The Prohibition Era and Policing: A Legacy of Misregulation

By Wesley M. Oliver

Legal precedents created during Prohibition have lingered, leaving search-and-seizure law much better defined than limits on police use of force, interrogation practices, or eyewitness identification protocols. An unlawful trunk search is thus guarded against more thoroughly than an unnecessary shooting or a wrongful conviction.

Intrusive searches for alcohol during Prohibition destroyed middle-class Americans' faith in police and ushered in a new basis for controlling police conduct. State courts in the 1920s began to exclude perfectly reliable evidence obtained in an illegal search. Then, as Prohibition drew to a close, a presidential commission awakened the public to torture in interrogation rooms, prompting courts to exclude coerced confessions irrespective of whether the technique had produced a reliable statement.

Prohibition's scheme lingered long past the Roaring '20s. Racial tensions and police brutality were bigger concerns in the 1960s than illegal searches, yet when the Supreme Court imposed limits on officers' conduct in 1961, searches alone were regulated. Interrogation law during the 1960s, fundamentally reshaped by the Miranda ruling, ensured that suspects who invoked their rights would not be subject to coercive tactics, but did nothing to ensure reliable confessions by those who were questioned. Explicitly recognizing that its decisions excluding evidence had not been well-received, the Court in the 1970s refused to exclude identifications merely because they were made in suggestive lineups. Perhaps a larger project awaits—refocusing our rules of criminal procedure on those concerns from which Prohibition distracted us: conviction accuracy and the use of force by police.

• Language: English
• Publisher: Vanderbilt University Press
• Release date: Apr 20, 2018
• ISBN: 9780826504081

Wesley M. Oliver

Wesley M. Oliver is Professor of Law at Duquesne University.

Book preview

THE PROHIBITION ERA AND POLICING

THE PROHIBITION ERA AND POLICING

A LEGACY OF MISREGULATION

WESLEY M. OLIVER

VANDERBILT UNIVERSITY PRESS

NASHVILLE

© 2018 by Vanderbilt University Press

Nashville, Tennessee 37235

All rights reserved

First printing 2018

This book is printed on acid-free paper.

Manufactured in the United States of America

Library of Congress Cataloging-in-Publication Data on file

LC control number 2017006646 (print) | 2017008298 (ebook)

LC classification number KF5399 .O45 2017

Dewey classification number 344.7305/209042—dc23

LC record available at lccn.loc.gov/2017006646

ISBN 978-0-8265-2187-3 (hardcover)

ISBN 978-0-8265-2188-0 (paperback)

ISBN 978-0-8265-2189-7 (ebook)

TO WELFORD MACON DURRER, MY GRANDFATHER

CONTENTS

Acknowledgments

Introduction

PART ONE. Urban Problems, the Invention of the Police as Regulators of Morality, and the Introduction of Modern Criminal Procedure

1. From Petty Officers to Powerful Police

2. Mid-Nineteenth-Century State Prohibition Laws and the Introduction of Limits on Progressive Era Officers

PART TWO. Prohibition and the Shift of Criminal Procedure from Ensuring Accurate Criminal Trials to Preventing Police Misconduct

3. Judicial Supervision over Liquor Searches

4. Redefining the Evil of Tortured Confessions

5. An Awakened Hatred of Wiretapping

PART THREE. Prohibition’s Legacy in the Warren Court and Beyond

6. Regulating Searches in an Era of Police Harassment and Brutality

7. Permitting Suspects to Consent to Coercive and Deceptive Interrogation Practices

PART FOUR. Adapting Anachronistic Criminal Procedure

8. Retreat from Rules Designed to Deter Misconduct

9. Limited Progress toward Accuracy and Preventing Brutality

Conclusion

Notes

Index

ACKNOWLEDGMENTS

This book is the culmination of well over a decade of research and thinking about questions of criminal procedure. I began practicing law in Nashville two decades ago and soon discovered that I was better suited for ruminating about the law than I was for the practice of it.

