5.
GEORGE CARROLL AND HIS FRIEND JOHN KIRO WERE TRYING to keep warm as they drove from Detroit back to Grand Rapids, Michigan, on December 15, 1921. Even a top-of-the-line automobile like Carroll’s Oldsmobile Roadster did not, at that time, have a heating system. The soft-top roof provided barely any barrier against the Michigan winter. The two men, bundled up in coats, sweaters, and gloves, had been on the road for hours and were only sixteen miles from Grand Rapids when another car passed them, headed in the opposite direction. The Roadster did not have any mirrors, but if Carroll had glanced behind him, he would have seen the other vehicle slam on the brakes and quickly do a U-turn. Inside the other vehicle were three federal Prohibition officers, Agents Cronenwett, Scully, and Thayer, as well as a state police officer named Peterson.1 The officers’ vehicle picked up speed as it began to pursue Carroll’s Oldsmobile.
It is easy to forget that the United States banned the sale of alcohol only two weeks into the decade that came to be known as the Roaring Twenties. The decade evokes images of the postwar and post-flu-pandemic boom with people dancing in clubs and luxuriating in the new consumer items that flooded the American marketplace. Yet during the entire decade, alcohol was banned across the United States. Alcohol consumption, and particularly the raucous male culture of saloons, was a political flashpoint in the country for decades as the temperance movement pushed for more restrictions on what they considered to be a dangerous and deadly drink. Temperance found support in conservative religious communities as well as in the burgeoning women’s suffrage movement. Alcohol was blamed for many social ills, from lazy workers to violence against women. Saloons were painted as dens of corruption where secret deals were made and inappropriate behaviors tolerated.
The Eighteenth Amendment, which prohibited the production, transport, and sale of alcohol, passed in 1917 but required ratification by two-thirds of the states to go into force. Nebraska became the thirty-sixth state to ratify it on January 16, 1919, and Prohibition went into effect one year later on January 17, 1920. In October 1919, Congress passed the Volstead Act, which filled in the details on the alcohol ban and authorized 1,520 federal Prohibition agents to enforce it. Immediately after Prohibition, clandestine stills were set up across the country and smuggling networks appeared on the Mexican and Canadian borders. The Prohibition agents were fighting a losing cause, but they dutifully set to work smashing barrels in the streets and destroying moonshine operations across the country.
The Prohibition agents in Grand Rapids had suspected Carroll and Kiro were smugglers for months but were not able to catch them in the act. Earlier that fall, on September 29, 1921, agents Cronenwett and Scully were working undercover, posing as buyers on the black market. They set up a meeting at an apartment in Grand Rapids, with Cronenwett playing the role of a Mr. Stafford, a fictional employee of the Michigan Chair Company interested in buying three cases of whiskey. Carroll and Kiro agreed to a price of $13 ($190 in 2022, adjusted for inflation) per case and promised to return with the contraband in about an hour. The agents waited, but Carroll and Kiro never showed up. The agents presumed their ruse had been discovered. At their initial meeting, the agents had noted Carroll’s vehicle, an Oldsmobile Roadster, and the license plate. They kept an eye out for it around Grand Rapids.
The following week, on October 6, the agents were monitoring the highway on the outskirts of Grand Rapids for suspicious vehicles headed into the city. They knew most of the liquor in the region was smuggled in from Canada at the border between Windsor, Ontario, and Detroit. The agents would position themselves on the highway from Detroit and look for cars they thought might be smuggling. Agent Scully was outside the car eating his lunch when Cronenwett spotted Carroll’s Oldsmobile leaving Grand Rapids and driving toward Detroit. Cronenwett called out to Scully, who jumped into the passenger seat as they sped off to follow them. The Prohibition agents decided not to stop Carroll because they assumed he was headed to pick up a shipment. A stop before he got to Detroit would not produce any evidence. The agents were able to keep an eye on the car until it reached East Lansing, but they lost track of it in the city. The agents returned to Grand Rapids empty-handed but even more convinced that Carroll was smuggling alcohol in from Detroit.
The agents finally spotted Carroll’s Oldsmobile again on that cold December evening. The agents spun their car around and began the pursuit. After the agents sped up behind him and signaled him to stop, Carroll eased his Oldsmobile to the side of the road. He taunted the agents when they arrived at his car window, addressing them by their real names, not the fake identities given to him under cover. Carroll was jovial and confident while he waited as the agents searched the car. They initially found nothing. There was nothing visible in the open areas of the car and Carroll was happy to open up the trunk, which was also empty. However, as one of the agents bent down to look under the seats, he thought the leather seemed harder than normal. The other agents pressed the seat and agreed.
