Suspicionless Searches Research Articles

Certain Certiorari: The Digital Privacy Rights of Probationers

In a recent oral argument, a judge on the California Court of Appeal told me they had “at least 50” pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices. As counsel of record in three of the cases, I feel positioned to comment on this hot topic within criminal law. My intention here is less to reconcile California’s cases on suspicionless searches of probationers’ digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose. Specifically, the Court is bound to hear whether Riley v. California—its 2014 ruling excluding content found on digital devices in warrantless searches of arrestees’ grab-area—applies to probationers. David Riley’s case arose out of his 2009 arrest by San Diego police, who had lawfully found firearms under the hood of his car. Incident to Riley’s arrest, police found evidence of his gang membership in a search of his cell phone, which placed itself at an unsolved shooting. Riley’s subsequent convictions were based on that evidence, which he sought without success to exclude until the Supreme Court reversed in Chief Justice Roberts’s hommage to cell phones—life-altering instruments which a “visitor from Mars might conclude were an important feature of human anatomy.” Riley has since been cited over 3,000 times as a Fourth Amendment tract that privileges the “privacies of life” over the “often competitive enterprise of ferreting out crime.” But what, exactly, are Riley’s implications? Is it just a technical ruling on the privacy interests only of arrestees, with no specific applicability to post-conviction phases of criminal cases? Because the Court’s most on-point precedents—one involving a probationer (United States v. Knights), the other a parolee (Samson v. California)—indicate no stance on Riley’s applicability beyond the arrest context, California courts improvidently consider those precedents legal non-events. One way or another, the Court will inevitably settle the matter itself, almost certainly within one of the seven electronics-conditions cases now on review in the California Supreme Court. This Essay details why and how.

Can We Curate It? Why Luggage and Smartphones Merit Different Treatment at the United States Border

The Fourth Amendment protects against unreasonable searches and seizures. At the United States border, however, sovereignty interests—namely who and what enters the country—allow for warrantless searches of property without probable cause. This Note explores the reach of the border exception to one category of property: electronic devices. At present, circuit courts disagree over what level of suspicion—no suspicion or reasonable suspicion—applies to forensic searches of electronics. Courts do agree that manual searches, performed without the assistance of external equipment, merit no suspicion at all. The suspicion gap between manual and forensic searches reflects an assumption that all manual searches are cursory and hence violate a device owner’s privacy less than a forensic search. This Note argues that the existing line between forensic and manual searches should be reimagined; instead, electronic devices, such as smartphones, should be separated out from other electronic devices, such as cameras, and be subject to a reasonable suspicion standard irrespective of the nature of the search, forensic or manual. Redrawing the line between devices themselves recognizes that certain electronics (e.g. cameras) are more analogous to traditional luggage and therefore should receive the same treatment at the border where suspicionless searches are permitted. Like luggage, one can curate these devices: it is possible to know and choose what is inside. As the attenuation of the link between the device in question and traditional luggage expands, so too should the suspicion required. Smartphones and like devices should not be searched without reasonable suspicion. Finally, this Note concludes by recommending that the Customs and Border Protection directive, subject to review and modification every three years, be revised to distinguish between the two groups of electronic devices and account for the privacy concerns unique to the smartphone and related devices group.

