Government dragnets

Law and Contemporary Problems

Volumn 73, Issue 3, 2010, Pages 107-143

  Slobogin, Christopher ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 78751639283     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (182)

1. See generally JACOB W. LANDYNSKI, SEARCH AND SEIZURE AND THE SUPREME COURT 31 (1966) (detailing the colonial backlash to the general searches sanctioned by writs of assistance)
2. NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 51 (1937) (same).
3. As John Adams said of James Otis' oration against the writs of assistance in 1761, "Then and there was the first scene of opposition to the arbitrary claims of Great Britain."
4. Lasson concludes that this speech was the "first in the chain of events which led directly and irresistibly to revolution and independence.".
5. The leading treatment of this issue is found in TELFORD TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 43 (1968) (indicating that the drafting process of the Fourth Amendment "reinforces the conclusion that it was the warrant which was the initial and primary object of the amendment").
6. See also Thomas Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 583 (1999) ("No one questions that the Framers despised and sought to ban general warrants.").
7. For example, see Justice Ginsburg's concurrence in Vernonia School District 47J v. Acton, 515 U.S. 646, 666 (1995) (joining opinion permitting drug testing of public-school athletes), and Justice Souter's dissenting opinion in United States v. Drayton, 536 U.S. 194, 208 (2002) (stating that suspicionless searches of people and luggage at airports is "universally accepted").
8. Richard C. Worf, The Case for Rational Basis Review of General Suspicionless Searches and Seizures, 23 TOURO L. REV. 93 (2007).
9. See CHRISTOPHER SLOBOGIN, PRIVACY AT RISK 21-47 (2007) (summarizing analysis from two articles, Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. REV. 1 (1991), and Christopher Slobogin, Let's Not Bury Terry: A Call for Rejuvenation of the Proportionality Principle, 72 ST. JOHN'S L. REV. 1053 (1998)).
10. A well-known forerunner to these cases was United States v. Korematsu, 323 U.S. 214, 219 (1944), which authorized the detention of over 100,000 Japanese Americans during World War II because, according to the military, "immediate segregation of the disloyal from the loyal" was "impossible."
11. 387 U.S. 523 (1967).
12. 359 U.S. 360 (1959).
13. Id. at 537 (citing Frank v. Maryland, 359 U.S. 360, 368-70 (1959) (recounting colonial statutes that permitted suspicionless or near-suspicionless searches of homes for health and safety reasons).
14. See generally Fabio Arcila, The Death of Suspicion, 51 WM. & MARY L. REV. 1275, 1298-1310 (2010) (discussing various Revolutionary-period statutes that permitted suspicionless searches).
15. Camara, 387 U.S. at 535-36.
16. 394 U.S. 721 (1969).
17. See SLOBOGIN, supra note 10, at 40-41.
18. 387 U.S. 541 (1967).
19. 397 U.S. 72 (1970).
20. 406 U.S. 311 (1972).
21. Id. at 316 ("[I]f inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential.").
22. 436 U.S. 307, 313-14 (1978). One might also note that many types of OSHA violations (having to do with unsafe working conditions) are less amenable to concealment than gun- and liquor-law violations and that, if they are corrected before the inspector returns with a warrant, the regulatory regime has accomplished its purpose.
23. 452 U.S. 594, 603 (1981).
24. 482 U.S. 691 (1987).
25. Id. at 721 (Brennan, J., dissenting) ("[I]f New York City's administrative scheme renders the vehicle-dismantling business closely regulated, few businesses will escape such a finding.").
26. Thomas Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEMPHIS L. REV. 483, 604 (1995).
27. Camara, 387 U.S. at 535.
28. Gwen Ifill, Clinton Asks Help on Police Sweeps in Public Housing, N.Y. TIMES, Apr. 17, 1994, at 1.
29. Pratt v. Chicago Hous. Auth., 848 F. Supp. 792, 797 (N.D. Ill. 1994).
30. Ifill, supra note 47, at 1.
31. See Carroll v. United States, 267 U.S. 132, 154 (1925) ("Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.").
32. See United States v. Flores-Montano, 541 U.S. 149, 152 (2004)
33. United States v. Montoya de Hernandez, 473 U.S. 531, 539-40 (1985).
34. Flores-Montano, 541 U.S. at 155-56.
35. 428 U.S. 543 (1976).
