Disentangling administrative searches

Columbia Law Review

Volumn 111, Issue 2, 2011, Pages 254-312

  Primus, Eve Brensike ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 79953884106     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (532)

1. See City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010) (following Katz in noting that warrantless searches, outside of "well-delineated exceptions," are unreasonable (quoting Katz v. United States, 389 U.S. 347, 357 (1967)))
2. Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009) (citing Katz and finding warrantless searches unreasonable, with few exceptions).
3. Quon, 130 S. Ct. at 2630 (quoting Katz, 389 U.S. at 357) (internal quotation marks omitted).
4. See, e.g., Gant, 129 S. Ct. at 1716 (search incident to arrest exception).
5. Maryland v. Dyson, 527 U.S. 465, 466 (1999) (automobile exception)
6. Florida v. Wells, 495 U.S. 1, 4 (1990) (inventory exception).
7. See, e.g., Virginia v. Moore, 553 U.S. 164, 176-77 (2008) (search incident to arrest exception).
8. Illinois v. Lafayette, 462 U.S. 640, 646 (1983) (inventory exception)
9. Terry v. Ohio, 392 U.S. 1, 30 (1968) (stop and frisk exception).
10. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (exigency exception).
11. Georgia v. Randolph, 547 U.S. 103, 106 (2006) (consent exception).
12. See, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 757 (1994) ("Much of what the Supreme Court has said in the last half century-that the Amendment generally calls for warrants and probable cause for all searches and seizures-is initially plausible but ultimately misguided.").
13. Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 18 (1992) [hereinafter Slobogin, The World Without] ("Lip service to the idea that warrants are preferred continues to this day.").
14. Scott E. Sundby, "Everyman"'s Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen?, 94 Colum. L. Rev. 1751, 1752 (1994) [hereinafter Sundby, Everyman's Fourth] ("Article after article documents how [the Court] has riddled the Warrant Clause with exceptions").
15. See, e.g., Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2639 (2009) (applying "a standard of reasonable suspicion to determine the legality of a school administrator's search of a student").
16. New Jersey v. T.L.O., 469 U.S. 325, 341 (1985) (applying reasonableness standard to search of high school student's purse).
17. See, e.g., City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010) ("[A] government employer's warrantless search is reasonable if it is 'justified at its inception' and if 'the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of' the circumstances giving rise to the search." (quoting O'Connor v. Ortega, 480 U.S. 709, 725-26 (1987) (internal quotation marks omitted))).
18. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987) ("A State's operation of a probation system may justify departures from the usual warrant and probable-cause requirements.").
19. see also Samson v. California, 547 U.S. 843, 846 (2006) (approving search of parolee).
20. See, e.g., New York v. Burger, 482 U.S. 691, 703 (1987) (exempting regulatory inspections of automobile dismantling businesses from warrant and probable cause requirements).
21. Marshall v. Barlow's, Inc., 436 U.S. 307, 313 (1978) (discussing other cases exempting government regulatory inspections from warrant and probable cause requirements).
22. See Memorandum from the U.S. Dep't of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President 37-38 (Jan. 19, 2006), available at http://www.justice.gov/opa/whitepaperonnsalegalauthorities.pdf (on file with the Columbia Law Review) ("[T]he warrant requirement [is] inapplicable in circumstances in which the Government faces an increased need to be able to react swiftly and flexibly, or when there are at stake interests in public safety beyond the interests in ordinary law enforcement.").
23. Letter from the U.S. Dep't of Justice to U.S. Senate & House Select Comms. on Intelligence 2 (Dec. 22, 2005), available at http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf (on file with the Columbia Law Review) ("Th[e President's] constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States").
24. see also William J. Stuntz, Implicit Bargains, Government Power, and the Fourth Amendment, 44 Stan. L. Rev. 553, 553 (1992) [hereinafter Stuntz, Implicit Bargains] (noting administrative search cases are growing in number).
25. See, e.g., Illinois v. Lidster, 540 U.S. 419, 424-25 (2004) (balancing intrusiveness of "information-seeking highway stops" against "importance of soliciting the public's assistance").
26. See, e.g., Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L. Rev. 197, 199-200 (1993) ("Fourth Amendment questions are resolved using a test that approximates the rational basis standard").
27. Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 855 (1994) ("[J]udgments couched in terms of 'reasonableness' slide very easily into the familiar constitutional rubric of 'rational basis' review").
28. Stuntz, Implicit Bargains, supra note 11, at 553-54 ("The Supreme Court's generalized 'reasonableness' standard resembles not negligence, but rational-basis constitutional review").
29. Sundby, Everyman's Fourth, supra note 6, at 1800 ("The Court's present approach approximates a loose rational basis standard").
30. see also William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016, 1057-58 (1995) [hereinafter Stuntz, Privacy's Problem] ("[T]he working Fourth Amendment rule seems to be something like a shock-the-conscience test: unless the government behavior was outrageous, the search is constitutionally reasonable.").
31. See, e.g., Slobogin, The World Without, supra note 6, at 68, 106-07 (criticizing Court's "willingness to exaggerate the state's interests and to trivialize the individual's interests").
32. Sundby, Everyman's Fourth, supra note 6, at 1765 ("[T]he government's card representing the citizenry's 'right' to safety almost always will outweigh an individual's claim of a right to privacy").
33. Most experts agree that government searches that are conducted pursuant to a neutral policy aimed at a non-law enforcement purpose are administrative searches, but they also recognize that many searches that do not fall within this definition are administrative as well.
34. See, e.g., Yale Kamisar et al., Basic Criminal Procedure 435-49 (12th ed. 2008) [hereinafter Kamisar et al., Criminal Procedure] (describing "rather broad range of searches and seizures" within administrative rubric).
35. Stephen A. Saltzburg & Daniel J. Capra, American Criminal Procedure: Investigative 382-85 (8th ed. 2007) (noting difficulty of distinguishing "between a search done for 'administrative' purposes and a search that is done to obtain evidence of a criminal violation").
36. Stephen J. Schulhofer, On the Fourth Amendment Rights of the Law-Abiding Public, 1989 Sup. Ct. Rev. 87, 108-09 (describing "approximate state of the law" governing administrative searches).
37. One scholar went so far as to suggest that all intrusions taking place outside a street crime setting might be subject to an administrative search rationale.
38. See Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 Minn. L. Rev. 383, 407 n.76 (1988) [hereinafter Sundby, A Return] ("The regulatory search characterization apparently stems from the fact that the school search was not in a street crime setting.").
39. See Schulhofer, supra note 15, at 89 (discussing Court's "doctrinal incoherence").
40. Christopher Slobogin, Let's Not Bury Terry: A Call for Rejuvenation of the Proportionality Principle, 72 St. John's L. Rev. 1053, 1070 (1998) [hereinafter Slobogin, Let's Not].
41. Tracey Maclin, Constructing Fourth Amendment Principles from the Government Perspective: Whose Amendment Is It, Anyway?, 25 Am. Crim. L. Rev. 669, 735 (1988) [hereinafter Maclin, Constructing] (quoting O'Connor v. Ortega, 480 U.S. 709, 730 (1987) (Scalia, J., concurring in the judgment)).
42. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 418 (1974).
43. See, e.g., Schulhofer, supra note 15, at 89 (arguing administrative searches should be limited to those intrusions that "respond to pressing health and safety concerns or to the internal governance imperatives of a self-contained public activity").
44. See, e.g., Amsterdam, supra note 19, at 409, 423-29 (arguing reasonableness balancing test should be interpreted in ways that would promote police rulemaking)
45. Wayne R. LaFave, Controlling Discretion by Administrative Regulations: The Use, Misuse, and Nonuse of Police Rules and Policies in Fourth Amendment Adjudication, 89 Mich. L. Rev. 442, 503-04 (1990) [hereinafter LaFave, Controlling Discretion] (same).
46. Slobogin, The World Without, supra note 6, at 75-76 (arguing reasonableness balancing test should be replaced by multi-tiered proportionality analysis under which (1) very severe intrusions would have to be justified by heightened clear and convincing standard, (2) less severe intrusions by probable cause standard, (3) minor intrusions by reasonable suspicion standard, and (4) de minimis intrusions by mere relevance standard).
47. Nadine Strossen, The Fourth Amendment in the Balance: Accurately Setting the Scales Through the Least Intrusive Alternative Analysis, 63 N.Y.U. L. Rev. 1173, 1177, 1254-55 (1988) (arguing allthings-considered reasonableness should be replaced by requirement that government use least intrusive means reasonably available for substantially achieving its goals).
