Discretionless policing: Technology and the fourth amendment

California Law Review

Volumn 95, Issue 1, 2007, Pages 199-234

  Joh, Elizabeth E ^a,b,c  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b YALE UNIVERSITY   (United States)

^c NEW YORK UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 33947669925     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (63)

1. See Garrine P. Laney, Racial Profiling: Issues and Federal Legislative Proposals and Options, CONG. RES. SERV. Report RL32231 (Feb 17, 2004) (observing that the police have "been accused of practicing racial profiling" in order "to prevent illicit drug activity").
2. See, e.g., Amy Zuckerman, Standards for Intelligent Transportation System Will Speed Up Supply Chains, WORLD TRADE, NOV. 1, 2004, at 60 (noting significance of the "little known" FCC decision). The Director of Vehicle Safety Systems at Intelligent Transportation Systems of America, described the public's lack of awareness about the ITS program as "shocking." Telephone Interview with Suzanne Murtha, Director of Vehicle Safety Systems, Intelligent Transportation Society of America (ITSA) (June 17, 2005). For more details of the interview, see infra note 17, and accompanying text.
3. See infra Part II.A.
4. A caveat on terminology: the 5.9 GHz standard approved by the FCC and described infra is a wireless standard, like current 802.11 Wi-Fi standards. It would be used by the on-board units and roadside units described in Part II.A. This type of communications system, permitting vehicle-to-vehicle and vehicle-to-infrastructure communication, is also sometimes referred to in federal agency documents as the Vehicle Systems or Vehicle Integration Initiative. For the sake of simplicity, I only use the term "DSRC systems."
5. See infra Part II.B.
6. See, e.g., LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 379-444 (2000) (discussing dramatic changes in the recognition of criminal defendants' constitutional rights during the Warren Court era);
7. see also MORTON HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE (1998) (same).
8. Cf. David Sklansky, Traffic Stops, Minority Motorsits, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271, 273 (1997) (concluding that recent Supreme Court law means "that police officers, if they are patient, can eventually pull over almost anyone they choose").
9. 532 U.S. 318, 354 (2001).
10. See infra Part I.C.
11. See infra Part I.C.
12. See Dan M. Kahan & Tracey L. Meares, The Coming Crisis of Criminal Procedure, 86 GEO. L.J. 1153 (1998);
13. but see David Cole, Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship, 87 GEO. L.J. 1059, 1074-75 (1999) (critiquing strength of community support argument raised by Kahan and Meares);
14. Albert Alschuler & Stephen J. Schulhofer, Antiquated Procedures or Bedrock Rights?: A Response to Professors Meares and Kahan, 1998 U. CHI. L. FORUM 215, 215-16 (1998) (disputing uniformity of community support in Morales).
15. 527 U.S. 41 (1999).
16. See Black Box is the New Speed Cop, SUNDAY TIMES (U.K.), June 5, 2005, at 2 (describing UAE initiative).
17. Indeed, DSRC systems, as well as similar technologies, are being used in London, Germany, and Switzerland for electronic tolls, fleet management, and traffic alerts. See The Road Tolls for Thee, ECONOMIST, June 12, 2004, at 31; see also infra Part III.B.2 for examples in the United States.
18. In this sense, this Essay contributes to two bodies of commentary that are often treated distinctly: the persistent problem of racial bias and policing, on the one hand, and the conceptual difficulties raised by technological advances in policing, on the other.
19. While much recent commentary on traffic stops focuses on the use of racial bias by the police, the "pretextual stop" includes sources of police motivation other than racial bias. See infra Part I.C. Indeed, much of the commentary on the use of race by the police in traffic stops discusses the pretextual stop without defining it. See infra Part I.C. and accompanying footnotes.
20. I do not argue that the federal government intends to establish automated enforcement programs as soon as transponders are installed in new vehicles. What is clear is that: a) DSRC technology makes automated enforcement possible; b) the Department of Transportation and ITSA have clearly considered the use of automated enforcement; and c) such a program has established precursors in red-light enforcement, photo radar, and more recent proposals for electronic vehicle registration. For the moment, automated enforcement for private vehicles is not being actively pursued, according to ITSA, because of privacy concerns. Telephone Interview with Suzanne Murtha, ITSA Director of Vehicle Safety Systems (June 17, 2005).
21. One vision statement prepared for the Federal Highway Administration projects that in 2022: "The tremendous integration brought about by [Intelligent Transportation Systems] has created an enormous distributed data resource. Many regions through either publicly owned or privately contracted facilities now summarize and archive huge amounts of data from every corner of their transportation networks." Architecture Development Team, National ITS Architecture ITS Vision Statement, at 8 (2003), http://www.itsdocs.fhwa. dot.gov/jpodocs/repts_pr/45p01!.pdf.
