WEBVTT - The History of Policing in Cars 0:00:15.356 --> 0:00:24.316 Pushkin from Pushkin Industries. This is Deep Background, the show 0:00:24.356 --> 0:00:27.356 where we explored the stories behind the stories in the news. 0:00:27.756 --> 0:00:31.756 I'm Noah Feldman. Are you one of the forty nine 0:00:31.796 --> 0:00:35.396 point three million Americans who hit the road this Thanksgiving? 0:00:36.076 --> 0:00:39.676 Are you perhaps listening to this in a car right now? 0:00:40.556 --> 0:00:43.076 If either of these things is true, this is definitely 0:00:43.116 --> 0:00:45.876 the episode for you. We're here to talk about how 0:00:45.956 --> 0:00:49.516 cars have shaped the history of policing in America and 0:00:49.596 --> 0:00:52.556 how the space of the car has been fundamental to 0:00:52.596 --> 0:00:55.436 the definition of your rights under the Fourth Amendment to 0:00:55.516 --> 0:01:00.636 the Constitution, specifically your right to privacy. To discuss this, 0:01:00.956 --> 0:01:03.756 we're talking to Sarah Seo. She's a professor at the 0:01:03.836 --> 0:01:06.756 University of Iowa's College of Law, and she's the author 0:01:06.756 --> 0:01:12.396 of Policing the Open Road, How Cars Transformed American Freedom. Sarah, 0:01:12.476 --> 0:01:15.156 thank you so much for joining me in reading your book. 0:01:15.716 --> 0:01:18.196 I was really struck. The first thing that struck me 0:01:18.356 --> 0:01:20.316 and maybe they should have been obvious to me before, 0:01:20.476 --> 0:01:24.476 but it wasn't. Is that probably cars are the single 0:01:24.556 --> 0:01:30.916 most significant technological event of the last hundred years in 0:01:30.956 --> 0:01:33.076 American life. I mean, we talk a lot about the Internet. 0:01:33.076 --> 0:01:35.796 We imagine that the transformation of social media is so enormous, 0:01:36.156 --> 0:01:38.036 none of it seems to hold a candle to the 0:01:38.156 --> 0:01:42.436 car as a transformative technology. Do you buy that? I mean, 0:01:42.476 --> 0:01:45.076 do you think of the car is really the be all, 0:01:45.156 --> 0:01:47.876 in the end all of technological change, making the computer 0:01:47.956 --> 0:01:51.076 look kind of secondary. Well, in the twentieth century, we 0:01:51.156 --> 0:01:54.236 call that the automobile age, like the Bronze age, right, 0:01:54.316 --> 0:01:57.756 and so we've defined that century as defined by the 0:01:57.836 --> 0:02:02.316 car and how it transformed our life, our culture, the 0:02:02.396 --> 0:02:05.476 way our cities look, the way our countryside looks. So 0:02:05.636 --> 0:02:09.436 my answer would be yes, it completely transformed almost every 0:02:09.476 --> 0:02:14.356 aspect of our life. I want to talk about the 0:02:14.396 --> 0:02:18.196 idea of privacy and how it has evolved over the 0:02:18.196 --> 0:02:21.276 course of our century or the last century, really in 0:02:21.396 --> 0:02:25.116 relationship to cars. And you say some really fascinating things 0:02:25.116 --> 0:02:28.156 about this, starting with the idea that the idea of 0:02:28.236 --> 0:02:31.596 privacy as a fundamental right was really just getting started 0:02:31.596 --> 0:02:34.916 in the United States around the same time as the 0:02:35.036 --> 0:02:40.156 rise of the automobile, probably initially almost by coincidence. But 0:02:40.196 --> 0:02:44.916 then once those two ideas met up, things got tricky because, 0:02:44.956 --> 0:02:48.676 according to the pre car conception, if I was inside 0:02:48.716 --> 0:02:51.916 my home, I had a right to privacy, and if 0:02:51.956 --> 0:02:55.116 I was outside on the street, I didn't have a 0:02:55.196 --> 0:02:59.436 right to privacy, And cars raised the question of are 0:02:59.476 --> 0:03:02.916 you at home or are you on the street. So 0:03:03.396 --> 0:03:06.556 say something, if you will, about how courts and the 0:03:06.636 --> 0:03:09.836 society tried to get a grip on that tween nature 0:03:09.836 --> 0:03:12.316 of being in your car. So one of the main 0:03:12.436 --> 0:03:16.516 themes of my book is that cars are just a 0:03:16.556 --> 0:03:22.596 completely new space, and both judges and ordinary Americans were 0:03:22.596 --> 0:03:26.596 trying to figure out what this new space exactly was. 0:03:27.236 --> 0:03:31.036 So the way that ordinary Americans experienced their cars was 0:03:31.236 --> 0:03:33.756 kind of like an extension of their homes. They saw 0:03:33.756 --> 0:03:38.076 the car as a parlor or their boudoir. Right, Young 0:03:38.116 --> 0:03:41.836 people moved from the parlor to the car to date 0:03:42.236 --> 0:03:44.556 and to get to know each other? Are those euphemisms? 