Fourth Amendment Fairness

Fourth Amendment doctrine is attentive to a wide range of interests, including security, informational privacy, and dignity. How should courts reconcile these competing concerns when deciding which searches and seizures are “unreasonable”? Current doctrine typically answers this question by pointing to interest aggregation: the various interests at stake are added up, placed on figurative scales, and compared, with the goal of promoting overall social welfare. But interest aggregation is disconnected from many settled doctrinal rules and leads to results that are unfair for individuals. The main alternative is originalism; but historical sources themselves suggest that the Fourth Amendment calls for new moral reasoning. This Article argues that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” is best understood, at least in large part, as a requirement that police investigation be fair in the sense of being authorized by principles that no rights holder could reasonably reject. This approach is inspired by “contractualist” moral philosophy and has several advantages. It tracks widely held moral intuitions, comports with the Fourth Amendment’s historical meaning, and resonates with underappreciated currents in extant case law. In attending to the perspectives of individuals, contractualism generates rights that are not subject to interest aggregation. At the same time, contractualism suggests a principled way to address new Fourth Amendment questions, consistent with courts’ institutional role. A contractualist approach to Fourth Amendment fairness suggests many ways to refine or reform current doctrine. In terms of refinements, the contractualist approach gives moral content to the notion of “individualized suspicion” by showing when searches and seizures can be justified by a principle of individual responsibility. Contractualism also draws attention to other justifying principles, such as a protection principle, and so explains how and when suspicionless searches and seizures are reasonable. Finally, the contractualist approach identifies areas where current Fourth Amendment doctrine is decidedly unfair and ripe for reform, such as when courts limit rights to avoid diffuse litigation costs, overemphasize “reasonable expectations of privacy,” and ignore the unreasonableness of racial discrimination.

The Rise and Fall of Suspicionless Searches

This paper examines the extraordinary rise and fall of ‘suspicionless searches’ in England and Wales. Police powers to stop-and-search people in public places without any suspicion of wrongdoing we...

Section 60 and the Supreme Court

Unlike many other statutory stop and search powers, s. 60 of the Criminal Justice and Public Order Act 1994 allows for suspicionless searches in certain circumstances. Although originally intended for use in relation to football-related violence, the power has often been exercised in connection with knife crime and gang violence. Despite controversy surrounding its use, the s. 60 power has rarely featured in legal proceedings. Accordingly, this article considers a legal challenge brought against the power which has now been heard in the Divisional Court, the Court of Appeal and the Supreme Court. The unanimous view of each court that s. 60 is compatible with the ECHR is significant. However, it need not necessarily be the last judicial word on the matter.

The Rise and Fall of Suspicionless Searches

This paper examines the extraordinary rise and fall of police powers to stop-and-search without suspicion in public places in England and Wales. Suspicionless searches – authorised by s.60 Criminal Justice and Public Order Act 1994 and s.44 Terrorism Act 2000 – rose to a peak of 360,000 in 2009 and then declined radically to fewer than 1,000 in 2015. The paper seeks to explain changes in the use of suspicionless search powers drawing on a theory of the relationship between law and policing by examining the police ‘working environment’ comprised of three structures: law, politics and work. The paper concludes with a consideration of attempts to reform stop-and-search powers and the implications for the future of suspicionless searches.

Maryland v King: Terry v Ohio Redux

Previous articleNext article No AccessMaryland v King: Terry v Ohio ReduxTracey MaclinTracey Maclin Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 20132013 Article DOIhttps://doi.org/10.1086/675345 Views: 175Total views on this site © 2014 by The University of Chicago. All rights reserved.PDF download Crossref reports no articles citing this article.

Suspicionless Searches of Public School Students: An Empirical Legal Analysis

This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by schools officials to prevent school crime: random, suspicionless searches of students’ belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a substance abuse or weapons problem. Second, it provides a normative evaluation of strict security measures in schools, especially when they are applied disproportionately to minority students. Third, drawing on recent restricted data from the U.S. Department of Education’s School Survey on Crime and Safety, this Article provides empirical findings that raise concerns that some public schools may be conducting unconstitutional searches of students’ belongings. In addition, it shows that these potentially unconstitutional searches are more likely to take place in schools with higher minority populations than in schools with lower minority populations, even after taking into account school officials' perceptions of the levels of crime where students live and where the school is located. Finally, this Article argues that the Supreme Court should resolve any ambiguity in its jurisprudence by expressly requiring school officials to have particularized, objective evidence of a substance abuse or weapons problem before permitting schools to perform these intrusive searches.

