Legislatures and agencies should authorize suspicionless policing activities only when there is a sound basis for believing that they will accomplish an important law-enforcement or regulatory objective, and when achieving that objective outweighs their infringement on individual interests such as privacy, dignity, property, and liberty.
Comment:
a. Public-safety justification. As indicated in the Comments to § 5.01, suspicionless policing activity can serve a number of important law-enforcement and regulatory purposes, many of which would be difficult to achieve or achieve as well without resort to suspicionless actions. Nevertheless, suspicionless policing may affect large numbers of people, most of whom will by definition be innocent of any wrongdoing. Implementation of these programs may at the least inconvenience people and, at times, can involve significant intrusion. Thus, suspicionless policing activities should be backed by a legitimate public safety or regulatory justification that is both important and likely to be achieved through the program and, even then, should be authorized only if the public-safety benefits outweigh any negative impacts on privacy, dignity, property, and liberty. Before authorizing such actions, jurisdictions should consider whether there are suspicion-based alternatives that could achieve the same public-safety or regulatory objective in a manner that is less inimical to privacy, dignity, property and liberty interests. But they should also recognize that suspicionless policing activity, when implemented evenhandedly as required by these Principles, actually may be the less-intrusive option.
b. Sources of justification. As § 5.02 indicates, these types of assessments ideally would be carried out with public input. In addition to feedback from the public, expert assistance may be necessary. There is now considerable research on the efficacy of various suspicionless policing techniques such as checkpoints, drug testing, and camera surveillance. Policy-makers should consult these sources when carrying out the balancing required by this Section.
Reporters’ Notes
1. Justification as analyzed in the courts. In approving suspicionless searches and seizures under the “special needs” test, courts often have noted that alternatives based on suspicion are not likely to be effective, or that suspicionless actions are the only realistic means of achieving the government’s aims. See, e.g., Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 623 (1989) (considering whether “an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion”); United States v. Martinez-Fuerte, 428 U.S. 543, 557 (1976) (noting that “maintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border”); Camara v. Municipal Court, 387 U.S. 523, 535-536 (1967) (underscoring that “there is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimal standards required by municipal codes is through routine periodic inspections of all structures.”).
Still, courts have provided little guidance on how much evidence is needed to show that an important government interest is at stake or that a suspicionless program will be effective at dealing with it. In Chandler v. Miller, 520 U.S. 305, 319 (1997), the U.S. Supreme Court struck down a Georgia statute requiring candidates for high office to submit to a suspicionless drug test on the ground that there was no evidence in the record to suggest that the state’s concerns about candidate drug use “are real and not simply hypothetical for Georgia’s polity.” See also National Federation of Federal Employees-IAM v. Vilsack, 681 F.3d 483 (D.C. Cir. 2012) (invalidating suspicionless drug testing of federal employees working with at-risk youth in residential Job Corps programs and noting “the absence of a documented problem” of staff drug use). But in National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), the U.S. Supreme Court approved a drug-testing program aimed at customs agents despite similarly slim evidence that the program would address a significant problem. See id. at 683 (Scalia, J., dissenting) (noting that the record failed to show “even a single instance” in which drug use on the part of customs officials contributed to “bribe-taking, . . . poor aim, . . . unsympathetic law enforcement” or any of the other concerns that the government expressed (emphasis in the original)).
Further, when judges evaluate the justification for a particular program, they often balance the overall social necessity of the program against the intrusion to just one citizen. In Board of Education v. Earls, for example, the U.S. Supreme Court weighed the intrusiveness of urine testing for any given student against the school district’s interest in addressing drug use among all students. 536 U.S. 822, 831-832 (2002). Yet, in reality, many citizens are burdened by these suspicionless searches. See Friedman & Stein, supra, at 298 (describing this practice as akin to comparing “an apple to an orchard”).
2. How justification is determined. One reason courts have not been particularly adept at evaluating effectiveness, impact, and alternatives is that institutionally they are not in the best position to weigh social needs. Rather, at least in the first instance, the legislative and executive branches are best equipped to carry out the analysis called for by this Section. As a general matter, these branches have greater data-collection resources at their disposal, more flexibility in responding to changing circumstances, and more leeway to provide detailed policies than the judiciary. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 861 (2004). Further, governments often must make decisions on the basis of imperfect information, and it can take years for research to demonstrate whether a particular strategy is in fact effective at achieving its objectives. Compare Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 462 (1990) (Stevens, J., dissenting) (citing early studies suggesting that sobriety checkpoints were less effective than suspicion-based stops at reducing impaired driving) with Randy W. Elder et al., Effectiveness of Sobriety Checkpoints for Reducing Alcohol-Involved Crashes, 3 Traffic Injury Prevention 266 (2002) (reviewing 11 studies that showed substantial reduction in alcohol-involved crashes in jurisdictions that adopted checkpoint programs). Moreover, many of the costs of suspicionless policing activity—particularly intangible costs like individual privacy—may be difficult to measure. See Rachel A. Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U. L. Rev. 870, 902-903 (2015) (citing a variety of intangible costs associated with police intrusions and noting that such costs typically “are not reflected in existing assessments of the costs of policing or criminal justice policy.”).
These difficulties should not, of course, absolve government of the responsibility to make assessments as to need and efficacy as best as they are able. Jurisdictions should make an effort both to evaluate periodically the necessity and effectiveness of suspicionless programs, and to gather, when possible, additional data to enable more careful scrutiny of existing programs. Cf.Tracey Meares & Bernard Harcourt, Randomization and the Fourth Amendment, 78 U. Chi. L. Rev. 809, 848 (2011) (noting that, in some circumstances, hit rates can be used to evaluate the effectiveness of suspicionless search and seizure programs). State and federal entities like the National Institute of Justice and the National Academy of Sciences, as well as academic institutions, can help to support efforts at making intelligent use of statistical information. See, e.g., National Academy of Sciences: Proactive Policing: Effects on Crimes and Communities (2018) (consensus report on the efficacy and effects of hot-spot policing and other types of policing). It is important to note that, as the Comments to previous Sections point out, the legislative or executive balancing of law enforcement and citizen interests is not the last word. The Sections that follow cabin the implementation of statutory or regulatory policies about suspicionless policing activity in significant ways.