Suspicionless policing activity should be authorized by written policies developed through the process described in § 1.06 that identify, for each program:
- (a) the specific harm sought to be detected or prevented;
- (b) the permissible scope of the suspicionless policing activity;
- (c) the persons, entities, or activities subject to the policing activity;
- (d) if persons or entities will be selected from among the target group, the manner in which that will occur;
- (e) the manner in which the effectiveness of the program will be evaluated;
- (f) a finite period at the end of which any data generated by the program regarding identified or identifiable individuals will presumptively be destroyed or rendered inaccessible, consistent with § 6.02; and
- (g) sanctions for violating the policy’s provisions.
a. Purpose of written policies. In the regulation of suspicionless policing activity, written policies serve three important functions. First, they help to ensure that a particular program is justified by requiring either legislatures or upper-level officials to determine in advance that the intrusions that will occur under the program are in fact necessary to further important law-enforcement or regulatory objectives. Second, the process of developing policies increases the opportunity for community involvement and the likelihood of democratic accountability. And third, policies help to cabin officer discretion by setting out the criteria that officers must use in deciding which individuals or entities may be subject to suspicionless policing activity.
b. Content of the policy. To ensure that the policy in fact serves the justification and discretion-minimization functions described in Comment a, this Section provides that the policy should address the objectives and scope of the program; the persons or entities to be targeted; whether specific individuals or entities will be selected from among the target group and, if so, how; and the manner in which the legislature or agency will evaluate the program’s effectiveness. A statute or regulation authorizing a fusion center (a data collection and dissemination unit aimed at fusing data from numerous sources) might address, for example: whether the center is aimed at ferreting out counter-terrorism, felonies, all crime, or any type of unlawful activity; the types of records that will be collected (e.g., criminal records, other public records, utility records, credit-card reports, communications metadata); whether the center will collect information about everyone in the jurisdiction and, if not, the rationale for focusing on certain groups; and the type of data (e.g., number of successful prosecutions using fusion-center information) that can assist in assessing the program’s usefulness.
These requirements provide the framework for the rest of the Principles in this Chapter. Subsections (a) and (e) help implement § 5.03, which requires that the goals of the suspicionless program outweigh its impact on individual interests. Those subsections ensure that policymakers and the public explicitly identify the goals of the suspicionless activity and require that there be mechanisms in place to evaluate whether the program actually furthers these objectives. The requirements in subsections (b), (c), and (d), regarding identification of the scope and methods of the program, help implement §§ 5.04 through 5.06, which ensure that suspicionless policing activities are only as broad as necessary to achieve their objectives and that they be carried out in a nondiscriminatory and evenhanded manner. It would not be overly burdensome to include this type of information in authorizing legislation or regulation, and doing so would go a long way toward ensuring that suspicionless policing activities take place in a manner that furthers legitimate law-enforcement or regulatory objectives while minimizing attendant harms. See § 1.04.
Subsection (f) works in tandem with Chapter 6 on data retention by requiring that the authorization for the program indicate whether data about identified or identifiable people will be collected and, if so, when it should be destroyed. For instance, a suspicionless camera-surveillance program might generate images of people 24 hours a day that are stored in government databanks. As § 6.02 explains, this type of data should only be retained as long as it relevant to the purpose of the program. To implement that mandate, § 6.02(b) requires that the authorizing policy indicate a finite period at which time the data should be destroyed, with extensions possible if the government makes specific showings.
Finally, subsection (g) requires that the authorizing policy establish accountability mechanisms. Chapters 13 and 14 provide principles governing sanctions for failure to abide by sound policing policies. Thus, consistent with Chapters 1 through 12, this Section does not address the sanctions issue in detail. But subsection (g) does require that the policy provide consequences for failing to abide by its provisions and any restrictions on how the policy is implemented, as set forth in §§ 5.04, 5.05 and 5.06.
c. Legislative or administrative authorization. This Section does not express a preference for either legislative or agency policymaking. For many suspicionless programs, especially those that apply to a broad segment of the public or are likely to be permanent, legislatures may best be suited to make the threshold determination of whether the goals of the program are sufficiently weighty to justify the intrusion at issue—a point some state courts have recognized. In such instances, it may be optimal for legislatures to identify in general terms the objective, scope, and targets of the program, and to delegate to the relevant agency the power to implement the program through more specific guidelines. In other situations, an administrative body—a commission, a task force, or the upper echelons of the agency—might be better suited to devise the policy, on the ground it will be better acquainted with the relevant concerns and more attentive to local problems.
