(a) For purposes of this Chapter, policing activity includes information gathering, seizures, and encounters, as those terms are used in Chapters 2, 3, and 4 of these Principles.
(b) As stated in § 2.01(b), 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 conducted or threatens public safety.
(c) In addition to any other limitations imposed by the U.S. Constitution, suspicionless policing activity should occur only if it is conducted pursuant to the Principles in this Chapter or the Principles governing consent or searches incident to arrest in Chapter 4.
a. Distinguishing suspicionless and suspicion-based policing activities. The searches and other information-gathering practices addressed in Chapters 2 and 3, and the stops, arrests, and other encounters addressed in Chapter 4, typically are based on some form of cause to believe that a particular individual or situation requires investigation or immediate assistance. In contrast, suspicionless police actions are conducted in the absence of any such “individualized” suspicion. For example, when officers conduct a sobriety checkpoint, they have no reason to suspect that any particular driver who is stopped was driving under the influence. Similarly, scans of passengers at airports, drug testing of students, and inventory searches of arrested persons or jail detainees all occur in the absence of reason to believe that any particular search will bear fruit. Of course, experience or empirical analysis may suggest that a certain percentage of those people stopped at a checkpoint, subjected to drug testing, or inventoried at the police station will be in violation of the law. But that assessment does not distinguish any given individual within the targeted group from any other and, as such, does not constitute individualized suspicion as used in this Section.
b. Regulation of suspicionless policing activity. Suspicionless policing activity should not be prohibited simply because it takes place in the absence of individualized suspicion. Such actions are a common and important means of detecting and deterring crime and protecting the public. For instance, routine safety inspections minimize hazardous workplace conditions by incentivizing business to take precautionary measures. Checkpoints might deter and detect drunken driving or illegal immigration. Technological surveillance of high-crime areas can enhance public safety and reduce crime in those areas. But the fact that these policing activities are suspicionless means that special regulatory rules are necessary.
Under traditional Fourth Amendment doctrine, the requirement of individualized suspicion—either “reasonable suspicion” or “probable cause”—serves two important functions: it ensures that there is sufficient justification for the intrusion and it limits officer discretion by providing a standard for distinguishing between those who may be searched or seized and those who may not. Warrants add an additional layer of protection by requiring that the determination of probable cause be made by a neutral magistrate, divorced from law enforcement, and by describing with particularity the place to be searched or the person or item to be seized.
In the absence of warrants and individualized suspicion, it is essential that there be alternative mechanisms in place to ensure that searches and seizures and other policing activities are justified, are not directed at individuals or groups in an arbitrary or discriminatory fashion, and are limited in scope consistent with their justification. The U.S. Constitution may require such limitations. But even if it does not, the Principles in this Chapter are intended to ensure that suspicionless policing activities are carried out in a reasonable and evenhanded manner.
c. Scope of this Chapter. Examples of suspicionless policing activity include residential and business inspections, roadblocks, drug and DNA sampling, inventories of impounded vehicles, camera surveillance of public areas, use of tracking technology, and data collection from third-party entities. These types of policing endeavors usually are carried out pursuant to a statute or a formal or informal policy and are programmatic in nature. Per § 2.02, this Chapter would not cover casual or adventitious visual observation of the type that occurs during routine policing, nor, per § 4.01, does it cover encounters that simply involve “social, non-investigative, or non-caretaking interactions between a police official and a member of the public.” However, as do Chapters 2 through 4, this Chapter covers many types of policing actions that, to date, have not been considered searches and seizures under the Fourth Amendment.
Thus, for instance, this Chapter governs systematic public surveillance and data collection, even when it may not be governed by current Fourth Amendment doctrine. These practices are within the purview of this Chapter because of their potential for infringing privacy, chilling First Amendment rights, and enabling oppressive government power. Indeed, as Chapter 2 notes, the courts, spurred by technological developments, have begun to recognize the need to adjust the traditional view that the Fourth Amendment is not implicated by either government surveillance of public places or by government access to personal information surrendered to third parties. Regardless of whether the U.S. Supreme Court ultimately repudiates entirely the public-exposure and third-party doctrines that today largely govern the definition of a “search,” the assumption of this Chapter is that those doctrines should not allow policing agencies to engage in systematic information collection without any form of regulation whatsoever. As such, this Chapter imposes more restrictions on police access to information than may be imposed on private companies seeking the same information (although these Principles are of course not meant to foreclose regulation of private surveillance).