22. See, e.g., Intelligent Highway Systems v. Privacy, USA TODAY, Dec. 1, 1995, at 14 (describing information to be collected from drivers); Robert Weisberg, IVHS, Legal Privacy, and the Legacy of Dr. Faustus, 11 SANTA CLARA COMPUTER & HIGH TECH. L.J. 75, 77 (1995) (arguing that current law "will probably mean that 'substantive' Fourth Amendment doctrine will put little constraint on the designers and users of [Intelligent Transportation Systems]").
23. Even a chief supporter of Intelligent Transportation Systems, John Worthington, has expressed concern over the development of a "kind of an Orwellian all-singing, all-dancing collector/aggregator/disseminator of transportation information ... that is being driven by some giant data center." Worthington is the president and chief executive officer of Transcore, one of the companies involved in developing DSRC technology. See Excerpts from the Final INTI Workshop Session: "Next Steps," available at http://www.ntoctalks.com/icdn/INTI_nextsteps. php. The potential of Intelligent Transportation Systems to collect and aggregate driver data also contributes to widespread concerns about the ability of private and public entities to assemble massive information databases containing individuals' personal information. For a sampling of the literature in this area, see DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE 13-26 (2004) (describing threats to individual privacy posed by new technologies);
24. TECHNOLOGY AND PRIVACY: THE NEW LANDSCAPE (Philip E. Agre & Marc Rotenberg eds., 1997);
25. A. Michael Froomkin, The Death of Privacy?, 52 STAN. L. REV. 1461 (2000) (cataloguing threats to privacy posed by new technologies and emerging responses);
26. Stan Karas, Privacy, Identity, Databases, 52 AM. U. L. REV. 393 (2002) (arguing for greater protection of consumer information privacy);
27. Helen Nissenbaum, Privacy as Contextual Integrity, 79 WASH. L. REV. 119 (2004) (proposing model of contextual integrity to evaluate threats to informational privacy);
28. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. REV. 1149 (2005) (responding to First Amendment critique of data privacy regulations);
29. Daniel Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 MINN. L. REV. 1137 (2002) (arguing for greater protection of public records that are widely available and easily accessed).
30. Ted Koppel, Take My Privacy, Please!, N.Y. TIMES (editorial), June 13, 2005, at A17 (expressing concern over the widespread use of OnStar and E-ZPass programs).
31. See MATTHEW R. DUROSE ET AL., U.S. DEP'T OF JUSTICE, CONTACTS BETWEEN POLICE AND THE PUBLIC: FINDINGS FROM THE 2002 NATIONAL SURVEY iv (2005) (reporting that only 21% or about 45.3 million U.S. residents aged sixteen or older had at least one face-to-face contact with the police). This was the same rate reported in the previous national survey.
32. See DUROSE, supra note 22, at iv (stating that traffic stops were the "most common reason for police contact" (39.8%) in 2002 survey). Other kinds of contacts are much less common. See id. at 3 (reporting non-traffic stop contacts included crime reporting (26.4%); traffic accidents (13%); assistance or service calls (7.2%); police investigation (5.8%); police suspicion (2.6%). The 2002 survey reported a lower number of traffic stops than that of the previous survey.
33. See Patrick A. Langan, Contacts between Police and the Public: Findings from the 2002 National Survey 1 (2001) (stating that 52% of face-to-face contacts with police reported by this group took the form of a traffic stop).
34. See DUROSE, supra note 22, at iv (reporting that police issued tickets to 58.6% of those involved in traffic stops).
35. See id. at iv-v (stating that of those drivers stopped, police carried out a search on 5%, handcuffed 2.8%, arrested 2.7%, used or threatened force against 1.1%, and used or threatened force considered excessive against 1%).
36. There are several classic studies on the police that address discretion in whole or in part, including: KENNETH CULP DAVIS, POLICE DISCRETION (1975); MICHAEL K. BROWN, WORKING THE STREET: POLICE DISCRETION AND THE DILEMMAS OF REFORM (1988).
37. Prior to the 1950s, policymakers and scholars routinely assumed that police work, such as the decision to arrest, involved hardly any discretion at all. Empirical research disproved these assumptions, and opened up a universe of scholarly questions for a generation of police scholars. See, e.g., GEORGE L. KELLING, U.S. DEP'T OF JUSTICE, "BROKEN WINDOWS" AND POLICE DISCRETION 1980-1990 3-20 (1999); SAMUEL WALKER, TAMING THE SYSTEM: THE CONTROL OF DISCRETION IN CRIMINAL JUSTICE 6-12 (1993). This essay does not attempt to summarize this literature in its entirety, but rather focuses on those aspects of police discretion that are most relevant to the traffic stop analysis. For an overview of the literature in the criminal justice system generally, see WALKER, id., at 3-20.
38. See JEROME H. SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY 69 (Macmillan 1994) (1966) ("If the central task of the administration of criminal law is to balance the conflicting principles of order and of legality, the dilemma is epitomized in the question of police discretion.");
39. see also Albert J. Reiss, Jr., Police Organization in the Twentieth Century, in MODERN POLICING 51, 74 (Michael Tonry & Norval Morris eds., 1992) (noting that "[a]lthough the foundation of policing is the legal order and its rules, police officers, nevertheless, have enormous discretionary powers to apply the law").