Whether legislative or administrative in origin, a suspicionless program should, consistent with § 1.06, be developed through a transparent process that involves the public. Such a process is often more likely than either judicial review or executive decisionmaking, standing alone, to produce policies that effectively balance law-enforcement and community interests and legitimize those policies in any policing context. In the suspicionless-policing context, there are several other important reasons for using the political process. First, it ensures that members of the public, through their representatives, are on notice that the government is contemplating a program that does not require individualized cause and thus necessarily will intrude upon perfectly innocent activity and may interfere with the liberty interests of the public. When such programs are sprung on an unsuspecting public they sometimes provoke a hostile reaction and are thus likely undermine public-safety objectives—results a more consultative approach could have avoided. Second, because programmatic policing actions can affect a significant number of people, public input can be particularly useful in helping policymakers gauge the scope of the perceived problem and consider ways of dealing with it, including methods that do not involve policing activity at all. Third, for many suspicionless programs—for instance, health and safety inspections, sobriety checkpoints, camera surveillance, and drug testing—public disclosure can be an effective law-enforcement strategy. It can both educate the public about law-enforcement problems and enhance deterrence of problematic behavior.
The emphasis on public input is not meant to approve of purely majoritarian approaches to policing policymaking. Although public input is particularly important in developing policies for suspicionless policing activity, given the likelihood it will affect large groups of people, other Principles in this Chapter, in particular the nondiscrimination principle in § 5.04 and the constraint on discretion principle in § 5.05, limit the extent to which majoritarian impulses control regulatory policy. These two principles, enforceable by the courts, prohibit irrational focus on particular groups and require that any policy that is enacted be evenly applied so as to visit its impact on everyone within its ambit, not just those whom the police want to confront.
1. Need for written policy. The requirement of a written policy in this Section is consistent with the U.S. Supreme Court’s repeated assertion that suspicionless searches and seizures generally should take place pursuant to a statute or regulatory scheme that serves as an “adequate substitute for a warrant.” New York v. Burger, 482 U.S. 691 (1987); see also United States v. Biswell, 406 U.S. 311, 316 (1970) (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.”); Donovan v. Dewey, 452 U.S. 594, 600 (1981) (same); Brown v. Texas, 443 U.S. 47, 51 (1979) (“the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers”). A number of state courts likewise have held that suspicionless searches “must be carried out in accordance with agency guidelines limiting officer discretion.” Lookingbill v. State, 157 P.3d 130, 136 (Okla. 2007); see also State v. Atkinson, 688 P.2d 832, 837 (Or. 1984) (en banc) (holding that an inventory search “must be conducted pursuant to a properly authorized administrative program, designed and systematically administered so that the inventory involves no exercise of discretion by the law enforcement person directing or taking the inventory”).
Relying on these precedents, courts have invalidated programmatic searches conducted in the absence of an administrative plan. For example, in State ex rel. Accident Prevention Div. of Workmen’s Compensation Bd. v. Foster, 570 P.2d 398 (Or. Ct. App. 1977), an Oregon Court of Appeals invalidated a warrantless workplace inspection after finding that the statute—which required only that searches take place at “reasonable times and within reasonable limits and in a reasonable manner”—did not provide sufficient guidance on “the manner of selection of the premises to be searched.” See also United States v. Harris Methodist Fort Worth, 970 F.2d 94 (5th Cir. 1992) (administrative search held unreasonable in light of government’s concession “that there was no administrative plan promulgating selection criteria”); Gooden v. Brooks, 251 S.E. 2d 698 (N.C. Ct. App. 1979) (finding insufficient a conclusory allegation that an inspection plan existed); State v. Luxon, 230 S.W.3d 440, 447 (Tex. App. 2007) (invalidating checkpoint because “evidence showed that [officers] did not follow any authoritatively standardized procedures in operating the roadblock”).
However, as discussed in the Reporters’ Notes to § 5.01, courts—and in particular, the U.S. Supreme Court—have not always been consistent in ensuring that the administrative plan in question in fact offers meaningful guidance to agency officials in deciding which individuals or premises to search or seize. The immigration checkpoints at issue in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), are another case in point. Although all cars traveling on a particular road were required to pass through the checkpoints, officers then were authorized to refer a small subset of vehicles to a “secondary inspection” based in part on the racial characteristics of the occupants, and in the absence of any individualized suspicion or specific, neutral criteria to guide officers in making these determinations. Id. at 563. Similarly, lower courts have routinely upheld inspections conducted in the absence of any administrative plan describing the criteria by which entities are to be selected for inspection. See, e.g., Bruce v. Beary, 498 F.3d 1232, 1242 (11th Cir. 2007) (upholding administrative inspection conducted on the basis of a tip in the absence of an administrative plan); United States v. Thomas, 973 F.2d 1152, 1156 (5th Cir. 1992) (same). The policies in these cases would not be consistent with this Section.