Comments on Three Recent Fourth Amendment Articles

This document combines short comments about three recent articles discussing Fourth Amendment issues. An Original Take on Originalism, published in Harvard Law Review Forum, is a comment on Orin Kerr’s An Equilibrium-Adjustment Theory of the Fourth Amendment, recently published in Harvard Law Review. Professor Kerr argues that Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. Contrary to Professor Kerr’s assertion, however, his equilibrium-adjustment theory does not easily explain many of the Court’s cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are often shaky or insufficiently cognizant of modern preferences. At bottom, equilibrium-adjustment theory is originalism, and thus suffers from all of the problems associated with that methodology.The Implications of Disentanglement, published in Columbia Law Review Sidebar, is a response to Eve Brensike Primus’ recent article in Columbia Law Review, Disentangling Administrative Searches. Professor Brensike Primus argues that the Supreme Court’s so-called “administrative search cases” in fact comprise two separate strands, the first focused on “dragnets” that involve area or group searches and the second dealing with searches of people belonging to “special populations” that are associated with a lesser expectation of privacy. Thus, she argues, the Court’s recent tendency to lump these two types of searches together under its “special needs” rubric is misguided, and it should instead return to its traditional presumption against suspicionless dragnet searches and a multi-factor reasonableness analysis when dealing with special population searches. This response agrees with the entanglement thesis, but contends that it is overstated. More importantly, it disagrees with Professor Brensike Primus’ prescriptions for dealing with the two types of searches.Why Crime Severity Analysis Is Unreasonable, published in the Iowa Law Review Bulletin, is a critique of Jeffrey Bellin’s article, Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, which recently appeared in Iowa Law Review. Professor Bellin argues that the severity of the crime under investigation ought to be taken into account in assessing both the reasonableness of searches and whether a government action is a search in the first place, in the hope that courts will impose more restrictions on searches in cases involving minor crimes once they realize those rules will not handcuff investigations of serious crimes. A more likely result of taking crime severity into account, however, is that courts will apply the warrant baseline to minor crimes and ratchet protections downward when law enforcement goes after people suspected of being terrorists, murderers, rapists and robbers. Enforcing already-existing search incident and particularity doctrine, limiting consent as a basis for searches, and explicitly recognizing a narrowly-limited danger exception would be a safer way to accomplish the goals motivating Professor Bellin’s proposals.

Keeping the Poor in Their Place: A 'Special Need' Under the Fourth Amendment for Mandatory Drug Testing of Welfare Recipients?

In July 2011 Luis Lebron applied to the Florida Department of Children and Families for benefits under the federal Temporary Assistance for Needy Families (TANF) program. Lebron maintains that he has never used illegal drugs, and there is no reason to believe otherwise. Nonetheless, the state of Florida required that he submit to a drug test, paid for at his own expense, as a condition of his eligibility for TANF benefits under Florida’s recently enacted House Bill 353, Drug screening for applicants for Temporary Assistance for Needy Families (HB 353). Lebron refused to submit to the test because he believed that requiring him to pay for and take a drug test when there is no reason to suspect he does now or ever has used drugs violates his rights under the Fourth Amendment to keep his bodily contents private.HB 353 requires any person seeking welfare benefits to pay for, to take at an approved location, and to pass a comprehensive drug test. Florida governor Rick Scott, saying that it was “unfair for Florida taxpayers to subsidize drug addiction,” signed HB 353 into law on May 31, 2011. The law took effect on July 1, 2011. Those who fail are ineligible for benefits for one year. This Note contends that HB 353, by broadly assuming that all people seeking welfare are predisposed to drug abuse, violates the Fourth Amendment’s prohibition on unreasonable searches and seizures. Valid searches under the Fourth Amendment must either be based upon individualized suspicion or mandate a “special needs” exception; Florida’s law satisfies neither requirement.Part I of this Note discusses the federal TANF program, its transition to a state-controlled block-grant program in the 1990s, and Florida’s history of drug testing welfare recipients that led to the passage of HB 353. Part II establishes that urinalysis drug testing is a search under the Fourth Amendment. Part III looks to the historical roots of the Fourth Amendment and the foundational importance that Britain’s use of unreasonable searches played in bringing about the American revolution. Part IV traces the history of the Supreme Court’s “special needs” exception to the general requirement of individualized suspicion for reasonable searches. Finally, in Part V, the Note analyzes the Supreme Court’s jurisprudence and contends that the state of Florida cannot claim a “special need” for its policy of universal suspicionless searches.