Shortly after I moved to Nashville, I had the good fortune of meeting Don Hall, a professor at Vanderbilt Law School, who gave me the standard advice offered to any aspiring academic—publish. Unlike others, though, he followed up and asked if I had given any thought to possible ideas for law review articles. Somewhere between my seventh and eighth idea, I could tell he had decided he would be my mentor. I am certain I would not be a law professor today had it not been for that meeting. Almost two decades later, and years after Don’s premature passing, the Vanderbilt University Press expressed an interest in publishing this book. No one at the press at that point knew the role my time in practice in Nashville or the mentorship I received at Vanderbilt Law School had played in my career, or in this work in particular. Some of life’s apparent coincidences seem, if not providential, at least poetic.

Very early versions of the ideas in this book began to take shape as I tried to learn what it meant to be a criminal defense lawyer and how my skill sets best fit within that job. Excellent attorneys—Bo Edwards, Jim Simmons, Lionel Barrett, Rich McGee, Bill Massey, Lorna McCluskey, John Oliva, Glenn Funk, and Keith Stewart among them—were part of the very nurturing community of the criminal defense bar in Tennessee that helped me learn the craft that I’ve spent most of my professional life commenting on.

I discovered I was better at winning suppression motions than jury trials and began to wonder why—a query that led to this book. Perhaps my lawyering skills were better suited to the picayune doctrines of the Fourth Amendment than they were to convincing jurors of a particular version of the facts, but I concluded something very different. I came to believe that my track record revealed something about the criminal justice system. The system seemed to me more willing to give a defendant who seemed guilty a pass if the police illegally seized evidence against him than it did when there was some possibility of innocence.

Studying this irony took me back to graduate school and a fellowship, where I had the privilege of gaining the insights of scholars of criminal procedure, criminal law, constitutional law, and legal history, including Bruce Ackerman, Alan Dershowitz, Bob Gordon, Ken Mack, Carol Steiker, Kate Stith, and Bill Stuntz, each of whom broadened the way I was thinking about our method of regulating police.

Earlier versions of portions of this book that considered the time period from the mid-nineteenth century through Prohibition were published as articles in the Hamline Law Review, NYU Journal of Law and Liberty, Rutgers Law Review, Tennessee Law Review, and Tulane Law Review. Years after I began studying the history of police, I realized that the history I had examined had implications for the way we presently regulate, or misregulate, police. Articles in the Journal of Criminal Law and Criminology, Missouri Law Review, and DePaul Law Review previewed these ideas, which I more fully flesh out here.

Historical research requires librarians with intelligence and tenacity. This story could not have been told without the discoveries made by Naomi Ronen at Harvard Law School, Ed Sonnenberg at Widener Law School, and Tsegaye Beru at Duquesne Law School.

Large portions of this book were written at nontraditional locations—in a coffeehouse in New Haven, on a plane to Charleston, on multiple train trips between Boston and New Haven, and on a wharf in Portland, just to name a few. Portions were also written at a place where I have found inspiration and encouragement since I was a young child—my mom’s dining room table—a place for which I will always be grateful.

THE PROHIBITION ERA AND POLICING

INTRODUCTION

Our regulation of police is backward. Very detailed rules describe when officers may search the trunk of a car, yet only the vaguest of rules inform officers when they may use deadly force. Officers may question suspects only if they consent to interrogation, but interrogation methods that have been shown to produce false confessions are not forbidden. Science has demonstrated that eyewitness identifications of strangers are, under the best of circumstances, unreliable. Yet while the law will exclude perfectly reliable but unlawfully obtained evidence to prevent police from engaging in certain search and seizure tactics, our rules of criminal procedure will not forbid the admission of intentionally created suggestive lineups to ensure that these methods are not used in the future.

Current events reveal the problem with our misregulation of police. Too often the vague law that governs use of force by officers leaves us unable to know when police shootings are valid. Innocent men and women languish in our prisons because leading interrogation methods produced false confessions or suggestive lineups led witnesses to identify the wrong culprit. Meanwhile undeniably guilty suspects escape punishment because police officers obtained reliable physical evidence in a manner inconsistent with the Constitution—or failed to inform suspects of their rights before commencing an interrogation.