0:03:44.596 --> 0:03:47.436 I mean, wasn't there also, just in prior generations to ours? 0:03:47.476 --> 0:03:49.556 Wasn't there just a lot of sex in cars at 0:03:49.556 --> 0:03:51.996 a time when people lived with their parents and they 0:03:51.996 --> 0:03:54.636 didn't have other places to go? I mean, the whole 0:03:54.676 --> 0:03:56.436 notion of parking, wasn't I mean, it's nice to say 0:03:56.476 --> 0:03:57.636 that the people are getting to know each other, but 0:03:57.676 --> 0:04:00.236 that's not all they were doing. Right, So, actually, on 0:04:00.396 --> 0:04:03.916 that there's one of the first hit songs about cars 0:04:04.236 --> 0:04:11.076 was composed nineteen oh five where the lyrics ask Lucille 0:04:11.076 --> 0:04:23.156 to come away with me in my marry oldsmobile. You 0:04:23.196 --> 0:04:25.036 can go as far as you like with me in 0:04:25.156 --> 0:04:29.836 my Mary Oldsmobile. You can far you life with me 0:04:30.316 --> 0:04:35.436 my maring. So definitely there is a lot of sexual 0:04:35.476 --> 0:04:39.956 innuendos in that nineteen o five song, dating couples could 0:04:40.396 --> 0:04:43.196 escape the prying eyes of their parents and their homes 0:04:43.196 --> 0:04:46.636 and the parlors and go off for a Sunday drive 0:04:47.156 --> 0:04:49.756 and do whatever they like as far as they want 0:04:49.756 --> 0:04:53.356 to go, And so that there is a notion of privacy, 0:04:53.876 --> 0:04:58.316 sexual privacy, the privacy of the family going on Sunday 0:04:58.396 --> 0:05:03.476 drives together, bringing the family together. Advertisements actually marketed the 0:05:03.596 --> 0:05:06.996 car as an extension of the home, as the domestic 0:05:07.076 --> 0:05:10.796 hearth where the family got together. But the way that 0:05:11.756 --> 0:05:17.036 government officials, judges, and leaders thought of the car was 0:05:17.076 --> 0:05:20.716 a bit more complex or complicated. If you go back 0:05:21.076 --> 0:05:25.476 to the moment when cars first rolled off assembly lines. 0:05:26.196 --> 0:05:30.276 The assembly line and standardization really allowed a lot of 0:05:30.316 --> 0:05:34.316 cars to be produced and to be able to be 0:05:34.436 --> 0:05:38.316 sold for a very affordable price. So this is the 0:05:38.356 --> 0:05:40.436 story of forward in the Model T and suddenly there 0:05:40.436 --> 0:05:43.916 really are cars everywhere exactly. And so this is what 0:05:44.156 --> 0:05:47.356 was so unprecedented about the mass production of cars is 0:05:47.396 --> 0:05:51.196 that so many individuals were able to own their own 0:05:51.356 --> 0:05:54.596 form of transportation. They could know they no longer had 0:05:54.676 --> 0:05:59.636 to rely on public transportation or walk. And so what 0:05:59.956 --> 0:06:02.636 happened was that all of a sudden, there were hundreds 0:06:02.676 --> 0:06:07.236 and thousands of cars on streets that were really intended 0:06:07.276 --> 0:06:12.556 for a few carriages or the trolley and mostly pedestrians. 0:06:12.596 --> 0:06:16.356 And so it created mass chaos on public streets. And 0:06:16.396 --> 0:06:21.316 when there's public danger to all, then that allows the 0:06:21.436 --> 0:06:26.196 government to exercise our powers to legislate for the public 0:06:26.196 --> 0:06:29.796 safety and welfare. And so the way that lawyers and 0:06:29.876 --> 0:06:32.836 government officials thought about cars was they pose a threat 0:06:32.876 --> 0:06:36.116 to public safety, and so we need to regulate the 0:06:36.196 --> 0:06:39.356 use of motor vehicles, and we need to increase our 0:06:39.476 --> 0:06:43.116 powers to make sure that we cut down the accident rate, 0:06:43.556 --> 0:06:48.156 that