2. Legislative versus administrative policymaking. Although this Section does not take a position on whether suspicionless policing activity must be legislatively authorized or whether, instead, administrative regulations are sufficient, a number of state courts also have required express statutory authorization for checkpoints and other suspicionless programs. See, e.g., Sims v. State Tax Comm’n, 841 P.2d 6, 9 (Utah 1992) (requiring specific statutory authorization for sobriety checkpoints); State v. Henderson, 756 P.2d 1057, 1063 (Idaho 1988) (invalidating sobriety checkpoint because “[t]he Idaho legislature has not provided police with statutory authority to establish roadblocks”); 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.”); State v. Holt, 887 S.W.2d 16, 19 (Tex. Crim. App. 1994) (en banc) (invalidating a sobriety checkpoint “[b]ecause a governing body in Texas has not authorized a statewide procedure for DWI roadblocks”). As these courts have made clear, legislative authorization ensures that—as is the case for searches conducted pursuant to a judicial warrant—the decision that a search or seizure is necessary and appropriate is made by officials outside the executive branch. See, e.g., Nelson, 743 P.2d at 104 (“The authority to conduct roadblocks cannot be implied. Before they search or seize, executive agencies must have explicit authority from outside the executive branch.”); State v. Sims, 808 P.2d 141, 149 (Utah Ct. App. 1991) (noting that “both warrants and statutes originate outside the executive branch, serving to check abuses of that branch’s law enforcement power”). A number of scholars likewise have argued in favor of greater legislative oversight of suspicionless searches and seizures. See, e.g., Christopher Slobogin, Panvasive Surveillance, Process Theory, and Nondelegation, 102 Geo. L. J. 1721, 1766-1770 (2014) (arguing in favor of greater legislative supervision of suspicionless-surveillance regimes); Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev. 1827, 1877-1884 (2015) (arguing in favor of legislative authorization and oversight of policing practices); Thomas DiLenge, Fourth Amendment Law after Michigan Department of State Police v. Sitz, 9 J. L. & Pol. 561, 587 (1993) (arguing that legislative authorization can . . . create an “objective benchmark against which [courts] can evaluate the ‘reasonableness’ of any government seizure”).
In practice, many suspicionless programs are in fact legislatively authorized. For instance, most regulatory inspection programs and border and airport checkpoints are authorized by federal, state, or municipal legislation, which then is implemented through regulations developed by an agency. See 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.2 (5th ed. 2015) (discussing a wide range of business inspection schemes, all of which “are intended to ensure compliance with statutes and administrative regulations having as their purpose protection of the employees or customers[.]”); 19 U.S.C. §§ 1581(a) and 1582 (authorizing inspections of vessels and vehicles at the border and directing the secretary of the U.S. Department of the Treasury to “prescribe regulations for the search of persons and baggage”). In many states, sobriety, license-and-registration, and fish-and-wildlife checkpoints likewise are authorized by statute. See, e.g., Hawai’i Rev. Stat. § 291E-19 (authorizing sobriety checkpoints); N.C. Gen. Stat. § 20-16.3A (authorizing use of checkpoints for any legitimate law-enforcement or regulatory purpose); Utah Code Ann. §§ 23-20-19, 27-12-19 (authorizing checkpoints to enforce fish-and-game laws and to inspect livestock). Many other types of programmatic actions are authorized in a similar fashion. See, e.g., City of Los Angeles v. Patel, 135 S. Ct. 2443, 2447 (2015) (hotel-record inspection program authorized under Los Angeles Municipal Code § 41.49); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 608-609 (1989) (drug-testing program implemented under authority of 45 U.S.C. § 431(a) and Federal Railway Administration regulations promulgated at 49 CFR § 219.101(a)(1)); Donovan v. Dewey, 452 U.S. 594, 604 (1981) (inspection program based on Mine Safety Act and regulations in the Code of Federal Regulations); Vernonia School District 47J v. Acton, 515 U.S. 646, 649-650 (1995) (drug policy promulgated by elected school board).
Public input also can be solicited directly. For instance, in connection with camera surveillance programs, the American Bar Association’s Standards on Technologically-Assisted Physical Surveillance provide that “in cases where deterrence rather than investigation is the primary objective, the public to be affected by the surveillance [should be] notified of the intended location and general capability of the camera; and [be given] the opportunity, both prior to the initiation of the surveillance and periodically during it, to express its views of the surveillance and propose changes in its execution, through a hearing or some other appropriate means.” American Bar Ass’n, Criminal Justice Standards on Technologically-Assisted Physical Surveillance, Standard 2-9.3(b)(ii). Some jurisdictions have required a similar process. See, e.g., Dist. Columbia Metropolitan Police Dep’t, Camera Surveillance, available at http://mpdc.dc.gov/node/214522 (D.C. regulations governing use of closed-circuit television system); Dep’t Homeland Sec., CCTV: Developing Privacy Best Practices 6-8 (2007), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_rpt_cctv_2007.pdf (recounting the practices of several cities and towns).