These should hardly seem like original observations. Complaints about legal rules that free the guilty are certainly not new. Immediately after the US Supreme Court announced its major decisions regulating officers in the 1960s, it was accused of handcuffing the police. These criticisms have continued unabated since then. Miranda v. Arizona is one of two Supreme Court decisions virtually every American knows, and most nonlawyers complain about. As recently as the last presidential election, candidates were appalled at the idea that terror suspects might be given Miranda warnings. Limits on the ability of officers to seize physical evidence have been the subject of similar criticism. Benjamin Cardozo, later a justice on the US Supreme Court, complained in 1926 that a rule of criminal procedure excluding illegally obtained evidence allowed the criminal to go free because the constable has blundered.¹

Likewise, problems of excessive police force and wrongful convictions have not escaped the public’s notice. With advances in DNA technology, courts, policy makers, and members of society generally have come to realize that wrongful convictions occur. Since 1973, 155 men and one woman who had been condemned to death have been exonerated. In recent years, however, state killings on the street have attracted even more attention and produced considerable social unrest. The deaths of Michael Brown, Eric Garner, Freddie Gray, and others have prompted protests well beyond the cities in which these people died as a result of questionable uses of police force.

The role of our scheme of criminal procedure in wrongful convictions and unjustified police shootings has, however, gone largely unnoticed. The law defines limits on most investigatory methods that produce reliable evidence, evidence that is often obtained with minimal interference to liberty, autonomy, or privacy. On the other hand, the law fails to adequately regulate police practices that produce unreliable evidence as well as practices that humiliate and physically injure citizens. Rules of criminal procedure carefully identify when an officer may search a trunk for drugs but give officers wide latitude to use deadly force or to set up a suggestive lineup that may produce a wrongful conviction.

The connection between the thorough regulation of some investigatory methods, namely, physical searches and the initiation of interrogations, and the far more serious modern problems of wrongful convictions and inappropriate police force has hardly been recognized. The fact is that restrictions on the former have prevented the development of a comprehensive scheme of regulating the latter. A backlash to some of the Warren Court’s criminal procedure decisions made the Supreme Court leery of further innovation. Unfortunately, the Warren Court began its criminal procedure revolution with issues that were not then, nor would be in the future, the greatest societal concerns about police conduct.

The US Supreme Court in the 1960s attempted to control police behavior by excluding improperly obtained evidence from criminal trials, which of course deterred misconduct only in the search for evidence. The exclusionary rule does nothing to prevent police shootings, beatings, or even simple harassment. As significantly, the rule prompted a backlash. These decisions, which punished police by excluding reliable evidence, and thus compromised the prosecution of clearly guilty suspects, were not surprisingly quite controversial. The Supreme Court itself, admittedly with some new justices taking office, began to question the exclusion of evidence as a method of controlling police. Reluctant to actually reverse precedent, however, the court’s skepticism served only to prevent the development of new limits on police, ironically leaving in place rules that excluded reliable evidence while leaving police practices with the potential to unnecessarily take human life and risk wrongful conviction unregulated.

The historical context of the Warren Court’s criminal procedure decisions not only explains why that system is, in many ways, backward, but it also offers a prescription to refocus our legal restrictions on the most troubling of police misconduct. The origins of the doctrines of criminal procedure that govern most police conduct lie in a period of idiosyncratic regulatory priorities—Prohibition. Illegal searches for alcohol became a leading concern of citizens at every socioeconomic level, and as the trust in police evaporated, tortured confessions no longer were tacitly accepted by the public or courts. As a result of Prohibition, courts came to exclude evidence in order to control police, even if that exclusion came at the cost of the acquittal of a guilty person.

The period of history that gave us modern rules of criminal procedure provides important context for courts interpreting them. Courts—and in particular a number of justices on the US Supreme Court—have particular respect for legal rules that existed at the time the US Constitution and the Bill of Rights were drafted. Our rules of criminal procedure are often seen as part of an unbroken chain dating back to the Founding Fathers. Quite often the Supreme Court thus attempts to interpret modern limits on police officers using sources that explain limits placed on constables and watchmen at the end of the eighteenth century. The court has an almost religious faith in the rules crafted during this time. Of course police—and society’s goals in regulating police—have changed radically since the late 1700s, making the use of even Framing Era limitations highly questionable. The rules of criminal procedure the Warren Court adopted were neither part of the hallowed Framing Era common-law limits on officers, nor can they be understood to be the logical extension of rules from that period. Understanding that our current scheme of criminal procedure was developed in the states to address concerns of the quirky period of Prohibition should undermine the lingering respect the Supreme Court has for the precedents creating this scheme.

