The Fixation on Individualized Suspicion

Hand in glove with the Court's probable cause doctrine is the individualized suspicion requirement. As the Court has stated, "A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. " n45 That precept is normally a wise one. But it cannot be honored when large groups of people are subjected to searches or seizures, like those that occur in connection with roadblocks, drug testing, public camera surveillance and data mining. In [*612] these latter situations, an individualized suspicion requirement would stop the government's investigation dead in its tracks.

One response to this situation is to adhere to the individualized suspicion requirement and simply prohibit group searches. But that solution is as "unreasonable" as the eradication of first-stage investigative techniques that would occur under a probable-cause-forever stance if thosetechniques were called searches. Group searches are an important means of keeping us safe, a fact even liberal justices recognize. The Court's approach, in contrast, has been to determine whether the group intrusion is a special needs situation.

If "ordinary law enforcement" is involved, as with narcotics roadblocks of the type at issue in City of Indianapolis v. Edmond, n46 the Court continues to require individualized suspicion, effectively curtailing any possibility of a group search. In contrast, in special needs situations, the Court has almost always been satisfied with the bland assertion by the government that the group search or seizure is meant to deal with an unquantified "problem," such as illegal immigration, drunk driving, business safety violations, or substance abuse among customs agents and school children.

n47 In other words, just as the probable-cause-forever dogma has encouraged a narrow definition of search, the individualized suspicion dogma has left the Court with no tools for dealing with group searches, with the result that it has essentially adopted a hands-off attitude toward them (and in doing so vastly expanded the opportunities for arbitrary and pretextual actions by the police). The proportionality principle counsels an intermediate approach, requiring what I call "generalized suspicion" for group searches.

Under this approach, group searches would be permitted, but only if there is reason to believe that the proportion of criminals likely to be so discovered roughly equals the hit rate associated with the intrusion involved. For instance, if the government wants to conduct full searches of everyone in a group, it should have to demonstrate the statistical equivalent of probable cause-i. e. , reason to believe that approximately one out of two of those searches will produce evidence of crime.

Similarly, large- scale data-mining that peruses personal records of identifiable individuals ought to be able to finger viable suspects approximately half the time, given the intrusion involved. On the other hand, a less onerous group search (e. g. , a frisk at a checkpoint) might only require a one-in-three hit rate-the statistical equivalent of reasonable suspicion-and an even less intrusive action (e. g. , a breathalyzer at a roadblock) would require a minimal statistical showing. n48

The generalized suspicion concept pours content into the reasonableness inquiry, which otherwise, as the Court applies it, either effectively prohibits group searches or permits government actions affecting thousands of people based on vague assertions of need. If the concept nonetheless strikes the reader as too technocratic or activist, consider the comments of Justice Scalia in his dissent in National Treasury Employee's Union v. Von Raab, n49 where the majority upheld drug testing of customs agents.

Scalia was livid about the holding, calling it "a kind of immolation of privacy and human dignity in symbolic opposition to drug use. " n50 Not normally associated with a fondness for detailed judicial oversight, Scalia nonetheless argued that the Court should have to find some "social necessity" before approving a drug testing program, and asserted that the majority provided no "real evidence of a real problem that will be solved by urine testing of Customs Service employees;" rather the majority's holding was based on "nothing but speculation, and not very plausible speculation at that.

" n51 In support of this point, he noted that only 5 agents out of 3600 Customs employees had tested positive for drugs. n52 In other words, even Scalia recognizes that some type of concrete justification is needed before courts affirm government intrusions. The difficulty, of course, is determining what sort of justification is necessary. Let us assume that drug testing deters and detects dangerous drug use. On that (big) assumption, would 100 positive tests have been enough to justify the drug testing program in Von Raab? Or would 30 have been sufficient? When is there "real evidence of a real problem?

" The proportionality principle, working in tandem with the generalized suspicion concept, provides a way to answer these questions. Assuming that the invasion associated with drug testing involving taking one's urine is akin to a full search, n53 the Court in Von Raab should have demanded that roughly half of the employees test positive in order to justify mass testing on a sustained basis. That number may seem high, but then so is the intrusiveness of urinalysis. n54 If one's intuition is still that a mass drug testing program should not be so easily frustrated, consider the scenario from another perspective.

Over 7% of the American population as a whole, and 19% of those between eighteen and twenty-five, have used illegal drugs in the past thirty days. n55 If one believes, say, that 100 positive tests in the Von Raab sample (3% of the total) represents a "real problem," then the Fourth Amendment would present no obstacle to nationwide drug testing (at least if one assumes that use of drugs by young adults can be just as dangerous as use of drugs by Customs agents). That result would be offensive to most, including, I would guess, the majority in Von Raab. In short, Fourth Amendment analysis should mimic rationality review "with bite. " ..

[I]t should also be recognized that the legislature may not adequately monitor executive agents or, pressured by moral panics or the lure of technology, itself might approve large-scale searches without serious deliberation. n58 Thus, the courts should, at the least, force the legislative and executive entities that are contemplating group searches to provide greater evidence of need than is currently required, a goal that is incoherent if individualized suspicion is the touchstone of analysis and that can only be realized if something akin to the proportionality principle, informed by the generalized suspicion concept, governs the inquiry.

The exigency principle also places limitations on group searches. As Scalia's comments in Griffin, noted in the previous section, indicate, the Court's special needs jurisprudence not only jettisons a warrant requirement, but appears to abandon all pretense of ex ante review. The exigency principle, in contrast, would require such review before all non-exigent group searches, special or not, just as is required when a single house, person, paper or effect is searched. The rationale for this ex ante review requirement is the same as it is when individual search and seizures are involved.

Justice Jackson famously defended warrants as a means of forcing "inferences [to] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. " n59 That rationale doesn't change simply because the government is no longer engaged in "ordinary" law enforcement. At the same time, the exigency principle does not pose the obstruction to law enforcement objectives that the probable-cause-forever and individualized suspicion requirements do.

Ex ante review would only be required when there is time to obtain it. Furthermore, when the justification requirement is below probable cause, as is often true with group searches, the second opinion does not have to come from a judge. For instance, school locker searches might be approved by principals, and public camera installation might be authorized by any high level, politically accountable official who is divorced from front-line law enforcement