everybody drives in a coordinative fashion so that traffic 0:06:48.196 --> 0:06:51.996 can move. And so they were seeing this as something 0:06:52.036 --> 0:06:54.756 that needed to be regulated. And so when you have 0:06:55.116 --> 0:07:01.876 government regulation that starts interfering with individual privacy, so you 0:07:01.916 --> 0:07:04.876 were saying that the advertisers said, Hey, your car is 0:07:04.876 --> 0:07:08.716 an extension of your home, and certainly after dark courting 0:07:08.716 --> 0:07:11.796 couple used their cars as a kind of extension of 0:07:11.836 --> 0:07:14.436 the home. But you also pointed out that because of 0:07:14.436 --> 0:07:18.276 traffic regulation, then that meant that cars came under the 0:07:18.316 --> 0:07:20.236 regulation of the government in a way that the inside 0:07:20.236 --> 0:07:22.916 of the home might not or might not in the 0:07:22.996 --> 0:07:26.516 same way. When are the first times that the courts 0:07:26.516 --> 0:07:31.196 start grappling with the question of whether when a policeman 0:07:31.236 --> 0:07:35.356 pulls you over for a traffic violation, the police officer 0:07:35.516 --> 0:07:39.396 is authorized to use force to either look inside your 0:07:39.396 --> 0:07:42.396 car or to pull you out of your car right away. 0:07:43.116 --> 0:07:46.716 So what happened was that the mass production of cars 0:07:46.756 --> 0:07:53.076 coincided with prohibition. So states were outlawing liquor starting from 0:07:53.196 --> 0:07:57.756 the mid nineteenth century through the late nineteenth century, and 0:07:57.916 --> 0:08:02.356 then we had the National prohibition that was ratified in 0:08:02.476 --> 0:08:05.916 nineteen nineteen, and so really those two things happened at 0:08:05.916 --> 0:08:09.636 the same time, and so more law enforcement age agencies 0:08:10.036 --> 0:08:13.876 wanted to stop and search cars for liquor, and so 0:08:14.036 --> 0:08:17.876 the issue of how much power law enforcement officers had 0:08:18.036 --> 0:08:20.996 to stop and search a car because they suspected that 0:08:21.036 --> 0:08:24.316 there was liquor inside. That was contested from the very beginning. 0:08:24.756 --> 0:08:27.676 And how did the courts first begin to rule on that. 0:08:27.796 --> 0:08:30.596 Was there a trend at the beginning that then changed 0:08:30.716 --> 0:08:32.836 or was it pretty consistent from the start. It was 0:08:32.876 --> 0:08:36.916 pretty consistent from the start. So I distinguished how courts 0:08:36.956 --> 0:08:40.116 treat a probition cases from the way they treated car cases, 0:08:41.236 --> 0:08:44.596 because prohibition was contested from the very beginning. Right, people 0:08:44.636 --> 0:08:47.836 thought that they had a natural right to drink alcohol, 0:08:47.916 --> 0:08:53.116 even Jesus. Even Jesus turned water into wine. Robinson Cristoe 0:08:53.356 --> 0:08:57.236 had wine to drink too. It was natural. And so 0:08:57.356 --> 0:09:03.676 courts were starting to change their Fourth Amendment Jews prudence 0:09:03.716 --> 0:09:07.036 and fourth and then then governs the police's search and 0:09:07.076 --> 0:09:10.956 seizure powers, and they were starting to provide more protections 0:09:10.956 --> 0:09:15.876 to individuals in prohibition cases. And then you have the 0:09:15.956 --> 0:09:21.276 coincidence of mass production of cars and national prohibition, and 0:09:21.316 --> 0:09:24.556 so those cases were coming together, and that's when you 0:09:24.596 --> 0:09:28.556 start having the government argue, this is really not about liquor. 0:09:28.996 --> 0:09:33.156 These cases are really about a fighting crime. Because cars 0:09:33.396 --> 0:09:39.156 changed the entire calculus on crime commission and criminal law enforcement. 