Unwarranted, p.22
Unwarranted, page 22
For this reason, the stop at issue in Prouse was deemed invalid. “In terms of actually discovering unlicensed drivers or deterring them from driving, the spot check does not appear sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment.”34
So far, so good. But it was just at this moment that the Prouse Court took its own odd turn, holding that its ruling “does not preclude the State of Delaware or other States from developing” alternatives, one of which is the “[q]uestioning of all oncoming traffic at roadblock-type stops.” If the problem with the spot check of motorists like Prouse himself was that it was too intrusive given how unlikely it was to turn up a violation, weren’t these roadblocks only going to be worse? Now even larger numbers of people would be inconvenienced, with the same small chance of finding violations.35
Justice Rehnquist, dissenting from the Court’s ruling, was caustic in pointing out the illogic of Prouse: “Because motorists, apparently like sheep, are much less likely to be ‘frightened’ or ‘annoyed’ when stopped en masse” a patrol officer can “stop all motorists on a particular thoroughfare, but he cannot … stop less than all” of them. (Coincidentally, the case immediately after Prouse in the published Supreme Court decisions is called Leo Sheep Company v. United States.) This, he concluded, “elevates the adage ‘misery loves company’ to a novel role in Fourth Amendment jurisprudence.”36
Rehnquist seems right: taken at face value, Prouse was as strange as Camara. In just the way that the state’s interest in conducting housing inspections hardly seemed to qualify as “probable cause,” how could stopping all these people provide more cause than stopping one?
BACK TO FIRST PRINCIPLES
The peculiarity of Prouse and Camara slips away, though, when one recalls that a primary purpose of the Fourth Amendment is avoiding arbitrary, unjustified police intrusions into our lives. It is about limiting the unbridled discretion of officers—or the government itself—to pick and choose who gets searched. The justices in Prouse reminded readers that “[t]he essential purpose of the proscriptions in the Fourth Amendment is … ‘to safeguard the privacy and security of individuals against arbitrary invasions.’” This could hardly have come as a surprise: the justices said the same thing ten years earlier in Camara—in exactly the same words.37
This concern for arbitrary enforcement goes all the way back to the two eighteenth-century incidents (described in Chapter 5) that led us to have a Fourth Amendment in the first place. Arguing against the Writs of Assistance in 1761, James Otis put his finger on the problem, stating that permitting general searches would allow “[e]very man prompted by revenge, ill-humor, or wantonness to inspect the inside of his neighbor’s house … one arbitrary exertion will provoke another.” Across the pond, condemning the general warrants used to search John Wilkes’s property, Chief Justice Pratt—later Lord Camden—condemned the “discretionary power given to messengers to search wherever their suspicions may chance to fall.” There’s virtually no disagreement that a, if not the, chief purpose of the Fourth Amendment is preventing arbitrary, unjustified searches. Judges and scholars of the Fourth Amendment have said the like, over and over and over, without dissent from the proposition.38
When it comes to figuring out whether a search without cause is permissible, the concern for arbitrary and discriminatory policing is what should matter—and not the Supreme Court’s impenetrable distinction between “ordinary law enforcement” and the “special needs of law enforcement.” As both the Prouse and Camara Courts made clear, the sine qua non of official arbitrariness is allowing officers unfettered “discretion” to invade our lives and our property whenever the whim strikes. The harm of a warrantless home search in Camara was to “leave the occupant subject to the discretion of the officer in the field.” Similarly, the spot check at issue in Prouse represented the “kind of standardless and unconstrained discretion” that is “the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.”39
In light of the concern to avoid arbitrary enforcement, the seemingly bizarre solutions in Prouse and Camara all of the sudden make perfect sense.
In the ordinary case envisioned by those who wrote the Fourth Amendment, it is the twin requisites of probable cause and a warrant that provide the protection against standardless or arbitrary government action. Probable cause provides the reason for a particular search; it ensures that an officer is not arbitrarily or discriminatorily singling someone out. Then, the warrant ensures that the officer’s judgment as to cause is not biased by crime-fighting zeal (or anything else for that matter).
But because there is no suspicion—and thus no probable cause—in housing inspections and license and registration spot checks, the Supreme Court had to come up with a new means of ensuring that the government was not singling out people for no good reason. The Camara Court solved this problem by requiring housing inspectors to show some regular plan for choosing who got searched and who did not. The “cause” justifying a safety inspection was area-wide rather than individual. If an area was dilapidated, or had not been searched in a long time, or had a particularly tricky set of structures, this would be enough “cause” to justify the search—precisely because it avoided the possibility of the inspectors targeting someone out of thin suspicion, whim, or malevolence. (And, it is worth noting, the justices also required a warrant by a neutral magistrate, in order to confirm this.)40
The Prouse Court’s choice—subject obvious violators to traffic stops, or stop everyone at roadblocks—makes sense for the same reason. Yes, a checkpoint seems to be a greater intrusion for not much higher odds of finding violators. But it also ensures that no one is being arbitrarily, or discriminatorily, treated to the state’s use of force. “At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority.” 41
TWO TYPES OF SEARCHES
Once we see that in Prouse and Camara the justices were putting in place safeguards to prevent arbitrary policing (and its cousins: unjustified and discriminatory policing), we can see that in truth there are two very different kinds of searches, each requiring its own sort of protection: searches that are suspicion-based, and those that are suspicion-less.
