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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hi Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: I feel like bootlegging.
N. Rodgers: The old school, carrying liquor in your trunk or some other kind of bootlegging that I don't know about?
J. Aughenbaugh: The former, not the latter.
N. Rodgers: Well, so you're following up our last story behind the name of Carrie Nation with another story behind the name from the Prohibition Era.
J. Aughenbaugh: Yes. This is the book end. Carrie Nation wanted to go ahead and remove drink in the evils of drink from American society and American life for a number of good reasons. But on the flip side, the focus of today's episode is Roy Olmstead.
N. Rodgers: O-L-M-S-T-E-A-D, Olmstead.
J. Aughenbaugh: Yes. If you never heard the name, hopefully, after this podcast episode, you will know it, and you'll know why you should know who Roy Olmstead was. He was born in September of 1886, and he lived nearly 80 years. He died when he was 79-years-old. He was an American bootlegger who operated in the Pacific Northwest during the Prohibition Era. If Carrie Nation and her efforts helped create prohibition, Roy Olmstead was in the finest American tradition, one of those people who thrived by violating the various laws and regulations during the Prohibition Era.
N. Rodgers: Quick reminder, prohibition is the period in our history where it was illegal to consume alcoholic beverages publicly or privately.
J. Aughenbaugh: No. You could consume if you had already had the alcohol. Remember, prohibition was on the manufacturing, sale, and distribution. Remember what a whole bunch of Americans did before the Olmstead stacked up. They went ahead.
N. Rodgers: But you weren't going to be having a lot of public consumption of alcohol.
J. Aughenbaugh: That's right. Yes.
N. Rodgers: Now, say to an American, you cannot have alcohol, and an American will say, I don't know where you think that's true. I'm just going to go find it from somebody who will bring it to me, and those people were called bootleggers.
J. Aughenbaugh: Yeah, bootleggers. The origin of that phrase, a bootlegger was somebody who would try to sneak into social events, alcohol, and they would hide the alcohol either in their boots or their leggings, thus the name bootlegger.
N. Rodgers: Bring your bottle in in your boot tops.
J. Aughenbaugh: That's right. Who actually goes ahead and frisks somebody's footwear for illegal contraband? Let's be very clear. Bootleggers did more than just sneak in booze at a concert or a public event. Bootleggers during prohibition were the individuals who got alcohol from other nations and then snuck it into the United States and then sold and distributed said alcohol.
N. Rodgers: Sub-bootleggers, the South, I'm looking at you, made their own with stills and what we call bathtub gin. They did that kind of thing on their own, and then they would run it across state lines, or they would run it across county lines to other people.
J. Aughenbaugh: Nia does not know this, but one of the reasons why I put Roy Olmstead into our file as an individual that we needed to do a story behind the name is that my great-grandfather was a bootlegger. He had his own personal still. He had this during the Prohibition Era. When he died when I was 13 years old, he still had a functioning still down in his basement. There were jars of homemade gin and moonshine that nearly broke my heart when my grandmother, his daughter, went ahead and said, we need to destroy, I'm like, are you kidding me? But nevertheless, that's how he made money because they were poor. In addition to being a farmer, he was a bootlegger. But nevertheless, let's talk about Roy Olmstead. One of the more fascinating things about this guy was he grew up in Washington, and his family was not rich. They were a poor family. A good job at that time was to become a police officer. He was born in Beaver City, Nebraska, and his family moved to Seattle, Washington in 1904. He didn't finish high school, by the way. He went a couple of years. His first job was working at a shipyard before he joined the Seattle Police Department. He was quickly promoted. He became sergeant in three years.
N. Rodgers: He was a pretty good cop.
J. Aughenbaugh: Yeah. His brothers, Frank and Ralph, were also on the Seattle Police Force. The police chief was so impressed with now Sergeant Olmstead that he made him an acting lieutenant, and he became a permanent lieutenant first in 1917 and then in 1919.
N. Rodgers: Ten years and he's already a lieutenant.
J. Aughenbaugh: Yes.
N. Rodgers: That's how good he is at being a cop.
J. Aughenbaugh: Yeah, very good. Further context, Washington, like a number of states, prohibited the manufacturing and selling of alcohol in 1916. This is before the amendment to the US Constitution. Police began rating bootlegging operations shortly thereafter.
N. Rodgers: This looks like a pretty good way to have a side gig. You know how some people work for DoorDash as their side job?
J. Aughenbaugh: Yes.
N. Rodgers: It was like, I could be a bootlegger. Then he'd have inside information about when they were going to run a raid so he could get away with it.
J. Aughenbaugh: By the way, this came up in a number of the articles I found about Roy Olmstead. They noted he was always looking for "opportunities" to make a buck.
N. Rodgers: A lot of times with four kids. They're always looking to build a cushion.
J. Aughenbaugh: Yes, side hustle. He creates his own bootlegging operation. In 1920, he was identified for driving around a roadblock set up by prohibition bureau agents at the state level. He was fired from the police force and paid a fine of $500. But this actually freed him up to give his full attention to his smuggling operations. From there, he ran his bootlegging operation like a business. I love this. He became known on the West Coast of the United States as the good bootlegger. Why was he good? Because one, he did not dilute his contraband liquor with toxic industrial-grade chemicals to increase his profits.