0:09:39.516 --> 0:09:42.836 And that's when you have courts uniformly decide that they 0:09:42.876 --> 0:09:45.796 need to increase the police's power to stop and search cars. 0:09:46.516 --> 0:09:49.836 So the outcome, in other words, is from the start 0:09:49.876 --> 0:09:53.716 that the cops have significant discretion to stop the car 0:09:53.916 --> 0:09:58.876 and see what's inside exactly. Now, certainly there were vocal 0:09:58.996 --> 0:10:03.556 descents people who thought a car as private property, and 0:10:03.596 --> 0:10:08.716 the Fourth Amendment protects private property from warrantless searches and seizures, 0:10:09.196 --> 0:10:12.556 and cars fit under that protection. So there were decents, 0:10:12.956 --> 0:10:16.116 but uniformly throughout the country, and I looked at state 0:10:16.116 --> 0:10:20.316 court cases and federal court cases, uniformly, they all decided 0:10:20.836 --> 0:10:23.876 that the police needed the power to stop in search 0:10:23.876 --> 0:10:26.916 a car without warrants. And did the police have to 0:10:26.956 --> 0:10:29.876 show that they had any reasonable suspicion to do that 0:10:30.116 --> 0:10:33.076 or was it enough for them to say, we don't 0:10:33.116 --> 0:10:35.956 like the look of you. So that's a really interesting 0:10:35.996 --> 0:10:39.436 question because courts have held that cops need reasonable or 0:10:39.476 --> 0:10:42.676 probable cause to believe that there was something illegal inside 0:10:42.676 --> 0:10:49.036 the car. Now, from the very beginning, commentators criticized that 0:10:49.476 --> 0:10:53.076 rule because when you say that a cop needs reasonable 0:10:53.156 --> 0:10:57.556 or probable cause, that's not a standard of certainty, right, 0:10:58.436 --> 0:11:01.676 And so if you allow for reasonable probable cause. You're 0:11:01.716 --> 0:11:04.396 also allowing for instances where the cop could be wrong 0:11:05.196 --> 0:11:07.436 because they don't have to be certain about it. And 0:11:07.516 --> 0:11:10.276 if a cop can be wrong, if a standard allows 0:11:10.276 --> 0:11:13.356 a cop to be wrong, then it sort of allows 0:11:13.356 --> 0:11:16.276 a cop to make things up a little bit. And 0:11:16.356 --> 0:11:19.396 that's exactly what happened in fourth Medagers Price. There's a 0:11:19.396 --> 0:11:23.196 reasonable or probable cause standard that allows a lot of 0:11:23.276 --> 0:11:27.236 leeway to the police to bolster their case that they 0:11:27.276 --> 0:11:30.196 had reasonable or probable cause. So fill that in a 0:11:30.196 --> 0:11:32.396 little bit, because now we're getting very close to the 0:11:32.476 --> 0:11:37.036 meat of you know, the the archetypal scene of the 0:11:37.116 --> 0:11:40.956 cops pull somebody over, probably a young African American mail 0:11:41.076 --> 0:11:45.396 in our archetype, and the question arises of whether the 0:11:45.436 --> 0:11:49.676 cop has probable cause to search the car. Fill it 0:11:49.716 --> 0:11:52.996 in a little bit. What counted historically and what counts 0:11:52.996 --> 0:11:56.036 in the law today as probable cause, and how has 0:11:56.076 --> 0:11:59.236 that changed. Well, So the first thing I should say 0:11:59.276 --> 0:12:02.356 about what probable cause is is that we don't really know. 0:12:02.596 --> 0:12:05.436 The courts have refused to put a number on what 0:12:05.476 --> 0:12:10.036 probable causes. So if you think about knowledge or the 0:12:10.116 --> 0:12:12.716 standards of proof that the state has to have before 0:12:12.756 --> 0:12:16.796 they take action. We can start from zero. They have 0:12:16.956 --> 0:12:22.956 nothing on us to proof beyond a reasonable doubt, right, 0:12:22.956 --> 0:12:26.676 and the proof beyond reasonable doubt is the necessary standard 0:12:26.676 --> 0:12:30.476 to convict someone of a crime. Now, probable causes somewhere 0:12:30.516 --> 0:12:34.876 below that, and courts have refused to put a number 0:12:34.956 --> 0:12:38.996 on what that amount of certainty is. The best way 0:12:38.996 --> 0:12:41.836 that they've described it is it's a matter of probabilities 0:12:42.076 --> 0:12:45.076 more likely than not. But Sarah, isn't that Let me 0:12:45.076 --> 0:12:46.636 just ask you about that. I mean, when I hear 0:12:47.236 --> 0:12:50.756 probable cause, I hear more probable than not, and I 0:12:50.836 --> 0:12:53.916 hear fifty percent plus a smidge in am I hearing 0:12:53.956 --> 0:12:56.596 that the wrong way? That's one way to look at it, 0:12:56.596 --> 0:13:01.876 except that the courts have refused to say that it's 0:13:02.196 --> 0:13:05.036 a smidge and more than fifty percent. And here's the 0:13:05.076 --> 0:13:08.636 reason why all of this matters is because Fourth amend 0:13:08.716 --> 0:13:12.036 and challenge lenges. A challenge to a police search of 0:13:12.076 --> 0:13:15.916 a car, for instance, only happens when the person is 0:13:15.956 --> 0:13:19.716 guilty when the police found something in the car. And 0:13:19.796 --> 0:13:23.836 so when a Fourth Amendment challenge is made, a judge 0:13:23.876 --> 0:13:26.476 is looking at a guilty person who was caught red handed. 