Television shapes the typical image of what the police do. In most television shows, the police are after a particular suspect for a particular crime. Police are investigating a violation of the law that has either occurred or is about to occur. The police may know the suspect, but in many cases they are trying to track him (or her) down based on some leads. Think here of Brenda Lee Johnson in The Closer, or Jack Webb in Dragnet, or CSI: Crime Scene Investigation in its many incarnations. In doing their job, the police engage in all kinds of things we might call searches, from looking for information on the Internet or in a police database, to taking fingerprint or DNA samples, to busting down the door of a suspect’s house (hopefully with a warrant).42
The distinguishing characteristic of this sort of investigative search is that it is suspicion-based. The police have cause to believe that some particular person, known or unknown, has committed or is about to commit some specific crime. And the police are trying to discover the facts and put the culprit away.
But in much of the policing we’ve been discussing in this chapter, the police are doing something entirely different. They aren’t investigating to catch a particular suspect; they are for the most part trying to keep there from being a suspect in the first place. That’s what’s going on with the searches in airport security. It is not that we put the TSA officers there to look for a bomb in a suitcase (though assuredly they are—and if they find one the person is surely going to prison). Instead, we spend an untold fortune on such elaborate security in the hope that people will simply leave their agents of destruction at home. The same sort of thing is going on with drunk-driving roadblocks. Yes, if a drunk wanders through then the police are going to get them off the road. But the real reason for the roadblocks—and the publicity that always accompanies them—is to discourage people from getting behind the wheel of a car in the first place. (Studies suggest this strategy is successful.)43
What distinguishes this second sort of search is that there is no cause whatsoever. Because the purpose of the search is deterrence—trying to get people to behave in the first place—there is no suspect and thus no suspicion. A wide swath of society is subjected to policing in order to make people think twice before violating the law.44
Suspicion-less v. suspicion-based searches. It doesn’t matter whether the police are searching for “ordinary law enforcement” or “special needs.” What matters is whether they have suspicion.
TWO TYPES OF PROTECTIONS
Once we see that there are two very different types of searches, it becomes equally apparent we need two different sorts of protections against government arbitrariness. What works for one simply will not work for the other. That’s what the Supreme Court understood when it decided Camara and Prouse, but then seems to have forgotten when it went in a whole new direction with its unworkable approach in the Edmond case involving the Indianapolis roadblocks.
Avoiding Arbitrariness I: Cause-Based Searches
When the police search with suspicion, the protection is obvious. The Fourth Amendment tells us exactly what is needed: probable cause and a warrant. Probable cause ensures there is enough suspicion to single someone out for a search; the warrant confirms the police have it right. And if a search is suspicion-based, but there is inadequate suspicion, then we have the danger of arbitrariness the Fourth Amendment was written to guard against.45
The problem of failing to distinguish suspicion-based v. suspicionless searches is seen in a Supreme Court case that looked remarkably like the one that opened this chapter, only the junkyard owner in this case was named Burger, not Bruce. Burger owned an auto junkyard in New York City. One day the administrative inspectors, who also happened to be police officers, showed up at Burger’s junkyard ostensibly conducting an administrative search. They asked to see his license and the book in which he was supposed to log all the cars and parts on the lot. Burger straight off told the police he had neither: he admitted he was operating illegally. At that point the police searched the junkyard, and Burger ultimately was convicted for dealing in stolen vehicles.46
On appeal, Burger complained (among other things) that the police didn’t have a warrant to search his junkyard. The Supreme Court responded, in a complete non sequitur, that warrantless administrative searches were necessary to achieve an element of surprise. (After all, search warrants are executed all the time by surprise.)47
The justices realized, though, that absent a warrant some “constitutionally adequate substitute” was necessary. They identified three that in their view made everything fine. First, New York law only allowed searches during daylight. Second, it put licensed junkyard owners on notice that they could be searched. And finally, it limited the scope of the search: inspectors could only look at records and vehicles.48
Note how none of those supposed “safeguards” mentioned by the justices is designed in any way to protect against the evil underlying the Fourth Amendment: the police using their unlimited discretion to arbitrarily single out whom to search. Not one of those so-called protections avoids the police picking on someone for the wrong sort of reason or no reason at all.