36. Id. at 568-69 (Brennan, J., dissenting).
37. United States v. Martinez-Fuerte, 428 U.S. 543, 576 (1976) (Brennan, J., dissenting).
38. Id. at 572 (Brennan, J., dissenting).
39. 440 U.S. 648 (1979).
40. Id. at 666 (Rehnquist, J., dissenting).
41. Id. at 667 (Rehnquist, J., dissenting).
42. 496 U.S. 444 (1990).
43. 531 U.S. 32, 42 (2000).
44. See Brooks Holland, The Road 'Round Edmond: Steering Through Primary Purpose and Crime Control Agendas, 111 PENN ST. L. REV. 293, 298 (2006) ("[T]he weight of authority so far indicates that a secondary purpose of crime control will not upset a checkpoint with a lawful primary purpose.")
45. 471 F.3d 67, 82 (2d Cir. 2006).
46. 460 F.3d 260 (2d Cir. 2006).
47. Cassidy, 471 F.3d at 78-79.
48. 469 U.S. 325 (1985) (Blackmun, J., concurring).
49. 489 U.S. 602 (1989).
50. 489 U.S. 656 (1989).
51. See Skinner, 489 U.S. at 622
52. Von Raab, 489 U.S. at 666-67.
53. Skinner, 489 U.S. at 616-17.
54. Von Raab, 489 U.S. at 671 (internal citation and quotation omitted).
55. Bd. of Ed. v. Earls, 536 U.S. 822, 831 (2002).
56. 515 U.S. 646 (1995).
57. Earls, 536 U.S. at 841 (Breyer, J., concurring).
58. 489 U.S. at 602, 607 n.1.
59. 520 U.S. 305 (1997).
60. Von Raab, 489 U.S. at 681 (Scalia, J., dissenting).
61. Earls, 536 U.S. at 828 (internal citation and quotation omitted).
62. 532 U.S. 67 (2001).
63. Id. at 88 (Kennedy, J., concurring).
64. SLOBOGIN, supra note 10, at 82-84.
65. Fran Spielman, Feds Give City $48 Million in Anti-terrorism Funds, CHI. SUN-TIMES, Dec. 4, 2004, at 10.
66. GINA MARIE STEVENS, REPORT FOR CONGRESS: PRIVACY: TOTAL INFORMATION AWARENESS PROGRAMS AND RELATED INFORMATION ACCESS, COLLECTION, AND PROTECTION LAWS 2 (Cong. Research Serv., 2003), available at http://www.fas.org/irp/crs/RL31730.pdf.
67. Christopher Slobogin, Government Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317, 318 (2008). The federal government recently canceled its satellite-surveillance program, but only because law enforcement preferred TIA-like "fusion centers" that will create "a national suspicious activity reporting system." Spencer S. Hsu, Napolitano Announced End to Domestic Spy Satellite Program, WASH. POST, June 23, 2009, at A8.
68. One meta-review of public camera-surveillance systems concluded that, on average across programs, it reduced crime four percent. BRANDON C. WELSH & DAVID P. FARRINGTON, CRIME PREVENTION EFFECTS OF CLOSE CIRCUIT TELEVISION: A SYSTEMATIC REVIEW 41 (United Kingdom Home Office Research, Dev., and Statistics Directorate 2002), available at http://rds.homeoffice.gov.uk/rds/hors2002.html. Although data about covert antiterrorist data-mining are hard to obtain, the New York Times reported that virtually none of the leads such programs have generated panned out. Lowell Bergman et al., Spy Agency Data after Sept. 11 Led F.B.I. to Dead Ends, N.Y. TIMES, Jan. 17, 2006, at A1.
