Rebalancing the fourth amendment

Georgetown Law Journal

Volumn 102, Issue 1, 2013, Pages 1-58

  Baradaran, Shima ^a  

^a UNIVERSITY OF UTAH   (United States)

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[No Author keywords available]

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EID: 84890063327     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (511)

1. Ailsa Chang, For City's Teens, Stop and Frisk Is Black and White (WNYC radio broadcast May 29, 2012).
2. Ross Tuttle & Erin Schneider, Will the New York City Council Curb Stop-and-Frisk Abuses?, NATION (Oct. 12, 2012), http://www.thenation.com/ article/170523/will-new-york-city-council-curb-stopand- frisk-abuses#.
3. Jesse Alejandro Cottrell, 'Stop and Frisk' May Be Working - But Is It Racist?, ATLANTIC (Jan. 23, 2013), http://www.theatlantic.com/national/archive/ 2013/01/stop-and-frisk-may-be-working-but-is-itracist/ 267417/.
4. This may be part of a broader problem of making law through cases that sometimes have bad facts. See Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 884 (2006) (arguing that all cases, not just bad cases, create the possibility of making bad law).
5. Indeed, blind balancing not only appears in Fourth Amendment decisions but also in procedural due process, Arnett v. Kennedy, 416 U.S. 134, 167-68 (1974) (discussing the need to weigh the government's interest in determining whether due process was satisfied in an employee dismissal case)
6. Goldberg v. Kelly, 397 U.S. 254, 266-67 (1970) (deciding that a fair trial should be provided according to due process before terminating welfare benefits because the private interests outweighed the government's interests)
7. the Equal Protection Clause, Trimble v. Gordon, 430 U.S. 762, 775 (1977)
8. (balancing rights of illegitimate children to inherit versus the state's interest to prevent this type of inheritance as discrimination under the Equal Protection Clause); substantive due process, Youngberg v. Romeo, 457 U.S. 307, 320-24 (1982) (concluding that an involuntarily committed, mentally incompetent petitioner had rights to safe conditions, freedom of bodily movement, and training when balancing his interests against the state's interests)
9. Poe v. Ullman, 367 U.S. 497, 542 (1961) (dismissing a claim that a statute prohibiting married couples from using contraceptive devices was unconstitutional and stating that the balancing required in substantive due process claims represents "the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society");
10. the Contracts Clause, Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 410-13 (1983) (balancing the importance of a contractual interest and impairment of the contract against the significance and legitimacy of public interest in the change);
11. Union Dry Goods Co. v. Ga. Pub. Serv. Corp., 248 U.S. 372, 375 (1919) ("[P]rivate contract rights must yield to the public welfare, where the latter is appropriately declared and defined and the two conflict. . .");
12. the Privileges and Immunities Clause, Supreme Court of N.H. v. Piper, 470 U.S. 274, 284 (1985) (balancing in a privileges and immunities case the substantial reason for discrimination and whether it is related to the state's objective);
13. self-incrimination, Moran v. Burbine, 475 U.S. 412, 426-27 (1986) (balancing the two competing concerns in custodial interrogations: their effectiveness for enforcing the law versus the risk that during interrogations the police will cross the line "between legitimate efforts to elicit admissions and constitutionally impermissible compulsion");
14. double jeopardy, United States v. Ursery, 518 U.S. 267, 277 (1996) (balancing in a double jeopardy case the punitive effects of the forfeiture and the remedial nature of the proceeding);
15. the jury trial right, Ballew v. Georgia, 435 U.S. 223, 245 (1978) (balancing the interest of the state in reducing jury sizes with the threat to Sixth Amendment rights)
16. Baldwin v. New York, 399 U.S. 66, 73-74 (1970) (stating that, when a person cannot be imprisoned for more than six months if convicted, "the benefits that result from speedy and inexpensive nonjury adjudications" outweigh the disadvantages to the accused that may result if a jury trial is not granted);
17. prohibition against cruel and unusual punishment, Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (balancing the concept of dignity and humanity when determining if treatment constitutes cruel and unusual punishment);
18. and Fourteenth Amendment due process protections, Ake v. Oklahoma, 470 U.S. 68, 78-83 (1985) (stating that courts weigh the private interest in life or liberty against the state's interest when determining due process in criminal proceedings).
19. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 947-48 (1987) (citing a number Supreme Court cases where defendants' personal constitutional rights - First, Fifth, Sixth, Eighth and Fourteenth Amendment rights, among others - are balanced against competing government interests); see also infra note 7.