Although this Chapter adopts a broad definition of suspicionless policing activity, it does not address consent searches or searches incident to arrest—two types of potentially suspicionless police actions that clearly are governed by the Fourth Amendment. Both types of searches often are conducted in the absence of particularized suspicion that the search will turn up evidence of wrongdoing or is necessary for officer safety (although § 4.06(b) recommends that consent searches be limited to situations in which the officer has reasonable suspicion). They thus raise many of the same concerns as to necessity, arbitrariness, and discrimination discussed here. However, consent searches and searches immediately incident to arrest typically take place in the context of suspicion-based encounters, and thus are dealt with separately in Chapter 4.
1. The value of suspicionless policing activity. The sort of policing activity addressed in this Chapter—often referred to in the case law and academic literature as “programmatic,” “regulatory,” “administrative,” “deterrent,” or “special needs” searches—is an essential and increasingly ubiquitous tool of policing. See generally Wayne LaFave, Jerold H. Israel, Nancy King & Orin Kerr, Criminal Procedure § 3.9 (3d ed. 2007). One of the principal functions of these types of suspicionless actions is deterrence. For example, if businesses know they may be subject to periodic, unannounced inspections, they are more likely to comply with the applicable regulatory programs that the inspections are meant to enforce. Suspicionless policing also may be necessary to detect wrongdoing in circumstances in which there are few if any objective indicia of suspicion: for example, federal officials have justified the use of fixed immigration checkpoints on the border on the ground that officials typically cannot tell from looking at a vehicle whether it is being used to transport undocumented immigrants. Other goals sought to be achieved by suspicionless policing activity include protecting the public (as with drug testing), protecting police and correctional officials (as with inventories), or collecting and storing information that may have investigative uses at some later time (as with many types of technological surveillance).
What distinguishes suspicionless policing from the various practices discussed in Chapters 3 and 4 is that all are conducted without individualized cause, i.e., cause to believe that those targeted are involved in wrongdoing or endanger the public. Airport security is the paradigmatic example: although there is some risk that an individual could try to bring a weapon on board, airport officials have no reason to suspect any particular passenger of trying to do so. Indeed, one of the goals in setting up robust security measures is to deter people from bringing weapons to the airport in the first place. The same is true of sobriety checkpoints. Dozens of cars are stopped without any basis for thinking that any particular driver is under the influence of drugs or alcohol (and indeed the vast majority of drivers are sober). Likewise, regulatory inspections, inventory searches, pervasive closed-circuit television surveillance, and metadata-collection programs usually are conducted without cause to believe any particular entity or person affected by the action is harboring evidence of wrongdoing. In many of these contexts, requiring individualized suspicion would mean disallowing the programs altogether.
2. Animating concerns. In interpreting the Fourth Amendment’s “reasonableness” requirement, courts generally have preferred that searches and seizures be based on “individualized suspicion.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (“A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing”). This requirement ensures that intrusions are “justified” and helps to cabin officer discretion by providing a standard for determining who may be subjected to the intrusion and who may not. In the absence of individualized suspicion, the primary worry raised by the reasonableness inquiry is that searches and seizures either will take place unnecessarily or on the basis of arbitrary, capricious, or impermissible criteria. For example, in striking down discretionary license and registration stops in Delaware v. Prouse, the U.S. Supreme Court explained that “when there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations . . . we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver.” Delaware v. Prouse, 440 U.S. 648, 661 (1979) (emphasis added). See also City of Los Angeles v. Patel, 576 U.S. 409, 421 (2015) (expressing concern 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”); United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975) (disallowing suspicionless “roving-patrol stops” near the border because permitting such stops . . . would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers”).
Recognizing these concerns, courts repeatedly have emphasized the importance of alternative safeguards to ensure that suspicionless searches and seizures are reasonably necessary to further important law-enforcement or regulatory objectives and are conducted in an evenhanded manner. For example, courts have said that suspicionless searches or seizures must further a “legitimate” or “substantial” government interest sufficient to warrant the intrusion on individual privacy. See, e.g., New York v. Burger, 482 U.S. 691, 708 (1987). Courts also have required that searches “be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown v. Texas, 443 U.S. 47, 51 (1979); see also Donovan v. Dewey, 452 U.S. 594 (1981) (requiring that statute authorizing administrative inspections provide “a constitutionally adequate substitute for a warrant.”).