Carroll protested as the agents cut into the leather, but their hunch was right. They found sixty-eight quarts of alcohol, labeled as Scotch Whiskey and Gordon’s Gin. Carroll knew he was caught and resorted to a strategy that had gotten him out of tight spots previously. He pulled out his money clip, which held wads of $10 bills, and said to Agent Cronenwett, “Take the liquor and give us one more chance and I will make it right with you.” Perhaps if there were fewer officers present, the bribes might have worked, but with four men from different agencies, they refused.
At his initial trial, Carroll was convicted of illegally transporting alcohol. He appealed, and the case reached the Supreme Court. The case was argued on March 14, 1924, two months before Congress created the Border Patrol. The court was presented with two very different views of the search. The government suggested that Congress gave the Prohibition agents the right to search any vehicle for alcohol. If that was not what Congress intended, they should change the law. Additionally, the lawyers noted that requiring a warrant was not practical because a vehicle could flee the scene, easily crossing jurisdictional boundaries before a warrant was received. Indeed, the Prohibition agents had pursued Carroll and Kiro previously but lost track of them. It was a fundamentally different case than a search of a fixed location like a house.
Carroll’s lawyers argued that the law was a gross violation of the Fourth Amendment of the Constitution, which prohibited unreasonable searches and seizures. As a constitutional right, they argued, it was inviolable. If the Supreme Court allowed the Prohibition agents to stop and search anyone, it would turn the country into a police state. Consequently, the evidence from the illegal search of Carroll’s vehicle should be suppressed and the Volstead Act’s sweeping authority for Prohibition agents invalidated.
The Supreme Court took almost a year to weigh the different arguments and the decision was not announced until March 2, 1925. The fundamental question was how to balance the legitimate need of the police to enforce laws with the constitutional protections of citizens to be free of unreasonable searches and seizures. The decision they made in the Carroll case would prove to be a key precedent for the coming Border Patrol disputes, as well as for the constitutional rights of everyone inside the United States.
The Fourth Amendment
The Fourth Amendment to the U.S. Constitution was written in response to the experiences of people living in the English colonies prior to the revolution. The English wanted to crack down on smuggling that was undermining the taxes meant to be collected in the colonies. In order to find the contraband and properly tax it, they used general writs of assistance that worked like a blanket warrant and allowed the inspectors to enter any house they wanted.
In 1760, James Otis, a lawyer and political activist in Massachusetts who coined the phrase “taxation without representation is tyranny,” led an effort against the writs of assistance, which he ultimately lost. However, his stand against the writs informed the rights that the founders of the United States wanted to protect in the Bill of Rights.
The Fourth Amendment of the United States Constitution reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Amendment was sent to the states by Congress on September 28, 1789, and was ratified by December 15, 1791.
Although the language of the Fourth Amendment seems straightforward, the devil is in the details. Police generally need to go to a judge, show probable cause that a crime has been committed, and get a warrant if they want to conduct a search, unless an individual consents to a search. However, when there are exigent circumstances—other, time-sensitive factors—courts have ruled that warrantless searches do not violate the Fourth Amendment. These are often decided on a case-by-case basis, but some examples of exigent circumstances would be if screams or gunshots are heard inside a house or if the police receive a credible tip that a crime is occurring. Once the location is secure, they need a warrant from a judge to conduct a proper search. A house cannot flee, and the delay while requesting a warrant does not impede the search.
The Fourth Amendment was written in the era before rapid transportation. There was no way for the framers of the Bill of Rights to account for new technologies like trains, planes, and vehicles that would allow an individual to flee and quickly cross into a different jurisdiction, which makes the requirement of waiting for a warrant from a judge onerous. Consequently, it was up to the Supreme Court to decide how to interpret the Fourth Amendment protections against unreasonable searches and seizures in the context of new technologies like George Carroll’s Oldsmobile Roadster.
The Supreme Court’s March 2, 1925, decision in the Carroll case was written by Chief Justice William Howard Taft. Taft, stout with a handlebar mustache, is the only person to serve as both the president of the United States and the chief justice of the Supreme Court. The 6–2 verdict found a middle ground, which came to be known as the Carroll doctrine.
The court decided that the stop of George Carroll was legal because it fulfilled two tests. The first was whether the agents had probable cause. Probable cause exists if they have enough evidence to believe that if they were to take it to a judge and request a warrant, it would be approved. The second test was whether there were exigent circumstances that meant that they did not have time to go to a judge. If both conditions are met, then the officers can stop and search a car without a warrant. In George Carroll’s case, the court agreed that both conditions were met, so his conviction was upheld.
The Carroll ruling seemed to have settled the rules for when a federal agent could stop and search a vehicle in the United States. However, only three days before the ruling, on February 27, 1925, Congress gave the Border Patrol its broad authority to stop vehicles without a warrant for immigration inspections. Consequently, while other federal agents were required to have probable cause and exigent circumstances to make a vehicle stop, the Border Patrol followed their own regulations throughout the still-undefined border zone.