48. For an updated version of Slobogin's approach, see Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment 21-47 (2007) [hereinafter Slobogin, Privacy]. In contrast, Scott Sundby proposed to do away with the reasonableness balancing test altogether. In cases where the government initiates investigatory activity in the absence of suspicious behavior, Sundby would replace reasonableness balancing with strict scrutiny. Where the government investigates in response to particularized suspicion, he would apply the warrant and probable cause requirements, subject to various exceptions.
49. Sundby, A Return, supra note 15, at 418-25, 431.
50. See Stuntz, Implicit Bargains, supra note 11, at 555-76, 588-89 (arguing deference to government in administrative search cases featuring roadblocks and drug testing is appropriate because political process provides adequate remedy for overzealous government action, but different approach modeled on hypothetical ex ante contracting is more appropriate for other kinds of administrative searches).
51. see also William J. Stuntz, Local Policing After the Terror, 111 Yale L.J. 2137, 2165-66 (2002) [hereinafter Stuntz, Policing] (describing how "political checks are much more likely" to constrain searches of groups than they are searches of individuals).
52. To be sure, prominent scholars continue to discuss administrative searches, but they typically do so incidentally, as part of illustrating larger Fourth Amendment theories, rather than focusing on the category of administrative searches as such.
53. See, e.g., Christopher Slobogin, Government Dragnets, Law & Contemp. Probs., Summer 2010, at 107, 108-10 [hereinafter Slobogin, Dragnets] (analyzing validity of group-focused investigation techniques and arguing Fourth Amendment doctrine should be guided by political-process theory, proportionality review, and exigency considerations).
54. see also Stuntz, Policing, supra note 22, at 2138-39 (examining how expanding administrative power to combat terrorism has also expanded police's authority to search).
55. See Saltzburg & Capra, supra note 15, at 420-23 (noting suspicionless searches at airports are more intrusive post-9/11 and collecting cases).
56. See id. at 433 (describing how checkpoints have become "routine part of life" after 9/11 and noting these terrorism-related checkpoints have been upheld by lower courts (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000))).
57. See, e.g., MacWade v. Kelly, 460 F.3d 260, 263 (2d Cir. 2006) (holding program of "random, suspicionless container searches" in subways "satisfies the special needs exception to the Fourth Amendment's usual requirement of individualized suspicion").
58. See sources cited supra note 11.
59. See Slobogin, Dragnets, supra note 23, at 109 ("[C]oncerns about national security, heightened since September 11, 2001, make such dragnets even more alluring than usual.").
60. id. at 122-23 ("Although the threat of [a terrorist] attack is infinitesimal in any given area, the human and symbolic toll of even one such event has led, and will continue to lead, to a number of dragnet programs").
61. See, e.g., United States v. Weikert, 504 F.3d 1, 6-15 (1st Cir. 2007) (discussing validity of DNA collection statutes under administrative search doctrine).
62. United States v. Kincade, 379 F.3d 813, 832-40 (9th Cir. 2004) (en banc) (same).
63. Sundby, Everyman's Fourth, supra note 6, at 1763 (noting Fourth Amendment lines will only continue to blur "as technological advances enable the government to invade privacy in more pervasive, but physically less intrusive, ways").
64. See generally Jack M. Balkin, The Constitution in the National Surveillance State, 93 Minn. L. Rev. 1 (2008) (discussing important ways in which government is increasingly using technology to monitor citizens).
65. See infra notes 54, 60, and accompanying text (giving examples of courts' applications of "minimally intrusive" requirement).
66. See infra notes 68-72 and accompanying text (describing methods of limiting officers' discretion).
67. E.g., Camara v. Mun. Court, 387 U.S. 523, 526, 528 (1967).
68. E.g., United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976).
69. E.g., United States v. Biswell, 406 U.S. 311, 311-13 (1972).
70. see also Wayne R. LaFave, Administrative Searches and the Fourth Amendment: The Camara and See Cases, 1967 Sup. Ct. Rev. 1, 1-4 [hereinafter LaFave, Administrative Searches] (documenting early inspection cases).
71. See infra Part II (describing creation of special subpopulation administrative search exception to warrant and probable cause requirements).
72. E.g., New Jersey v. T.L.O., 469 U.S. 325, 328 (1985).
73. E.g., Griffin v. Wisconsin, 483 U.S. 868, 872 (1987).
74. E.g., O'Connor v. Ortega, 480 U.S. 709, 725-26 (1987).
75. Compare infra notes 65-72 and accompanying text (describing limitations on executive discretion in dragnet context), with infra text accompanying note 95 ("[T]he prospect of executive discretion was much less troubling in the context of special subpopulations.").
76. Compare infra notes 57-64 and accompanying text (describing requirement that, before conducting dragnet search, government demonstrate its inability to proceed on individualized suspicion), with infra notes 92-94 and accompanying text (describing reliance on individualized suspicion in subpopulation searches).
77. See infra Part III (discussing doctrinal cross-contamination).
78. See, e.g., Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 Mich. L. Rev. 1319, 1387-416 (1977) ("Civil libertarians have expressed considerable concern over the Burger Court's treatment of the fourth amendment.").
79. Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution-Oriented?), and Police Investigatory Practices, in The Burger Court: The Counter-Revolution That Wasn't 62, 73-82 (Vincent Blasi ed., 1983) ("The Burger Court, it has been pointed out, appears to be far more impressed than its predecessors with 'the importance of being guilty'").
80. see also Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich. L. Rev. 2466, 2467 n.5 (1996) (collecting other sources).
81. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.1(a), at 441-46 (4th ed. 2004) [hereinafter LaFave, Search and Seizure] (exploring Supreme Court doctrine regarding search warrants).
82. See infra notes 53, 61, and accompanying text (providing examples).
83. See infra notes 54, 60, and accompanying text (providing examples).
84. See infra notes 65-85 and accompanying text (providing examples).
85. A program that involves stopping every third car or drug testing every fifth person involved in an activity could also be a dragnet government intrusion, because every person involved in the activity is subject to a government invasion. Over time, the idea is that each person will be subject to the government intrusion at least once.
86. See, e.g., Slobogin, Privacy, supra note 21, at 211-12 (noting individualized suspicion requirement cannot be honored when large groups of people are subjected to searches or seizures).
87. Christopher Slobogin, The Liberal Assault on the Fourth Amendment, 4 Ohio St. J. Crim. L. 603, 611 (2007) (same).
88. See, e.g., New York v. Burger, 482 U.S. 691, 712 (1987) (upholding warrantless search conducted under statute permitting search of all junkyard businesses).
89. Marshall v. Barlow's, Inc., 436 U.S. 307, 313 (1978) (noting warrantless searches of liquor and firearms dealers pursuant to statute are permissible).
90. United States v. Biswell, 406 U.S. 311, 316 (1972) (permitting "unannounced, even frequent, inspections" of firearms dealers).
91. See v. City of Seattle, 387 U.S. 541, 546 (1967) (recognizing legitimacy of business licensing and inspection programs).
92. Camara v. Mun. Court, 387 U.S. 523, 537 (1967) ("[W]e think that a number of persuasive factors combine to support the reasonableness of area codeenforcement inspections.").
93. See Illinois v. Lidster, 540 U.S. 419, 422, 427 (2004) (upholding checkpoint stop of all cars on highway where, one week earlier, fatal accident had occurred).
94. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990) (upholding sobriety checkpoint stops).
95. United States v. Martinez-Fuerte, 428 U.S. 543, 550 (1976) (upholding checkpoint stops for illegal aliens near border).
96. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 837 (2002) (permitting random drug testing of students involved in extracurricular activities).
97. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 665 (1995) (permitting random urinalysis of student athletes).
98. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 672 (1989) (permitting urinalysis drug testing of "Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty").
99. Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 634 (1989) (permitting drug testing of railway employees involved in train accidents and employees who violate safety rules).
100. 387 U.S. at 537-39.
101. The Court had earlier rejected a due process challenge to a statute that fined city residents for failing to grant entry to a health inspector who had cause to suspect a nuisance in the house. Frank v. Maryland, 359 U.S. 360, 361, 373 (1959).
102. Camara, however, was the first case to address a Fourth Amendment challenge to a government inspection regime. As will be discussed infra, the Court actually struck down the housing inspection program at issue in Camara because the government had not obtained an area warrant in advance of the inspections. However, in so doing, the Court emphasized that such inspections would be permissible with advance judicial approval.
103. See Camara, 387 U.S. at 538-39 ("'[P]robable cause' to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.").
104. Camara, 387 U.S. at 537 ("Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health." (quoting Frank, 359 U.S. at 372)).
105. The Court also emphasized that there had been "a long history of judicial and public acceptance" of these types of housing inspections.
