Randomization and the fourth amendment

University of Chicago Law Review

Volumn 78, Issue 3, 2011, Pages 809-877

  Harcourt, Bernard E ^a   Meares, Tracey L ^b  

^a UNIVERSITY OF CHICAGO   (United States)

^b YALE UNIVERSITY   (United States)

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EID: 84856986918     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (219)

1. Vernonia School District 47J v Acton, 515 US 646, 667(1995) (O'Connor dissenting).
2. See also Ybarra v Illinois, 444 US 85, 91(1979).
3. We think this point is noncontroversial, but for a different view of suspicion that rejects the probabilistic concept we espouse here and instead adopts a virtue-oriented approach to epistemic rationality, see generally Eric J. Miller, The Epistemology of Suspicion (Yale Law School Working Paper, Apr. 2011) (on file with authors).
4. We refer here, obviously, to the facts recounted by Detective Martin McFadden to justify his stop and search of John W. Terry in the famous case of Terry v Ohio, 392 US 1, 5-8(1968).
5. 392 US 1, 30(1968).
6. 392 US at 5-7.
7. See Thomas K. Clancy, The Fourth Amendment's Concept of Reasonableness, 2004 Utah L Rev 977, 994-98.
8. For an overview of random sampling and its practical limitations, see Julian L. Simon and Paul Burstein, Basic Research Methods in Social Science: The Art of Empirical Investigation 111-19 (Random House 3d ed 1985).
9. In many cases, the construction of profiles is actually based on random sampling. See Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age 7-16 (Chicago 2007). That was the idea, for instance, behind the IRS audits that were conducted to create the "Discriminant Index Function" (DIF) used to flag likely tax evaders. The DIF was last updated in 1992 based on a multiple-regression analysis of approximately fifty thousand tax returns that had been randomly audited in 1988. By using random sampling, the IRS can obtain an accurate picture of suspicious traits at a particular point in time. See id at 9-10, 218. To be sure, there are dangers in using profiles prospectively if the targeted population is less elastic to policing than the nontargeted population. See id at 111-44. So using the information prospectively may not be wise. But what randomization unquestionably affords is an accurate snapshot of the offending population, and it ensures that the carceral population will accurately reflect all distributions within the offending population.
10. We are not the first to advocate compensating individuals for police encounters through a regulatory regime. See Richard Lempert, Low Probability/High Consequence Events: Dilemmas of Damage Compensation, 58 De Paul L Rev 357, 360-61, 390(2009). Combining a compensation scheme with randomization, however, is new.
11. See Bruce Ackerman, Before the Next Attack 54-55 (Yale 2006).
12. 531 US 32(2000)
13. affg Edmond v Goldsmith, 183 F3d 659 (7th Cir 1999).
14. Summary of the RAND Report on NYPD's Stop, Question, and Frisk, Hearing before the New York City Council Committee on Public Safety and Committee on Civil Rights (2009) (statement of Greg Ridgeway, RAND Corporation), online at http://www.rand.org/pubs/testimonies/2009/RAND-CT329.pdf (visited Apr. 17, 2011).
15. See also New York Civil Liberties Union (NYCLU), NYPD Stop and Frisk Practices, online at http://www.nyclu.org/stopandfrisk (visited Apr. 17, 2011) (explaining that the vast majority of those stopped are black and Latino). For a detailed description of NYPD frisking procedure
16. see NYPD, New York City Police Department Patrol Guide Manual § 208-05(2006).
17. See NYCLU, NYPD Stop and Frisk Practices (cited in note 20) (noting that, by the NYPD's own admission, nearly 90 percent of those individuals stopped by police between 2004 and 2010 were completely innocent).
18. See also Commissioner Raymond W. Kelly, New York City Police Department Stop Question & Frisk Activity: Reports Prepared during the Period January 1 through Mar. 31, 2009, online at http://www.nyclu.org/files/NYPD-Stop-and- Frisk-Report-1stQtr2009.pdf (visited Apr. 17, 2011) ("NYPD Report");
19. NYCLU, Record Number of Innocent New Yorkers Stopped, Interrogated by NYPD (May 12, 2009), online at http://www.nyclu.org/node/2389 (visited Apr. 17, 2011).
