars too, so it's going to be an issue that will have a second version. So there could be a volume too. There you go. I'm looking forward to

reading it. Sarah. Thank you so much for this really fascinating conversation, for your really thought provoking and terrific book. Thank you. Talking to Sarah really brings into focus how absolutely central the automobile has been, not just to every aspect of our lives, but to the question of our freedoms in the United States, to the question of privacy, to race, to almost all of the most fundamental issues that we struggle with when it comes to the definition

of our rights. Going forward, it seems the technology of cars will both be always the same and ever changing. It's always the same in the sense that just has been the case for more than a century. Our roads, our spaces are defined by cars. We spend time in cars, and the police will continue to observe and regulate our actions while we're in cars. But slowly and gradually, as our cars become self driving, the technology is going to change the way that our government and our police interact

with us in cars. Our privacy may gradually return, our violation of traffic laws will almost certainly decline, and the government will have to come up with new ways of thinking about how it regulates us, and we will have to come up with new ways of exploring our freedom. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Gene Coott, with engineering by Jason Gambrel

and Jason Roskowski. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis GERA special thanks to the Pushkin Brass Malcolm Gladwell, Jacob Weisberg and Mia Lobel. I'm Noah Feldman. You can follow me on Twitter at Noah R Feldman. This is Deep Background. A last note Today, Deep Background is taking a holiday break. We'll be back with a new season in the new year.