106. see also LaFave, Administrative Searches, supra note 34, at 20 (noting "the inability to accomplish an acceptable level of code enforcement under the traditional probable cause test" was a primary factor supporting Court's decision).
107. Schulhofer, supra note 15, at 92-93 (noting Court thought "alternative procedures [were] not workable at all").
108. See Camara, 387 U.S. at 538 (emphasizing such probable cause showings could be "based upon the passage of time, the nature of the building (e.g., a multifamily apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling").
109. See v. City of Seattle, 387 U.S. 541 (1967).
110. In See, which was a companion case to Camara, the Court actually struck down the inspection at issue, but in dicta suggested that area-wide fire code inspections could be reasonable under the Fourth Amendment.
111. See id. at 545 (explaining governmental access to commercial establishments "will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved").
112. United States v. Biswell, 406 U.S. 311 (1972).
113. Colonnade Catering Co. v. United States, 397 U.S. 72 (1970).
114. See Biswell, 406 U.S. at 316 (noting licensing inspections pose "limited threats to the dealer's justifiable expectations of privacy").
115. Colonnade Catering, 397 U.S. at 77 (emphasizing regulatory regime did not allow for forcible entry but only regulatory inspection).
116. Brief for the Appellee at 16,
117. See, 387 U.S. 541 (No. 180), 1967 WL 129592, at *16 (arguing there is minimal privacy intrusion attendant to fire inspection of a business).
118. In fact, the Court in Biswell emphasized that dealers in firearms and ammunition are on notice when they enter the industry that they will be subject to routine government inspection. As a result, their privacy expectations are even more diminished.
119. See Biswell, 406 U.S. at 316 ("When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection.").
120. see also Colonnade Catering, 397 U.S. at 75 (emphasizing long history of pervasive regulation of liquor industry).
121. See Biswell, 406 U.S. at 315 (emphasizing that "close scrutiny of [firearms] traffic is undeniably of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders").
122. Brief for the Appellee at 4-5.
123. See, 387 U.S. 541 (No. 180), 1967 WL 129592, at *4-*5 (noting purpose of fire code inspections was to prevent fires and explosions).
124. The liquor inspections conducted in Colonnade Catering were arguably not made for health and safety reasons but rather to protect revenue.
125. See Brief for the United States at 26, Colonnade Catering, 397 U.S. 72 (No. 108), 1969 WL 119887, at *26 (noting liquor inspection statutes are civil, regulatory statutes "designed to avoid the loss of sizable amounts of revenue through fraud"). However, they were clearly not made for law enforcement purposes.
126. See Brief for the United States at 15-16, Biswell, 406 U.S. 311 (No. 71-81), 1972 WL 137513, at *15-*16 (arguing firearms dealers can easily attempt to conceal any infractions, individualized and generalized probable cause showings would be difficult to make, and, as a result, government needs to have flexibility to conduct these inspections without having to show probable cause).
127. Brief for the United States at 26, 28, Colonnade Catering, 397 U.S. 72 (No. 108), 1969 WL 119887, at *26, *28 (arguing evidence of regulatory violation can be removed easily and quickly and there are not likely to be any outward signs that would manifest need for inspection).
128. Brief for the Appellee at 20.
129. See, 387 U.S. 541 (No. 180), 1967 WL 129592, at *20 (arguing fire inspector would not be able to make probable cause showing of hazardous conditions and lay people will not be able to discern potential safety problems).
130. See Wayne R. LaFave, Computers, Urinals, and the Fourth Amendment: Confessions of a Patron Saint, 94 Mich. L. Rev. 2553, 2578-79 (1996) (collecting cases).
131. See, e.g., Delaware v. Prouse, 440 U.S. 648, 659 (1979) (noting unlicensed drivers are more likely to violate restrictions and stopping vehicles based on violations of vehicle laws will more likely detect unlicensed drivers than will random stops).
132. United States v. Brignoni-Ponce, 422 U.S. 873, 883 (1975) (rejecting government's attempts to rely on Camara to justify roving automobile stops designed to detect illegal aliens near border and emphasizing availability of alternatives to random stops unsupported by reasonable suspicion).
133. Almeida-Sanchez v. United States, 413 U.S. 266, 276-79 (1973) (Powell, J., concurring) (arguing government has made strong showing that no individualized suspicion regime would be effective).
134. See, e.g., Herring v. United States, 129 S. Ct. 695, 698 (2009) (noting Fourth Amendment "usually requires the police to have probable cause or a warrant").
135. Marshall v. Barlow's, Inc., 436 U.S. 307, 323-24 (1978)
136. See, 387 U.S. at 545.
137. Camara v. Mun. Court, 387 U.S. 523, 527-28 (1967).
138. See, e.g., Donovan v. Dewey, 452 U.S. 594, 603 (1981) (holding "statute's inspection program, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant").
139. Camara, 387 U.S. at 538.
140. see also Marshall, 436 U.S. at 320-21 (approving warrants based on "a general administrative plan" for "a given area").
141. 387 U.S. at 538.
142. Id. at 526 & n.1 (citing San Francisco Municipal Housing Code §§ 86(3), 503).
143. Id. at 532-33
144. see also See, 387 U.S. at 545 (finding warrant must be issued to enter and inspect commercial premises so that "the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field").
145. See Camara, 387 U.S. at 538 (emphasizing such probable cause showing could be "based upon the passage of time, the nature of the building (e.g., a multifamily apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling").
146. See, e.g., Donovan v. Dewey, 452 U.S. 594, 604 (1981) (finding relevant act does not "leav[e] the frequency and purpose of inspections to the unchecked discretion of Government officers," but instead "establishes a predictable and guided federal regulatory presence").
147. Marshall, 436 U.S. at 323-24 (finding Fourth Amendment violation where "authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers").
148. United States v. Ortiz, 422 U.S. 891, 896 (1975) (finding conferral authority "to search vehicles at random" violates Fourth Amendment).
149. United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975) ("[T]he Fourth Amendment demands something more than the broad and unlimited discretion sought by the Government.").
150. Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973) (objecting to "unfettered discretion").
151. See, 387 U.S. at 545 (prohibiting "unreviewed discretion").
152. See Brignoni-Ponce, 422 U.S. at 883 (requiring "reasonable suspicion for stops")
153. Almeida-Sanchez, 413 U.S. at 273 (requiring "probable cause or consent" for searches).
154. See 8 U.S.C. § 1357(a)(3) (2006) (permitting officials "to board and search for aliens any vehicle" located "within a reasonable distance from any external boundary of the United States").
155. see also 8 C.F.R. § 287.1(a)(2) (2010) (interpreting reasonable distance to be within 100 air miles of borders).
156. See Brignoni-Ponce, 422 U.S. at 882 (striking down roving stops of car near border).
157. Almeida-Sanchez, 413 U.S. at 283 (striking down roving patrols to search cars near border for illegal aliens).
158. Almeida-Sanchez, 413 U.S. at 270 (quoting Camara, 387 U.S. at 532).
159. see also Brignoni-Ponce, 422 U.S. at 882 ("To approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of major cities like San Diego to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers.").
160. Almeida-Sanchez, 413 U.S. at 283 (Powell, J., concurring) ("Nothing demonstrates that it would not be feasible for the Border Patrol to obtain advance judicial approval of the decision to conduct roving searches on a particular road or roads for a reasonable period of time.").
161. Ortiz, 422 U.S. at 896-97.
162. See id. at 895-96 (striking down border checkpoint searches because checkpoint officials exercise substantial degree of discretion in choosing which cars to search and noting Court has always required probable cause before allowing search of automobile).
163. 406 U.S. 311 (1972).
164. See v. City of Seattle, 387 U.S. 541, 546 (1967), involved a city fire code inspection program and specifically did not address the legitimacy of federal regulatory regimes.
165. And although the statutory regulations at issue in Colonnade Catering Co. v. United States, 397 U.S. 72, 77 (1970), were federal business regulations, the Court resolved that case on statutory grounds rather than Fourth Amendment grounds.
166. See also Davis v. United States, 328 U.S. 582, 593 (1946) (upholding business inspection of gasoline station office for rations coupons and noting existence of federal regulatory regime that provides for such inspections, but ultimately upholding inspection based on consent).
167. Biswell, 406 U.S. at 315.
168. This is the only reference in Biswell to the need to limit the discretion of government officials. As such, Biswell is probably the weakest example from this time period of the Court's emphasis on limiting government discretion. Cf.