20. Compare New York State Division of Criminal Justice Services, Adult Arrests: 2001-2010, online at http://criminaljustice.state.ny.us/crimnet/ojsa/ arrests/NewYorkCity.pdf (visited Apr. 17, 2011) (listing total number of arrests per year in New York City by type of offense, and showing a general decline in total arrests from 2001 to 2005, followed by a dramatic spike in 2007)
21. with NYCLU, Stop and Frisk Charts, online at http://www.nyclu.org/node/ 1597 (visited Apr. 17, 2011) (demonstrating that 4 percent of the stop-and-frisks citywide resulted in arrests, and listing "Area Has a High Crime Incidence," "Furtive Movements," and "Time of Day Fits Crime Incidence" as the most frequently cited reasons for the stop).
22. See New York State Division of State Police, State Police Violent Felony Warrant Squad Arrest Wanted Felon, the Third in 48 Hours (July 12, 2001), online at http://www.troopers.state.ny.us/Public-Information/2001-News-Releases/07-12- 01-State-Police-Violent-Felony-Warrant-Squad-arrest-wanted-felon, -the-third-in-48-hours.cfm (visited Apr. 17, 2011).
23. See also Patrice O'Shaughnessy, Warrant Squad Cops Track Worst Felons, NY Daily News 12 (Jan 20, 2008), online at http://www.nydailynews.com/news/2008/ 01/20/2008-01-20-warrant-squad-cops-track-worst-felons-3.htmlxzz0SQZa3P3O (visited Apr. 17, 2011).
24. See NYPD Report at 334-35 (cited in note 21).
25. See George L. Kelling, Police and Communities: The Quiet Revolution, in Persp Policing 1 (National Institute of Justice Report Series No 1, Feb. 1988) online at http://www.ojp. usdoj.gov/nij/topics/law-enforcement/administration/ executive-sessions/past.htm (visited Apr. 15, 2011) (describing the "reshaping of American policing" in many communities toward a strategy that increasingly focuses on the police's "contribution to the quality of neighborhood life, not just crime statistics").
26. See also Stephen D. Mastrofski, James J. Wills, and Tammy Rinehart Kochel, The Challenges of Implementing Community Policing in the United States, 1 Policing: J Pol & Prac 223, 225(2007);
27. Mark Harrison Moore, Problem-Solving and Community Policing, 15 Crime & Just: Rev Rsrch 99, 111-27(1992).
28. See Michael D. Reisig, Community and Problem-Oriented Policing, 39 Crime & Just: Rev Rsrch 1, 1-2(2010).
29. See also Roger B. Parks, et al, How Officers Spend Their Time with the Community, 16 Just Q 483, 514-15(1999);
30. Gordon P. Whitaker, What Is Patrol Work?, 4 Police Stud 13, 13-17 (Winter 1982).
31. See Brad W. Smith, Kenneth J. Novak, and James Frank, Community Policing and the Work Routines of Street-Level Officers, 26 Crim Just Rev 17, 17(2001).
32. For a sample of the early workload studies, see Elaine Cummings, Ian Cummings, and Laura Edell, Policeman as Philosopher, Guide and Friend, 12 Soc Probs 276, 285-86(1965);
33. Thomas E. Bercal, Calls for Police Assistance: Consumer Demands for Government Service, 13 Am Behav Scientist 681, 689(1970);
34. John A. Webster, Police Task and Time Study, 61 J Crim L, Criminol, & Police Sci 94, 100(1970);
35. Albert J. Reiss Jr, The Police and the Public 63-102 (Yale 1971);
36. Gary W. Cordner, Police Patrol Work Load Studies: A Review and Critique, 2 Police Stud 50, 57 (Summer 1979);
37. Stephen D. Mastrofski, The Police and Non-crime Services, in Gordon P. Whitaker and Charles David Phillips, eds, Evaluating Performance of Criminal Justice Agencies 33, 43 (Sage 1983).