40. I refer to sociologist Max Weber's classic definition of the state in terms of its monopoly over the use of legitimate force. See MAX WEBER, POLITICS AS A VOCATION 2 (H.H. Gerth & C. Wright Mills, trans. 1965 (1946)).
41. See DEBORAH RAMIREZ ET AL., DEP'T OF JUSTICE, A RESOURCE GUIDE ON RACIAL PROFILING DATA COLLECTION SYSTEMS 9 (2000) (observing that "[m]any police departments have not developed formal, written, standards directing officers on how to use [their] discretion [in traffic stops]").
42. See KELLING, supra note 27, at 38 (noting that "policing realities" include the following observations: 1) "The majority of police work is conducted by an officer working alone or with a partner."; 2) "The officer must make decisions outside the purview of supervisors or a command system."; and 3) "The officer must make decisions based on internalized knowledge and skill.").
43. See RAMIREZ, supra note 30 at 9 (noting that traffic stop decisions are "seldom documented and rarely reviewed").
44. The emphasis in this Essay focuses on what the police are permitted to do, i.e. how they may act pursuant to delegated discretion. Actual police behavior, however, also encompasses exercises of authority for which no lawful basis is present, i.e. unauthorized discretion. Jerome Skolnick posed this contrast in his classic study of policing, JUSTICE WITHOUT TRIAL. See SKOLNICK, supra note 28, at 69-71 (3d ed. 1994).
45. See, e.g., Erik Luna, Transparent Policing, 85 IOWA L. REV. 1107, 1133 (1999) (defining discretion); WALKER, supra note 27, at 23 (1993) ("[C]ontrolling discretion is usually not a matter of simply forbidding something; it is more often a matter of encouraging officers to choose one option over another.").
46. See Luna, supra note 34, at 1134. (distinguishing the oversight of the police from that exercised over other executive officials).
47. See Kenneth Culp Davis, An Approach to Legal Control of the Police, 52 TEX. L. REV. 703, 704 (1974) (observing that most police work is "kept secret from those who are affected by it");
48. see also Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 YALE L.J. 543, 552 (1960) ("[P]olice decisions not to invoke the criminal process, except when reflected in gross failure of service, are not visible to the community.").
49. See Luna, supra note 34, at 1141 (providing examples of such laws outside of the criminal justice system).
50. 5 U.S.C. § 552 (2006).
51. See Goldstein, supra note 36, at 561.
52. Goldstein defined full enforcement as follows: (1) the investigation of every disturbing event which is reported to or observed by them and which they have reason to suspect may be a violation of the criminal law; (2) following a determination that some crime has been committed, an effort to discover its perpetrators; and (3) the presentation of all information collected by them to the prosecutor for his determination of the appropriateness of further invoking the criminal process. Goldstein, supra note 36, at 559-560. See also CULP, supra note 26, at 166 (observing that "selective enforcement" results from a conflict between the expectation to enforce the law fully and the lack of resources to do so).
53. Others have taken yet another step back and observed that the police are also prohibited from enforcing every violation of the law because of legal constraints imposed by federal and state constitutions, as well as statutes. See, e.g., Goldstein, supra note 36, at 554 (noting that such "total enforcement" is thus prohibited); Luna, supra note 34, at 1136-37 (characterizing executive discretion in the criminal justice system as those decisions left after discounting for laws that have been deemed substantively or procedurally invalid).
54. It should not be assumed that enforcement priorities always lead to the underenforcement of "minor" crimes. The widespread adoption of the broken windows model of policing, first fleshed out by George Kelling and James Q. Wilson, relied on aggressive police enforcement of quality of life crimes such as public urination, noise ordinances, etc. See James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, THE ATLANTIC MONTHLY 29 (March 1982).
55. WALKER, supra note 27, at 25-33.
56. See, e.g., Byron Williams, Prostitution Issue Feeds Dialogue of Preconceived Notions, OAKLAND TRIB., Oct. 29, 2004 (discussing Berkeley, California's proposed Measure Q that would make enforcement of existing prostitution laws the lowest priority of the Berkeley police department).
57. See Goldstein, supra note 36, at 560-061 (observing that full enforcement is not a "realistic expectation" for these reasons).
58. This is true even though the job may sometimes be less dangerous than the work of meat-cutters or construction workers.
59. See SKOLNICK, supra note 28, at 43.
60. See id. at 44-45.
61. See id. at 47-56 (describing how the variables of danger and authority reinforce the social isolation of the police, and consequently, the notable solidarity of police culture).
62. Indeed, if we think of police officers as rational actors in an organization like any other, one institutional reform that could affect discretion is the use of incentives for model police behavior. See Erik Luna, Race, Crime, and Institutional Design, 66 LAW & CONTEMP. PROBS. 183, 196 (2003) (discussing the possibility of such a reward structure).
63. See HOWARD S. BECKER, TRICKS OF THE TRADE 153-54 (1998) (identifying use of term "crocks" by medical students).