Pinpointing the origins of our rules of criminal procedure to this quirky period in America history shows that they were animated by concerns that were very different than those of any other time in our history, suggesting that they are less worthy than most laws of retention for the mere sake of precedent. In fact, the rejection of many of these doctrines that sacrifice reliability has already begun. In bits and pieces, courts have recently started to retreat from the scheme Prohibition created. Limits on the scope of the exclusionary rule, particularly the Supreme Court’s recent bold interpretations of the good-faith exception to the probable-cause requirement for a search, have dramatically reduced the scope of reliable evidence that will be excluded to control police behavior. At the same time, state courts, though admittedly less anxiously, are beginning to show concerns about investigatory processes that risk wrongful convictions. Moreover, high-profile police shootings prompted the Obama Justice Department to investigate a number of police departments under a federal statute that gives the Department of Justice the power to seek injunctions against police department shown to engage in a pattern and practice of abusive conduct. These injunctions can be as specific as prohibiting choke holds or as general as forbidding excessive force.

There is an overall trend away from the Prohibition Era’s focus on preventing police misconduct by excluding reliable evidence. Penalties are less often imposed for illegal searches; efforts are being made to better ensure the accuracy of convictions; and civil rights laws were increasingly used, at the end of the Obama administration, to address concerns about police brutality. Understanding all these movements as an appropriate dismantling of the world Prohibition left us may lead courts, with equal fervor, to concern themselves with the reliability of convictions and police brutality as well as with restricting the scope of the exclusionary rule.

An understanding of the complete history of police forces in America is necessary to understand the current scheme of police regulation—or misregulation. The public reluctantly accepted the development of modern police forces in the mid-nineteenth century, seeing such organizations as analogous to long-feared standing armies. Once established, these new forces did nothing to allay the public’s fears. Police violence was initially as feared as the criminal activity the police were created to combat. Substantial limits were proposed for these new officers but were ultimately rejected. Rules of criminal procedure (with few exceptions) in the nineteenth century were used to ensure the accuracy of criminal convictions, not regulate police conduct. Despite several challenges to abuses during this period, courts largely stayed out of the business of regulating police practices. By the end of the nineteenth century, Progressive reformers had convinced the public that internal reforms, not limits on officers’ powers, would best protect the public. In their view, which came to be accepted, a well-disciplined police force, free from patronage appointments, whose officers would not be protected from internal discipline from the political system, could be trusted to search, wiretap, interrogate, and use deadly force against those identified as being part of the criminal element.

A self-regulated police force depended, however, on the public’s trust, something Prohibition would destroy. Ill-trained and corrupt officers indiscriminately smashed up saloons and private residences; suspected bootleggers were fired on in cars and boats. Such searches were not objectionable merely because officers were sometimes planting alcohol in these premises. It was the lawlessness of the searches alone that most outraged the public. Fourth Amendment concerns took on special concern. Searches for alcohol were more troubling (and certainly more frequently complained about) than fears of police brutality or wrongful convictions during Prohibition. Police came to be feared for the damage that they inflicted on persons or property, irrespective of whether they identified guilty parties. To deter unlawful searches, state courts for the first time began to embrace the exclusionary rule, which deterred such searches by denying the state the opportunity to use illegally obtained evidence against criminal defendants.

The public came to challenge other well-accepted investigatory methods during this period. Prior to Prohibition, the public trusted the police to determine when wiretaps were appropriate. Though limits on wiretapping came only after the end of Prohibition, serious challenges to the practice began in courts and legislatures as investigators began to tap bootleggers’ telephones. Rough interrogations, long referred to as the third degree, had been known and tolerated—police assertions that confessions were tortured only out of the guilty were largely accepted until the public lost its faith in the police. Prior to Prohibition, confessions were excluded only if courts deemed them unreliable. Evidence discovered as a result of a tortured confession put to rest any concerns about inaccuracy in the statement. The end justified the means. Prohibition strongly shifted the law’s focus to the means by which evidence was obtained with rules of law that eschewed any consideration of the reliability of the evidence obtained by a questionable police practice.

