(a) A policing activity is “suspicion-based” when it is conducted with any cause to believe that the particular individual, place, or item subject to agency action is involved in prohibited conduct or is a threat to public safety, or that an individual is in need of aid.
(b) A policing activity is suspicionless when it is conducted in the absence of cause to believe that the particular individual, place, or item subject to agency action is involved in prohibited conduct or is a threat to public safety, or that an individual is in need of aid.
a. Distinguishing between suspicion-based and suspicionless policing. These Principles distinguish between policing that is based on some modicum of individualized suspicion (suspicion-based) and that which is not (suspicionless). Governmental activity is suspicion-based when it is directed at a specific individual, location, or item that is believed to be involved in prohibited conduct or to pose a threat to public safety, or at an individual who is in need of aid. An agency action is suspicion-based even if an agency official is operating on little more than a hunch. What matters is that the official has focused his or her attention on a particular individual, location, or item based on the belief—however speculative—that the individual, location, or item in question is involved in wrongdoing, is a threat to public safety, or is in need of aid. The Principles that apply to suspicion-based policing are set out in Chapters 3 and 4. Among the various regulatory tools employed in Chapters 3 and 4 are the traditional tools of probable cause (or reasonable suspicion) and warrants.
By contrast, policing is suspicionless when it is conducted in the absence of cause to believe that any particular individual, location, or item is involved in prohibited conduct or poses a threat to public safety, or that an individual is in need of aid. For example, when officers stop drivers at a sobriety checkpoint, they have no reason to suspect any particular person of driving under the influence (even if, in the aggregate, there is a reasonable probability of stopping at least one person who is intoxicated). These sorts of suspicionless searches and seizures are becoming increasingly ubiquitous and ought to be subject to careful regulation. Because they are conducted in the absence of individualized suspicion, the traditional requirements of warrants or probable cause are inapt, and a different set of protections is in order. These are set out in Chapter 5.
Although most policing activities are relatively easy to categorize as either suspicion-based or suspicionless, some arguably could fall on either side of the line. One increasingly common investigative tool that resists easy classification is the “cell phone tower dump,” which involves obtaining the phone number for every cell phone in a particular vicinity at a specific point in time. Tower dumps are particularly useful for pinpointing suspects in a string of robberies or other crimes by identifying which cell phones were in the vicinity at the time each of them occurred. At the time that the data are obtained, there is no reason to suspect any particular cell phone user of any wrongdoing; in this regard, the investigative activity is therefore “suspicionless.” On the other hand, the reason for the request is that the police are investigating a specific crime that occurred at a particular location. Instead of collecting data on all cell-phone users in a particular jurisdiction, they are focusing their attention on a narrow subset or group. They are not, in short, engaging in the sorts of regulatory activities that typically constitute “suspicionless” policing.
In application, however, it does not matter much whether tower dumps are analyzed under Chapter 3 or Chapter 5 because, although the protections outlined in the two Chapters differ in important ways, they largely converge when it comes to these sorts of cases. Both Chapters would require that the request be made pursuant to either legislative authorization or an agency policy. See § 3.02 (requiring a written policy), § 5.02 (requiring either a written policy or legislative authorization). And importantly, both would require the agency to provide some level of justification for obtaining cell-phone records from a specific tower or location. See § 3.02(a)(3) (requirement of a predicate), § 5.05(b)(3) (requiring a factual basis for targeting a subset of a particular group). Both also require documentation and reporting and impose limitations on scope.
This Section—and the Principles in the Chapters that follow—mirrors a longstanding distinction in the U.S. Supreme Court’s Fourth Amendment jurisprudence between suspicion-based and suspicionless searches and seizures. See, e.g., Delaware v. Prouse, 440 U.S. 648, 657 (1979) (distinguishing between suspicionless checkpoints and roving police stops); United States v. Ortiz, 422 U.S. 891, 894-895 (1975) (same). The core intuition that drives this distinction is that there is a fundamental difference between investigative activities aimed at a specific person or persons (suspicion-based) and those aimed more broadly at categories of people or groups (suspicionless). Barry Friedman & Cynthia Benin Stein, Redefining What’s “Reasonable”: The Protections for Policing, 84 Geo. Wash. L. Rev. 281, 286-287 (2016).
