Suspicionless policing activity should neither exceed the scope of the authorization that is required under § 5.02 nor exceed the justification for that authorization that is required under § 5.03.
Comment:
a. Pretext prohibition. A final concern is that the agency or individual officers may use a suspicionless program to pursue objectives other than those associated with the program itself. For instance, police have been known to use license-and-registration checkpoints for the actual purpose of searching vehicles for drugs, relying either on drug-sniffing dogs or consent as a basis to search. Agencies also have used health-code and license inspections to look for evidence of drugs or other criminal activity on the basis of tips or hunches that would fall short of the probable cause necessary to conduct a suspicion-based search. These types of pretextual actions create an incentive to conduct policing activities beyond the scope of the authorized policy, undermine the legitimacy of law-enforcement agencies, and increase the likelihood that the program is not justifiable either as a legal or policy matter.
This Section’s prohibition on such actions is consistent with U.S. Supreme Court precedent. The Supreme Court has made clear that although pretext arguments are not relevant when a search and seizure is based on individualized suspicion, they are relevant when such suspicion is lacking, precisely because the constraint imposed by the suspicion requirement is absent. This Section is designed to curb such practices by requiring that agencies implementing a suspicionless regime refrain from methods or actions that venture beyond what is necessary to effectuate the stated purpose of the policy. This Section also follows from § 2.04(b)’s prohibition of pretextual policing “as a general strategy.”
b. Nature of inquiry. The language in this Section contemplates an objective inquiry, focused on whether the conduct of the government is consistent with the written policy required under § 5.02, and not on any particular official’s subjective motivation for sanctioning or carrying out a purportedly suspicionless action. A checkpoint set up to check licenses should not involve drug-sniffing dogs. A business inspection should not stray into private offices unless relevant papers are there. Blood taken for a drug test should be tested only for the presence of drugs.
However, this Section does not rule out any of these actions if they are authorized pursuant to § 5.02. The point simply is that suspicionless enforcement and public-safety actions should be so authorized, and police officials should not act outside the scope of their authorization. In some circumstances, the Fourth Amendment permits people or entities subject to a suspicionless action to demand proof of such authorization via an administrative warrant or subpoena; in any event, policing officials should always explain the source of their authority and its scope.
Reporters’ Notes
1. Goal. The goal of this Section is to reinforce the authorization requirement of § 5.02 and to ensure that agency action does not exceed the scope of the authorization. When conducting suspicionless policing activity, it is inappropriate to circumvent the political-authorization process. If officials obtain authorization under the guise of furthering one set of interests, but in fact pursue a different set of goals, authorization is lacking, and the public or authorizing entity may not have seen the secondary purpose as sufficiently weighty to justify what actually is occurring.
2. Pretext. The use of suspicionless searches and seizures as a pretext to accomplish other goals is well documented. For example, license-and-registration checkpoints have been used to facilitate the use of drug-sniffing dogs or to seek consent from motorists to conduct a search for drugs. See Brooks Holland, The Road ‘Round Edmond: Steering Through Primary Purposes and Crime Control Agendas, 111 Penn St. L. Rev. 293, 312 (2006) (documenting use of license checkpoints to facilitate use of drug-sniffing dogs); see also United States v. Moreno-Vargas, 315 F.3d 489, 490 (5th Cir. 2002) (drug dogs present at immigration checkpoint); United States v. Davis, 270 F.3d 977, 979-980 (D.C. Cir. 2001) (license-and-registration checkpoint set up in neighborhood based on tips of drugs, guns, and assaults in the area); United States v. McFayden, 865 F.2d 1306, 1312 (D.C. Cir. 1989) (license-and-registration checkpoint set up as part of “Operation Cleansweep”, a drug-interdiction program). Business inspections have been used as a pretext to look for evidence of ordinary criminal activity, typically on the basis of tips or hunches that fall far short of probable cause. See, e.g., Gordon v. City of Moreno Valley, 687 F. Supp. 2d 930 (C.D. Cal. 2009) (inspections of African-American-owned barber shops included warrant checks of patrons and employees); Berry v. Leslie, 767 F.3d 1144 (11th Cir. 2014), opinion vacated for rehearing en banc, 771 F.3d 1316 (11th Cir. 2014) (SWAT team used to conduct “administrative inspection” of African-American-owned barber shop, which included warrant checks and extensive searches of storage areas where no barbering services were performed); Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995) (SWAT team used to conduct “administrative inspection” of nightclub based on a tip of potential drug activity).