The motivation for a system that regulated methods of obtaining reliable evidence, to the exclusion of considerations of reliability and police brutality on the street, was understandable during Prohibition. The new liquor laws brought with them new and invasive investigative methods and caused the public to see the old methods in a new light. When the US Supreme Court began its overhaul of criminal procedure in the 1960s, however, three decades had passed since the Twenty-First Amendment ended the federal government’s effort to prohibit recreational alcohol consumption. The public at this point had little if any concern about police searches for reliable evidence. Police brutality, conversely, was becoming a major concern in the late 1950s, and some concerns were being raised about wrongful conviction, though the issue would certainly attract greater attention decades later with advancements in DNA technology.

The Warren Court’s criminal procedure revolution of the 1960s failed to develop doctrines that would address issues that were more significant in the public’s mind than illegal searches and seizures. The nature of the judicial branch provides some explanation for this anomaly. When courts develop legal rules they tend to be as unimaginative as possible. Conformity with precedent preserves their legitimacy. In the case of the Supreme Court and criminal procedure in the 1960s, this meant embracing rules adopted in a past era to address very different problems. For all the criticism that has been leveled at the Warren Court for its innovations in criminal procedure, the reality is that the court was not nearly innovative enough. In responding to concerns about police misconduct that had been mounting in the late 1950s and early 1960s, the Supreme Court borrowed and expanded doctrines that originated or gained acceptance during Prohibition. Such an approach took a narrow view of the type of police misconduct regulated by the Constitution and largely ignored accuracy in adjudication and official violence on the streets.

The two most significant criminal procedure decisions by the Warren Court were Mapp v. Ohio, which required states to exclude unlawfully obtained evidence in criminal trials, and Miranda v. Arizona, which required that suspects had to have waived their right to silence and counsel if a confession obtained in custody was to be admitted. The underpinnings of each decision can be traced to Prohibition.

As the exclusionary rule obviously excludes things found, it is not surprisingly a relic of Prohibition. For some people during this period, police discovery of any alcohol was problematic; for others, the methods many officers deemed appropriate to find alcohol were the problem. The exclusionary rule deterred unlawful searches and therefore produced fewer liquor searches, satisfying those who had each type of concern. The rule, popularly (and incorrectly) believed to be an invention of the US Supreme Court in 1886, grew out of a state prohibitory law. An earlier version of the rule appeared in Maine in 1854 to address the excesses of the Temperance Watchmen enforcing the state’s liquor law. National Prohibition then played the most important role in national acceptance of the exclusionary rule. While the Supreme Court did adopt an early version of the rule in 1886, which it distilled into the modern rule by 1914, the states were far more relevant in criminal procedure in the late nineteenth and early twentieth centuries. Only a couple of states followed the Supreme Court’s lead and adopted the exclusionary rule prior to Prohibition, while the majority of state courts to adopt the rule did so during Prohibition, most often in liquor cases. A society recently placed on edge by government searches for liquor understandably found this rule to immediately address its most pressing concern. Not surprisingly, the rule would be an incomplete remedy for society’s concerns with police four decades later.

If Mapp v. Ohio embraced Prohibition’s oversimplification of police regulation, the Warren Court’s regulation of confessions took the Prohibition Era’s simplification of an issue to its logical extreme. Miranda v. Arizona, certainly the Warren Court’s most famous and infamous criminal procedure decision, required that suspects be advised of, and waive, their rights to silence and counsel before any interrogation could proceed. Prior to Miranda, the Supreme Court considered only whether a suspect had provided a statement voluntarily, a standard that was certainly never applied literally. The court, in these pre-Miranda decisions, asked whether officers had engaged in acceptably coercive tactics to obtain a confession, a question that rarely yielded consistency in the Supreme Court, much less in lower courts. Miranda was ostensibly designed to supplement the voluntariness rule, though the court’s opinion reveals that the rule’s replacement of the voluntariness rule was certainly foreseeable. Miranda depended on the Prohibition Era’s shift from concern about a confession’s reliability to a concern about the methods used in the interrogation, even if a reliable statement was obtained.