Mandatory Steroid Testing of High School Athletes: A Synthesis of State Initiatives and Federal Constitutional Rights

In an effort to protect schoolchildren from sacrificing their health for steroid-induced athletic grandeur, some states have experimented with laws implementing suspicionless drug testing of student athletes. These laws leave open several avenues for legal challenges to be brought through the prohibitions against unreasonable search and seizure found in the Fourth Amendment to the United States Constitution. Such drug testing laws, both current and future, should align the policy goals of the initiatives with the constitutional framework of the United States Supreme Court’s Fourth Amendment jurisprudence as it specifically relates to suspicionless drug testing of schoolchildren. To assist those interested in such initiatives, the authors have attempted to synthesize the state initiatives with the federal constitutional restraints upon suspicionless searches conducted by public school officials.

Mandatory Steroid Testing of High School Athletes: A Synthesis of State Initiatives and Federal Constitutional Rights

In an effort to protect schoolchildren from sacrificing their health for steroid induced athletic grandeur, some states have experimented with laws implementing suspicionless drug testing of student athletes. These laws leave open several avenues for legal challenges to be brought through the prohibitions against unreasonable search and seizure found in the Fourth Amendment to the United States Constitution. Such drug testing laws, both current and future, should align the policy goals of the initiatives with the constitutional framework of the United States Supreme Court’s Fourth Amendment jurisprudence as it specifically relates to suspicionless drug testing of schoolchildren. To assist those interested in such initiatives, the authors have attempted to synthesize the state initiatives with the federal constitutional restraints upon suspicionless searches conducted by public school officials.

Sometimes You Have to Go Backwards to Go Forwards: Judicial Review and the New National Security Exception to the Fourth Amendment

National security concerns have historically provided a strong basis for non-justiciable Executive Branch action; however, post 9/11, such actions have grown to encompass a greater number of American citizens' civil liberties. The federal judiciary's deferential treatment of national-security related conduct, particularly in the realm of suspicionless searches, occurs with dangerous frequency, and any semblance of meaningful review has been nearly eviscerated. The stakes involved in national security are weighty and, in many instances, present the courts with an artificial choice: uphold a potentially over-zealous suspicionless-search program but avoid danger, or strike down such a program in favor of civil liberties only to risk causing mass tragedy. Instead of being confined to two extreme choices, the courts should instead implement a more robust review process akin to the federal courts' institutional reform practice in the school desegregation and prison reform cases, which would allow remedial flexibility with programs that are constitutionally problematic. Using the suspicionless-search program instituted in July 2005 by the New York City Police Department as a sample, this paper demonstrates the way in which the courts could structure such remedial decrees to monitor and maintain a program's constitutionality. In lieu of creating yet another exception to the Fourth Amendment, the federal courts should heed the lessons from their own experience to avoid the potentially limitless extension of a new national security exception into civil liberties.

The constitutionality of random drug and alcohol testing of students in secondary schools

Adolescent drug and alcohol use is a major public health problem. Multiple studies indicate that substance use is a risk factor for physical and mental disorders in adolescents. Secondary schools and the communities they serve have been facing a long-standing problem of substance abuse. American adolescents have become quite accustomed to drug prevention being a part of their curriculum. However, some policy decisions made by school administrators have been legally challenged. In 1989, Vernonia School District serving a small community in Oregon, instituted a random drug testing policy of its athletes. In 1991, the parents of a seventh grader refused to give their consent for random drug testing. The seventh grader was denied participation in the sport and sued the School District arguing that the school policy violated the Fourth and Fourteenth Amendments to the United States Constitution, and Article I, Section 9 of the Oregon Constitution. In 1995, on appeal to the Supreme Court of the United States, the School District won the case. The Vernonia School District versus Acton case became a landmark case, but random drug and alcohol testing in secondary schools has been a subject of multiple court cases. The authors discuss three of them. Both Federal and State Courts have recognized that a secondary school environment in itself represents "a special need," for which suspicionless searches are sometimes necessary to maintain order, safety, and discipline. Drug and alcohol testing programs in secondary schools may still be challenged on its legality. Therefore, examining court sanctioned programs and their long-term efficacy statistics is recommended.