The U.S. Supreme Court has recognized the risk of pretextual searches in suspicionless search and seizure cases. For instance, in City of Los Angeles v. Patel, it expressed concern that the hotel-inspection ordinance in question “creates an intolerable risk that searches authorized by it will . . . be used as pretext to harass hotel operators and their guests.” 135 S. Ct. 2445, 2552-2553 (2015); see also Wyman v. James, 400 U.S. 309, 321 (1971) (noting that “nothing [in the record] supports an inference that the desired home visit had as its purpose the obtaining of information as to criminal activity.”). In some cases, the Court even has suggested that, in contrast to pretextual searches based on suspicion, pretextual suspicionless searches are unconstitutional. Cf. Kentucky v. King, 563 U.S. 452, 464 (2011) (noting that an officer’s motives arerelevant in connection with inventory searches and administrative inspections, which are paradigmatic suspicionless searches); Whren v. United States, 517 U.S. 806, 811 (1996); Florida v. Wells, 495 U.S. 1, 4 (1990); New York v. Burger, 482 U.S. 691, 716-17 n. 27 (1987). As Patel suggests, failure to restrict pretextual searches and seizures not only creates a temptation to use a search or seizure program as a means of pursuing unauthorized objectives, but also gives agencies an incentive to search particular individuals or entities more often than they otherwise would. In Patel, as in several earlier cases, the Court recognized that “absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” 576 U.S. at 409 (citing Camara v. Municipal Ct. of City & Cnty. of San Francisco, 387 U.S. 523, 534 (1967) and Donovan v. Lone Steer, 464 U.S. 408, 415 (1984)).
3. Purpose of search. This Section ensures that suspicionless policing activities are conducted solely for the purposes stated in the written policy by making clear that the method of carrying out the suspicionless actions must be limited to that which is necessary to carry out the regulatory program at issue. For example, this Section would preclude officers from conducting warrant checks of employees and patrons—as was the case in Gordon—because such warrant checks are unrelated to the licensing statutes that the inspections were meant to enforce. Similarly, this Section would preclude searching areas of a business—such as storage rooms and private offices—unless these areas contain paperwork or equipment that is subject to regulation. It also would prohibit deploying drug-sniffing dogs or obtaining consent to search cars for drugs at a “sobriety” checkpoint unless searches for drugs also were authorized specifically by the relevant policy. This Section does not require exploration of an officer’s subjective motives for carrying out a suspicionless search or seizure. But it does require analysis of whether government officials used methods or engaged in actions that were inconsistent with the avowed purpose of the search.
4. Reasonableness of search. A number of courts have endorsed a similar principle in evaluating the reasonableness of suspicionless searches and seizures. See, e.g., Berry, 767 F.3d at 1153, vacated for rehearing, 771 F.3d at 316 (raid violated Fourth Amendment because it far exceeded in scope that which was necessary to enforce licensing regulation);United States v. $124,570 U.S. Currency, 873 F.2d 1240 (9th Cir. 1989) (holding that an airport screening that went beyond looking for dangerous items violated the Fourth Amendment); see also, United States v. Albarado, 495 F.2d 799 (2d Cir. 1974) (holding that if a person alerts a magnetometer at the airport he or she should be asked to remove metal items rather than be subject to a frisk); State v. Heapy, 151 P.3d 764, 767 (Haw. 2007) (use of chase car to stop motorists who turned off the road prior to sobriety checkpoint exceeded the authorized scope of the program at issue); State v. Baldwin, 475 A.2d 522, 526 (N.H. 1984) (“question posed to the defendant while she was stopped at the road check, as to whether she had any weapons, clearly exceeded the scope of any permissible road check to determine compliance with fish and game laws.”). To the extent that courts have at times permitted suspicionless searches and seizures that exceed the scope of the written policy or legislative authorization, these decisions would not be consistent with this Section. See, e.g., United States v. Machuca-Barrera, 261 F.3d 425, 432 (5th Cir. 2001) (basing an assessment of whether a border stop regarding citizenship status was ultra vires on its duration rather than “the questions asked”); United States v. Espinosa-Cerpa, 630 F.2d 328, 334 (5th Cir. 1980) (holding that even when the statute invoked to justify boarding a vessel authorizes safety and documentation inspections, that authority “permissibly extends to boarding to look for obvious customs and narcotics violations”); Lujan v. State, 331 S.W.3d 1668 (Tex. Ct. Crim. App. 2011) (upholding a license checkpoint despite the presence of drug-sniffing dogs); McCray v. State, 601 S.E.2d 452 (Ga. 2004) (same).