3. Confusing doctrine. Although courts consistently have recognized these concerns with suspicionless searches and seizures and the importance of proper safeguards to address them, neither the U.S. Supreme Court nor the lower courts have settled on what the safeguards should be. The result is a doctrine that has been criticized as “incoherent,” “devoid of content,” and “a conceptual and doctrinal embarrassment of the first order.” Eve Brensike Primus, Disentangling Administrative Searches, 111 Colum. L. Rev. 254, 257-258 (2011) (summarizing criticism); see also Anthony Amsterdam, Perspectives on the Fourth Amendment, Min. L. Rev. 349, 418 (1974); Barry Friedman & Cynthia Benin Stein, Redefining What’s “Reasonable”, 84 Geo. Wash. L. Rev. 281, 287 (2016);Tracey Maclin, Constructing Fourth Amendment Principles from the Government Perspective, 25 Am. Crim. L. Rev. 669 (1988); Stephen Schulhofer, On the Fourth Amendment Rights of the Law-Abiding Public, 1989 Sup. Ct. L. Rev. 87, 89 (1989); Christopher Slobogin, Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine, 102 Geo. L. J. 1721, 1725 (2014). Several justices, from both ends of the ideological spectrum, also have expressed frustration with the doctrine. See, e.g., Indianapolis v. Edmond, 531 U.S. 32, 56 (2000) (Thomas, J., dissenting) (stating “I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.”); Chandler v. Miller, 520 U.S. 305, 327 (1997) (Rehnquist, J., dissenting) (expressing confusion at Court’s decision to strike down suspicionless drug testing of Georgia legislators while upholding drug-testing programs of border-patrol officers and students on similarly shaky evidence); Skinner v. Ry. Labor Execs.’ Ass’n., 489 U.S. 602, 639 (Marshall, J., dissenting) (noting that in the “years since this Court . . . first began recognizing ‘special needs’ exceptions to the Fourth Amendment, the clarity of Fourth Amendment doctrine has been badly distorted”); New Jersey v. T.L.O., 469 U.S. 325, 358 (1985) (Brennan, J., dissenting) (criticizing the “Rorschach-like ‘balancing test’” in the Court’s special-needs cases).
Much of the difficulty with the Court’s analysis derives from its stance—at least since its decision in Edmond—that the primary determinant of when a given suspicionless action is permitted depends on whether it is aimed at “detect[ing] evidence of ordinary criminal wrongdoing.” 531 U.S. at 37. If so, the Court usually finds the government action unconstitutional; if, instead, the search or seizure is justified by “special needs . . . beyond the normal need for law enforcement,” it virtually always is permitted on the ground that the government’s law-enforcement interests outweigh the individual’s privacy and autonomy interests. Id. Although it may well be the case that the government should not be allowed to, for example, collect large pools of information on innocent individuals for the purpose of using it in later criminal investigations, the special-needs framework has proven difficult to apply consistently. In Edmond, the Court held that a suspicionless automobile checkpoint established to detect illegal drugs was aimed at investigating ordinary criminal wrongdoing and thus violated the Fourth Amendment. But in earlier cases, the Court permitted automobile checkpoints set up to identify drunk drivers, undocumented immigrants, and unlicensed drivers, despite the fact that in all three of those scenarios criminal prosecution can result. Compare Edmond, 531 U.S. at 34 (drug interdiction), with United States v. Martinez-Fuerte, 428 U.S. 542 (1976) (immigration); Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (drunk drivers); Prouse, 440 U.S. 648 (1979) (license and registration). As Justice Rehnquist made clear in his Edmond dissent, 531 U.S. at 50-51 & n.2, checkpoints designed for ostensibly “regulatory” purposes nonetheless are usually backed up by criminal prosecution.
The distinction has only grown more confusing over time. In Ferguson v. Charleston, 532 U.S. 67, 69 (2001), the U.S. Supreme Court struck down a program of compelled drug testing for pregnant women because the “immediate objective” was to gather evidence to enable officers to make an arrest, despite the fact that the “ultimate goal” was to “get the women in question into substance abuse treatment and off of drugs,” an objective that is easily classified as “regulatory” rather than crime-related in nature. In contrast, in Patel, 576 U.S. at 420, the Court held that nonconsensual inspections of hotel registries for the purpose of deterring and detecting prostitution, sex trafficking, and drug sales—certainly all aspects of ordinary crime control—nonetheless constituted a “special needs” situation that did not require a warrant (although the Court did require an administrative subpoena in nonconsensual situations). And in Maryland v. King, the Court upheld a Maryland statute authorizing suspicionless DNA collection from all felony arrestees as a means of “identification,” although it was plain to all involved that the purpose of the program was to help clear the backlog of unsolved rape and homicide cases. 469 U.S. 435, 466 (2013) (Scalia, J., dissenting) (“The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.”).