38. John Liederbach, Addressing the "Elephant in the Living Room": An Observational Study of the Work of Suburban Police, 28 Policing: Intl J Police Strat & Mgmt 415, 431(2005).
39. See Cummings, Cummings, and Edell, 12 Soc Probs at 284 (cited in note 28);
40. Bercal, 13 Am Behav Scientist at 688-89 (cited in note 28);
41. Reiss, The Police and the Public at 95 (cited in note 28);
42. Webster, 61 J Crim L, Criminol, & Police Sci at 95 (cited in note 28).
43. See Smith, Novak, and Frank, 26 Crim Just Rev at 32 (cited in note 28);
44. Parks, et al, 16 Just Q at 500 (cited in note 27);
45. Liederbach, 28 Policing: Intl J Police Strat & Mgmt at 430-31 (cited in note 29);
46. James Frank, Steven G. Brandl, and R. Cory Watkins, The Content of Community Policing: A Comparison of the Daily Activities of Community and "Beat" Officers, 20 Policing: Intl J Police Strat & Mgmt 716, 725-26(1997).
47. Smith, Novak, and Frank, 26 Crim Just Rev at 22-23 (cited in note 28).
48. Smith, Novak, and Frank, 26 Crim Just Rev at 37 (cited in note 28).
49. See Frank, Brandl, and Watkins, 20 Policing: Intl J Police Strat & Mgmt at 718-20 (cited in note 31).
50. Frank, Brandl, and Watkins, 20 Policing: Intl J Police Strat & Mgmt at 720 (cited in note 31).
51. See, for example, John Liederbach and James Frank, Policing Mayberry: The Work Routines of Small-Town and Rural Officers, 28 Am J Crim Just 53, 69-70(2003);
52. Ralph A. Weisheit, David N. Falcone, and L. Edward Wells, Crime and Policing in Rural and Small Town America 77 (Waveland 1996);
53. Liederbach, 28 Policing: Intl J Police Strat & Mgmt at 430 (cited in note 29).
54. See Liederbach, 28 Policing: Intl J Police Strat & Mgmt at 419-20 (cited in note 29).
55. See Liederbach, 28 Policing: Intl J Police Strat & Mgmt at 425 (cited in note 29).
56. See Christine N. Famega, Proactive Policing by Post and Community Officers, 55 Crime & Delinquency 78, 98(2009).
57. Famega, 55 Crime & Delinquency at 88 (cited in note 55).
58. 221 F3d 329 (2d Cir 2000).
59. See Daniel C. Richman and William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 Colum L Rev 583, 583-84(2005) (noting that "Al Capone [remains] the poster child for pretextual prosecution" because, although the government strongly suspected him of serious crimes such as murder and racketeering, it opted instead to prosecute him for the lesser charge of tax evasion).
60. See United States v Martinez-Fuerte, 428 US 543, 562(1976);
61. Board of Education v Earls, 536 US 822, 836(2002);
62. Vernonia School District 47J v Acton, 515 US 646, 661-65(1995).
63. See, for example, Vernonia, 515 US at 653-54 (emphasis added); id at 667-68 (O'Connor dissenting) ("For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment.") (emphasis added).
64. We are interested only in the policing context and, for that reason, do not really engage the question of the propriety of suspicionless searches in administrative or other nonpolicing contexts, such as the issue presented in Ferguson v City of Charleston, 532 US 67(2001). We lean in favor of requiring suspicion in those contexts, too, though the level of suspicion could be set lower and established after the fact; but we have no deep stake in taking a position outside the criminal justice context.
65. For a similar argument, see Christopher Slobogin, The World without a Fourth Amendment, 39 UCLA L Rev 1, 38-75(1991).
66. See Carroll v United States, 267 US 132, 146(1925);
67. Payton v New York, 445 US 573, 576(1980). See also US Const Amend IV.
68. Carroll, 267 US at 162 (holding that police were not required to obtain a warrant for the search of a car).
69. United States v Watson, 423 US 411, 423-24(1976) ("[T]he judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation. ").