20. See, e.g., Elkins v. United States, 364 U.S. 206, 218 (1960) ("Courts can protect the innocent against [police] invasions only indirectly and through the medium of excluding evidence obtained against those who frequently are guilty."
21. quoting Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting);
22. Arnold H. Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 MICH. L. REV. 1229, 1272 (1983) ("Criminals or those who possess evidence of crime are allowed to object to the manner in which such evidence was obtained only because the search or seizure may have created an unjustifiably high risk of an intrusion upon an innocent person's privacy.").
23. This preference invokes the question of whether there are any differences between determining constitutional rights and legislation and regulation. Some have argued that judicial creation of rights does not "depend on. . some qualitatively different, privileged source of democratic validation." Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 937 (1999).
24. Peter Goldberger, Consent, Expectations of Privacy, and the Meaning of "Searches" in the Fourth Amendment, 75 J. CRIM. L. & CRIMINOLOGY 319, 330-31 (1984) (noting that, depending on whether the court focuses on "search" or "consent," the court can come to different outcome);
25. Daniel M. Harris, Back to Basics: An Examination of the Exclusionary Rule in Light of Common Sense and the Supreme Court's Original Search and Seizure Jurisprudence, 37 ARK. L. REV. 646, 649-50 (1983) (concluding that it is impossible to administer justice equally among guilty defendants because the exclusionary rule allows criminals to go free as a result of mistakes by law enforcement officials but convicts other criminals).
26. N.Y. CIVIL LIBERTIES UNION, STOP-AND-FRISK 2011: NYCLU BRIEFING (May 9, 2009), http://www.nyclu.org/files/publications/NYCLU-2011-Stop-and-Frisk-Report. pdf (finding that approximately 90% of people stopped by police were innocent and that minorities made up a disproportionate amount of the stops by police);
27. Tonja Jacobi, The Law and Economics of the Exclusionary Rule, 87 NOTRE DAME L. REV. 585, 588, 617 (2011) (showing that the Court's remedies to unconstitutional searches provide no remedy to the innocent and do nothing to protect minorities from racist police officers);
28. Loewy, supra note 7, at 1272 (stating that the exclusionary rule "has been restricted so much that it fails to offer innocent citizens the protection to which they should be entitled under the fourth amendment"); see also Josephine Ross, Can Social Science Defeat a Legal Fiction? Challenging Unlawful Stops Under the Fourth Amendment, 18 WASH. & LEE J. CIVIL RTS. & SOC. JUST. 315, 315 (2012) (suggesting that a legal fiction arises when police are allowed to search a person based on the person's choice to allow the search, when in reality no person would reasonably feel free to refuse the search). Unfortunately, "[t]he usual Fourth Amendment constraints on police intrusions simply do not apply when courts determine that the stop was really a consensual encounter." Ross, supra, at 316. Social science can "help[] judges to properly adjudicate motions involving the 'free-to-leave' test." Id. at 321.
29. Even judges have written that judicial discretion should be guided by more than common sense. See, e.g., Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir. 1993) (Posner, J.) (commenting that there should at least be some "loose and approximate. . guidelines for the exercise of that discretion");
30. In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1334 (7th Cir. 1992) ("Discretion is not unbridled; it is exercised under law.");
31. Henry J. Friendly, Indiscretion About Discretion, 31 EMORY L.J. 747, 768-70 (1982)
32. quoting Blackwelder Furniture Co. v. Selig Mfg. Co., 550 F.2d 189, 193 (4th Cir. 1977) ("A judge's discretion is not boundless. . .").
33. New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) ("The fundamental command of the Fourth Amendment is that searches and seizures be reasonable. . .");
34. Tennessee v. Garner, 471 U.S. 1, 7-8 (1985) (noting "the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of the manner in which a search or seizure is conducted");
35. Dunaway v. New York, 442 U.S. 200, 219 (1979) (White, J., concurring) ("[T]he key principle of the Fourth Amendment is reasonableness - the balancing of competing interests.").
36. Christopher Mathias, NYPD Stop and Frisk: New Report Reveals Depth of Racial Disparity in Program, Polls Call for Reform, HUFFINGTON POST (May 10, 2012, 1:21 PM), http://www.huffingtonpost.com/2012/05/10/nypd-stop-and-frisk- new-nyclu-racial-disparities-n-1506391.html (finding that the NYPD disproportionately stops and frisks blacks and Latinos and that nine out of ten stops are of innocent people).