69. See United States v. Knotts, 460 U.S. 276, 283-84 (1983).
70. See Smith v. Maryland, 442 U.S. 735 (1979) (phone companies)
71. United States v. Miller, 425 U.S. 435 (1976) (banks).
72. The broadest statement to this effect comes from Miller-
73. [T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. 425 U.S. at 443.
74. The term comes from DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE 13 (2004).
75. Kyllo v. United States, 533 U.S. 27, 40 (2001).
76. Illinois v. Caballes, 543 U.S. 405, 409 (2005).
77. Eric Schmitt & David Johnston, States Chafing at U.S. Focus on Terrorism, N.Y. TIMES, May 26, 2008, at A1 (noting that "billions of dollars have been spent linking federal law enforcement and intelligence authorities to the country's more than 750,000 police officers, sheriffs and highway patrol officers" through fusion centers that were originally "designed to collect and analyze data to deter terrorist attacks" and now are "branching out from terrorism to focus on violent crime and natural disasters").
78. See U.S. DEP'T OF DEFENSE, DEFENSE ADVANCED RESEARCH PROJECTS AGENCY, REPORT TO CONGRESS REGARDING THE TERRORISM INFORMATION AWARENESS PROGRAM 3-9 (May 20, 2003).
79. See, e.g., James Aaron George, Offender Profiling and Expert Testimony: Scientifically Valid or Glorified Results?, 61 VAND. L. REV. 221, 229 (2008) (describing profiles of offenders that include "gender, age, race or ethnicity, level of intelligence or schooling, military service status, job status, living circumstances, nature of interpersonal relationships, and even the make and color of the perpetrator's car").
80. Glynn Wilson, In Louisiana, Debate Over a DNA Dragnet, CHRISTIAN SCI. MONITOR, Feb. 21, 2003, at 3 (noting that police had obtained samples from over 800 men in southern Louisiana in an effort to catch a serial killer).
81. E.g., Nicholas v. Goord, 430 F.3d 652, 668 (2d Cir. 2005).
82. E.g., State v. Martin, 955 A.2d 1144 (Vt. 2008).
83. See, e.g., United States v. Pool, No. 09-10303, 2010 WL 3554049 (9th Cir. Sept. 14, 2010) (upholding DNA sampling as a condition of pretrial release).
84. See sources cited supra notes 1-2. As Patrick Henry put it, under the general warrants "any man may be seized, any property may be taken, in the most arbitrary manner, without any evidence or reason." Draper v. United States, 359 U.S. 307, 336 (1959).
85. (quoting JAMES MADISON, I DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 323, 326 (Jonathan Elliot ed., 2d ed. 1836)).
86. See Andrea Estes, Anticrime Initiative Working, Police Say, BOSTON GLOBE, Aug. 28, 2004, at B1 (noting significant, albeit contested, reduction in nonfatal shootings as a result of dragnet stop programs, but quoting the head of the local NAACP branch, who stated that young blacks who are stopped "feel they have become the victims").
87. 515 U.S. 646, 667 (1995) (O'Connor, J., dissenting) (internal citation and quotation omitted).
88. BERNARD E. HARCOURT, AGAINST PREDICTION: PROFILING, POLICY, AND PUNISHING IN AN ACTUARIAL AGE 147 (2007).
89. See MARY DEROSA, CTR. FOR STRATEGIC AND INT'L STUDIES, DATA MINING AND DATA ANALYSIS FOR COUNTERTERRORISM 16 (2004), available at www.cdt.org/security/usapatriot/20040300csis.pdf
90. U.S. DEP'T OF DEFENSE, TECHNOLOGY & PRIVACY ADVISORY COMM., SAFEGUARDING PRIVACY IN THE FIGHT AGAINST TERRORISM 39-40 (2004), available at www.cdt.org/security/usapatriot/20040300tapac.pdf.
91. see U.S. DEP'T OF JUSTICE, DRUG ENFORCEMENT AGENCY, INSIDE THE DEA: OPERATIONS PIPELINE AND CONVOY, available at http://www.usdoj.gov/dea/programs/pipecon.htm.
92. See generally Chicago v. Morales, 527 U.S. 41 (1999) (striking down a "failure to disperse" statute aimed at reducing gang-related criminal activity).