70. 515 US 646(1995).
71. 489 US 602(1989).
72. The famous passage is originally from Martinez-Fuerte, 428 US at 560-61
73. and has been repeated in myriad subsequent cases. See, for example, Vernonia, 515 US at 643;
74. New Jersey v T. L. O., 469 US 325, 342 n 8(1985);
75. Earls, 536 US at 829-30;
76. Samson v California, 547 US 843, 855 n 4(2006).
77. Earls, 536 US at 854 (Ginsburg dissenting).
78. See also Chandler v Miller, 520 US 305, 309(1997).
79. 536 US 822(2002).
80. 515 US at 664-65.
81. See Vernonia, 515 US at 664-65.
82. See Earls, 536 US at 838 (holding that, since the school's drug-testing policy was constitutional in light of its custodial responsibilities toward its students, it need not focus solely on those students most likely to be using drugs).
83. See Earls v Board of Education, 242 F3d 1264, 1278 (10th Cir 2001)
84. revd 536 US 822(2002).
85. See Earls, 536 US at 833.
86. Vernonia, 515 US at 652-53.
87. Id, quoting Skinner, 489 US at 619.
88. Vernonia, 515 US at 667-68 (O'Connor dissenting).
89. 267 US 132(1925).
90. Justice O'Connor mentions the following scholarly resources: William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602-1791 (Oxford 2009);
91. Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U Memphis L Rev 483(1994);
92. Tracey Maclin, When the Cure for the Fourth Amendment Is Worse Than the Disease, 68 S Cal L Rev 1(1994);
93. Leonard W. Levy, Original Intent and the Framers' Constitution (MacMillan 1988).
94. Vernonia, 515 US at 668 (O'Connor dissenting).
95. Id at 653, quoting Martinez-Fuerte, 428 US at 560-61.
96. Vernonia, 515 US at 653
97. quoting Griffin v Wisconsin, 483 US 868, 973(1987).
98. 428 US 543(1976).
99. See Martinez-Fuerte, 428 US at 566-67 (limiting the holding to the "types of stops described in [the] opinion-that is, stops that are brief, routine, and conducted at permanent checkpoints").
100. Martinez-Fuerte, 428 US at 557.
101. Id at 558, quoting United States v Brignoni-Ponce, 422 US 873, 880(1975).
102. Martinez-Fuerte, 428 US at 558.
103. Martinez-Fuerte, 428 US at 569 (Brennan dissenting).
104. 413 US 266(1972).
105. 422 US 891(1974).
106. 422 US 873(1975).
107. See Almeida-Sanchez, 413 US at 273-74;
108. Ortiz, 422 US at 897-98;
109. Brignoni-Ponce, 422 US at 878.
110. Martinez-Fuerte, 428 US at 569-70
111. (Brennan dissenting), quoting Terry, 392 US at 22.
112. See New York v Burger, 482 US 691, 702(1987) (upholding as constitutional a New York statute allowing warrantless investigations of vehicles in privately owned junkyards because junkyards fit within the "closely regulated industry" exception to the Fourth Amendment's warrant requirement).
113. See Bell v Wolfish, 441 US 520, 557(1979).
114. 520 US 305(1997).
115. Vernonia, 515 US at 673 (O'Connor dissenting).
116. See also Skinner, 489 US at 624.
117. See Vernonia, 515 US at 673-74 (O'Connor dissenting).
118. For more on the development of the term in Supreme Court jurisprudence, see Clancy, 25 U Memphis L Rev at 531-85 (cited in note 95).
119. See, for example, Ornelas v United States, 517 US 690, 695(1996).
120. But see Brinegar v United States, 338 US 160, 175-76(1949)
121. quoting Carroll, 267 US at 162.
122. See 428 US at 560.
123. See, for example, id at 564 n 18; People v Hyde, 524 P2d 830, 835 (Cal 1974).
124. 392 US at 27.