No Need to Shout: Bus Sweeps and the Psychology of Coercion

Consent searches reportedly comprise a vast proportion of government searches. The use of consent searches allows the police to uncover contraband in situations where there is otherwise no lawful basis for conducting a search. The Court's most recent pronouncement about the bounds of consent came this past term in U.S. v. Drayton, in which police boarded a Greyhound bus and asked passengers' permission to search their bags and their persons. Given the enormous practical value of consent in Fourth Amendment jurisprudence, it is not surprising that the Court repeatedly has interpreted freedom to refuse police requests to search very broadly. What is troubling, however, is the ever-widening gap between Fourth Amendment consent jurisprudence, on the one hand, and scientific findings about the psychology of compliance and consent, on the other. Ever since the Court first applied the totality of the circumstances standard to consent search issues, it has held in case after case (with only a couple of exceptions) that a reasonable person in the situation in question would feel free to refuse the police request to search. By contrast, empirical studies over the last several decades on the social psychology of compliance, conformity, social influence, and politeness have all converged on the same conclusion: our freedom to refuse to comply under situationally-induced pressures to do so is extremely limited. These situational pressures often are imperceptible to observers; at the same time they can be so overwhelming that attempts to reduce them with prophylactic warnings are insufficient. In light of mounting empirical evidence, it is remarkable that the totality of the circumstances standard has nearly always led the Court to the conclusion that a reasonable person would feel free to refuse the police request to search. Consent search doctrine is now at a point where the Court's reasoning must struggle against scientific findings about compliance, and against common sense. Thus, the Court's consent doctrine has devolved into a fiction of the crudest sort - a mere device for attaining the desired legal consequence. This has led to suspicionless searches of many thousands of innocent citizens who consent to searches under coercive circumstances. Perhaps the systematic suspicionless searching of innocent citizens is a worthwhile price to pay in exchange for effective law enforcement, but the Court has not engaged in this analysis in any of its Fourth Amendment consent search or seizure cases. Incorporation of empirical findings on compliance and social influence into Fourth Amendment consent jurisprudence would help to dispel the air of unreality that characterizes current doctrine.

Breaking Developments in Domestic Intelligence

Le jugement de la Court of Review americaine concernant la surveillance des agents de renseignements etrangers et l'utilisation de la loi du FISA (Foreign Intelligence Surveillance Act) constitue un pas supplementaire dans le debat public et gouvernemental sur l'information domestique, dans la recherche d'un equilibre entre les exigences de la securite nationale et celles des libertes constitutionnelles. Ce debat sur la collecte, l'utilisation, la conservation et la diffusion des renseignements interieurs presente trois aspects : le seuil de surveillance d'un individu ou d'un groupe potentiellement menacant ; le seuil de retention et de diffusion de l'information acquise au cours de la surveillance domestique ; la supervision de ces systemes de renseignements qui presentent un danger pour les libertes.