169. Donovan v. Dewey, 452 U.S. 594, 605 (1981) (noting regulatory scheme "directly curtailed" officials' discretion).
170. Marshall v. Barlow's, Inc., 436 U.S. 307, 323-24 (1978) (requiring warrants where absence of such requirement would give officials "unbridled discretion")
171. Camara, 387 U.S. at 532-33 (reiterating need to use warrants to circumscribe "discretion to invade private property").
172. 452 U.S. 594.
173. Id. at 599 (quoting Marshall, 436 U.S. at 323. Colonnade Catering, 397 U.S. at 77) (internal quotation marks omitted).
174. see also Marshall, 436 U.S. at 324 (striking down administrative regime under which agents of Secretary of Labor conducted warrantless inspections of businesses looking for violations of OSHA regulations and noting administrative warrants would be required for such inspections).
175. Donovan, 452 U.S. at 604.
176. Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2639 (2009).
177. New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).
178. O'Connor v. Ortega, 480 U.S. 709, 725 (1987).
179. Griffin v. Wisconsin, 483 U.S. 868, 879 (1987).
180. Samson v. California, 547 U.S. 843, 847 (2006).
181. See supra Part I (describing dragnet searches).
182. See, e.g., Safford, 129 S. Ct. at 2638 (involving strip search of middle school student).
183. Samson, 547 U.S. at 847 (involving search of parolee's person)
184. Griffin, 483 U.S. at 871 (involving search of probationer's residence).
185. Ortega, 480 U.S. at 713 (involving detailed search of government employee's personal office).
186. T.L.O., 469 U.S. at 328 (involving full search of high school student's purse).
187. See sources cited supra notes 43 and 65 (discussing typical Fourth Amendment requirements).
188. See supra Part I (describing exemption of dragnet searches from requirement of individualized suspicion).
189. See, e.g., Ortega, 480 U.S. at 725 (requiring government to show it has reasonable suspicion to justify search of government employee's office).
190. T.L.O., 469 U.S. at 342 (requiring same showing to justify search of public school student's purse).
191. Ortega, 480 U.S. at 725-26.
192. For example, while people certainly have full expectations of privacy in their homes, the government can nevertheless conduct dragnet area housing inspections.
193. See Camara v. Mun. Court, 387 U.S. 523, 538 (1967) (permitting housing inspections conducted pursuant to area warrants).
194. Of course, it is possible to imagine a dragnet government intrusion that affects only members of a special subpopulation that has reduced expectations of privacy.
195. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 826 (2002) (discussing blanket drug-testing program for middle and high school students involved in extracurricular activities at public schools).
196. Samson v. California, 547 U.S. 843, 846 (2006) (upholding suspicionless searches of parolees).
197. Griffin v. Wisconsin, 483 U.S. 868, 872 (1987) (upholding warrantless search of probationer).
198. Cf. United States v. Martinez-Fuerte, 428 U.S. 543, 545 (1976) (discussing validity of dragnet border checkpoint stops).
199. Cf. United States v. Montoya de Hernandez, 473 U.S. 531, 532-33 (1985) (discussing validity of targeted detentions of suspects arriving at airports from abroad).
200. See, e.g., Arizona v. Gant, 129 S. Ct. 1710, 1714 (2009) (search incident to lawful arrest exception).
201. California v. Acevedo, 500 U.S. 565, 580 (1991) (automobile exception)
202. Florida v. Wells, 495 U.S. 1, 4 (1990) (inventory exception).
203. See, e.g., Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 447 (1990) (upholding vehicle sobriety checkpoint).
204. Courts often conduct sequential analyses of police behavior in Fourth Amendment cases. When an individual is stopped by the police and then detained for an extended period, for example, courts consider the validity of the stop at its inception and then conduct a separate analysis to see if the scope of the detention is unreasonable.
205. See, e.g., Florida v. Royer, 460 U.S. 491, 501-07 (1983) (analyzing separately whether detention was unreasonable even though initial stop was "no doubt permissible").
206. 428 U.S. 543.
207. E.g., South Dakota v. Opperman, 428 U.S. 364, 367 (1976).
208. See Martinez-Fuerte, 428 U.S. at 563 (holding "no particularized reason need exist to justify [the referral to a secondary inspection area]").
209. 469 U.S. 325 (1985).
210. Id. at 339-40.
211. The Court replaced the probable cause requirement with a reasonable suspicion requirement.
212. Id. at 341.
213. Id. at 342 n.8.
214. Id. at 340-41.
215. Id. at 339-41.
216. Id. at 351 (Blackmun, J., concurring).
217. 480 U.S. 709 (1987).
218. Id. at 720, 724-25.
219. See id. at 720 (citing Camara and T.L.O. as examples of cases in which special needs of government would make warrant and probable cause requirements impracticable).
220. 482 U.S. 691, 702-03 (1987).
221. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987).
222. Ferguson v. Charleston, 532 U.S. 67, 78 (2001).
223. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 666 (1989).
224. Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 619 (1989).
225. Bd. of Educ. v. Earls, 536 U.S. 822, 829 (2002).
226. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995).
227. See Amsterdam, supra note 19, at 411 ("[I]ndiscriminate searches and seizures are conducted at the discretion of executive officials, who may act despotically and capriciously")
228. see also City of Ontario v. Quon, 130 S. Ct. 2619, 2627 (2010) ("The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of Government" (quoting Skinner, 489 U.S. at 613-14))
229. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 551, 657 (1999) (noting "the Framers intended to require that all searches and seizures be reasonable and also to forbid use of general warrants" because general warrants were "reviled as a source of arbitrary power").
230. Amsterdam, supra note 19, at 411.
231. See supra Part I.
232. See supra Part II.
233. See sources cited supra note 94 and text accompanying note 95. 127.
234. Compare supra text accompanying notes 65-85 (describing Supreme Court's early focus on eliminating discretion in dragnet administrative search cases), with infra text accompanying notes 140-152 (explaining how Supreme Court slowly diluted requirement that government limit its discretion in dragnet cases).
235. See infra Part III.A.1 (explaining how courts no longer require meaningful limits on executive discretion in dragnet cases).
236. See supra note 48 and accompanying text (explaining why individualized suspicion requirements cannot exist in dragnet cases).
237. See supra text accompanying notes 55-62 (explaining how early dragnet cases involved important government interests that could not be pursued adequately through individualized suspicion regimes).
238. See infra Part III.A.2 (explaining Court's path to Samson v. California, 547 U.S. 843 (2006), in which it removed individualized suspicion requirement in special subpopulation case).
239. See supra text accompanying notes 66-67.
240. United States v. Martinez-Fuerte, 428 U.S. 543, 559 (1976).
241. Id. at 547.
242. Id. at 560 n.13, 563.
243. see also id. at 559, 562 n.15 ("[T]he choice of checkpoint locations is an administrative decision that must be left largely within the discretion of the Border Patrol.").
244. See id. at 576-77 (Brennan, J., dissenting) (noting majority argued both for and against limiting discretion).
245. See Schulhofer, supra note 15, at 111 (recognizing that "[t]he administrative search cases are thus plagued by unresolved tension between the virtues of systematic, neutral rules and individualized discretion").
246. 440 U.S. 648, 661 (1979).
247. See Priyamvada Sinha, Police Use of Race in Suspect Descriptions: Constitutional Considerations, 31 N.Y.U. Rev. L. & Soc. Change 131, 156 (2006) ("In cases like Delaware v. Prouse, the Supreme Court has acknowledged the dangers of unconstrained police discretion.").
248. Gregory Howard Williams, Police Discretion: The Institutional Dilemma-Who Is in Charge?, 68 Iowa L. Rev. 431, 437-39 (1983) (characterizing Prouse as limitation on police discretion).
249. Prouse, 440 U.S. at 661 (emphasis added).
250. Id. at 656-57.
251. United States v. Martinez-Fuerte, 428 U.S. 543, 558 (1976).
252. 462 U.S. 579, 588-90 (1983).
253. The statute did nothing to limit discretion and, as such, should not have been entitled to deference under the Supreme Court's dragnet precedents.
254. See supra text accompanying notes 83-85.
255. Villamonte-Marquez, 462 U.S. at 588.
256. See id. at 598-605 (Brennan, J., dissenting) (decrying lack of "discretion-limiting feature" in majority opinion).
257. see also Sundby, A Return, supra note 15, at 427 n.139 (recognizing that degree to which administrative regime controls government discretion is now "part of the reasonableness inquiry itself").
258. See, e.g., Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990) (focusing on balancing government's interest against "degree of intrusion upon individual motorists").
259. In Sitz, the Supreme Court analyzed the validity of temporary sobriety checkpoints set up by the police on roadways.