125. See, for example, Martinez-Fuerte, 428 US at 560;
126. State v McLaughlin, 471 NE2d 1125, 1141 (Ind App 1984)
127. citing Delaware v Prouse, 440 US 648, 654-55(1979).
128. Consider Alabama v White, 496 US 325, 329-30(1990)
129. quoting INS v Delgado, 466 US 210, 217(1983).
130. See Edmond v Goldsmith, 183 F3d 659, 665-66 (7th Cir 1999)
131. affd, Edmond, 531 US at 36.
132. Edmond, 531 US at 34-36.
133. See Edmond, 183 F3d at 661.
134. Edmond, 183 F3d at 663.
135. Terry, 392 US at 30 (holding that a reasonable belief that "criminal activity may be afoot," in conjunction with other factors, may legitimize a search of an individual's clothing for weapons).
136. Edmond, 183 F3d at 669-70 (Easterbrook dissenting) (comparing the hit rate in Edmond with the less than 0.00001 percent hit rate in airport security and the less than 1 percent hit rate in Martinez-Fuerte).
137. Id at 666 (Easterbrook dissenting). We are not sure how Judge Easterbrook got to the 9.4 percent figure. Both Justice O'Connor and Judge Posner report similar search success rates of 104 motorists of a total pool of 1, 161, or 8.96 percent. See Edmond, 531 US at 35;
138. Edmond, 183 F3d at 661.
139. 496 US 444(1990).
140. Edmond, 183 F3d at 666 (Easterbrook dissenting)
141. citing Martinez-Fuerte, 428 US at 554;
142. Sitz, 496 US at 448.
143. See Edmond, 183 F3d at 661.
144. See John Knowles, Nicola Perisco, and Petra Todd, Racial Bias in Motor Vehicle Searches: Theory and Evidence, 109 J Polit Econ 203, 222(2001).
145. But see Bernard E. Harcourt, Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature, and of Criminal Profiling More Generally, 71 U Chi L Rev 1275, 1292(2004).
146. See Rubén Hernández-Murillo and John Knowles, Racial Profiling or Racist Policing? Bounds Tests in Aggregate Data, 45 Intl Econ Rev 959, 970 table 1(2004).
147. See Harcourt, Against Prediction at 16 (cited in note 16)
148. citing John Monahan and Laurens Walker, eds, Social Science in Law: Cases and Materials 452-53 (Foundation 2006)
149. citing Edwin Zedlewski, The DEA Airport Surveillance Program: An Analysis of Agent Activities (1984).
150. See Tracey L. Meares and Bernard E. Harcourt, Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J Crim L & Criminol 733, 789(2000)
151. citing Civil Rights Bureau, Office of the Attorney General, The New York City Police Department's "Stop & Frisk" Practices: A Report to the People of the State of New York from the Office of the Attorney General 135 (Dec. 1, 1999) ("Stop & Frisk Report"), online at http://www.ag.ny.gov/bureaus/civil-rights/pdfs/stp-frsk.pdf (visited Apr. 17, 2011).
152. For an argument proposing increased use of social science evidence in constitutional criminal procedure, see Meares and Harcourt, 90 J Crim L & Criminol at 746 (cited in note 155).
153. Vernonia, 515 US at 652.
154. See also Carroll, 267 US at 147 ("The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.") and all of the cases citing back to that famous statement.
155. See Tracey Maclin, What Can Fourth Amendment Doctrine Learn from Vagueness Doctrine?, 3 U Pa J Const L 398, 445(2001).
156. See Sherry F. Colb, Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence, 96 Colum L Rev 1456, 1464, 1485-1502(1996). (Pubitemid 126406327)
157. See, for example, Stop & Frisk Report at 111 (cited in note 155) (noting a 9-to-1 ratio of stops-to-arrests in a comprehensive review of a fifteen-month survey of traffic stops in New York City). See also Part III. B.
158. 517 US 806(1996).
159. Consider David R. James, The Racial Ghetto as a Race-Making Situation: The Effects of Residential Segregation on Racial Inequalities and Racial Identity, 19 Law & Soc Inquiry 407, 420-29(1994);
160. Jeffrey Fagan and Tracey L. Meares, Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities, 6 Ohio St J Crim L 173, 220-21(2008).