State courts during Prohibition excoriated police for violent practices in interrogation rooms but continued to admit physical evidence discovered as a result—torture was a concern only if it produced unreliable evidence. The US Supreme Court, however, imposed on the states, just after the end of Prohibition, a rule that treated third-degree practices like illegal searches in federal court—the fruits of such practices were excluded to deter such practices in the future. The court embraced a version of the voluntariness rule to determine the admissibility of a confession. With ever-increasing clarity in its post-Prohibition confession opinions, the court concluded that this rule was not about ensuring reliability. The regulation of confessions, however, coincidentally continued to examine factors that bore on accuracy. The voluntariness rule required consideration of the suspect’s age, intellect, education, and mental health, factors highly relevant in determining whether police tactics could have produced a false confession. The less experienced, less educated, and less capable are more likely than sophisticated suspects to provide interrogators a false confession to end the coercive encounter. Even when courts said they were not interpreting the voluntariness test to guard reliability, the tests they used did work to exclude confessions from those who were more likely to falsely confess.

Miranda, though, was the final nail in reliability’s coffin, effectively replacing the voluntariness rule with one that asked only whether the defendant consented to the interrogation that produced the confession. Autonomy was the sole interest the Supreme Court was protecting with this new rule, which ironically privileged only the hearty souls who, without benefit of counsel, were willing to invoke their rights while in an isolated interrogation room. To the extent the voluntariness rule still mattered to courts after the Miranda decision (and it very rarely did or does), the Supreme Court stated more clearly than it ever had previously in 1981 in Colorado v. Connelly that reliability has nothing to do with assessing a statement’s admissibility under the voluntariness rule. Accordingly, police practices during interrogations that risk false confessions—such as falsely informing a suspect that physical evidence places him at the scene—do not run afoul of the Constitution. Police actions threatening the creation of unreliable statements are thus permitted, while the exclusionary rule continues to exclude police misconduct producing perfectly reliable physical evidence.

Mapp and Miranda surely played a role in deterring some undesirable police misconduct, though in the case of Miranda, the benefit appears to have been minimal. The public and politicians, however, saw only the exclusion of reliable evidence in the Warren Court’s Mapp and Miranda decisions—the freeing of criminals and the handcuffing of police. The election of Richard Nixon was in no small part a referendum on the Supreme Court’s criminal procedure revolution. Justices committed to Nixon’s view of the court’s excesses were appointed, and the court began a turnaround on criminal procedure in a way that did not involve expressly overturning any of the Warren Court’s precedents. As new concerns about reliability in police investigation were raised with eyewitness identification, the court adopted a rule that strongly placed a thumb of the side of admissibility, expressly recognizing that the exclusion of evidence had come to be disfavored. Deference to precedent thus led the court to retain the heavily criticized vestiges of Prohibition adopted by the Warren Court that kept reliable evidence from juries, but the criticism of these doctrines ironically prevented the development of rules that would improve the reliability of our system of prosecution.

At present, seemingly unrelated phenomena are chipping away at this scheme of criminal procedure that Prohibition created. The US Supreme Court is aggressively extending the good-faith exception to the exclusionary rule and limiting the scope of Miranda protections. At the same time, lower courts, primarily state courts, are using social science findings about false confessions and incorrect witness identifications to adopt rules excluding the fruits of police investigations that potentially yield inaccurate evidence. Trial courts are rediscovering the voluntariness rule and implicitly (and on occasion explicitly) using reliability concerns as a basis for finding a confession involuntary, while a small number of state appellate courts are developing tests that more readily exclude eyewitness identifications produced by suggestive identification procedures. Meanwhile the public is clamoring for restrictions on officials’ uses of deadly force.

Viewed in isolation, these developments are polarizing in the criminal justice community. Defense lawyers are decrying the death of the Fourth Amendment while prosecutors are chastising courts for not trusting their officers and witnesses. Viewed as a whole, however, these developments are multifaceted attacks on the scheme of criminal procedure Prohibition gave us, a scheme that inadequately protects against wrongful conviction and police brutality and overcompensates some victims of illegal searches and seizures by giving them immunity from criminal punishment. Viewing recent Fourth Amendment decisions as a larger campaign against the idiosyncratic priorities of the Prohibition Era may prompt courts to tackle questions of police force and wrongful conviction with the same zeal they are limiting the often-maligned exclusionary rule.