0:13:26.796 --> 0:13:30.556 And of course, when you're faced with that scenario, it's 0:13:30.596 --> 0:13:34.676 just much easier to say the police had probable cause 0:13:35.276 --> 0:13:38.676 because obviously they found someone with alcohol in their cars 0:13:38.756 --> 0:13:42.516 or now today drugs in their cars, and so the 0:13:42.836 --> 0:13:47.676 whole calculus is biased towards a finding probable cause because 0:13:47.716 --> 0:13:50.436 judges aren't looking at the cases where an innocent person 0:13:51.076 --> 0:13:54.116 has been searched or their car has been searched. Well, 0:13:54.116 --> 0:13:56.316 we sometimes are right, I mean we sometimes are. I 0:13:56.356 --> 0:13:58.516 mean the Sandra Bland case is an example of how 0:13:58.996 --> 0:14:01.156 in a certain outlying cases we do look at an 0:14:01.196 --> 0:14:03.836 instance where somebody has been stopped, and then when something 0:14:03.916 --> 0:14:06.556 terrible happens, we say, oh, my goodness, you know, you 0:14:06.596 --> 0:14:08.556 should never have stopped this person in the first place. 0:14:08.836 --> 0:14:11.516 Or those moments of our history where we focus on 0:14:12.556 --> 0:14:17.596 racial profiling or other illegitimate means of stops, then we 0:14:17.676 --> 0:14:19.756 take a deep breath and we say, well, wait a second, 0:14:20.156 --> 0:14:22.396 you know, should these stops have been allowed in the 0:14:22.476 --> 0:14:24.156 first instance. I mean, I completely agree with you that 0:14:24.396 --> 0:14:27.716 in an ordinary judicial situation, if the cops searches your 0:14:27.716 --> 0:14:29.436 car there's nothing in your car, they'll let you go 0:14:29.796 --> 0:14:31.676 so it doesn't come to court. So I get your point. 0:14:31.676 --> 0:14:33.596 I think it's a very powerful and important point. But 0:14:33.636 --> 0:14:36.396 there are moments, aren't there where we do engage in 0:14:36.436 --> 0:14:39.676 the question of what should be sufficient cause for a 0:14:39.716 --> 0:14:43.116 stop in a search. No, I don't think we do. 0:14:43.836 --> 0:14:46.556 And fascinating and let me try to explain why I 0:14:46.596 --> 0:14:51.796 feel that way. So Sandra Bland to remind the listeners 0:14:51.916 --> 0:14:57.036 of that tragic incident. She was arrested and she died 0:14:57.116 --> 0:15:00.916 in her jail cell three days later, and she was 0:15:01.036 --> 0:15:05.316 pulled over for a minor traffic violation. Nobody challenged that. 0:15:06.636 --> 0:15:09.356 And this is something that I cover my book from 0:15:09.356 --> 0:15:14.156 the very beginning of mass production of cars, cities, towns, 0:15:14.276 --> 0:15:18.796 past volumes and volumes of traffic laws governing everything from 0:15:18.876 --> 0:15:23.116 necessary traffic equipment to when a car can make a 0:15:23.276 --> 0:15:26.876 right turn, and a violation of any one of those 0:15:26.876 --> 0:15:30.276 traffic laws allows a place to stop that car. But 0:15:30.316 --> 0:15:32.396 I feel like there is a real debate out there 0:15:32.396 --> 0:15:35.316 in the world today about whether it's okay for police 0:15:35.316 --> 0:15:40.436 departments to use theoretically neutral rules like you know, you 0:15:40.556 --> 0:15:43.116 made a turn without signaling, which is I think the 0:15:43.156 --> 0:15:45.996 case the claim in the Sandra Bland case, and if 0:15:46.076 --> 0:15:48.236 cops are using those but they're applying them in a 0:15:48.276 --> 0:15:51.316 discriminatory fashion. They're applying them so that the people who 0:15:51.356 --> 0:15:56.316 get pulled over are disproportionately African Americans, let's say, or Latino. Then, 0:15:56.636 --> 0:15:58.756 you know, I do have the feeling that people do 0:15:58.876 --> 0:16:01.156 think in the world, that many people think that there's 0:16:01.196 --> 0:16:05.156 something wrong with that, that maybe having a broken tail 0:16:05.196 --> 0:16:08.156 light shouldn't be grounds to be potentially arrested. I think 0:16:08.196 --> 0:16:11.876 many people, and I can include myself, and that agree 0:16:11.916 --> 0:16:14.076 with you. But that's not where the law is. Right. 