For both suspicion-based and suspicionless searches and seizures, the goal of legal regulation is the same: it is to ensure that all government intrusions into our lives are justified, and that individuals are not singled out arbitrarily or on the basis of impermissible characteristics such as race or ethnicity. See, e.g., City of Los Angeles v. Patel, 576 U.S. 409, 421 (2015) (noting that the suspicionless hotel-registry inspection regime “creates an intolerable risk that searches . . . will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests”); Prouse, 440 U.S. at 661 (“The essential purpose of the . . . Fourth Amendment is to . . . ‘to safeguard the privacy and security of individuals against arbitrary invasions.’”); United States v. Brignoni-Prince, 422 U.S. 873, 882 (1975) (noting that allowing suspicionless roving stops “would subject the residents . . . to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers.”). What differs are the protections that are necessary to achieve these objectives.
When the government targets a particular individual, the traditional protection against arbitrary or unjustified intrusions is the requirement of individualized suspicion, typically either reasonable suspicion or probable cause. Chandler v. Miller, 520 U.S. 305, 308 (1997) (“[The Fourth Amendment] restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion.”).The requirement ensures that an officer has a reason for focusing on that particular person, as opposed to someone else—namely, that there are specific, articulable facts to suggest that the individual is either involved in criminal activity or is in need of aid. Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. Mem. L. Rev. 483, 485 (1994) (arguing that “particularized suspicion . . . serves to preclude arbitrary and general searches and seizures and mandates specific justification for each intrusion.”). It also ensures a rough proportionality between the justification and the policing activity by imposing a greater burden of justification for more serious intrusions. Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 79 (1991).
Individualized suspicion, however, makes little sense in the context of “suspicionless” or regulatory policing. When it comes to airport security, bulk data collection, drunk-driving checkpoints, or factory inspections, police officials have no reason to suspect that any particular individual or business is breaking the law. Friedman & Benin Stein, supra, at 286; Christopher Slobogin, Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine, 102 Geo. L.J. 1721, 1727 (2014); Eve Primus, Disentangling Administrative Searches, 111 Colum. L. Rev. 254, 255–57 (2011); Richard Worf, The Case for Rational Basis Review of General Suspicionless Searches and Seizures, 23 Touro L. Rev. 93, 96 (2007). The goal of these programs is to deter potential wrongdoing and to proactively identify potential violations before they result in harm. Friedman & Benin Stein, supra, at 286-287 (“[Suspicionless searches] are not aimed at a suspect but at a broad body of the people—perhaps all of us—to prevent even the contemplation of offending.”).
As the U.S. Supreme Court itself has made clear under its “special needs” jurisprudence, alternative safeguards are necessary for suspicionless searching. New York v. Burger, 482 U.S. 691, 703 (1987) (“[T]he regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.”). In order to justify the use of suspicionless policing tactics, government officials must be able to explain why the particular category of persons or businesses ought to be the focus of policing activity. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451 (1990) (emphasizing “the magnitude of the drunken driving problem” and “the State’s interest in eradicating it”); Donovan v. Dewey, 452 U.S. 594, 602 (1981) (emphasizing the danger of mining activity); United States v. Biswell, 406 U.S. 311, 315 (1972) (explaining that suspicionless, unannounced inspections under the Gun Control Act are necessary to deter unlawful gun sales); see also §§ 5.03 and 5.04 (on justifying suspicionless searches and seizures, and defining the targeted group). And because there is no reason to suspect any particular person of wrongdoing, an agency must have procedures in place to ensure that the policy or program is applied even-handedly (i.e., that everyone is, in fact, treated the same). Biswell, 406 U.S. at 316 (noting that the government must have a “reasonable” inspection plan, one that does not leave the target “to wonder about the purposes of the inspector or the limits of his task”); Brown v. Texas, 443 U.S. 47, 51 (1979) (emphasizing that suspicionless searches and seizures “must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers”); see also § 5.05 (on ensuring evenhanded application of suspicionless searches and seizures). Finally, because the vast majority of people stopped or searched are going to be innocent of any wrongdoing, it is particularly important to ensure that there has been sufficient democratic deliberation at the front end to ensure that this is indeed the sort of burden that individuals are willing to bear. See, e.g., Sitz, 496 U.S. at 453-454 (emphasizing the importance of approval by “politically accountable officials” in determining the constitutionally of a highway sobriety checkpoint); Sims v. State Tax Comm’n, 841 P.2d 6, 9 (Utah 1992) (requiring specific statutory authorization for sobriety checkpoints); Nelson v. Lane Cnty., 743 P.2d 692, 696 (Or. 1987) (requiring that automobile checkpoints be authorized by “a law or ordinance providing sufficient indications of the purposes and limits of executive authority.”); see also, § 5.02 (requiring legislative authorization or publicly adopted agency policy).