by Justice William W. Bedsworth
And it was thunder, thunder, down on Thunder Road. Thunder was his engine and white lightning was his load. Thunder. Thunder. To quench the devil’s thirst. The lawmen swore they’d get him but the devil got him first.
That was the chorus of the title song of the first movie I ever saw more than once. Thunder Road. I was ten years old and I pestered my dad until he took me to see it a second time.
It was about moonshine smugglers in Kentucky and Tennessee in the mid-fifties. Robert Mitchum played the tragic hero smuggler, and the movie’s budget was so low he also sang the title song—the only musical venture of his life.1 I know calling him a “tragic hero” kinda gives away the ending but I don’t feel compelled to give spoiler alerts for sixty-five-year-old movies.
It comes to mind now because I’m distressed by the Stygian marsh into which smuggling has sunk. Modern smuggling is giving crime a bad name.
Not that smuggling has ever been “an honorable profession.” But it’s always had a certain cachet, an aura of renegade romance. There was an element of derring-do to it that inspired the imagination.
It inspired Glenn Frey to write one of the greatest rock and roll songs of all time: Smuggler’s Blues. 2 It was the impetus for a ton of books (everybody from Ernest Hemingway to Ian Fleming to John le Carre included smuggling subplots), movies (Midnight Express, Contraband, Smuggler’s Cove), and television shows (Miami Vice, JAG, NCIS, usque ad nauseam). It developed its own mythology.
Han Solo was a smuggler. The Millennium Falcon, a ship every one of us has cheered and rooted for, was a smuggler’s ship. Han won it from Lando Calrissian—another smuggler—in a card game. Heck, Disneyland has a ride called Millennium Falcon: Smuggler’s Run.3 Disneyland!
And smuggling has played an important role in the development of American law. The criminal law concept of a “consensual encounter,” a significant departure from Fourth Amendment jurisprudence that otherwise allows police contact with a suspect only when there is probable cause (required for arrest or search) or reasonable suspicion (required for detention), derives in large measure from smuggling operations.
In the seventies and eighties, east coast drug mules and cigarette smugglers were given nano-courses in search and seizure law that included being told to simply deny police requests for a consensual search and to refuse entreaties by police officers to talk. If they walked away from these encounters, officers without probable cause or reasonable suspicion could not legally stop them; any evidence subsequently recovered was inadmissible. The bad guys did precisely this and frustrated many an investigation.
But it backfired. So many smugglers used this technique effectively that they convinced the federal courts all Americans—not just bad guys with ad hoc con law educations—all Americans understood their constitutional right to ignore police requests that were not justified. The Supreme Court saw so many cases in which drug mules asserted their constitutional rights that they became convinced everyone knew those rights.
So they promulgated a body of case law that said police could walk up to people and start questioning them any time they wanted—so long as they did not convey to the individual that he/she was not free to go. They assumed bus drivers, bandleaders, and beekeepers knew their rights just like drug mules and would simply walk away from such encounters if they didn’t want to take part. (See, e.g., United States v. Mendenhall, 446 U.S. 544 (1980); Florida v. Bostick, 501 U.S. 429 (1991).).
Voila! Consensual encounters. Which, with a little help from comedian Flip Wilson (People v. Wilson, 34 Cal. 3d. 778 (1983) (the key consensual encounter case in California)), made my life as a prosecutor specializing in Fourth Amendment law much easier. American criminal law—not to mention my career—would be a very different thing without smugglers.
So while I’m not proposing a statue near the Washington Monument for these people, I do suggest that their history should be regarded with a certain amount of grudging appreciation for their role in our culture. And that appreciation is not evidenced by modern day miscreants.
Twenty-first century smugglers have no class. They are orders of magnitude below Chewbacca the Wookie and Smokey and the Bandit. Mentioning them in the same breath with Sir Henry Morgan and Bartholomew Roberts (Black Bart) is like including me in a list with Babe Ruth and Shohei Ohtani.
I don’t usually get involved in rating criminals but I’m a little worked up right now. This diatribe is prompted by the story that hit the news recently about Americans smuggling fruit roll-ups into Israel.
I’ll pause here so you can read that sentence again. It says exactly what I meant it to say but I can understand how you might find that difficult to believe at first glance.
Seems some Tik Tok influencer posted her favorite dessert—a fruit roll-up wrapped around a scoop of ice cream—and, all of a sudden, fruit roll-ups began disappearing from store shelves. There was a run on fruit roll-ups that made the Klondike Gold Rush look like a day game at Anaheim Stadium.
And, the laws of supply and demand being what they are, fruit roll-up illegality—a hitherto inconceivable juxtaposition of nouns—became a thing.
And Tik Tok being the worldwide phenomenon that it is,4 everybody IN THE WORLD clamored for fruit roll-ups.5 So two American couples packed their luggage full of fruit roll-ups and tried to smuggle it into Israel.6
Not a couple boxes of fruit roll-ups. Not a couple cases of fruit roll-ups. 650 POUNDS of fruit roll-ups.7
SIX HUNDRED AND FIFTY POUNDS OF FRUIT ROLL-UPS. One couple had 375 pounds, another 275. In their LUGGAGE.
Folks, I own a big suitcase. When I go on vacation, I sometimes fill it. If I get 50 pounds in it, I feel like I need to hire a pack mule. How in the hell do you show up at the airport with 375 pounds of luggage?
When they got their caravans of baggage to Israel, customs officials INEXPLICABLY chose to search their . . . what, seven or eight suitcases?! How in the world could they have known? What could possibly have made them suspicious?
Customs Official: “How long are you staying in Israel?”
Tourist couple trailing sixty-five feet of luggage: “Three days.”
Think about this. A fruit roll-up weighs half an ounce. 650 pounds of fruit roll-ups would be roughly 21,000 fruit roll-ups. When these things were called “fruit leather” and my kids were complaining about me putting them in their lunch bags, I would have bet there weren’t 21,000 of them in the entire western hemisphere. I was having trouble getting rid of the dozen I’d bought.
Where do you get 21,000 fruit roll-ups? I mean, you want 21,000 cocaine roll-ups, you go to Colombia. You want 21,000 diamond roll-ups, you go to Zimbabwe. You want 21,000 fruit roll-ups, where do you go? Costco?
And why are the Israelis confiscating these things? Well, primarily because there are duties you have to pay when you bring commercial goods into a country. Avoiding those duties is the whole raison d’etre of smuggling. Has been for at least six centuries.
For another thing, fruit roll-ups are—despite their name—largely sugar. Glucose. Lots of it. And according to The Times of Israel, the Israeli Health Ministry has determined—so help me, this is an exact quote—“Sugar consumption has been found to be associated with weight gain.”8
But now it turns out there’s another reason: the damned things are dangerous. No, not just because you’re wrapping ice cream in glucose, for crying out loud.9 They’re dangerous because humans can’t figure out how to eat them.
Health agencies around the world are being deluged with cases involving people who have failed to take the inside clear plastic wrapper off the fruit roll-up before putting the ice cream in. They’re choking on the plastic.10
How can we possibly be the dominant species on this planet? Imagine being an alien sent here to explore and trying to respond to the question of whether there’s intelligent life on Earth. “Well, there are dolphins and whales. And then there are these bipeds . . . .”
If I’m writing the alien’s report, the conclusion is that our imminent self-immolation—by either climate change or nuclear holocaust—should go down as a clear case of euthanasia. And fruit roll-ups smugglers should be the first to go.
BEDS NOTES
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.