Stop and Frisk
Until the 1960s, it was thought that the Fourth Amendment of the Constitution applied only to federal police, not state officials. The 1961 Supreme Court decision in Mapp v. Ohio dramatically altered that understanding by ruling that the Fourth Amendment applied to both state and federal police.2 The ruling established the exclusionary rule, also known as the suppression doctrine, which prevents the inclusion of evidence in a trial that was collected or analyzed in violation of the defendant’s constitutional rights. The ruling required police, both federal and state, to follow proper procedures for gathering evidence in order for that evidence to be admissible at trial. For many critics of the liberal Supreme Court decisions in the 1960s, the exclusionary rule from Mapp was particularly despised because it did not just protect innocent people from unreasonable searches, but also constrained the police and freed people who committed crimes.
The 1960s saw a number of other Fourth Amendment cases before the Supreme Court. The most significant was Terry v. Ohio, which was decided in 1968. On October 31, 1963, John Terry, a Black man, and two friends were observed walking around in front of a jewelry store in Cleveland by a veteran detective named Martin McFadden. McFadden, suspecting the men were casing the store for a possible robbery, decided to stop and interrogate them. After the men did not respond clearly to his questions, McFadden said he feared for his safety and decided to frisk them to search for weapons.
The search located a pistol in Terry’s coat pocket and a revolver in the pocket of his friend, Richard Chilton. The third man had no weapons. McFadden arrested Terry and Chilton and charged them with carrying concealed weapons. The men were found guilty by the Cuyahoga County court after the judge ruled that the stop was lawful and that the evidence found in the search should not be suppressed. Terry appealed and the case reached the Supreme Court in the fall of 1967.
The Supreme Court in the 1960s was liberal and handed down a string of rulings that created more rights for defendants, including the exclusionary rule from Mapp and the well-known Miranda ruling of 1966, which held that the police had to inform people in custody of their rights to remain silent and to have access to a lawyer. The Supreme Court ruling in Terry, written by Chief Justice Earl Warren, attempted to find a balance between the need to prevent crimes and the real prospect of harassment by the police if they could stop and frisk anyone. The court worried it could result in “The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain.”3
The court ended up with a middle ground that allowed stops but only those based on some set of facts. The standard they produced was “reasonable suspicion” based on articulable facts from the officer for why they made the stop. Crucially, they decided these facts did not have to amount to probable cause, but the stops had to be very brief and were not akin to detention. The reasonable suspicion needed to be about the safety of the officer and the public in that location. If these conditions are met, the evidence found in this sort of a stop is admissible in court. They ruled that the conditions were met in Terry’s case and his conviction was upheld.
Although the Warren court expressed concern about the potential for racial profiling in the practice of stop and frisk, the end result certainly allows for it and it has played out on street corners for decades. The police must have more than a hunch that the individuals are engaged in illegal activity, but they do not need formal probable cause to briefly stop and search individuals in public spaces.
In practice, stop and frisk is often used in predominantly Black neighborhoods that are identified as areas of drug sales and gang activity. It is a form of racial profiling masked by geography. If an officer sees a group of young men hanging around on a street corner known for drug sales, they can use those articulable facts of reasonable suspicion to briefly talk to the men and search them for weapons or drugs. Justice William Douglas, who was known for his solitary liberal opinions, cast the lone dissenting opinion. He criticized the ruling because he saw it as a step toward a police state: “To give the police greater power than a magistrate is to take a long step down the totalitarian path.”4
When combined, Carroll, Mapp, and Terry established the basic parameters for how Fourth Amendment protections were applicable to police stops in public spaces without a warrant. If the officer had probable cause and worried that a vehicle was going to flee, they could stop and search the vehicle. If the officer had reasonable suspicion with articulable facts that an individual was a potential danger to the officer or the public, they could briefly stop them in order to ask a few questions and frisk them. However, in all other circumstances, police officers needed a warrant or consent in order to conduct a search if they wanted the evidence to be admissible in court.
The Border Patrol’s Unexamined Authority
The Border Patrol’s authority to stop anyone in the border zone for any reason was in conflict with the Supreme Court’s decisions that law enforcement officials needed probable cause for searches and reasonable suspicion for brief interrogations in the United States. Just as the Volstead Act of 1919 gave Prohibition agents seemingly unchecked authority to stop vehicles to search for alcohol, the Border Patrol’s authorization in 1925 gave agents seemingly unchecked authority to stop vehicles to search for undocumented immigrants. However, the Supreme Court curtailed the Prohibition agents’ authority within a few years of its implementation through the Carroll doctrine. By contrast, the Border Patrol continued to operate in the remote border zone for decades before the Supreme Court considered the implications of its ability to conduct warrantless stops inside the United States.
In those intervening decades, the agency interpreted the law as they wished. They also continuously sought to expand the definition of the border zone, where their unchecked authority could be put into practice every day. It would not be until 1947 that the exact boundaries of the Border Patrol’s special zone of operations would finally be established. That zone turned out to be vast.