37. Report of Jeffrey Fagan at 63, Floyd v. City of New York, 739 F. Supp. 2d 376 (S.D.N.Y. 2010) (No. 08 Civ. 01034) (analyzing data from stop-and-frisks in New York from 2004 to 2009 to show that police seized guns in only .15% of all stops and general weapons in only .94% of all stops, and that contraband - such as drugs or stolen property - was seized in only 1.75% of stops). The Southern District of New York decided that the New York City Police's stop-and-frisk tactics were unconstitutional and that police have been systematically stopping innocent people without justification, in a policy of indirect racial profiling. Floyd v. City of New York, No. 08 Civ. 1034, 2013 WL 4046217 at *7 (S.D.N.Y. Aug. 12, 2013). Judge Scheindlin notably concluded that government officials have turned a blind eye to evidence that police stop individuals in a racially discriminatory manner. Id.
38. And indeed these arguments, when considered, have been successful. See Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 628534, at *3-4, *10 (S.D.N.Y. Feb. 14, 2013) (finding in a New York stop-and-frisk case that "while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx");
39. Joseph Goldstein, Police Stop-and-Frisk Program in Bronx Is Ruled Unconstitutional, N.Y. TIMES (Jan. 8, 2013), http://www.nytimes.com/2013/01/09/ nyregion/judge-limits-nypd-stop-and-frisk-program-inbronx.html? pagewanted-1&-r-2&.
40. Floyd v. City of New York, 813 F. Supp. 2d 417, 422 (S.D.N.Y. 2011) (noting that since the mid-1990s, New York has seen a drop in crime rates, and since 2003, violent crime has dropped approximately 76%, but also noting that reasons for this decline are unclear); Press Release, NYCLU New NYCLU Report Finds NYPD Stop-and-Frisk Practices Ineffective, Reveals Depth of Racial Disparities, (May 9, 2012), available at http://www.nyclu.org/news/new-nyclu- report-finds-nypd-stopand- frisk-practices-ineffective-reveals-depth-of-racial- dispar ("Black and Latino New Yorkers were more likely to be frisked than whites and were less likely to be found with a weapon."); see also supra note 14.
41. Craig Menchin, Note, Why NYPD Terry Stops are More Problematic Than You Think, 8 STAN. J. C.R. & C.L. 299, 318 (2012) (finding that violent crime declined from 59,448 incidents in 2003 to 46,357 incidents in 2009);
42. see also Rebecca Harshbarger & David Seifman, Crime Way Up After Stop-&-Frisk Drop, N.Y. POST (Aug. 4, 2012), http://nypost.com/2012/08/04/ crime-way-up-after-stopfrisk- drop/ (reporting that the crime rate in New York City increased when the number of stop-andfrisks conducted decreased, with stops falling from 203,500 in January-March to 133,934 in April- June);
43. Heather Mac Donald, To See Its Value, See How Crime Rose Elsewhere, N.Y. TIMES (July 17, 2012), http://www.nytimes.com/roomfordebate/2012/07/17/does- stop-and-frisk-reduce-crime/to-see-itsvalue- see-how-crime-rose-elsewhere (arguing that New York's "astounding homicide drop - 82 percent from 1990 to 2009 - is driven by a decline in gun crime," which in turn is a result of the NYPD's stop-and-frisk policy);
44. New York Police Tout Improving Crime Numbers to Defend Frisking Policy, CNN (May 13, 2012), http://www.cnn.com/2012/05/13/us/new-york-police-policy/ index.html (citing the NYPD's stop-and-frisk policy as being key in a 21% year-to-date drop in the murder rate and a 31% increase in the number of illicit guns taken away for the first three months of 2012);
45. Dennis C. Smith, Stop and Frisk Has Lowered Crime in Other Cities, N.Y. TIMES (July 19, 2012), http://www.nytimes.com/ roomfordebate/2012/07/17/does- stop-and-frisk-reduce-crime/stop-and-frisk-has-lowered-crime-in-othercities (finding that when stop and frisks occur in greater numbers, crime decreases, but when the number of stop and frisks declines, the crime rate increases).
46. But see FRANKLIN E. ZIMRING, THE CITY THAT BECAME SAFE: NEW YORK'S LESSONS FOR URBAN CRIME AND ITS CONTROL 137, 145-47 (2012) (stating that the effectiveness of stop and frisk cannot be determined because too many changes happened all together in New York City, including manpower levels, arrest risks, CompStat, hot spot analysis, and stop-and-frisk levels).
47. RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION 8 (2001) (discussing the importance of the Supreme Court considering "human psychology, institutional sociology, prevailing values, history, and economics - to implement constitutional norms at acceptable costs").
48. See Aleinikoff, supra note 6, at 945; Louis Henkin, Infallibility Under Law: Constitutional Balancing, 78 COLUM. L. REV. 1022, 1024 (1978);
49. see also Michel Rosenfeld, Judicial Balancing in Times of Stress: Comparing the American, British, and Israeli Approaches to the War on Terror, 27 CARDOZO L. REV. 2079, 2081 (2006) (explaining that judicial balancing "is common and widespread in dealing with conflicts between liberty and security, and more generally, between individual rights and important societal goals").
50. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1179-80 (1989) (noting that in "the real world of appellate judging, it displays more judicial restraint to adopt [a rule] than to announce that, 'on balance,' we think the law was violated here - leaving ourselves free to say in the next case that, 'on balance,' it was not").
51. See, e.g., Saia v. New York, 334 U.S. 558, 571 (1948) ("Courts must balance the various community interests in passing on the constitutionality of local regulations of the character involved here.").
52. See, e.g., Delaware v. Prouse, 440 U.S. 648, 654 (1979) ("[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.");
53. United States v. Martinez-Fuerte, 428 U.S. 543, 554-55 (1976) ("The Fourth Amendment imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. . In delineating the constitutional safeguards applicable in particular contexts, the Court has weighed the public interest against the Fourth Amendment interest of the individual. . .") (citations omitted).
54. See Aleinikoff, supra note 6, at 952-62 (discussing the various pressures that preceded the arrival of constitutional balancing); Laurence H. Tribe, Constitutional Calculus: Equal Justice or Economic Efficiency?, 98 HARV. L. REV. 592, 596 (1985) (discussing the law and economic view of constitutional balancing).
55. See, e.g., Duckworth v. Eagan, 492 U.S. 195, 209-10 (1989) (discussing Miranda as a balance between "society's interest in uncovering evidence of crime and punishing those who violate its laws") (O'Connor, J., concurring);
56. Brewer v. Williams, 430 U.S. 387, 422 (1977) (considering whether applying the exclusionary rule "outweigh[s] its obvious social costs" including society's interest in effective prosecution of criminals) (Burger, C.J., dissenting);
57. Alderman v. United States, 394 U.S. 165, 175 (1969) (balancing the benefits of the exclusionary rule with public interest in prosecuting those accused of crime);
58. Barenblatt v. United States, 360 U.S. 109, 154 (1959) (relying on a balancing test that compared individual interests with government interests);
59. Breithaupt v. Abram, 352 U.S. 432, 439 (1957) (balancing the interests of society in determining intoxication with an individual's right of personal privacy).
60. Nancy Leong, Making Rights, 92 B.U. L. REV. 405, 462 (2012) (discussing how Fourth Amendment cases that discuss only one context are flawed).
61. See 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, 1185 (1988) (noting that the Court routinely devalues individual fundamental rights of defendants by evaluating possible infringements with relatively low scrutiny, resulting in an absence of the special protections that individual rights were intended to receive).
62. Duckworth, 492 U.S. at 213 (noting that balancing of state and federal interests has long been a tradition in habeas corpus cases);
63. RICHARD A. POSNER, OVERCOMING LAW 235 (1995) ("[A]s Holmes put it, judges legislate 'interstitially,' which is to say they make law, only more cautiously, more slowly, and in more principled, less partisan, fashion than legislators.").
64. Aleinikoff, supra note 6, at 952-62 (discussing the various pressures that opened the door for balancing to enter constitutional law); Owen M. Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 30 (1979) (noting that a judge's role is not to resolve disputes but to give "proper meaning to our public values");
65. Jared A. Goldstein, Equitable Balancing in the Age of Statutes, 96 VA. L. REV. 485, 546-47 (2010) (discussing the societal changes that led to balancing entering the common law and statutory law);
66. Henkin, supra note 20, at 1022 (arguing that balancing is here to stay); Patrick M. McFadden, The Balancing Test, 29 B.C. L. REV. 585, 587 (1988) (same).
67. See Aleinikoff, supra note 6, at 958 (discussing the idea that the adoption of constitutional balancing was inevitable); Ronald J. Bacigal, Making the Right Gamble: The Odds on Probable Cause, 74 MISS. L.J. 279, 323 (2004) (noting the prevalent use of probable cause balancing tests by the Court); Goldstein, supra note 31, at 515 (arguing that equitable balancing became generally accepted in the early part of the twentieth century).