0:16:14.236 --> 0:16:16.796 The law still assumes that if you've committed even the 0:16:16.836 --> 0:16:22.116 most minor traffic violation, it's legally justifiable to stop you 0:16:22.196 --> 0:16:25.516 and potentially but what would it be potentially permissible to 0:16:25.556 --> 0:16:28.556 search your car under those circumstances. So let me back up. 0:16:28.876 --> 0:16:31.436 The court has said in nineteen ninety six in the 0:16:31.476 --> 0:16:34.876 case ren versus United States, that if a cop pulls 0:16:34.956 --> 0:16:39.676 over somebody based on pretext so the cop thinks that 0:16:39.716 --> 0:16:43.196 the driver has drugs in the car but doesn't have 0:16:43.276 --> 0:16:46.636 probable cause, then the cop can't stop that car right 0:16:46.636 --> 0:16:50.596 because probable cause is the necessary requirement. But the cop 0:16:50.756 --> 0:16:54.036 can use a minor traffic violation to pull that car over. 0:16:54.156 --> 0:16:57.596 That kind of pretextual car stop is aoka according the 0:16:57.596 --> 0:17:01.396 Supreme Court. So the cop pulls over a car for 0:17:01.436 --> 0:17:04.636 a minor traffic violation, then the next question is can 0:17:04.676 --> 0:17:07.316 the cop start searching the car for the drugs that 0:17:07.396 --> 0:17:10.116 he or she suspects? And this is where we get 0:17:10.156 --> 0:17:13.916 to the fuzziness of the probable cost standard. It is 0:17:14.076 --> 0:17:19.916 really easy to fight facts that support probable cause. I 0:17:20.116 --> 0:17:25.076 looked at one of the best selling police textbooks on 0:17:25.116 --> 0:17:29.316 what they call criminal Patrol, how to do drug busts 0:17:29.596 --> 0:17:34.596 using Traffic law enforcement, and they say, probable cause is 0:17:34.596 --> 0:17:38.156 actually a very capacious standard. A lot of things you 0:17:38.196 --> 0:17:43.556 can think of to meet that standard, like suspicious odors. Right, 0:17:43.596 --> 0:17:46.996 I smelled marijuana. How are you going to prove that 0:17:47.076 --> 0:17:50.236 in court? It's the officer's testimony, right, And if the 0:17:50.316 --> 0:17:55.516 officer finds a marijuana butt, then yeah, it sounds right 0:17:55.596 --> 0:17:59.916 that the officer smelled it. And so it's really easy 0:18:00.116 --> 0:18:04.836 to meet the standards for a warrantless car search because 0:18:05.036 --> 0:18:08.836 of the volumes of traffic laws that everybody violates. At 0:18:08.836 --> 0:18:12.596 some point, I get what you're saying, but you're also describing, 0:18:12.716 --> 0:18:16.596 aren't you a potential distortion? The possibility which always exists 0:18:16.596 --> 0:18:20.316 of police distorting the truth or were lying in some 0:18:20.676 --> 0:18:23.556 other way, right, I mean, yeah, as as you know, 0:18:23.556 --> 0:18:24.956 as the art type. I keep on thinking of the 0:18:25.436 --> 0:18:29.196 jay Z song Yeah, and which he's he's replicating the 0:18:29.236 --> 0:18:32.436 structure of a pullover, and he says, you know, do 0:18:32.436 --> 0:18:35.316 you think that because my hat's real low, that you 0:18:35.356 --> 0:18:37.196 know you can search me? You can't? I know my 0:18:37.236 --> 0:18:40.076 constitutional rights. I mean, I'm paraphrasing now without anything like 0:18:40.196 --> 0:18:43.156 jay Z's flow, but the basic idea is that the 0:18:43.236 --> 0:18:46.036 cops don't have the constitutional right to search. And jay 0:18:46.116 --> 0:18:48.076 Z wants you, the listener of the song, to know that, 0:18:48.316 --> 0:18:50.796 you know, I teach that song when I teach criminal procedure. 