The automobile exception turned 90 this month. Thank you, Prohibition

We missed it: The automobile exception turned 90 years old on March 2. Carroll v. United States, 267 U.S. 132 (1925) (7-2). The justification for the search was the Volstead Act (Prohibition) and the statutory authority given to Prohies to investigate, extrapolating from the customs laws. (The background and the search of the Carroll brothers’ roadster on the road from Detroit to Grand Rapids was memorialized in Ken Burns’ PBS show Prohibition.)

In § 24.03 of the Treatise, we see that the automobile exception has gone through five phases in its 90 years.

For those of us who graduated from law school long ago, it’s important to re-read Carroll again, majority and dissent, and compare the War on Liquor back then to the War on Drugs of the last 30 years.

Just snippets here, such as the statutory authority. Carroll at 153-55:

We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. Section 26, Title II, of the National Prohibition Act, like the second section of the Act of 1789, for the searching of vessels, like the provisions of the Act of 1815, and Section 3061, Revised Statutes, for searching vehicles for smuggled goods, and like the Act of 1822, and that of 1834 and Section 2140, R.S., and the Act of 1917 for the search of vehicles and automobiles for liquor smuggled into the Indian Country, was enacted primarily to accomplish the seizure and destruction of contraband goods; secondly, the automobile was to be forfeited; and thirdly, the driver was to be arrested. Under Section 29, Title II, of the Act the latter might be punished by not more than $500 fine for the first offense, not more than $1,000 fine or 90 days’ imprisonment for the second offense, and by a fine of $500 or more and by not more than 2 years’ imprisonment for the third offense. Thus he is to be arrested for a misdemeanor for his first and second offenses and for a felony if he offends the third time. The main purpose of the Act obviously was to deal with the liquor and its transportation and to destroy it. The mere manufacture of liquor can do little to defeat the policy of the Eighteenth Amendment and the Prohibition Act, unless the forbidden product can be distributed for illegal sale and use. Section 26 was intended to reach and destroy the forbidden liquor in transportation and the provisions for forfeiture of the vehicle and the arrest of the transporter were incidental. The rule for determining what may be required before a seizure may be made by a competent seizing official is not to be determined by the character of the penalty to which the transporter may be subjected. Under Section 28, Title II, of the Prohibition Act the Commissioner of Internal Revenue, his assistants, agents and inspectors are to have the power and protection in the enforcement of the Act conferred by the existing laws relating to the manufacture or sale of intoxicating liquors.

The dissent, at 163:

The damnable character of the “bootlegger’s” business should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarranted methods. “To press forward to a great principle by breaking through every other great principle that stands in the way of its establishment; … in short, to procure an eminent good by means that are unlawful, is as little consonant to private morality as to public justice.” Sir William Scott, The Louis, 2 Dodson 210, 257.

While quietly driving an ordinary automobile along a much frequented public road, plaintiffs in error were arrested by Federal officers without a warrant and upon mere suspicion — ill founded, as I think. The officers then searched the machine and discovered carefully secreted whisky, which was seized and thereafter used as evidence against plaintiffs in error when on trial for transporting intoxicating liquor contrary to the Volstead Act (c. 85, 41 Stat. 305). They maintain that both arrest and seizure were unlawful and that use of the liquor as evidence violated their constitutional rights.

The dissent somewhat presaged Justice Brandeis’s famous dissent in Olmstead v. United States, 277 U.S. 438 (1928), and the entire argument about the exclusionary rule with the government agent as wrongdoer. (Curiously, though, Brandeis was in the majority in Carroll.)

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