Barry Friedman and Cynthia Benin Stein
84 Geo. Wash. L. Rev. 281
How should the Constitution govern police surveillance and investigations? Once, the formal rules were clear, even if not faithfully observed: searches and seizures required probable cause and a warrant. Today, how- ever, the Supreme Court has said that many forms of police activity need only be “reasonable.” But what is required to ensure that policing is “reasonable”? This question has become all the more pressing and perplexing as policing has shifted from a reactive, investigative approach that centers on suspicion that a particular person has committed a particular crime to a more programmatic, deterrent approach that relies on searching and seizing people without any suspicion of wrongdoing. In numerous contexts today—among them the use of drones, stop and frisk, bulk data collection, DNA testing, and a myriad of other controversial activities—the government justifies warrantless and often suspicionless surveillance by applying a mushy reasonableness balancing test. Courts, commentators, politicians and police all are at a loss to know precisely what is, or should be, required.
This Article argues that matters can be simplified greatly by focusing not on the policing technique at issue, but on the protections that ensure against the use of arbitrary police discretion. Whatever else the Fourth Amendment safeguards, there is widespread agreement that it is a protection against arbitrary and unjustified government intrusion. Policing has a binary nature to it. Policing agencies engage in two types of searches: (1) They investigate, based on individualized suspicion (“cause”) to believe a person has committed a crime; and (2) they engage in suspicionless searches that seek, in a programmatic or deterrent way, to curb a social problem and prevent criminal conduct. The categories themselves are not, nor are they meant to be, airtight. Rather, what is clear are the protections necessary to safeguard liberty in each of the two circumstances. In every instance, government must be prepared to answer the question of why it has singled out a particular individual or group for attention. In the context of investigative, suspicion-based searches, the requirement of probable cause performs this function. It explains why the police are searching one person, not another. But cause makes no sense with regard to programmatic or deterrent searches—such as airport security or sobriety roadblocks—where there is no “suspect,” and thus no suspicion. Here, instead, the safeguard is generality—either we are all searched, or who gets searched is decided in a truly random or otherwise indiscriminate way. And if the government wants to search a subset of the population, standard Equal Protection Clause analysis, which typically is ignored in the area of policing, provides the proper rubric for asking whether singling out one group, but not another, is justified.
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