161. See Greg Ridgeway, Analysis of Racial Disparities in the New York Police Department's Stop, Question and Frisk Practices xi-xiv (RAND 2007).
162. *9, 13, 15 (unpublished manuscript, Dec. 2005), online at http://www.stat.columbia.edu/~gelman/research/unpublished/frisk7.pdf (visited June 10, 2011).
163. See generally Ian Ayres and Jonathan Borowsky, A Study of Racially Disparate Outcomes in the Los Angeles Police Department (ACLU 2008), online at http://www.aclu-sc.org/documents/view/47 (visited Apr. 17, 2011).
164. See Ayres and Borowsky, Study of Racially Disparate Outcomes at 6 (cited in note 167).
165. See ACLU of Arizona, Driving While Black or Brown: An Analysis of Racial Profiling in Arizona 2(2008), online at http://www.acluaz.org/sites/default/ files/documents/DrivingWhileBlackorBrown.pdf (visited Apr. 17, 2011).
166. See Robin S. Engel, Jennifer Calnon Cherkauskas, and Michael R. Smith, Traffic Stop Data Analysis Study: Year 2 Final Report 126-29 (University of Cincinnati Policing Institute 2008), online at http://www.azdps.gov/about/ Reports/docs/Traffic-Stop-Data-Report-2008.pdf (visited Apr. 17, 2011). The study was commissioned by the law enforcement agency, and it emphasized that "no department-wide conclusions" could be made on any racial disparities in stopping behavior. Id at 125.
167. See generally Stephen M. Haas, Erica Turley, and Monika Sterling, West Virginia Traffic Stop Study: Final Report (West Virginia Division of Criminal Justice Services 2009), online at http://www.dcjs.wv. gov/SAC/Documents/ NEWOverviewofStatewideFindings2009.pdf (visited Apr. 17, 2011).
168. See Alexander Weiss and Dennis P. Rosenbaum, Illinois Traffic Stops Statistics Study 2008 Annual Report 2 (University of Illinois at Chicago Center for Research in Law and Justice 2009), online at http://www.dot.state.il.us/ travelstats/ITSS%202008%20Annual%20Report.pdf (visited Apr. 17, 2011).
169. See Ridgeway, Analysis of Racial Disparities at xi-xiii (cited in note 165).
170. See Amy Farrell and Jack McDevitt, Rhode Island Traffic Stop Statistics Data Collection Study 2004-2005 1-4 (Northeastern University Institute on Race and Justice, Apr. 2006), online at http://www.rijustice.ri.gov/documents/sac/ Final%20Report%202004-2005.pdf (visited Apr. 17, 2011).
171. See generally ACLU and Rights Working Group, Persistence of Racial and Ethnic Profiling in the United States: A Follow-Up Report to the U. N. Committee on the Elimination of Racial Discrimination (2009), online at http://www.aclu.org/pdfs/humanrights/cerd-finalreport.pdf (visited Apr. 17, 2011).
172. ACLU and Rights Working Group, Persistence of Racial and Ethnic Profiling in the United States at 41-68 (cited in note 191).
173. Compare Weiss and Rosenbaum, Illinois Traffic Stops Statistics at 9-10 & figure 5 (cited in note 183)
174. with Martinez-Fuerte, 428 US at 547;
175. Edmond v Goldsmith, 183 F3d 659, 661-62 (7th Cir 1999).
176. Vernonia, 515 US at 671 (O'Connor dissenting).
177. See also New Jersey v T. L. O., 469 US 325, 361(1985) (Brennan dissenting);
178. Camara v Municipal Court, 387 US 523, 528(1967);
179. Jones v United States, 357 US 493, 498(1958).
180. Vernonia, 515 US at 670 (O'Connor dissenting). It turns out that the history is more contentious than Justice O'Connor maintains.