68. See Henkin, supra note 20, at 1024-25; ANTONIN SCALIA& BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 193 (2012) (acknowledging that "[d]etermining what is reasonably implied [by the words of a statute] takes some judgment" and demonstrating that sometimes judges rely on common-sense interpretations); see also Richard A. Posner, The Incoherence of Antonin Scalia, NEW REPUBLIC (Aug. 24, 2012), http://www.newrepublic.com/ article/magazine/books-and-arts/106441/scaliagarner- reading-the-law-textual- originalism (noting that even textualists "consider the range of commonsensical but non-textual clues to meaning that come naturally to readers trying to solve an interpretive puzzle"). .
69. See Aleinikoff, supra note 6, at 944-45; Henkin, supra note 20, at 1023; McFadden, supra note 30, at 586. See generally H. HART & H.WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM (1st ed. 1953) (considering issues within the federal court system);
70. Laurent B. Frantz, Is the First Amendment Law? A Reply to Professor Mendelson, 51 CALIF. L. REV. 729 (1963) (disputing that a balancing test is capable of giving impartial results, or even the appearance of impartial results);
71. Laurent Frantz, The First Amendment in the Balance, 71 YALE L.J. 1424 (1962) (criticizing the Supreme Court's use of balancing-of-interests test in free speech cases).
72. But see generally Wallace Mendelson, On the Meaning of the First Amendment: Absolutes in the Balance, 50 CALIF. L. REV. 821 (1962) (contending that open balancing provides particularized rationale and judicial accountability);
73. Wallace Mendelson, The First Amendment and the Judicial Process: A Reply to Mr. Frantz, 17 VAND. L. REV. 479 (1964) (arguing that the balancing test is rational and preferable to other approaches).
74. see, e.g., State v. Hamdan, 665 N.W.2d 785, 800 (Wis. 2003) ("In analyzing reasonableness, one must balance the conflicting rights of an individual to keep and bear arms for lawful purposes against the authority of the State to exercise its police power to protect the health, safety, and welfare of its citizens.");
75. State v. McAdams, 714 P.2d 1236, 1237 (Wyo. 1986) ("Thus, a balance must be struck between the individual's right to exercise each constitutional guarantee and society's right to enact laws which will ensure some semblance of order.").
76. Tennessee v. Garner, 471 U.S. 1, 8 (1985)
77. (quoting Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981)); Aleinikoff, supra note 6, at 965.
78. Aleinikoff, supra note 6, at 965, 981 (citing Hudson v. Palmer, 468 U.S. 517, 547 (1984) (balancing the conflict between a prisoner's privacy rights under the Fourth Amendment and the government's interest in prison security)).
79. Aleinikoff, supra note 6, at 965 (citing United States v. Place, 462 U.S. 696, 703 (1983) (balancing the reasonableness of the government's actions in confiscating a traveler's luggage, searching it, and not returning it within ninety minutes against the traveler's privacy rights)).
80. Aleinikoff, supra note 6, at 965 (citing New York v. Class, 475 U.S. 106, 128-29 (1986) (balancing the government interest in searching a car against the government intrusion into private space)).
81. Aleinikoff, supra note 6, at 965 (citing Garner, 471 U.S. at 7-8 (1985) (balancing the government interests in effective law enforcement against the individual's rights under the Fourth Amendment to determine the the reasonableness of using deadly force to seize an individual)).
82. Aleinikoff, supra note 20, at 965 (citing Camara v. Mun. Court, 387 U.S. 523, 536-37 (1967) (concluding that there is no ready test for determining the reasonableness of establishing probable cause as the standard for administrative searches except by balancing the need of the search against the invasion that a search entails)).
83. Aleinikoff, supra note 20, at 965 (citing United States v. Martinez-Fuerte, 428 U.S. 543, 560-61 (1976) (concluding that determining if reasonable suspicion is a prerequisite for a valid stop requires balancing the need of the government to make routine checkpoint stops against the intrusions on Fourth Amendment interests)).
84. Aleinikoff, supra note 20, at 965 (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1042 (1984) (holding that the balance of applying the exclusionary rule in deportation hearings outweighs the likely social benefits of excluding unlawfully seized evidence in these type of proceedings)).
85. Aleinikoff, supra note 20, at 965 (citing New Jersey v. T.L.O., 469 U.S. 325, 340-41 (1985) (dictum) (balancing the need of school administration to be able to search a student's belongings against the invasion that the search entails)).