93. For a useful summary of this literature as applied to the effects of policing
94. see Andrew Taslitz, Wrongly Accused Redux: How Race Contributes to Convicting the Innocent: The Informants Example, 37 SW. U. L. REV. 1091, 1114-18 (2008).
95. See Safford Unified Sch. Dist. v. Redding, 129 S. Ct. 2633 (2009) (declaring the strip search of a student based on reasonable suspicion violated the Fourth Amendment).
96. See, e.g., Clancy, supra note 45, at 487 (arguing that suspicionless searches and seizures should be "aberrational" and founded on "a strong showing of governmental necessity")
97. Nadine Strossen, The Fourth Amendment in the Balance: Accurately Setting the Scales Through the Least Instrusive Alternative Analysis, 63 N.Y.U. L. REV. 1173 (1988) (arguing for least drastic means analysis)
98. Scott Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 MINN. L. REV. 383, 446 (1988) (arguing for a compelling state-interest-least-intrusive-means test that "unambiguously reorients fourth amendment analysis toward protection of the individual's privacy interest")
99. Eve Brensike Primus, Disentangling Administrative Searches, 111 COLUM. L. REV. _ (forthcoming 2011) (arguing that dragnets should not be permitted if individualized suspicion can accomplish the government's objective).
100. 515 U.S. 646, 674-75 (1995) (O'Connor, J., dissenting).
101. FEC v. Wisconsin Right to Life, 551 U.S. 449, 464 (2007) (holding that, to justify a law burdening political speech, government must show that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest").
102. See SLOBOGIN supra note 10, at 84-88.
103. Cf. Neal Katyal, Architecture as Crime Control, 111 YALE L.J. 1039, 1092-98 (2002) (exploring how city architecture might enhance crime control)
104. City of Chicago v. Morales, 527 U.S. 41, 66 (1999) (O'Connor, J., concurring) (speaking of loitering statutes that might be "reasonable alternatives" to the statute struck down by the majority).
105. Recall Justice Rehnquist's words in Michigan Department State Police v. Sitz, 496 U.S. 444, 453-54 (1990) that, "for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers."
106. See William J. Mertens, The Fourth Amendment and the Control of Police Discretion, 17 U. MICH. J. L. REF. 551 (1984).
107. See also Justice Douglas's dissent in Terry v. Ohio, 392 U.S. 1, 39 (1967) ("Until the Fourth Amendment... is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched[]") and Justice Brennan's dissent in T.L.O. v. New Jersey, 469 U.S. 325, 360 (1985) ("If the search in question is more than a minimally intrusive Terry stop, the constitutional probable-cause standard determines its validity.").
108. Ricardo J. Bascuas, Lessons from the Highway and the Subway: A Principled Approach to Suspicionless Searches, 38 RUTGERS L.J. 719, 781 (2007).
109. See also New Jersey v. T.L.O, 469 U.S. 325, 335 (1985) ("[T]he individual's interest in privacy and personal security 'suffers whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards....'").
110. See Davies, supra note 3, at 659-60 (distinguishing the "customs collections" that occasioned the general warrant from "criminal law enforcement").
111. For this reason, Professor Simmons has proposed that when government purports to be carrying out "regulatory" searches and seizures, as the government has argued that it does in antiterrorism cases, it should be prohibited from using any evidence it garners in criminal prosecutions; that approach, he suggests, would call the government's bluff.
112. See Ric Simmons, Searching for Terrorists: Why "Public Safety" is Not a Special Need, 59 DUKE L.J. 843, 920 (2010). But this solution creates its own problems. Freed from any restrictions on its antiterrorism efforts, the executive branch might introduce numerous such programs, believing that, at the least, bombs will be discovered and terrorists identified. On the other side, a prohibition on prosecuting terrorists who are caught in an antiterrorist program would be very hard for the public to swallow. Further, this approach allows the government to carry out other suspicionless "special needs" searches and seizures as long as evidence thereby obtained is not used in a criminal court. Thus school students can be suspended, illegal immigrants deported through a civil process, and house residents subjected to civil fines based on dragnet stops and searches without violating the Fourth Amendment, despite the thousands of innocent individuals affected by drug testing, checkpoints, and health and safety inspections, respectively.