N. Rodgers: Which a lot of people did. A lot of people took their rum that they got from Jamaica or wherever, snuck it into the United States, and then diluted it with bleach or other stuff like that so that they could thin it out and sell more of it. Good for him that he didn't hurt people by doing that. He got most of his liquor from Canada?
J. Aughenbaugh: That's right. Yes.
N. Rodgers: Which makes sense. He's up there in Washington, so that's not a terribly long trip.
J. Aughenbaugh: Yes. He could get a ship via the Puget Sound.
N. Rodgers: Did he do all that other stuff they used to do, run the girls and prostitution, guns, and drugs?
J. Aughenbaugh: No. This is another reason why he got the title The Good Bootlegger. He did not engage in prostitution, gambling, gun running, or drug trafficking. He focused only on alcohol.
N. Rodgers: He could say legitimately he just didn't like prohibition. He just didn't think it was good.
J. Aughenbaugh: He also insisted that none of his employees carry firearms. This was actually another tidbit that I found. He told his employees, I would rather lose a shipment of booze than to have any of my employees take a life.
N. Rodgers: Good for him. He held on to some of his police principles even while he was being a criminal mastermind.
J. Aughenbaugh: Yes. Again, put this in context, listeners.
N. Rodgers: Because this is the Capone era of I will shoot you for looking at me from the left. Some really anxious people who were doing a lot of illegal things and backing it up with guns. If he's saying to his guys, I'd rather have the cops get the liquor than you hurt somebody or get hurt from this.
J. Aughenbaugh: In many ways, Olmstead represented the view of many Americans during prohibition, which is they didn't agree with prohibition. But they were not going to engage in rampant criminal behavior to maintain their consumption of liquor. In many ways, Olmstead viewed what he was doing as a public good.
N. Rodgers: A civilized way to break the law. I'm not going to break the law with violence and cruelty and all those. I'm just going to bring people bottles of booze.
J. Aughenbaugh: Yes. His view was the public wanted alcohol, and he was providing a service while making a whole bunch of money. Now, why is his name important in regards to US constitutional law? Well, there's a court case. Based on evidence obtained through a police wiretap of his telephone, Olmstead was arrested and tried for conspiracy to violate the National Prohibition Act, also known as the Volstead Act. A federal grand jury returned a two-count indictment against Olmstead and 89 other defendants in January of 1925.
N. Rodgers: Yes, but a grand jury will indict a ham sandwich. Ninety people is not a surprise.
J. Aughenbaugh: However, his trial ended a year later, and Olmstead, his attorney, Jerry Finch, and 21 other defendants were found guilty.
N. Rodgers: Conspiracy to violate the National Prohibition Act. They were found guilty of rum running, basically.
J. Aughenbaugh: Yes, a bootlegging.
N. Rodgers: Which he was doing.
J. Aughenbaugh: But he appealed his case, arguing that the evidence from the wiretap had been attained without a warrant, which would violate his Fourth Amendment rights and his Fifth Amendment privilege against self-incrimination. This goes the whole way to the US Supreme Court, and in 1928, the court upheld his conviction in Olmstead versus the United States. But what is noteworthy was Justice Brandeis's dissent. Justice Brandeis argued that the Fourth Amendment's protection against unreasonable search and seizure should include any communication which society at large recognizes as private. Like with a telephone communication.
N. Rodgers: Brandeis's dissent turns out to be pretty dang important.
J. Aughenbaugh: It becomes really important, and this is the reason why I always tell students, you got to read dissenting opinions in Supreme Court cases. Why? Because in the future, they may end up becoming the majority view of the court, which is what happened when, about 40 years later, in the case of Katz v. United States, the Supreme Court would adopt Brandeis's standard.
N. Rodgers: A reasonable expectation of privacy.
J. Aughenbaugh: If society is willing to recognize your reasonable expectation of privacy, then that forces law enforcement to get what, Nia?
N. Rodgers: A warrant.
J. Aughenbaugh: A warrant.
N. Rodgers: Your texts are considered private until a judge grants a warrant for the police to read your texts and see what you said. Hey, you want to get together with me Saturday night and run some liquor? Olmstead's verdict, while it goes against him, actually the dissent clears the way in the future for what we now consider questions about the modern surveillance state. Where is our privacy level, and one of our privacy level says, if my phone is locked, you have to get a warrant before you can go to Android and say, I want you to unlock this phone so that I can read what's in it. They're not going to do that without a warrant because of Katz. Wasn't Katz inside a phone booth?
J. Aughenbaugh: Yes.
N. Rodgers: He was in a phone booth in a public place, but he was inside the phone booth, and the court found that he had an expectation of privacy inside the phone booth unless you were going to read his lips, you weirdos. That's why Olmstead is so important. In his losing, the dissent sets the viewpoint 40 years later for what we now live in as the modern state of privacy.