0:18:51.316 --> 0:18:53.636 And we go over verse two. Verse two is a 0:18:53.716 --> 0:18:57.396 car stop that actually happened in real life to jay Z. 0:18:57.516 --> 0:19:03.156 So he sings a version of that in the song 0:19:03.516 --> 0:19:06.636 you don't want because I'm young and I'm black in 0:19:06.716 --> 0:19:09.316 my head's real low, do one look like a modest sir? 0:19:10.596 --> 0:19:13.076 And we and I go over what he gets wrong 0:19:13.116 --> 0:19:15.596 about the Fourth Amendment? Can you share that with us? 0:19:15.956 --> 0:19:19.316 So he's right that there is racial profiling that goes on, 0:19:19.716 --> 0:19:23.836 especially at the time when he experienced it for himself. 0:19:24.196 --> 0:19:27.956 There was a drug courier profile with traits that were 0:19:28.036 --> 0:19:34.796 associated with black men that highway patrollers were instructed to 0:19:34.836 --> 0:19:38.516 look for when they pull over in their drug interdiction programs. 0:19:38.876 --> 0:19:42.156 And so he's right as a matter of social reality 0:19:42.196 --> 0:19:45.116 that they were profiled. As a matter of law, that's 0:19:45.196 --> 0:19:48.476 okay under the rent case that I just mentioned. The 0:19:48.556 --> 0:19:51.836 other thing that he gets really wrong, he seems that 0:19:51.876 --> 0:19:53.956 the cop needs to go get a warrant to search 0:19:53.956 --> 0:20:04.876 his car, and that is absolutely not true. The cops 0:20:04.916 --> 0:20:08.716 do not need a warrant. They don't if they need, 0:20:08.916 --> 0:20:11.156 if they have probable cause, If they have a probable cause, 0:20:11.196 --> 0:20:13.076 they don't need to actually go and get a warrant 0:20:13.116 --> 0:20:17.436 for that probable cause exactly. But according to the textbook, 0:20:17.476 --> 0:20:21.276 the Police Textbook on Criminal Patrol, getting probable cause for 0:20:21.276 --> 0:20:25.156 a warrantless car search is super easy, and in fact, 0:20:25.516 --> 0:20:29.876 the textbook says the Fourth Amendment is your tool in 0:20:29.916 --> 0:20:35.236 criminal patrol. The cop or the highway patroller who it 0:20:35.316 --> 0:20:37.996 does a good job, doesn't see the Fourth Amendment as 0:20:37.996 --> 0:20:41.396 an impediment. They see the Fourth Amendment as opportunities. And 0:20:41.476 --> 0:20:43.436 that's actually one of the main arguments of your book 0:20:43.436 --> 0:20:46.956 as I read it, that especially lawyers like to tell, 0:20:47.076 --> 0:20:50.356 maybe especially law professors, we like to tell heroic stories 0:20:50.396 --> 0:20:53.596 about how the law protects people. But in fact, the 0:20:53.676 --> 0:20:56.916 law that regulates search is as much a law that 0:20:57.076 --> 0:20:59.716 enables the cops to search as it is a law 0:20:59.796 --> 0:21:04.036 that limits those searches. I think that's a hugely important point. 0:21:04.076 --> 0:21:06.196 But it has a kind of complex interaction with the car, 0:21:06.316 --> 0:21:09.316 doesn't it. I mean, the car has never really in 0:21:09.836 --> 0:21:13.036 a true sanctuary. It's always an in between space that 0:21:13.196 --> 0:21:17.796 subject to a fair amount of police surveillance and governmental regulation. 0:21:17.876 --> 0:21:21.596 Isn't that a fair description exactly? And that's one of 0:21:21.596 --> 0:21:24.996 the tensions that animates my book is that in American 0:21:25.036 --> 0:21:28.836 culture we celebrate the car as a freedom machine, but 0:21:28.956 --> 0:21:31.796 when we look at the legal history the law's treatment 0:21:31.796 --> 0:21:35.356 of cars, it's heavily regulated and heavily pleased. And you 0:21:35.436 --> 0:21:39.436 bring in You mentioned the conventional story that we've told 0:21:39.556 --> 0:21:42.756 about constitutional law, about the Fourth Amendment, and that was 0:21:42.796 --> 0:21:44.436 one of the questions that I had when I first 0:21:44.476 --> 0:21:48.956 started this project, is that the conventional story that I've 0:21:48.996 --> 0:21:53.156 always learned as a law school student is that the 0:21:53.236 --> 0:21:57.476 court has been the protector of our individual liberties, especially 0:21:57.516 --> 0:22:01.636 the Warren Court, the Warren Court was considered one of 0:22:01.636 --> 0:22:05.476 the most liberal courts in our history. That's the Supreme 0:22:05.516 --> 0:22:07.996 Court under the under the Chief justiceship of Rural Warren 0:22:08.076 --> 0:22:12.036 in the nine fifties, sixties, and into the very early seventies. Yeah, 0:22:12.036 --> 0:22:15.156 exactly right. And the war On Court started what we 0:22:15.236 --> 0:22:19.276 now refer to as a due process revolution revolution right, 0:22:19.756 --> 0:22:23.836 a revolution to give individuals more rights under the Constitution. 