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Prohibition's Long Tail: Brinegar Turns 75

The tempestuous 13 years of Prohibition saw a rise in crime, a rise in federal prosecution of crime, and the erosion of individual liberties. In fact, the National Prohibition Act (also known as the Volstead Act) allowed federal enforcement agents to search vehicles without warrants if they had a reasonable belief that liquor might be found inside.


Often, constitutional protections collide where one, necessarily, takes precedence over another. An example of this is that, under the 6th Amendment, every criminal defendant is entitled to a speedy trial but also to effective assistance of counsel. In most cases, the speedy trial right will defer to the right to be represented by prepared and effective counsel. The rights themselves are co-equal, but the defendant may have to waive one in order to ensure the other.


But, the cautionary tale of the 18th Amendment and its corresponding enforcement acts did something very different. Rather than allowing the defendant to choose which of the rights should fall to another, Prohibition pitted the power of the state to control alcohol (which had not only been legal since the dawn of the nation but was actively consumed by all of the Framers) against the right to be free from unreasonable searches and seizures under the 4th Amendment. And, placed that balancing act in the hands of the state. Even putting aside the history of James Otis pleading against the Writs of Assistance and failing, thus encouraging many, including a young John Adams, toward the cause of independence and revolution which presaged the need for a 4th Amendment once a new nation crafted governing documents, the protections of the 4th Amendment are so integral to liberty that they are deemed fundamental rights. During Prohibition, the 18th Amendment trumped the 4th Amendment in an ill conceived and ill fated period of time that lasts to this day despite the repeal of Prohibition and, necessarily, all of its enforcement powers.

 

The seminal case of Carroll v. United States, 267 U.S. 132 (1925) is an example that lives on; it is the case that created the “automobile exception” to the Fourth Amendment. In 1925, Prohibition was in full force. George Carroll was known in some circles as a “bootlegger” who transported liquor into Michigan and then distributed it from there. He was caught in a sting operation where undercover enforcement agents discussed buying liquor from him. The agents met with Carroll and some of his cohorts, they were able to observe the apartment he occupied, and the car he drove (and its license plate).  Someone in Carroll’s group must have determined that the purchasers were agents so they never delivered the alcohol.


Soon after, the same agents, who now had more than a hunch that Carroll was transporting liquor unlawfully, saw him driving the same car on a highway they patrolled under the National Prohibition Act. The agents stopped the car and seized the liquor. The upshot of that case is that the agents did not need a warrant to search the car (even though, realistically, they probably could have obtained a warrant for that car if they had sought it). But, remember three things that existed at that time: the 18th Amendment nationally prohibiting alcohol, the Volstead Act specifically declaring that no warrant was required for these kinds of searches (which itself was always questionable but was in full force and effect), and the fact that the agents themselves had met with and arranged for the purchase of liquor from Carroll and his friends. As ridiculous as Prohibition was and as appalling as the National Prohibition Act was, the agents in Carroll had some authority on which to hang their hats when they stopped and searched his car. Carroll never should have been viewed as a blanket opportunity to stop and search vehicles without a warrant – it should have been narrowly held to be an enforcement under the National Prohibition Act. But, it was not.


That brings us to today’s anniversary of the case that demonstrated the long arm of the Prohibition Era: Brinegar v. United States, 338 U.S. 160 (1949). In the time between Carrol and Brinegar, the following events occurred: the rise of the KKK, the Great Depression, the end of Prohibition and all of its enabling laws, the New Deal, the entire presidency of Franklin Delano Roosevelt, the Holocaust and WWII, the GI Bill, the establishment of the United Nations, the institution of the Marshall Plan, and the day the Brooklyn Dodgers hired Jackie Robinson to play baseball. That’s, umm, a lot of change.


Most importantly for the discussion of how the Carroll case impacts the Brinegar case, the 21st Amendment looms large – once Prohibition ended, so did the National Prohibition Act with its cavalier interpretation of the 4th Amendment as it pertained to suspected alcohol traveling on the roads of these United States. At least, that’s how I see it; the Court…not so much.


Despite the end of national prohibition, some states remained “dry”. Even into the 1940’s. Oklahoma was one of those states while neighboring Missouri was not. One of the law enforcement officials (as far as I can tell employed by the state of Oklahoma) had arrested Brinegar in the recent past for transporting liquor for sale unlawfully. He and another officer were parked at the Oklahoma-Missouri border when he saw Brinegar driving his car which seemed to them to be “heavily loaded” and “weighted down with something”. Brinegar must have spied the officers so he sped up. The officers gave chase at top speed. Brinegar skidded on a curve in the road and the officers overtook Brinegar’s car, approached, asked him how much alcohol he had in the vehicle. Brinegar finally admitted to 12 cases. He was arrested, the car was searched and the alcohol was seized.


This is key: the lower courts found that the seizure itself was unreasonable, but upheld the search because of admissions by Brinegar after the car was seized (this seems wrong, but it predates Wong Sun v. United States, 371 U.S. 471 (1963)). The Supreme Court of the United States could have created the fruit of the poisonous tree doctrine in this case. Instead, the Court determined the police in Brinegar were in their rights under Carroll to stop and search the car.


There is a vigorous dissenting opinion by Justice Jackson joined in full by Justices Frankfurter and Murphy. Given the weight of this case and the fact that, 75 years later it is still good law, it makes sense to highlight the dissenting opinion.


Justice Jackson begins by taking umbrage with the Court’s view that, while all rights are equal, some are more equal than others. Instead, he argues that the rights inherent in the 4th Amendment,


belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

Brinegar v. United States, 338 U.S. at 181 (Jackson, J., dissenting)

 

He suggested that the police search homes and automobiles illegally often and only the cases where a prosecution follows are even ever presented to the Court for review.  Courts can only protect the innocent by enforcing the rule of law when the complainant may be guilty. Therefore, it is essential to protect the constitutional rights against unreasonable searches and seizure especially when there is evidence of guilt.


Justice Jackson reasoned the Carroll case was a relic of the Prohibition Era and should be held to its facts and time where there was authorizing legislation to allow for warrantless searches of cars suspected of carrying liquor (whether or not that legislation was constitutional – this would be immaterial as it had been repealed). He noted that in Carroll the authorities had acted undercover and developed facts to establish probable cause (and, as mentioned earlier, probably had enough to have obtained a warrant to seize and search the car) whereas in Brinegar, they were acting on suspicion and hearsay.


Indeed, in Carroll, no liquor was lawful in the country, but Brinegar legally purchased all of the alcohol in his car and there was no evidence produced that he intended to sell it in the dry state of Oklahoma. Further, he noted, in Carroll, all of the lower courts found the search to be reasonable; the Supreme Court of the United States only affirmed that it was. Here, none of the lower courts found the seizure to be lawful and only permitted the search based upon the statements of the defendant after he nearly crashed during a dangerous high speed chase instigated by law enforcement; the Court, however, determined the seizure and the search to be reasonable and based upon probable cause. In short, it's a great dissent.


Brinegar is still good law. Police stop and search cars on public ways all the time. They develop probable cause out of thin air. What if, 75 years ago, Justice Jackson's opinion was the voice of the Court ruling in favor of the defendant? Given what has happened in the world of law enforcement since this fateful case, query how many lives would have been saved had just two more members of the Court sided with Justice Jackson 75 years ago.

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