181. See Fabio Arcila Jr, The Death of Suspicion, 51 Wm & Mary L Rev 1275, 1297-1326(2010);
182. Max Minzner, Putting Probability Back into Probable Cause, 87 Tex L Rev 913, 920-23, 948-51(2009).
183. Vernonia, 515 US at 671 (O'Connor dissenting)
184. quoting Act of July 31, 1789 § 24, 1 Stat 29, 43
185. repealed by Act of Aug. 4, 1790 § 74, 1 Stat 145, 178.
186. Vernonia, 515 US at 671 (O'Connor dissenting) (citation omitted).
187. But see Arcila, 51 Wm & Mary L Rev at 1297-1310 (cited in note 198).
188. Vernonia, 515 US at 668-69 (O'Connor dissenting)
189. quoting Carroll, 267 US at 153-54.
190. See Meares and Harcourt, 90 J Crim L & Criminol at 789 (cited in note 155).
191. 528 US 119(2000).
192. See id at 120, revg People v Wardlow, 701 NE2d 484, 486 (Ill 1998).
193. See Meares and Harcourt, 90 J Crim L & Criminol at 790-92 (cited in note 155).
194. See Wardlow, 528 US at 124; id at 128 (Stevens dissenting).
195. See Meares and Harcourt, 90 J Crim L & Criminol at 787-92 (cited in note 155) (applying findings of the OAG report to the Wardlow case). Although the report was not issued early enough for it to be included in the briefs in Wardlow, it was available to the justices when they wrote the opinion. We explore the report here as an example of evidence that could be used in making a reasonableness determination rather than condemning the court for overlooking the report.
196. *1 (Nov. 14, 1986). In situations that fall outside these four contexts, a police officer may fill out a form if he or she desires to do so. See Stop & Frisk Report at 90 (cited in note 155) (providing a copy of the form). The pool of forms analyzed in the study contained about three-quarters mandated reports and the rest voluntary. Id at 91. The forms covered stops that occurred in 1998 and the first three months of 1999. Id at v.
197. Stop & Frisk Report at 111 (cited in note 155).
198. See Wardlow, 528 US at 128-33 (Stevens dissenting).
199. Rather than emphasizing a particular quantum of evidence necessary to justify a stop under the reasonable suspicion standard, the Court has emphasized the factual basis for the stop by requiring an officer to review all those factors that motivated him to act. See, for example, Michigan v Summers, 452 US 692, 703(1981);
200. Wardlow, 528 US at 124. Despite the Court's reluctance to discuss the level of certainty probabilistically, there is evidence that decisionmakers assess the level of evidence that justifies different police actions in implicit probabilistic terms. For example, in one study, 96 out of 166 federal judges surveyed indicated a belief that the reasonable suspicion standard requires 40 percent certainty or less that evidence of crime would be found by an officer after a stop.
201. See C. M. A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 Vand L Rev 1293, 1327 table 3(1982). In the same study, 25 percent of the judges indicated that 50 percent certainty was necessary for reasonable suspicion, while another 19 percent indicated that 60 percent certainty or more was necessary. Id at 1327-28. This empirical evidence makes it quite clear that Fourth Amendment jurisprudence leaves open just how much liberty should be circumscribed. See Slobogin
202. UCLA L Rev at 75-78
203. We would also suggest that, for serious crime, the level of suspicion could be lower than for trivial offenses or misdemeanors. If the offense is in fact trivial, perhaps we should augment the level of suspicion, in part because the triviality of the offense in all likelihood suggests that the general level of offending in society is probably higher. There is a sense in which we do that, intuitively, in many criminal contexts. In the case of conspiracy, for example, we require a higher level of evidence of intentionality to support a conspiracy or complicity charge. So, for example, when an individual who provides telephone message service to the public is accused of conspiring with prostitutes, we may require more evidence of intentional aiding in order to prove a conspiracy. We may not be as willing to impute intent based on knowledge-based on the fact that the telephone message provider simply knows that his customers include prostitutes. However, we may be willing to impute intent if an individual is accused of facilitating a terrorist act if, with knowledge, that individual sells a service that furthers the terrorist act. This is, famously, the distinction drawn in People v Lauria, 59 Cal Rptr 628, 634-35 (Cal App 1967) (requiring greater level of evidence of intent in conspiracy case involving prostitution). The same type of distinction may apply in the Fourth Amendment context: we may require a higher threshold of suspicion in the case of more ordinary misdemeanors or more trivial felonies.