The focus on the ordinary crime-control test also has led courts to neglect considerations that should be important to analysis of suspicionless searches and seizures. On the one hand, courts have struck down a number of suspicionless programs without regard for the seriousness of the crime problem that the programs sought to address, the effectiveness of the programs, or the degree to which the programs furthered their objectives in an evenhanded and nondiscriminatory manner. Compare, e.g., People v. Jackson, 782 N.E.2d 67 (2002) (invalidating an automobile checkpoint set up after a spike in “carjackings and robberies” because its primary purpose was to “serve the governmental interest in general crime control”); Mills v. District of Columbia, 571 F.3d 1304, 1311-1312 (D.C. Cir. 2009) (invalidating suspicionless checkpoints in high-crime “Neighborhood Safety Zones” in Washington, D.C.).
On the other hand, courts routinely have upheld suspicionless searches in the absence of any meaningful standards to guide officer decisionmaking. In New York v. Burger, for example, the U.S. Supreme Court approved a suspicionless search of a junkyard for stolen car parts despite the fact that neither the statute nor department policy provided any guidance for deciding which junkyards officers were to inspect on any given day, and did not place any limits on the number of times that officers could inspect a particular location. 482 U.S. 691 (1987). Indeed, the Court itself acknowledged that “it was unclear from the record why, on that particular day, Burger’s junkyard was selected for inspection.” Id. at 695 n.2. Nevertheless, the Court held that the statute provided a “constitutionally adequate substitute for a warrant” because “it notifie[d] the operator as to who is authorized to conduct an inspection” (any law-enforcement officer) and limited inspections to “regular and usual business hours.” Id. at 711. Neither of these protections satisfies the warrant’s function in avoiding arbitrary decisions as to whom to target or how often. In Samson v. California, 547 U.S. 843 (2006), the Court upheld a suspicionless search of a parolee under a statute that merely stated that parolees “are subject to search or seizure by a probation officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause.” Cal. Penal Code § 3607(b)(3). As Justice Stevens pointed out in dissent, there were “no policies—no ‘standards, guidelines, or procedures’—to rein in officers and furnish a bulwark against the arbitrary exercise of discretion.” Id. at 860-861 (Stevens, J., dissenting). In Samson itself, the petitioner was simply “walking down a street with a woman and a child” when a police officer spotted him and decided to search him. Id. at 846.
In short, the U.S. Supreme Court’s suspicionless-search jurisprudence appears to have lost sight of both the rationales that distinguish suspicion-based searches and seizures from suspicionless searches and seizures and the protections that are necessary to ensure that the latter actions are carried out in an evenhanded and nonarbitrary manner. The resulting case law is both over- and under-restrictive, disallowing some practices that may in fact be entirely sound, while permitting others that could benefit from more careful regulation. Perhaps more importantly, the existing case law fails to give law-enforcement agencies and legislatures any meaningful guidance on how best to craft suspicionless search and seizure policies to harness the benefits of these programs while minimizing attendant harms. That is the task that the remainder of this Chapter takes up.
4. A return to first principles. This Chapter specifies the core concerns common to all suspicionless policing activity, whether formally designated Fourth Amendment searches and seizures or not, from inventory searches, checkpoints, and safety inspections to surveillance systems and data-collection programs. It identifies the protections that are necessary in place of warrants and probable cause to ensure that such policing actions are both justified and nonarbitrary.
First, in place of a magistrate’s determination that the policing activity is justified, this Chapter requires, in § 5.02, that the decision to introduce a suspicionless program be made through written policy, adopted either by a legislative body or by the agency itself. Second, these Principles also make clear, in §§ 5.03 and 5.06, that a suspicionless program must be designed to further an important law-enforcement or regulatory objective and be limited in scope to that which is necessary to further that objective.
To protect against arbitrariness, this Chapter also sets forth both a nondiscrimination principle, in § 5.04, and a constraint-on-discretion principle, in § 5.05. Both Principles ensure that, in the absence of cause, there is some other criterion in place for deciding which individuals or entities to subject to information gathering and encounters and that the criteria are applied in a neutral manner that limits officer discretion. The nondiscrimination principle provides that the decision to focus a suspicionless policing program on a subset of the population—for example, student athletes instead of all high-school students—must be justified on the basis of evidence showing that the target group is more likely to be involved in wrongdoing than the rest of the relevant population. The constraint-on-discretion principle ensures that, once the group subject to the policing action is selected in a nondiscriminatory fashion, the decision as to whom or what to investigate within the targeted group—whether it be a single person, car, or business, or a larger unit—is governed by agency policy and is not the product of a case-by-case determination by officers in the field.