260. The majority opinion simply did not consider whether the administrative scheme limited discretion in its analysis.
261. Justice Stevens dissented, arguing that there was reason to believe that the police had a lot of flexibility in determining where and when to set up checkpoints.
262. Id. at 463-65 (Stevens, J., dissenting).
263. 540 U.S. 419 (2004).
264. Any requirement that the government limit its discretion would not pose a problem for the government in Lidster. In that case, the government set up a checkpoint and stopped every car driving through it in order to ask drivers whether they had any information about a fatal hit-and-run accident that had occurred on that road.
265. Id. at 421.
266. There was no exercise of discretion. But the fact that the Court does not even state that limiting discretion is a requirement demonstrates the Court's shift in focus. In earlier cases, the Court discussed the need to limit discretion even when the answer was easily resolved in favor of the government.
267. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 559 (1976) (noting "checkpoint operations both appear to and actually involve less discretionary enforcement activity").
268. E.g., Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 667 (1989).
269. Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 634 (1989).
270. Interestingly, in the Court's most recent drug testing dragnet, it did not discuss discretion at all. Bd. of Educ. v. Earls, 536 U.S. 822 (2002).
271. 482 U.S. 691 (1987).
272. N.Y. Veh. & Traf. Law § 415-a5 (McKinney 1986).
273. Burger, 482 U.S. at 717.
274. Id. at 703.
275. See id. at 711 (noting existence of statute that "informs the operator of a vehicle dismantling business that inspections will be made on a regular basis" means "the vehicle dismantler knows that the inspections to which he is subject do not constitute discretionary acts by a government official but are conducted pursuant to a statute").
276. Id. at 722-23 (Brennan, J., dissenting).
277. see also Schulhofer, supra note 15, at 102-03 (describing ways in which statutory regime in Burger vested discretion in government officials).
278. Veh. & Traf. § 415-a5.
279. There was no minimum number of inspections at all. Burger, 482 U.S. at 722 (Brennan, J., dissenting).
280. In fact, in Burger, the government could not even state why Burger's establishment had been chosen for inspection.
281. Id. at 694 n.2 (majority opinion).
282. id. at 723 (Brennan, J., dissenting).
283. Id. at 725 (Brennan, J., dissenting) (describing how police "copied the serial numbers from a wheelchair and a handicapped person's walker" even though those items "were in no way relevant to the State's enforcement of its administrative scheme").
284. See Donovan v. Dewey, 452 U.S. 594, 604 (1981) ("[R]ather than leaving the frequency and purpose of inspections to the unchecked discretion of Government officers, the Act establishes a predictable and guided federal regulatory presence.").
285. Marshall v. Barlow's, Inc., 436 U.S. 307, 323 (1978) (criticizing searches that give "almost unbridled discretion [to] executive and administrative officers").
286. See Slobogin, Privacy, supra note 21, at 211-12 (discussing ways in which Court's "hands-off attitude" toward group searches has vastly expanded opportunities for "arbitrary and pretextual" actions by police).
287. Blue v. Koren, 72 F.3d 1075, 1079-80 (2d Cir. 1995).
288. Id. at 1081.
289. See Lesser v. Espy, 34 F.3d 1301, 1308-09 (7th Cir. 1994).
290. Id. at 1309-10.
291. United States v. 4,432 Mastercases of Cigarettes, More or Less, 448 F.3d 1168, 1180 (9th Cir. 2006).
292. Tart v. Massachusetts, 949 F.2d 490, 498-99 (1st Cir. 1991).
293. see also LaFave, Controlling Discretion, supra note 21, at 503 (arguing that, in inspection cases, "the Court has created a hypertrophic exception to the warrant requirement and then made the worst of a bad situation by assuming that when no warrant is needed administrative regulations are likewise unnecessary").
294. Shankle v. Texas City, 885 F. Supp. 996, 999 (S.D. Tex. 1995).
295. Id. at 999-1001.
296. Id. at 1001.
297. Id. at 999.
298. Id. at 1004.
299. Id. at 1006 (granting qualified immunity because "the law was not clearly established as to the Constitutionality of the type of roadblocks erected as of the time of their occurrence").
300. See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973) ("[T]here must be probable cause for the search.").
301. See, e.g., Illinois v. Gates, 462 U.S. 213, 235 (1983) (describing probable cause standard's history).
302. See, e.g., Terry v. Ohio, 392 U.S. 1, 27 (1968) (describing reasonable suspicion standard).
303. Specifically, in United States v. Brignoni-Ponce, the Court struck down roving automobile stops designed to detect illegal aliens near the borders. 422 U.S. 873, 884 (1975).
304. It emphasized that it was unwilling to allow the Border Patrol to dispense with the reasonable, articulable, particularized suspicion requirement when it was targeting and stopping individuals-even individuals who had reduced expectations of privacy by virtue of being near the border.
305. Id. at 882.
306. see also Almeida-Sanchez, 413 U.S. at 273 (refusing to uphold searches at roving border checks unless they were supported by probable cause).
307. 428 U.S. 543 (1976).
308. Id. at 547.
309. Id. at 557.
310. Id. at 561.
311. See United States v. Knights, 534 U.S. 112, 114 (2001) (probationer).
312. Griffin v. Wisconsin, 483 U.S. 868, 870 (1987) (probationer).
313. O'Connor v. Ortega, 480 U.S. 709, 711-12 (1987) (public employee).
314. United States v. Montoya de Hernandez, 473 U.S. 531, 534 (1985) (international traveler).
315. New Jersey v. T.L.O., 469 U.S. 325, 328 (1985) (high school student).
316. Knights, 534 U.S. at 122
317. Griffin, 483 U.S. at 871.
318. Ortega, 480 U.S. at 726.
319. Montoya de Hernandez, 473 U.S. at 542.
320. T.L.O., 469 U.S. at 342 n.8.
321. T.L.O., 469 U.S. at 342 n.8.
322. Knights, 534 U.S. at 120 n.6
323. Ortega, 480 U.S. at 726.
324. See supra text accompanying notes 111-115.
325. For examples of how the Court has deployed this test.
326. see Knights, 534 U.S. at 122.
327. Griffin, 483 U.S. at 871.
328. Ortega, 480 U.S. at 726.
329. Montoya de Hernandez, 473 U.S. at 542.
330. T.L.O, 469 U.S. at 342 n.8.
331. T.L.O., 469 U.S. at 351 (Blackmun, J., concurring).
332. see also Ortega, 480 U.S. at 720 (reciting same language).
333. Ortega, 480 U.S. at 725-26.
334. T.L.O., 469 U.S. at 341.
335. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665-66 (1989) (emphasis added).
336. 547 U.S. 843, 855 n.4 (2006).
337. The Samson Court did not even rely on the special needs test to hold that individualized suspicion was not a prerequisite for special subpopulation searches. Rather, it relied on Camara and Martinez-Fuerte-cases that predated Justice Blackmun's creation of the special needs test-to say that reasonableness, rather than individualized suspicion, is the touchstone of the Fourth Amendment.
338. Compare United States v. Amerson, 483 F.3d 73, 79 (2d Cir. 2007) (applying special needs test to probationers), with People v. Medina, 70 Cal. Rptr. 3d 413, 419-20 (Ct. App. 2007) (contemplating application of Samson balancing to probationers).
339. See sources cited supra note 121.
340. See Johnson v. United States, 333 U.S. 10, 14 (1948) (emphasizing Fourth Amendment is designed to protect citizens against police who are "engaged in the often competitive enterprise of ferreting out crime").
341. The Supreme Court, in its decision in Samson, relies on the state to ensure that parolee searches are not arbitrary, harassing, or discriminatory. Specifically, it notes that any "concern that [the] system gives officers unbridled discretion to conduct searches is belied by [the State's] prohibition on 'arbitrary, capricious, or harassing' searches."
342. Samson, 547 U.S. at 856.
343. If the Fourth Amendment is to serve as a check on arbitrary searches, it should not be read in ways that make states responsible for stopping abuse. Moreover, given California's interpretation of this provision, it is highly unlikely that it will police abusive state practices.
344. Although the courts have stated that a search may not be conducted when the officer's motivation is unrelated to rehabilitative, reformative, or legitimate law enforcement purposes, as when it is driven by personal animosity toward the parolee, the cases reveal that, as long as the police officer is searching a person he knows to be a parolee, the search will be upheld.
345. Compare People v. Smith, 92 Cal. Rptr. 3d 106, 116 (Ct. App. 2009) (upholding suspicionless search of parolee's underwear based on his status as parolee).
346. and Medina, 70 Cal. Rptr. 3d at 420 (upholding suspicionless search of probationer's house based on probation status)
347. with In re Jaime P., 146 P.3d 965, 971-72 (Cal. 2006) (striking down suspicionless search because police officer was unaware of probation search condition).
348. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 341 (1985) (requiring reasonable suspicion rather than probable cause).
349. see also Slobogin, Let's Not, supra note 17, at 1082-84 (describing hierarchy of invasiveness with clear and convincing, probable cause, reasonable suspicion, and mere relevance standards).
350. Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted by Society,"
351. Duke L.J. 727, 737-39 (1993) (describing, as empirical matter, different levels of intrusiveness).
352. Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2639 (2009).
353. See supra Part I.
354. 443 U.S. 47 (1979).
355. 392 U.S. 1 (1968).
356. Brown, 443 U.S. at 53.
357. Id. at 51 (emphasis added).
358. See, e.g., Chandler v. Miller, 520 U.S. 305, 320 (1997) (striking down Georgia drug testing program because there is "no reason why ordinary law enforcement methods would not suffice to apprehend addicted individuals, should they appear in the limelight of a public stage").
359. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 668 (1989) (upholding dragnet drug testing of certain customs service employees because "the traditional probable-cause standard may be unhelpful where the Government seeks to prevent the development of hazardous conditions or to detect violations that rarely generate articulable grounds for searching any particular place or person").
360. Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 624 (1989) (upholding dragnet drug testing of railway employees because, "[i]n limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion").
361. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 673-74 (1995) (O'Connor, J., dissenting) (collecting cases).
362. New York v. Burger, 482 U.S. 691 (1987)
363. Donovan v. Dewey, 452 U.S. 594 (1981).
364. United States v. Villamonte-Marquez, 462 U.S. 579 (1983).
365. Mich. Dep't of State Police v. Sitz, 496 U.S. 444 (1990).
366. This is particularly noteworthy given the strenuous objections of some dissenters in these cases.
367. See, e.g., id. at 457-58 (Brennan, J., dissenting) (noting "[s]ome level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action" and pointing out there has been no showing that police have difficulty under current, individualized regime identifying drunk drivers)
368. id. at 469, 472 (Stevens, J., dissenting) (noting drunk driving is observable and there is "absolutely no evidence that [the checkpoint results in an] increase [in arrests] over the number of arrests that would have been made by using the same law enforcement resources in conventional patrols").
369. Villamonte-Marquez, 462 U.S. at 608 (Brennan., J., dissenting) (arguing for reasonable suspicion requirement and noting "there is no apparent reason why random stops are really necessary for adequate law enforcement").
370. 496 U.S. 444.
371. Cf. Burger, 482 U.S. at 717 (upholding warrantless inspections of vehicledismantling businesses without considering whether individualized suspicion regime could adequately serve governmental interest in eradicating automobile theft).
372. Villamonte-Marquez, 462 U.S. at 592-93 (upholding statutory regime permitting suspicionless boarding of ships without considering other, suspicion-based alternatives).
373. Donovan, 452 U.S. at 596 (upholding regulatory inspections of mine quarries without considering alternative, individualized suspicion regimes).
374. Sitz, 496 U.S. at 461-62 (Stevens, J., dissenting).
375. Id. at 469-72
376. see also id. at 458 (Brennan, J., dissenting) ("That stopping every car might make it easier to prevent drunken driving is an insufficient justification for abandoning the requirement of individualized suspicion." (citation omitted)).
377. Id. at 453-54 (majority opinion).
378. See City of Ontario v. Quon, 130 S. Ct. 2619, 2632 (2010) (rejecting argument that public employer's search of employee's text messages was constitutionally unreasonable because less intrusive search could have been conducted to satisfy government's interests).
379. Bd. of Educ. v. Earls, 536 U.S. 822, 837 (2002) (upholding school drug testing dragnet and noting "this Court has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means")
380. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663-64 (1995) (upholding school drug testing dragnet and noting Court has "repeatedly refused to declare that only the 'least intrusive' search practicable can be reasonable under the Fourth Amendment").
381. See Slobogin, Dragnets, supra note 23, at 109 ("[C]ameras equipped with zoom and nightscope capacity, computers that can process millions of records in minutes, detection equipment that can see through clothes have made dragnets more efficient, effective, and economical").
382. See id. at 108 (discussing data mining).
383. Cf. Christopher Slobogin, Government Data Mining and the Fourth Amendment, 75 U. Chi. L. Rev. 317, 318 (2008) (describing "large-scale data mining by federal agencies devoted to enforcing criminal and counterterrorism laws").
384. Slobogin, Dragnets, supra note 23, at 121 (discussing government's ability to use data mining programs "to access information from databases containing credit-card purchases, tax returns, driver's license data, work permits, travel itineraries, and other digital sources to discover patterns predictive of terrorist activity").
385. See Haskell v. Brown, 677 F. Supp. 2d 1187, 1189-90 (N.D. Cal. 2009) (denying motion filed by arrestees in California to enjoin enforcement of statute that provided for mandatory DNA sampling of felony arrestees because there was no substantial likelihood arrestees would prevail on Fourth Amendment claim).
386. United States v. Pool, 645 F. Supp. 2d 903, 906 (E.D. Cal. 2009) (upholding pretrial release condition that required person indicted for felony to provide mandatory DNA sample).
387. see also Tracey Maclin, Is Obtaining an Arrestee's DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 33 J.L. Med. & Ethics 102, 118 & 124 n.261 (2005) (arguing, based on Court's precedents, that Court should invalidate statutes prescribing DNA testing of arrestees but recognizing that Court would be unlikely to do so).
388. See, e.g., Stuntz, Implicit Bargains, supra note 11, at 588-89 (arguing administrative searches involving roadblocks and drug testing programs will be checked sufficiently by political process).
389. Stuntz, Policing, supra note 22, at 2163-64, 2169 (arguing for more group policing and arguing political process will serve as sufficient check on unreasonable government conduct).
390. Richard C. Worf, The Case for Rational Basis Review of General Suspicionless Searches and Seizures, 23 Touro L. Rev. 93, 193 (2007) (arguing for rational basis review of group searches under many circumstances, because political process can provide sufficient check on unreasonable government conduct).
391. Slobogin, Dragnets, supra note 23, at 136 (arguing political process can sometimes be relied upon to check unreasonable group searches and seizures).
392. See, e.g., Slobogin, Dragnets, supra note 23, at 121-23 (discussing secret use of technological data mining programs).
393. See Sundby, Everyman's Fourth, supra note 6, at 1807 n.223 (noting "some groups will be more effective than others at using the political process").
394. Scott E. Sundby, Protecting the Citizen "Whilst He Is Quiet": Suspicionless Searches, "Special Needs"
395. and General Warrants, 74 Miss. L.J. 501, 546-47 (2005) ("Ferguson's facts highlight the difficulty of relying on 'democratic control' to control suspicionless programs [because t]he women subjected to the program generally were poor patients seeking treatment at the city's public hospital, a population segment unlikely to have much of a political voice.").
396. This is particularly true when the affected groups do not have voting power, as is the case with prisoners and school children.
397. Slobogin, Dragnets, supra note 23, at 135. 224.
398. See Slobogin, Dragnets, supra note 23, at 135 (discussing how collective action problems can prevent citizens from complaining about some dragnets).
399. Cf. Sundby, A Return, supra note 15, at 439 (arguing for consideration of cumulative effect of government intrusions on "individual's right to be left alone").
400. See, e.g., Sundby, Everyman's Fourth, supra note 6, at 1807 (arguing very act of conducting oppressive group searches "undermine[s] the informed and free individual participation upon which 'the cure'-the political process-is premised").
401. see also Slobogin, The World Without, supra note 6, at 5 ("[I]f the state's agents are seen by the populace as arbitrary, uncontrolled actors, the legitimacy of the government may be undermined.").
402. Even those scholars who have argued that the political process can serve as a check on unreasonable dragnet searches have recognized that there are limits on the effectiveness of political process theory.
403. For example, while Worf argues for rational basis review when there is authorizing legislation that applies broadly to minority and majority groups, he nonetheless advocates strict scrutiny, inter alia, when there is no authorizing legislation, when authorizing legislation delegates too much power to the executive branch, or when legislation authorizes the search of a discrete and insular minority that does not have access to political process.
404. Worf, supra note 221, at 137-58.
405. see also Slobogin, Dragnets, supra note 23, at 132-36 (expanding on Worf's analysis and noting most of Supreme Court's cases involving dragnet searches involved situations in which political process failures were apparent).
406. See, e.g., Illinois v. Lidster, 540 U.S. 419, 426-27 (2004) (judging validity of checkpoint stop by weighing "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty" (quoting Brown v. Texas, 443 U.S. 47, 51 (1979))).
407. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 982 (1987) ("The problems that plague most balancing opinions, I believe, have severely damaged the credibility of the methodology.").
408. Sundby, A Return, supra note 15, at 414 ("[T]he Court has been unable to articulate a coherent and systematic view of when the reasonableness balancing test applies in relation to traditional probable cause.").
409. id. At 439-42 (documenting problems with balancing tests in Fourth Amendment context).
410. Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257, 309 (1984) (noting Court has never "spelled out just what sort of reasonableness standard it has in mind")
411. see also Amsterdam, supra note 19, at 414-15 (arguing general standard of unreasonableness "is obviously much too amorphous either to guide or to regulate the police").
412. See sources cited supra notes 13-14 (arguing balancing test is presumptively pro- government in practice).
413. 92 Cal. Rptr. 3d 106 (Ct. App. 2009).
414. Cf. Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2643 (2009) (holding that strip search of middle school student was highly invasive).
415. Smith, 92 Cal. Rptr. 3d at 113-14.
416. E.g., Williams v. Ellington, 936 F.2d 881, 882-83, 887 (6th Cir. 1991).
417. But see Safford, 129 S. Ct. at 2643.
418. In Safford, the Supreme Court struck down a strip search of a middle school student, but the Court also held that the school officials who conducted the search were entitled to qualified immunity because a number of lower courts had upheld strip searches of public school students, and thus the Fourth Amendment violation was not clearly established.
419. (citing Williams, 936 F.2d at 882-83, 887).
420. See Bd. of Educ. v. Earls, 536 U.S. 822, 837 (2002) (discussing blanket drug testing program for middle and high school students involved in extracurricular activities at public schools).
421. see also id. at 852 (Ginsburg, J., dissenting) (noting absence of documented problem of drug use among targeted population and arguing that, "[n]otwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of [the city], the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree. There is a difference between imperfect tailoring and no tailoring at all").
422. See Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990) (upholding constitutionality of sobriety checkpoints).
423. see also id. at 469 (Stevens, J., dissenting) (noting roving sobriety stops based on individualized suspicion could be equally if not more effective in stopping drunk driving and promoting government's safety interests).
424. id. at 458 (Brennan, J., dissenting) ("There has been no showing in this case that there is a difficulty in detecting individuals who are driving under the influence of alcohol, nor is it intuitively obvious that such a difficulty exists.").
425. New Jersey v. T.L.O., 469 U.S. 325, 339-41 (1985).
426. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (citing T.L.O. for proposition that special needs exist in public school context).
427. 480 U.S. 709 (1987).
428. Id. at 721-22.
429. See id. at 745 (Blackmun, J., dissenting) (arguing against "dispensing with a warrant in all searches by the employer" and noting "[t]he warrant requirement is perfectly suited for many work-related searches").
430. This is particularly true given the authorities' ability in many jurisdictions to obtain warrants via telephone.
431. See, e.g., Fed. R. Crim. P. 41(d)(3). Wis. Stat. § 968.12(3) (2009).
432. see also Craig M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 1493 (1985) (arguing it is time to take advantage of technology to bring warrant requirement up to date).
433. Maclin, Constructing, supra note 18, at 729 (discussing availability of telephonic warrants).
434. Slobogin, The World Without, supra note 6, at 32-33 (same).
435. At the very least, the employer could obtain some form of preclearance from an independent decisionmaker.
436. See sources cited infra note 283 (considering this possibility). 242. 129 S. Ct. 2633, 2638 (2009).
437. Redding v. Safford Unified Sch. Dist. No. 1, 504 F.3d 828, 829 (9th Cir. 2007), vacated en banc, 531 F.3d 1071 (9th Cir. 2008), aff'd in part and rev'd in part, 129 S. Ct. 2633 (2009).
438. Safford, 129 S. Ct. at 2643-44 (quoting Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 828 (11th Cir. 1997) (en banc)).
439. See, e.g., Yale Kamisar, On the Fortieth Anniversary of the Miranda Case: Why We Needed It, How We Got It-and What Happened to It, 5 Ohio St. J. Crim. L. 163, 168 (2007) (describing voluntariness test as "too amorphous, too perplexing, too subjective and too time-consuming to administer effectively").
440. see also Sundby, Everyman's Fourth, supra note 6, at 1803-04 (noting that, as was once true with confession and right to counsel cases, vague standards that currently exist in Fourth Amendment law "simply create[] too many opportunities for conflicting holdings and eventually [will] give[] rise to a call for more specific rules and guidance").
441. See sources cited supra note 42. 247.
442. See supra Part III.A.1.
443. See supra Part III.B.
444. See supra Part III.A.2.
445. See Florida v. Wells, 495 U.S. 1, 4 (1990) (noting "policies of opening all containers" in vehicle during inventory search are "unquestionably permissible")
446. Colorado v. Bertine, 479 U.S. 367, 370 (1987) (echoing lower court's finding that "standard procedures" for impounding vehicles required detailed inventory of car's contents).
447. South Dakota v. Opperman, 428 U.S. 364, 369, 376 (1976) (upholding "routine [police] practice of securing and inventorying [impounded] automobiles' contents").
448. See Illinois v. Lafayette, 462 U.S. 640, 643 (1983) ("[I]t is reasonable for police to search the personal effects of a person under lawful arrest as part of routine administrative procedure at a police station house incident to booking and jailing the suspect.").
449. E.g., Bertine, 479 U.S. at 373.
450. When the Court first recognized the exception, it did so in the context of an automobile inventory.
451. Opperman, 428 U.S. at 376.
452. At the time, the two strands of administrative searches had not yet been entangled. Administrative searches were dragnets that had to be supported by warrants.
453. See v. City of Seattle, 387 U.S. 541, 545 (1967)
454. Camara v. Mun. Court, 387 U.S. 523, 540 (1967).
455. The Opperman Court distanced itself from these administrative search precedents, noting that there are reduced expectations of privacy in vehicles such that the Court did not require warrants for vehicle searches related to safety.
456. Opperman, 428 U.S. at 367 & n.2.
457. Rather than rely on its administrative search precedent, the Court drew from its cases recognizing an exception to the warrant requirement under the automobile exception.
458. Id. at 373
459. see also infra Part IV.B (discussing why automobile exception is not part of administrative search doctrine).
460. Thus, from the beginning, the inventory search exception was carved off from the other dragnets, which allowed it to develop independent of the later cross-contamination with special subpopulation searches.
461. See, e.g., Kamisar et al., Criminal Procedure, supra note 15, at 393-99 (discussing Bertine and Wells).
462. LaFave, Search and Seizure, supra note 43, § 5.3(a), at 148-49 (describing Court's distinct justifications for inventory searches).
463. See Florida v. Wells, 495 U.S. 1, 4 (1990) (considering inventory exception as its own exception rather than as part of administrative search doctrine).
464. Bertine, 479 U.S. at 371 (same).
465. Opperman, 428 U.S. at 364 n.2 (distinguishing automobile inspections from administrative search cases).
466. 428 U.S. at 369, 372, 376.
467. Id. at 384 (Powell, J., concurring).
468. Id. at 370 n.5 (majority opinion).
469. 479 U.S. 367.
470. See supra Part III.
471. See Bertine, 479 U.S. at 373-74 (considering claim that alternative to search served government's relevant interests).
472. id. at 376 (Blackmun, J., concurring) ("Th[e] absence of discretion ensures that inventory searches will not be used as a purposeful and general means of discovering evidence of crime.").
473. There was significant disagreement among the Justices about whether the procedures at issue in Bertine sufficiently limited discretion. The dissent pointed to facts in the case suggesting that the officers' decision to inventory the vehicle was wholly discretionary while the majority believed that the officer acted pursuant to clear directives. However, all of the Justices agreed that whether there were sufficient limits on executive discretion inherent in the inventory plan (both on its face and as executed) was a threshold question to be asked to determine the validity of an inventory search. No such threshold question existed in the dragnet administrative search context after the entanglement with special subpopulation searches.
474. See supra Part III.A.1.
475. Bertine, 479 U.S. at 377-78 (Marshall, J., dissenting) (quoting Delaware v. Prouse, 440 U.S. 648, 661 (1979)).
476. Id. at 376-77 (Blackmun, J., concurring).
477. Id. at 374 n.6 (majority opinion).
478. Id. at 375.
479. see also LaFave, Controlling Discretion, supra note 21, at 451-63 (discussing "standardized procedures" requirement in Bertine).
480. 495 U.S. 1, 4 (1990).
481. For example, the Court noted that a police regulation could provide for an inventory of "closed containers whose contents officers are unable to ascertain from examining the containers' exteriors."