113. William J. Stuntz, Implicit Bargains, Government Power and the Fourth Amendment, 44 STAN. L. REV. 553, 588 (1992).
114. Worf, supra note 9.
115. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
116. Worf, supra note 9, at 97.
117. 440 U.S. 648, 650 (1979).
118. 532 U.S. 67, 88 (Kennedy, J., concurring).
119. Worf, supra note 9, at 138.
120. See Tracey L. Meares, Norms, Legitimacy and Law Enforcement, 79 OR. L. REV. 391 (2000) (discussing the importance of community involvement in devising effective law enforcement policies that are perceived as legitimate).
121. See, e.g., 19 U.S.C. § 1582 ("[A]ll persons coming into the United States from foreign countries shall be liable to detention and search...."). Other border search statutes, however, are more problematic on this score.
122. See 19 U.S.C. §1581(a) (2006) ("Any officer of the customs may at any time go on board of any vessel... at any place in the United States... and examine the manifest and other documents and papers... and to this end may hail and stop such vessel... and use all necessary force to compel compliance."). Given the broad discretion this statute grants officials, it would not, under the approach advocated here, receive judicial deference, and contrary to the Supreme Court's assertion in United States v. Villamonte-Marquez, 462 U.S. 579 (1983), would not, by itself, have supported the boarding in that case.
123. See Cassidy v. Chertoff, 471 F.3d 67, 70-72 (2d Cir. 2006).
124. 45 U.S.C. § 431(a) (2006).
125. The legislation that defunded TIA permits the Defense Department and other agencies, after "appropriate consultation with Congress," to pursue data mining of records on American as well as on foreign citizens for the purpose of gathering information relevant to "law enforcement activities." 10 U.S.C. § 2241(d) (2006). For other examples
126. see Primus, supra note 132, manuscript at 28-30.
127. Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112-13 (1949) (Jackson, J., concurring).
128. Cf. Tracey Meares & Bernard Harcourt, Randomization and the Fourth Amendment (forthcoming 2010) (arguing for randomization as a way of reducing police power).
129. Martinez-Fuerte, 428 U.S. at 546.
130. MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 132 (1971) ("[I]ndividuals in a large group have no incentive to organize a lobby to obtain a collective benefit.").
131. See William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 535 (2001) (describing why prosecutors and police are a "very powerful lobby").
132. See Bd. of Ed. v. Earls, 536 U.S. 822 (2002)
133. Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).
134. Compare Parham v. J.R., 442 U.S. 584, 602 (1979) ("The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions."), with Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976) ("Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority.").
135. For further thoughts on the capaciousness of this political-process flaw
136. see Andrew Taslitz, Fourth Amendment Federalism and the Silencing of the American Poor, 85 CHI. KENT L. REV. 277 (2010) (suggesting that legislation cannot always be trusted to represent the interests of the communities most affected by the legislation).
137. Worf suggests that candidates are a discrete and insular group.
138. Worf, supra note 9, at 176-77. Although it is true that candidates from different parties might not easily cohere, the target group in Chandler was politicians as a group, which surely has sufficient clout in a democracy.
139. Chandler v. Miller, 520 U.S. 305, 324 (1997) (Rehnquist, J., dissenting).
140. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (describing substantive-due-process analysis)).
141. See sources cited supra note 1-3.
142. For an account of the Framers' views on arrests, both with and without a warrant
143. see Thomas Davies, Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Understanding of Due Process of Law, 77 MISS. L.J. 1, 171 (2007) (concluding that the Framers assumed that "due process of law" included the well-accepted probable-cause limitation on arrests).
144. See generally David Steinberg, Restoring the Fourth Amendment: The Original Understanding Revisited, 33 HASTINGS CONST. L.Q. 47 (2005) (arguing that the Fourth Amendment was meant to govern only searches of homes and arrests).
