Prohibition and the domestic home
By Kristopher A. Nelson
in April 2016
400 words / 2 min. The Volstead Act (implementing Prohibition), in keeping with American legal tradition, gave special recognition to the home and the private, domestic sphere.
The domestic home has consistently been a key source of privacy protections in American law. From the old maxim that “a man’s home is his castle” to Justice Scalia’s opinion in Kyllo that warrantless use of thermal-imaging devices aimed at private homes violates the Fourth Amendment1, the domestic sphere has occupied a special place in American jurisprudence.
Even the National Prohibition Act, otherwise known as the Volstead Act, gave special recognition to domestic spaces:
No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house. The term “private dwelling” shall be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house.2
At least partly as a result of this, bootleggers turned to a new business tool: the telephone. They set up an office that received calls and orders, but kept no paper records — especially of where the liquor was stored. They stored the liquor itself in “private dwellings.” With no written records of sale connecting the two locations, federal agents — even if they knew liquor was kept there — struggled to find evidence that the residence was being used as part of the “unlawful sale” of banned alcohol, and without that evidence, they could not conduct lawful searches for use in court.3
One solution? Wiretaps.
- For example, Justice Scalia emphasized in Kyllo, “We have said that the Fourth Amendment draws ‘a firm line at the entrance to the house.'” Payton v. New York, 445 U.S. 573, 590 (1980). ↩
- See p. 315 (section 25) of Public Law 66-66. ↩
- Weeks v. United States, 232 U.S. 383 (1914) had already held that warrantless searches in violation of the Fourth Amendment produced evidence that would be excluded from federal court (but note that it only applied to federal agents and federal courts until Mapp v. Ohio, 367 U.S. 643, extended the exclusionary rule to state courts and state actors as well). ↩