482. See United States v. Bulacan, 156 F.3d 963, 971 (9th Cir. 1998) (finding that, where officers were given no objective criteria upon which to base their decision to search container, degree of discretion was too great to satisfy requirements of Wells).
483. United States v. Infante-Ruiz, 13 F.3d 498, 504 (1st Cir. 1994) (refusing to uphold search under inventory exception because no standardized policy existed).
484. Jackson v. City of Pittsburgh, 688 F. Supp. 2d 379, 390 (W.D. Pa. 2010) (noting that, before inventory search will be deemed reasonable, there must be "standard procedure for conducting the inventory search" that "limit[s] the government actor's discretion by providing when the inventory search may be conducted and what may be considered within the scope of the inventory search")
485. United States v. Gomez-Vega, 519 F. Supp. 2d 241, 263 (D.P.R. 2007) ("[T]o be permissible under the Fourth Amendment, warrantless inventory searches must be conducted according to standardized objective procedures.").
486. United States v. Donnelly, 885 F. Supp. 300, 305 (D. Mass. 1995) (striking down inventory search in part because policy authorizing search lacked standardized criteria aimed at limiting officer discretion)
487. George v. State, 901 N.E.2d 590, 594 (Ind. Ct. App. 2009) ("[A]n inventory search must be conducted in conformity with 'standard police procedures' that 'sufficiently limit the discretion of the officer'" (quoting Wells, 495 U.S. at 4)).
488. Commonwealth v. Allen, 918 N.E.2d 475, 478 (Mass. App. Ct. 2009) (noting that, to be valid under Fourth Amendment, inventory search must be done in accordance with standard operating procedures).
489. People v. Gomez, 912 N.E.2d 555, 558 (N.Y. 2009) (striking down inventory search because state failed to demonstrate that it followed standardized, written protocol that adequately controlled officer discretion).
490. E.g., California v. Acevedo, 500 U.S. 565, 580 (1991).
491. California v. Carney, 471 U.S. 386, 392 (1985).
492. Although the automobile exception was also initially predicated on the ready mobility of cars, the Court has since eschewed mobility as a basis for the exception.
493. See, e.g., Maryland v. Dyson, 527 U.S. 465, 466-67 (1999) (per curiam) (holding no exigency finding necessary where officers had probable cause).
494. Carroll v. United States, 267 U.S. 132, 156-57 (1925).
495. Id. at 149.
496. See id. at 153-54 ("It would be intolerable and unreasonable if a [police officer] were authorized to stop every automobile on the chance of finding [contraband] and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.").
497. See Acevedo, 500 U.S. at 567, 580 (permitting search of closed container located in trunk of car).
498. Carney, 471 U.S. at 395 (holding motor home qualified for automobile exception).
499. Dyson, 527 U.S. at 467.
500. Wyoming v. Houghton, 526 U.S. 295, 300 (1999).
501. Acevedo, 500 U.S. at 579.
502. Carney, 471 U.S. at 392.
503. United States v. Ross, 456 U.S. 798, 799-800 (1982).
504. See Martinez v. State, 692 S.E.2d 766, 770-71 (Ga. Ct. App. 2010) (noting that, for warrantless search predicated on automobile exception to be valid, police must have probable cause to believe vehicle contains contraband).
505. State v. Flowers, 734 N.W.2d 239, 248-50 (Minn. 2007) (finding warrantless search of vehicle was invalid under automobile exception because officers did not have probable cause to believe there would be contraband in vehicle)
506. State v. Dudley, 779 N.W.2d 369, 371 (N.D. 2010) (emphasizing that, under automobile exception, law enforcement officers may conduct warrantless searches of vehicles when probable cause exists to believe contraband will be present).
507. Some might contend that the Court's most recent vehicle search decision substantially dilutes the probable cause requirement, but that contention is too hasty. In Arizona v. Gant, the Court addressed the search incident to arrest exception to the warrant requirement and held that the police may conduct a warrantless search of the passenger compartment of a car incident to a recent occupant's arrest "when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search" or "when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" 129 S. Ct. 1710, 1719 (2009) (quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)).
508. Although the "reasonable to believe" standard employed in Gant is a deviation from the default probable cause requirement for searches, the police still must have probable cause to support the initial arrest before they can rely on this exception. As a result, there are still two forms of individualized suspicion required before a Gant search incident to arrest is permissible the initial probable cause to arrest a person and the subsequent individualized suspicion that evidence relevant to the suspected crime will be in the vehicle.
509. See Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2642-43 (2009) (invalidating strip search of student suspected of distributing contraband because there was no "reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing").
510. Camara v. Mun. Court, 387 U.S. 523, 526, 532-34 (1967).
511. See, e.g., Slobogin, The World Without, supra note 6, at 35-36 ("Rather than require a court officer to assess the propriety of the action, an adequately trained lay decisionmaker, located on or near the school or workplace, could perform the role.").
512. See also Slobogin, Let's Not, supra note 17, at 1092-93 (discussing possibility of court orders rather than warrants).
513. See, e.g., Donovan v. Dewey, 452 U.S. 594, 604-05 (1981) (describing statute that substitutes adequate mechanisms for warrant requirement).
514. Cf. Sundby, A Return, supra note 15, at 439 (arguing for consideration of cumulative effect of government intrusions on "individual's right to be left alone").
515. In some jurisdictions, for example, police may obtain warrants via telephone.
516. See sources cited supra note 241 (discussing effect of technology on difficulty of obtaining warrants).
517. See sources cited supra note 283 (discussing alternative forms of preclearance).
518. Cf. Slobogin, The World Without, supra note 6, at 29-30 (arguing government should be able to proceed without warrant or independent authorization when it believes "that violence to others, disappearance of evidence, or escape of suspect is imminent").
519. Sundby, A Return, supra note 15, at 421-24 (explaining exigent circumstances could justify dispensing with warrant requirement).
520. See, e.g., O'Connor v. Ortega, 480 U.S. 709, 724-25 (1987) ("It is simply unrealistic to expect supervisors in most government agencies to learn the subtleties of the probable cause standard.").
521. New Jersey v. T.L.O., 469 U.S. 325, 353 (1985) (Blackmun, J., concurring) ("A teacher has neither the training nor the day-to-day experience in the complexities of probable cause that a law enforcement officer possesses, and is ill-equipped to make a quick judgment about the existence of probable cause.").
522. Cf. Samson v. California, 547 U.S. 843, 858-60 (2006) (Stevens, J., dissenting) (arguing special relationship of probation officer to probationer partly motivated Court to allow search of probationer without warrant supported by probable cause).
523. Sundby, A Return, supra note 15, at 423 n.128 (arguing special relationship between individual and government might justify reducing level of suspicion required for search).
524. But see Stuntz, Privacy's Problem, supra note 13, at 1057-58 (describing this approach as "perverse in privacy terms" because "the privacy interest in a student's purse does not depend on whether a school principal or a police officer is searching it").
525. See Schulhofer, supra note 15, at 118 (arguing probable cause requirement "was not intended for, and will seldom make sense for, striking a balance between the privacy interests and internal management imperatives of parties who share interdependent roles within an enterprise organized to pursue a governmental mission").
526. cf. id. at 112 (making similar argument about impracticability of requiring probable cause when pressing health and safety needs justify government intrusion).
527. Cf. Sundby, A Return, supra note 15, at 421-24 (arguing responsive intrusions should be governed by warrant and probable cause requirements, but noting level of individualized suspicion can be modified when there are exigent circumstances or when special relationship exists between individual and government).
528. Of course, the government could also argue that it initially stopped an individual pursuant to a valid dragnet regime and, during that valid dragnet, it obtained information that gave rise to individualized suspicion about a member of a special subpopulation. In such a situation, the government would first have to demonstrate to the court that the initial stop was part of a valid dragnet. If the dragnet was valid, then the information obtained during the dragnet could be used to buttress a claim that there was sufficient individualized suspicion to justify a later special subpopulation search.
529. For a discussion of reasonableness balancing in the Fourth Amendment context
530. more generally, see Wasserstrom, supra note 229, at 309-17 (discussing many alternative approaches to reasonableness balancing test).
531. see also Amar, supra note 6, at 801-05 (discussing application of tort principles of reasonableness as well as constitutional principles of reasonableness to Fourth Amendment). Separating dragnet intrusions from other types of intrusions may be a helpful step toward clarifying the factors that should be relevant to this inquiry.
532. Cf. Slobogin, Let's Not, supra note 17, at 1082-84 (arguing Fourth Amendment should be interpreted to require different levels of individualized suspicion depending on degree of government intrusion).