86. Aleinikoff, supra note 20, at 965 (citing Schall v. Martin, 467 U.S. 253, 263 (1984) (balancing the risks that a juvenile poses to himself and to society against the intrusion to the juvenile's due process and Fourth Amendment rights by holding him in pretrial detention)).
87. Henkin, supra note 20, at 1024 (citing Marshall v. Barlow's, Inc., 436 U.S. 307, 316 (1978)).
88. See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 758, 761 (1994) (explaining that the Fourth Amendment has become an embarrassment because of its contradictory interpretation and application by the Court);
89. Scott E. Sundby, "Everyman"'s Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen, 94 COLUM. L. REV. 1751, 1769 (1994) (discussing the "[q]uagmire of [r]easonableness").
90. Morgan Cloud, Pragmatism, Positivism, and Principles in Fourth Amendment Theory, 41 UCLA L. REV. 199, 204 (1993); (Pubitemid 24762595)
91. Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 IND. L.J. 329, 329-30 (1973) (noting that complaints about the disarray of Fourth Amendment law have long been a staple of legal scholarship);
92. David E. Steinberg, Restoring The Fourth Amendment: The Original Understanding Revisited, 33 HASTINGS CONST. L.Q. 47, 47 (2005).
93. Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1468 (1985).
94. Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 HARV. L. REV. 476, 478 (2011).
95. Frank I. Michelman, The Supreme Court, 1985 Term - Foreword: Traces of Self-government, 100 HARV. L. REV. 4, 34 (1986).
96. Christopher Slobogin, Let's Not Bury Terry: A Call for Rejuvenation of the Proportionality Principle, 72 ST. JOHN'S L. REV. 1053, 1054 (1998).
97. See Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503, 538-39 (2007).
98. See 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, 1184 (1988).
99. Mapp v. Ohio, 367 U.S. 643, 657 (1961) (holding that "the exclusionary rule is an essential part" of the Fourth Amendment);
100. William Geller, Enforcing the Fourth Amendment: The Exclusionary Rule and Its Alternatives, 1975 WASH. U. L.Q. 621, 623 (1975) ("The exclusionary rule compels the suppression, in federal and state criminal prosecutions, of evidence seized by police in violation of the fourth amendment.").
101. See Illinois v. Rodriguez, 497 U.S. 177, 183 (1990) (stating that the exclusionary rule dictates that "no evidence seized in violation of the Fourth Amendment will be introduced at. . trial").
102. See Albert W. Alschuler, Demisesquicentennial: Studying the Exclusionary Rule: An Empirical Classic, 75 U. CHI. L. REV. 1365, 1371 (2008) ("Studies by Canon and others have revealed a substantial increase in the use of search warrants following Mapp v. Ohio.");
103. Bradley Canon, The Exclusionary Rule: Have Critics Proven that it Doesn't Deter Police?, 62 JUDICATURE 398, 401 (1979) (showing that "compliance with the Fourth Amendment increased significantly" in the years following Mapp v. Ohio).
104. See, e.g., Davis v. United States, 131 S. Ct. 2419, 2427 (2011) ("For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.");
105. Herring v. United States, 555 U.S. 135, 144 (2009) ("To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.");
106. Hudson v. Michigan, 547 U.S. 586, 591 (2006) (stating that the exclusionary rule should only be applied where its deterrence benefits outweigh its social costs).
107. See, e.g., Davis, 131 S. Ct. at 2427 (limiting the exclusionary rule to situations where the deterrence benefits of suppression outweigh the "heavy costs" of suppressing the evidence and setting "the criminal loose in the community without punishment").
108. See Herring, 555 U.S. at 142, 144;
109. David A. Harris, How Accountability-Based Policing Can Reinforce - Or Replace - The Fourth Amendment Exclusionary Rule, 7 OHIO ST. J. CRIM. L. 149, 154 (2009) (citing a 2004 study that showed that "Fourth Amendment violations, some quite egregious, showed up in almost a third of all the observed police investigations"). Because the Supreme Court believes that the exclusionary rule will only deter "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence," a broad range of police conduct is no longer covered by the exclusionary rule.
110. See Herring, 555 U.S. at 144. For example, the Supreme Court would not exclude evidence that was obtained unconstitutionally if the officer acted in good faith. Id. at 142. Thus, the exclusionary rule will no longer deter a host of unconstitutional activities as long as the officer acted in good faith when violating a person's rights.
111. E.g., Whren v. United States, 517 U.S. 806, 813 (1996) (refusing to consider the "actual motivations of the individual officers involved" in a Fourth Amendment search despite stating that the "Constitution prohibits selective enforcement of the law based on considerations such as race").
112. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 309 (1987) (showing potential racial bias in sentencing). In McCleskey, the Court rejected as evidence of racial bias the use of a detailed statistical study showing a racial bias in sentencing. Id. at 312-13. The Court held that the defendant must "prove that the decisionmakers in his case acted with discriminatory purpose." Id. at 292. However, the Court limited the defendant's ability to do so because the Court upheld the policy to grant government officers "wide discretion," which suggests "the impropriety of. . requiring prosecutors to defend their decisions." Id. at 296. Thus the defendant, who could show a pattern of discrimination, was neither allowed to do so, nor was he allowed to provide evidence of the particular prosecutor's possible racial bias because the Court found that it was inappropriate to make the prosecutor defend his decision.
113. See J. Alexander Tanford & Anthony J. Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. PA. L. REV. 544, 545 (1980) ("There is no more serious undertaking of the state than accusing a person of a crime, with the concomitant threat of loss of liberty or life.").
114. See Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 HARV. L. REV. 755, 758 (1963) (arguing that balancing tests are "so laconic or so ambiguous as to suggest interpretations. . which set up too nicely for crushing criticism").
115. Laurence Tribe has been an outspoken critic of this trend. See Tribe, supra note 25, at 596; see also Cloud, supra note 53, at 242 n.192 (discussing Professor Sundby's conclusion that "balancing naturally favors the government's interests over the individual's privacy interests, because governmental interests are tangible and visible, while privacy interests are less tangible and pale in comparison"); David L. Faigman, Reconciling Individual Rights and Government Interests: Madisonian Principles Versus Supreme Court Practice, 78 VA. L. REV. 1521, 1523 (1992) ("Because the threshold question regarding the existence of constitutional rights has become infected with the government's countervailing interests, those individual rights have lost much of their vitality, if not their very existence.");
116. Gerald S. Reamey, When "Special Needs" Meet Probable Cause: Denying the Devil Benefit of Law, 19 HASTINGS CONST. L.Q. 295, 302 (1992) (criticizing the erosion of probable cause in favor of the balancing test of government interests versus individual rights); Strossen, supra note 61, at 1175-76 (discussing and criticizing the balancing test of government interests versus private rights because it results in equating rights with something other than what they actually are).
117. Notwithstanding the debates over balancing in the 1950s and late 1980s, by 1990 it appears that the entirety of the Court acknowledged that balancing is appropriate. See, e.g., James v. Illinois, 493 U.S. 307 (1990) (containing three opinions, including Justice Kennedy's dissent, that justified their reasoning by balancing competing interests). Thus, I start my analysis of Supreme Court balancing here.
118. Although the government won almost 78% (38/49) of the criminal procedure cases where the court engaged in a balancing of costs and benefits, the protection of individual rights overcame government interests in only 22% of cases (11/49). Compare J.D.B. v. North Carolina, 131 S. Ct. 2394, 2408 (2011) (increasing fairness and protecting children by holding that a child's age may trigger the Miranda custody analysis)
119. Arizona v. Gant, 556 U.S. 332, 345 (2009) (protecting individual privacy from unbridled police discretion by holding that police may search an automobile incident to an arrest only if the occupant has access to it or if it is reasonable to believe that the automobile contains enforceevidence directly related to the search)
120. Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 376-77 (2009) (protecting students from unjustified intrusions by holding that a strip search of a student at school was unreasonable)
121. and Georgia v. Randolf, 547 U.S. 103, 115 (2006) (protecting home as castle by holding that a physically present co-occupant's nonconsent to permit a warrantless search makes the warrantless search unreasonable)
122. with Boumediene v. Bush, 553 U.S. 723, 797 (2008) (furthering government interests in resolving separation-of-power issue; providing meaningful relief to parties)
123. Chandler v. Miller, 520 U.S. 305, 322 (1997) (holding that required drug tests for candidates running for state office is an illegitimate government interest)
124. Withrow v. Williams, 507 U.S. 680, 687 (1993) (promoting judicial economy)
125. and McCarthy v. Madigan, 503 U.S. 140, 156 (1992) (promoting various procedural values).