145. See supra notes 167-68 and accompanying text.
146. Interestingly, administrative-law precedent, which could apply to regulations promulgated by law enforcement agencies under such statutes, reaches the same result. So-called Chevron deference to agency regulations only applies to rules that are based on "detailed and reasoned" considerations."
147. See Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837 (1984)
148. Lisa Schultz Bressman, How Mead has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443, 1492 (2005) (arguing that Chevron deference should be restricted "to procedures or interpretations that reflect transparency, rationality and consistency" and noting that the notice and comment procedure meets this requirement). Thus administrative-law precedent appears to call for some intermediate level of scrutiny as well.
149. See Kevin M. Stack, The Constitutional Foundations of Chenery, 116 YALE L. J. 952, 972 (2007) (stating that as a practical matter current law "requires that agencies specifically explain their policy choices, their consideration of important aspects of the problem, and their reasons for not pursing viable alternatives").
150. See SLOBOGIN, supra note 10, at 43.
151. See, e.g., Minnesota v. Carter, 525 U.S. 83, 107-08 (1998) ("It remains textbook law that '[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.'").
152. See SLOBOGIN, supra note 10, at 44-45.
153. See Christopher Slobogin & Joseph Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted by Society," 42 DUKE L.J. 727, 742-51 (1993)
154. SLOBOGIN, supra note 10, at 113-16.
155. The language comes from Justice Harlan's concurring opinion in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
156. See Slobogin & Schumacher, supra note 191, at 739.
157. SLOBOGIN, supra note 10, at 111-13, 183-85.
158. See 392 U.S. 1 (1968).
159. See SLOBOGIN, supra note 10, at 40 (distinguishing generalized from individualized suspicion on the ground that the former is more explicitly based on profiles or statistical information).
160. A similar proposal is made by Meares & Harcourt, supra note 170.
161. For a full discussion of this concept
162. see SLOBOGIN, supra note 10, at 39-44.
163. 489 U.S. 602, 606 (1989).
164. 515 U.S. 646, 662-63 (1995).
165. A survey of Supreme Court cases indicates that the word "intrusive" or "invasive" appears in over 200 majority opinions analyzing the individual interests at stake in Fourth Amendment cases. Intrusion Cases (data on file with author and Law and Contemporary Problems).
166. However, these types of considerations might assume importance to the extent they affect perceptions of intrusiveness. For instance, a search that is experienced as facilitative (such as a health and safety inspection) might be seen as less intrusive than a search that is seen as adversarial.
167. See Slobogin & Schumacher, supra note 191, at 768-69.
168. See SLOBOGIN, supra note 10, at 40 (arguing that "the distinction between individualized and generalized suspicion is, in all relevant respects, meaningless" because both deal with probabilities).
169. 428 U.S. at 562.
170. 398 U.S. at 727
171. see also Hayes v. Florida, 470 U.S. 811, 817 (1985) ("[U]nder circumscribed procedures, the Fourth Amendment might permit the judiciary to authorize the seizure of a person on less than probable cause and his removal to the police station for the purpose of fingerprinting.").
172. 392 U.S. 1, 26-27 (1967) (allowing stops based on reasonable suspicion rather than probable cause in part because "a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime").
173. See SLOBOGIN, supra note 10, at 26-28.
174. 440 U.S. at 660-61.
175. 536 U.S. at 841 (Breyer, J., concurring).
176. For instance, in Edmond, the majority stated that "the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route," City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000), but one sentence later repeated "we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control."
177. Id; see also Illinois v. Caballes, 543 U.S. 405, 417, 424-25 (2005) (Ginsburg, J., dissenting)
178. Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jackson, J., dissenting).
179. Other accountability mechanisms-such as ensuring that efficacy reviews take place and that the public be kept apprised of the dragnets-should also be instituted, and some of these protections are arguably constitutionally required.
180. See SLOBOGIN, supra note 10, at 132-36.
181. Whren v. United States, 517 U.S. 806, 813 (1996).
182. Herring v. United States, 129 S. Ct. 695, 702 (2009) ("To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.").