PART ONE

Urban Problems, the Invention of the Police as Regulators of Morality, and the Introduction of Modern Criminal Procedure

History matters a great deal to lawyers. Many of the rules that govern society, and certainly most of the rules that govern police, are found in legal precedents, which are essentially the results of past disputes. The US Supreme Court, in its criminal procedure decisions, has often expressed an almost religious faith in the decisions of judges during the Framing Era who defined the limits on constables and watchmen of the late eighteenth century.¹ The police that the modern court regulates are, however, very different than the officers considered by judges deciding limits on constables in the 1700s. Additionally, the apparatus of criminal procedure that the Supreme Court must start with, as a result of principles of stare decisis, is one created in the early twentieth century, not the late eighteenth.

The rules that govern police practices as well as society and technology—and indeed police officers themselves—have changed many times over since the country was founded. Yet we have fundamentally revamped our rules of criminal procedure only once, in the early 1920s, the early years of Prohibition, and that outdated set of rules, thanks to the Warren Court, largely remains intact to this day. Prohibition itself transformed police regulation so radically because it reopened old wounds. Mid-nineteenth-century police departments created officers with powers the Founding Fathers could not have fathomed. These new powerful officers had barely gained the public’s acceptance when Prohibition required them to enforce a highly unpopular law and provided unethical officers opportunities for corruption on a scale larger than previously ever known.

To understand the misregulation of modern police, one must therefore understand the history of police and the historical efforts of the law to control their conduct. The law enforcement apparatus that existed in the 1700s would not remotely resemble modern police departments. As importantly, modern police departments could not imagine the very stringent Framing Era limitations placed on their authority. New, powerful police departments in the mid-1800s faced considerable resistance and efforts to restrict their authority but would gain acceptance by the end of the century. At the turn of the twentieth century, police enjoyed sufficient public trust that they were largely free from oversight and were essentially self-regulated. The unpopularity of Prohibition and the excesses of police in enforcing it then undermined the public’s faith in these officers and ushered in the judicial oversight of police departments with which we are familiar today.

Prohibition would create the system of police regulation for the following century, but the scheme of police regulation created during Prohibition did not occur in a vacuum. The lawless and violent actions of police during Prohibition followed decades of satisfying the public of the legitimacy of very powerful police and their competency to govern themselves. If Prohibition had been attempted in the 1820s, it would not have prompted extraordinary police reforms. Police officers had gone from strictly regulated petty officers in that late 1700s to law enforcement professionals in the early 1900s, answerable only to their superiors in the department. Their newly acquired powers doubtlessly played a role in the extent of offensive enforcement of the liquor laws in the 1920s—and the outrage from these excesses ushered in a new body of law we now know as constitutional criminal procedure. An understanding of the eighteenth- and early nineteenth-century history of American police is thus essential to understand that modern criminal procedure is largely a creature of America’s Noble Experiment to abolish alcohol.

1

FROM PETTY OFFICERS TO POWERFUL POLICE

Law enforcement officers had very limited authority and neither the legal authority, nor the social clout, to engage in investigations or even aggressively defend the peace in the colonial era and during the early American Republic, nor did they have any such authority until the mid-nineteenth century. Those familiar with colonial-era complaints about British rule will be surprised to learn that law enforcement officials in the colonial period and in the first decades of the country’s history were so powerless as to be ineffective and incapable of systemic abuses. This is, of course, surprising because one of the best-known complaints about British colonial rule involved searches by customs officers acting under the authority of writs of assistance.¹ Customs agents, however, had unique powers and incentives before and after independence.² Officers who policed early American cities and towns were, for all practical purposes, limited to assisting crime victims with the searches they requested to vindicate the wrongs done to them. Only with the rise of major cities and the problems that accompanied mid-nineteenth-century urbanization did law enforcement officers acquire the type of powers that customs agents had, and that modern-day officers possess.

The Incentives and Broad Powers of Early Customs Officers

Colonists’ complaints about British rule has left us familiar with the nation’s first search and seizure controversies. In 1760, colonial customs agents were given even broader powers than they traditionally possessed, making search and seizure law an issue in the struggles that led to independence. Writs of assistance authorized their bearers to search wherever they suspected for evidence of smuggled goods without requesting or receiving authorization from anyone. Unlike ordinary officers, customs agents ordinarily could and did seek warrants to search for evidence of violations prior to these writs. The writs eliminated the need to ever appear before a magistrate and seek authorization. As their name suggested, these authorizations further allowed customs officers to obtain assistance. Local law enforcement officers were required to aid in the search for goods smuggled into colonies.³

British customs agents in the colonies