J. Aughenbaugh: That's right. Again, Nia, you and I have talked about this on this podcast. Many important Supreme Court decisions are from defendants, where we're just wow. The guy was a criminal. You can go ahead and put lipstick on a pig, but it's still a pig.
N. Rodgers: He's a criminal.
J. Aughenbaugh: Yes. He might have been a good bootlegger, and I liked how he ran his business if you're going to run that kind of business.
N. Rodgers: Exactly. If you're going to be a criminal, be a nice criminal. Be a decent criminal. Be a decent human. If you're El Chapo, make sure your guys don't sell drugs to middle school kids. You know what I mean? It's fine if you want to sell them to Wall Street Bros, who have all the money in the world to burn and ruin. But don't be selling them to middle school kids because that's not okay. I could see drawing a line between those two people. Yes, he's a criminal, but he's not.
J. Aughenbaugh: He spends four years at the McNeil Island Correctional Institute. Not surprisingly. He did get out early because of good behavior, and he did pay an $8,000 fine assessed against him. He moved back to Seattle with his wife and daughter, where he worked as an insecticide salesman and fumigator.
N. Rodgers: He went straight after he got out of prison.
J. Aughenbaugh: President Roosevelt granted him a full presidential pardon.
N. Rodgers: Really?
J. Aughenbaugh: Yes. Besides restoring his constitutional rights, the pardon also led him to get $100,000 from the IRS, which claimed he owed them that in unpaid liquor taxes.
N. Rodgers: He ends up with a little bit of money, but probably nothing compared to what he was making during prohibition. How did he get a full presidential pardon? The president was like?
J. Aughenbaugh: FDR pardoned a lot of people arrested and convicted for violating the Volstead Act if there was no evidence of violence.
N. Rodgers: Okay.
J. Aughenbaugh: Yes.
N. Rodgers: That's good. If people were just running liquor, he was like, because you were running something to me, I'm sure, on the side, because you know what FDR was getting anyway.
J. Aughenbaugh: He had his own private family stash. FDR was then, and even today, was one of the wealthiest American presidents in our history.
N. Rodgers: They probably had a cellar full of wine. He probably didn't have to worry too much about it.
J. Aughenbaugh: While he was in prison, he converted to the Christian Science religion. Became a carpenter and he worked with, after he got out, prison inmates on an anti-alcoholism agenda.
N. Rodgers: Not prohibitionist, but just anti-alcoholism. The excessive consumption.
J. Aughenbaugh: He taught Sunday school, visited prisoners in the King County Jail, which is in Seattle. Unfortunately, he and his wife did separate in 1940. In large part, she grew very frustrated with him because their standard of living changed dramatically. They went from being a very wealthy family to a working-class family, and she also had religious differences with him. She refused to become a member of the Christian Science faith. But he led, by all accounts, a quiet, productive life until he died in 1966. He died before he could see Katz v. The United States be issued.
N. Rodgers: That's too bad, the year before where he was gone, see.
J. Aughenbaugh: One of the things I came across in my research, Nia was in many ways, once he got out of prison, he led the life that he probably always aspired to when he grew up, poor, which is a quiet, comfortable life, which is the kind of life that many Americans have. They don't get championed. They don't get put on billboards. But by all accounts, he had a huge positive impact on a lot of people once he got out of prison.
N. Rodgers: One of our earlier episodes was on Ernesto Miranda, who did not come out of prison doing this, he came out of prison and died relatively shortly thereafter in a bar fight. It is good to see that someone went to prison and turned it around. Turned it around and became the man that he wanted to be. Good for him and good for us that he brought up the whole, hey, wait a minute, should you be allowed to listen to my phone calls? That doesn't seem okay.
J. Aughenbaugh: You mentioned Ernesto Miranda. The development of constitutional law is frequently the result of a specific individual who claims that our conception of a constitutional right needs to change. By all accounts, Ernesto Miranda, as we discussed in that episode, was a criminal. He got into the system when he was young. He could never find his way out of the system. The system probably helped shape and mold his behavior.
N. Rodgers: But he still had rights that he needed to be informed of.
J. Aughenbaugh: That's right. By all accounts, Roy Olmstead was a criminal. He was one of the most prolific bootleggers on the West Coast of the United States.
N. Rodgers: He's probably saying something considering California is on the West Coast.
J. Aughenbaugh: But you had to get the booze from Canada into the United States, so you needed individuals like Roy Olmstead. Again, his argument was, even if I was doing this, you would not have known I was doing this without you breaking the Constitution.
N. Rodgers: You breaking the law to catch me doing it. What I think is interesting is he comes around to Carrie Nation's viewpoint about alcoholism and the dangers of excessive alcohol consumption and tries to do something about it.
J. Aughenbaugh: Yes. The good bootlegger.
N. Rodgers: Thanks, Aughie.
J. Aughenbaugh: Thank you, Nia.