There’s a telling footnote at the start of the Burger decision that tips readers off to the real problem here. “It was unclear from the record why, on that particular day, Burger’s junkyard was selected for inspection.” That turns out to be a darn good question. The justices simply shrugged it off, saying, “The junkyards designated for inspection apparently were selected from a list of such businesses compiled by New York City police detectives.” But that can’t possibly be correct. After all, recall that when the cops showed up at Burger’s junkyard, he told them right off that he wasn’t licensed. Without a license, he wouldn’t be on any official list of licensees subject to administrative searches. Right?49
Aha. Now we can pretty much guess why the police showed up at Burger’s junkyard that day: they must have gotten a tip of some sort—like Shaikh’s story to the Orange County cops about Bill Bruce and the stolen Mustang—that made them want to search Burger’s junkyard. The search of Burger’s junkyard—just like Bruce’s—was a suspicion-based search. It was not a suspicionless administrative search.
What we don’t know, and will never know, is whether the suspicion that the police had in Burger’s case added up to probable cause. If there was probable cause in Burger’s case, then a warrant would have made all fine. But if there was not probable cause, we are back to our old evil: the danger of arbitrarily picking and choosing whom to search.
You might respond, “So what, they got the bad guy, what could be wrong with that?” But this is precisely the problem we dealt with last chapter. If the police were always this good, then maybe we would decide to live with their supernatural powers of ferreting out crime. Of course, if they were that good, and honest about it, we would not need to worry about unjustified, or discriminatory, or arbitrary searching in the first place.
The problem is that, as we saw, the police are often wrong about their hunches, their searches on insufficient cause. Justice Jackson made precisely this point in the Brinegar case that defines probable cause: “There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear.” That’s what we have seen time and again: police searches on less than probable cause are often altogether wrong. And when the police are wrong, then innocent people—like Bill Bruce—pay the price.50
The Constitution is completely clear about the protections for cause-based searching. Warrants and probable cause. The Supreme Court watered these protections down when it allowed stop-and-frisk on “reasonable suspicion.” That alone was problematic—and in the last chapter we explored the fix for that particular problem. But in allowing searches of places like Burger’s junkyard on some undefined suspicion, without any protection against arbitrariness, the justices have gone seriously awry.
Avoiding Arbitrariness II: Suspicionless Searches
What, then, to do about suspicion-less searches? If the search of Burger’s or Bruce’s junkyards had been a true regulatory or deterrent search, it would have made zero sense to require probable cause. There would not have been any. We don’t have suspicion that any given person in line at airport security has a weapon, or that any driver at a drunk-driving roadblock was drinking.
Some people would prohibit suspicionless searches altogether, viewing them the sort of “general searches” the Framers abhorred. But is it really true we can’t have airport security or sobriety roadblocks or bulk data collection, for that matter? That seems to be cutting off our noses to spite our faces.51
The alternative is to have some protection—other than cause—to avoid arbitrary, unjustified, discriminatory searches. And at this point we know exactly what that other protection is.
The answer is you subject everyone to the same treatment. In that way the risk of arbitrary, discriminatory searches disappears. That’s what the Prouse Court was saying about roadblocks, and that’s pretty much what happens (or should happen) at airports.52
Of course, searching everyone can get prohibitively expensive, but there is yet another option available in many circumstances: selecting who gets searched in a truly random way. In Prouse, Justice Harry Blackmun joined in the Court’s decision but wrote separately to point out it was not necessary to stop every car at a checkpoint. It would be perfectly fine to stop every fifth car or every tenth car. If people knew that the police were using roadblocks, this would serve as enough of a deterrent. And from there what matters is only that the police are not picking and choosing based on some possibly illegitimate basis. Random selection does that.53
While randomness can help bring down the cost of a regulatory search, and is often appropriate, it is at least worth making the pitch for searching everyone, at least on some occasions. Very broad searches can help solve the problem of knowing whether a suspicionless search is worth the bother. Think about it. With suspicion-based searches we get some measure of what works by looking at the “hit rate”: the number of times the police come up with the goods. But (and this is a point the Supreme Court has altogether missed) in suspicion-less searches, low hit rates are more likely, and perhaps better, than high ones. That is because the purpose of these suspicionless searches is deterrence. We are trying to keep people from violating the law, so in a successful use of such searches we may have a very low hit rate—i.e., it works. But then, how do we know whether inconveniencing people with this sort of suspicionless search is worth it? It turns out that inconveniencing a lot of people actually helps. Misery does indeed love company.54
First, if the government is forced to search everyone, and bear the cost of doing so, we will know the government truly believes this form of deterrence is worth the cost. Think about airport security, which is unfathomably expensive. The TSA has a huge budget, money that could be spent on many other antiterrorism approaches. Budgets are not unlimited; choices must be made about what deterrent measures are sufficiently efficacious to make them valuable. The public does not always have a basis for knowing what’s worth it or not, but the fact that the government is forced to make these choices provides some guarantee that it has at least considered alternatives and decided this particular intrusion into everyone’s life makes sense.