204. See State v Soto, 734 A2d 350, 354 (NJ Super Ct 1999).
205. See, for example, MacWade v Kelly, 460 F3d 260, 263 (2d Cir 2006);
206. Cassidy v Chertoff, 471 F3d 67, 87 (2d Cir 2006).
207. But see generally Ric Simmons, Searching for Terrorists: Why Public Safety Is Not a Special Need, 59 Duke L J 843(2010).
208. See, for example, Sarah Lawsky, Fairly Random: On Compensating Audited Taxpayers, 41 Conn L Rev 161, 163-68(2008);
209. Daniel Solove, Data Mining and the Security-Liberty Debate, 75 U Chi L Rev 343, 357(2008).
210. See William C. Heffernan and Richard W. Lovely, Evaluating the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U Mich J L Ref 311, 361 n 123(1991).
211. See L. I. Boden, Worker's Compensation in the United States: High Costs, Low Benefits, 16 Ann Rev Pub Health 189, 190-91, 206-08(1995).
212. To be sure, the police today also have an incentive to police the entire city, they do police all neighborhoods, and, despite that, they target stop-and-frisks disproportionately on certain groups and in certain neighborhoods. See Matthew Petrocelli, Alex R. Piquero, and Michael R. Smith, Conflict Theory and Racial Profiling: An Empirical Analysis of Police Traffic Stop Data, 31 J Crim Just 1, 8(2003). The problem today is not that the police do not police higher-income neighborhoods, but that they target their stop-and-frisks on certain identifiable populations and in certain parts of town. Under our scheme, the practices would be made more consistent across neighborhoods. It is the consistency in practices that would make all the difference. The police would have the same incentive to police all neighborhoods, but would now be required to do so in the same way.
213. See generally Harcourt, Against Prediction (cited in note 16).
214. Consider INS v Chadha, 462 US 919, 944(1983).
215. See Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv L Rev 1255, 1255(1994);
216. Carolyn Wolpert, Considering Race and Crime: Distilling Non-partisan Policy from Opposing Theories, 36 Am Crim L Rev 265, 285-86(1999).
217. See Edmond, 183 F3d at 661-62.
218. See id at 662. Judge Posner held that in conventional criminal-law enforcement settings, an individual-level assessment is ordinarily appropriate: "[C]ourts do not usually assess reasonableness at the program level when they are dealing with searches related to general criminal law enforcement"-or at least, "ordinarily" so. Id at 662, citing, for example, Whren v United States, 517 US 806. Judge Posner, reviewing prior cases, found several exceptions to the ordinary situation. Those exceptions included, first, the case where police officers have information that a dangerous criminal is escaping along a certain route. Here, there is heightened risk that allows for preemption in favor of program-level review.
219. See Edmond, 183 F3d at 662-63. Second, there is an exception when law enforcement faces a terrorist threat. Judge Posner offered the following example: [I]f the Indianapolis police had a credible tip that a car loaded with dynamite and driven by an unidentified terrorist was en route to downtown Indianapolis, they would not be violating the Constitution if they blocked all the roads to the downtown area even though this would amount to stopping thousands of drivers without suspecting any one of them of criminal activity. Id at 663. In this case of national emergency, the court should switch to the program-level review. Judge Posner identified a third exception for regulatory measures such as sobriety checkpoints or other randomized search programs involving drug testing for law enforcement officers or railroad engineers, id at 663, and a fourth exception for immigration checkpoints searching for illegal immigrants or contraband crossing the borders. Id at 664-65. In all these exceptional cases, Judge Posner declared, courts reviewing police practices should and do properly adopt a program-level cost-benefit analysis-which, not surprisingly, results in their being found constitutional. See id at 665-66.