No Need to Shout: Bus Sweeps and the Psychology of Coercion

Consent searches reportedly comprise a vast proportion of government searches. The use of consent searches allows the police to uncover contraband in situations where there is otherwise no lawful basis for conducting a search. The Court's most recent pronouncement about the bounds of consent came this past term in U.S. v. Drayton, in which police boarded a Greyhound bus and asked passengers' permission to search their bags and their persons. Given the enormous practical value of consent in Fourth Amendment jurisprudence, it is not surprising that the Court repeatedly has interpreted freedom to refuse police requests to search very broadly. What is troubling, however, is the ever-widening gap between Fourth Amendment consent jurisprudence, on the one hand, and scientific findings about the psychology of compliance and consent, on the other. Ever since the Court first applied the totality of the circumstances standard to consent search issues, it has held in case after case (with only a couple of exceptions) that a reasonable person in the situation in question would feel free to refuse the police request to search. By contrast, empirical studies over the last several decades on the social psychology of compliance, conformity, social influence, and politeness have all converged on the same conclusion: our freedom to refuse to comply under situationally-induced pressures to do so is extremely limited. These situational pressures often are imperceptible to observers; at the same time they can be so overwhelming that attempts to reduce them with prophylactic warnings are insufficient. In light of mounting empirical evidence, it is remarkable that the totality of the circumstances standard has nearly always led the Court to the conclusion that a reasonable person would feel free to refuse the police request to search. Consent search doctrine is now at a point where the Court's reasoning must struggle against scientific findings about compliance, and against common sense. Thus, the Court's consent doctrine has devolved into a fiction of the crudest sort - a mere device for attaining the desired legal consequence. This has led to suspicionless searches of many thousands of innocent citizens who consent to searches under coercive circumstances. Perhaps the systematic suspicionless searching of innocent citizens is a worthwhile price to pay in exchange for effective law enforcement, but the Court has not engaged in this analysis in any of its Fourth Amendment consent search or seizure cases. Incorporation of empirical findings on compliance and social influence into Fourth Amendment consent jurisprudence would help to dispel the air of unreality that characterizes current doctrine.

At Law: The Rights of Pregnant Women: The Supreme Court and Drug Testing

During last two decades, states have sought to punish pregnant women for behavior that endangers their fetuses, often without success. (1) Prosecutors have used various novel legal theories, including child abuse and neglect, delivery and distribution of controlled substances, and involuntary manslaughter. Some states have enacted laws criminalizing prenatal drug use. (2) Other states have authorized necessary to protect fetus. (3) These measures include civil commitment for pregnant women who use drugs and cash incentives for crack-using women to become sterilized. (4) During height of concern for fetal rights, in late 1980s, Medical University of South Carolina (MUSC) devised a policy, in cooperation with law enforcement officials, for screening pregnant patients for cocaine use. Women who tested positive would be turned over to police and threatened with prosecution to provide the necessary leverage to force them into treatment. The policy specified criteria for determining which pregnant women should be tested (targeting, for example, women who had obtained no prenatal care or late or incomplete prenatal care, and women known to have previously abused drugs or alcohol abuse). It also required urine samples to be handled through an appropriate chain of custody to ensure that they could be used as evidence in a criminal trial; and it detailed offenses with which woman could be charged, depending on age of fetus. The charges included simple possession, possession and distribution to a minor, and child neglect. The policy made no mention of any change in woman's prenatal care and did not prescribe any treatment for newborns. More than forty women were arrested under MUSC program, and some who tested positive for cocaine during labor were taken to jail in handcuffs or leg shackles shortly after giving birth. Under South Carolina law, a viable fetus historically has been regarded as a person; on this basis, state's Supreme Court has held that ingestion of cocaine during third trimester of pregnancy constitutes criminal child neglect. (5) Ferguson v. City of Charleston In 1999, U.S. Court of Appeals for Fourth Circuit (well-known for its conservative judicial activism), held that regardless of whether women provided informed consent, MUSC testing program was justified by special of stopping drug use by pregnant women. This year, in Ferguson v. City of Charleston, (6) Supreme Court overturned Fourth Circuit, holding that a public hospital's policy of subjecting pregnant women to nonconsensual drug tests without a warrant, and turning positive test results over to police, violates Fourth Amendment's proscription against unreasonable searches. Although Fourth Amendment is popularly perceived as applying solely to personal or residential searches, Supreme Court has long recognized that collection and subsequent analysis of biological samples is a search. (7) In most criminal cases, a search is unreasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause, and if a warrant is impracticable, then courts require, minimally, suspicion based on an individualized assessment. The Supreme Court has held, however, that when state has special needs beyond normal need for law enforcement, warrant and probable or reasonable cause requirements may not be applicable. (8) In three drug testing cases, Court applied needs exception to sustain drug tests for railway employees involved in train accidents, Customs Service employees seeking promotion to certain sensitive positions, and high school students participating in interscholastic sports. (9) In a fourth case, Court struck down drug testing for candidates for certain state offices. (10) The Supreme Court in Ferguson held that MUSC screening program did not fit within closely guarded category of constitutionally permissible suspicionless searches. …