0:22:24.156 --> 0:22:27.796 And this was a progressive triumphal story that I've always learned, 0:22:28.076 --> 0:22:31.396 starting in law school through grad school. But I was 0:22:31.436 --> 0:22:34.596 always confused because I was starting to also read about 0:22:34.756 --> 0:22:38.516 problems with the criminal justice system, a mass incarceration that 0:22:38.636 --> 0:22:43.396 disproportionately affects minorities and the poor. And I was so 0:22:43.476 --> 0:22:46.636 confused because the Warren Courts due process revolution was supposed 0:22:46.676 --> 0:22:51.076 to help those groups. But a generation after the due 0:22:51.116 --> 0:22:54.156 process Revolution, those groups are the ones who are disproportionately 0:22:54.156 --> 0:22:57.276 affected in the criminal justice system. And so what happened? 0:22:57.956 --> 0:22:59.636 And that was one of the questions that I had 0:22:59.676 --> 0:23:04.356 when I started this project. And I've realized our conventional 0:23:04.476 --> 0:23:08.716 story history that I've been told we only looked at 0:23:09.196 --> 0:23:13.236 certain landmark cases. We only looked at the cases that 0:23:13.716 --> 0:23:17.396 dealt with invasions to the home. We never looked at 0:23:17.436 --> 0:23:20.236 the cases that involved the police's power to stop and 0:23:20.276 --> 0:23:24.076 search cars. And so if we look at those cases, 0:23:24.156 --> 0:23:27.756 we see courts from state courts to district trial courts 0:23:27.796 --> 0:23:30.556 all the way up to the US Supreme Court, they've 0:23:30.636 --> 0:23:36.076 always reliably granted the police more power, more discretionary power. 0:23:36.356 --> 0:23:38.876 So I want to ask you for a final question, Sarah, 0:23:38.996 --> 0:23:44.236 just to put on your futuristic goggles and picture the 0:23:44.356 --> 0:23:47.796 driverless cars or the self driving cars that you may 0:23:47.836 --> 0:23:49.676 not be right around the corner, but are they're on 0:23:49.716 --> 0:23:53.356 the way, And imagine writing you after your book becomes 0:23:53.356 --> 0:23:56.676 a bestseller and wins all the prizes, they ask you 0:23:56.756 --> 0:23:59.876 to publish an updated edition in fifteen or twenty years 0:24:00.116 --> 0:24:02.556 with a new chapter on driverless cars in the law. 0:24:03.116 --> 0:24:05.676 What do you imagine the big issues are going to 0:24:05.756 --> 0:24:09.596 become for regulation in a world where I'm not actually 0:24:09.636 --> 0:24:14.156 controlling the car anymore. Well, it's going to really change 0:24:14.156 --> 0:24:19.796 Fourth Amendment practice, not necessarily the law, but practice. Because 0:24:20.636 --> 0:24:26.236 much of criminal law investigation, the investigation of drug laws 0:24:26.476 --> 0:24:31.036 specifically happens with a minor traffic violation. And if autonomous 0:24:31.156 --> 0:24:34.516 driving cars, our program never to violate the traffic laws. 0:24:34.596 --> 0:24:37.036 I sure hope they will be programmed for Yeah, right, 0:24:37.836 --> 0:24:40.836 me too. Then that means that the police will need 0:24:40.956 --> 0:24:43.596 probable cause of some sort of violation other than the 0:24:43.676 --> 0:24:46.956 violation of a traffic law. They will need probable cause 0:24:47.116 --> 0:24:51.156 that the car contains contraband or other illegal substances. If 0:24:51.196 --> 0:24:52.676 I want to if I want to buy drugs in 0:24:52.676 --> 0:24:55.556 Florida and drive them up the five Card or to 0:24:55.596 --> 0:24:57.996 the northeast, what I should do right away is buy 0:24:58.076 --> 0:25:02.276 myself at Tesla exactly. That never violates the traffic violations 0:25:02.316 --> 0:25:04.996