126. Since 1990, the Court's criminal procedure cases invoked this factor over 55% of the time (27/49). See, e.g., Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1518-19, 1521-22 (2012) (assisting efforts to eliminate gang violence, preventing the proliferation of contraband, and avoiding the imposition of an undue burden on prison administration);
127. Davis v. United States, 131 S. Ct. 2419, 2429 (2011) (avoiding deterring officers from performing duty);
128. Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (providing clear guidance to officers in the face of ambiguity and avoiding placing undue burden on police work);
129. Maryland v. Shatzer, 559 U.S. 98, 108-09 (2010) (avoiding deterring police from obtaining sincere voluntary confessions);
130. Montejo v. Louisiana, 556 U.S. 778, 793 (2009) (furthering society's "interest in finding, convicting, and punishing those who violate the law");
131. Kansas v. Ventris, 556 U.S. 586, 593 (2009) (preventing perjury);
132. Gant, 556 U.S. at 345 (providing police with a clear rule);
133. Arizona v. Johnson, 555 U.S. 323, 330 (2009) (allowing police officers to react quickly to threats);
134. Herring v. United States, 555 U.S. 135, 141 (2009) (avoiding letting potentially guilty and dangerous criminals go free as a result of mere isolated negligence in bookkeeping);
135. Virginia v. Moore, 553 U.S. 164, 174 (2008) (enabling officers to investigate);
136. Hudson v. Michigan, 547 U.S. 586, 595 (2006) (avoiding the creation of counterproductive police incentives);
137. United States v. Patane, 542 U.S. 630, 645 (2004) (Kennedy, J., concurring) (permitting highly probative, reliable physical evidence to assist the trier of fact);
138. Hiibel v. 6th Jud. Dist. Ct., 542 U.S. 177, 186 (2004) (providing police with useful information that allows them to appropriately focus their attention where it is needed);
139. Illinois v. Lidster, 540 U.S. 419, 427 (2004) (permitting officers to investigate crime that caused a death and permitting effective officer search);
140. McKune v. Lile, 536 U.S. 24, 34-35 (2002) (plurality opinion) (deterring sex offenses);
141. United States v. Arvizu, 534 U.S. 266, 275 (2002) (providing officers with a useful standard that guides them to correct decisions);
142. United States v. Knights, 534 U.S. 112, 120-21 (2001) (preventing probationers from committing more crimes and promoting the successful completion of probation);
143. Atwater v. City of Lago Vista, 532 U.S. 318, 347-51 (2001) (providing police with a bright-line rule and avoiding the deterrence of valuable law-enforcement activity);
144. Illinois v. McArthur, 531 U.S. 326, 336 (2001) (preserving evidence of bailable offense);
145. Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (allowing officers confronted with unprovoked flight to investigate and resolve the ambiguity);
146. Florida v. J.L., 529 U.S. 266, 272 (2000) (preserving the balance struck by Terry);
147. Wyoming v. Houghton, 526 U.S. 295, 304 (1999) (avoiding impairing effective law enforcement);
148. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663 (1995) (deterring child drug abuse);
149. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990) (promoting the eradication of drunk driving);
150. Michigan v. Harvey, 494 U.S. 344, 351 (1990) (preventing perjury);
151. James, 493 U.S. at 318 (avoiding giving police improper incentives);
152. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 666 (1989) (deterring drug use);
153. Arizona v. Roberson, 486 U.S. 675, 681 (1988) (providing police officers with specific guidance about what they may do);
154. New Jersey v. T.L.O., 469 U.S. 325, 339-40 (1985) (promoting the flexible, swift, and informal discipline essential to the operation of schools);
155. Oregon v. Elstad, 470 U.S. 298, 312 (1985) (not imposing a "high cost to legitimate law enforcement activity");
156. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1047 (1984) (ending violations of the law that would otherwise continue);
157. Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976) (allowing prosecutors to focus on law enforcement);
158. United States v. Calandra, 414 U.S. 338, 350 (1974) (avoiding the frustration of the grand jury's law enforcement purpose);
159. White v. Illinois, 502 U.S. 346, 357 (1992) (preserving valuable evidence).
160. Edwin J. Butterfoss, A Suspicionless Search and Seizure Quagmire: The Supreme Court Revives the Pretext Doctrine and Creates Another Fine Fourth Amendment Mess, 40 CREIGHTON L. REV. 419, 424-26, 471, 488 (2007).
161. In nine out of forty-nine of its balancing cases since 1990, the Court has invoked this factor. Arizona v. Johnson, 555 U.S. 323, 330 (2009) (allowing frisks to protect police from armed persons and unquestioned command to minimize risk of harm to officer);
162. Hudson v. Michigan, 547 U.S. 586, 598 (2006) (avoiding requiring officers to wait and give greater opportunity against them);
163. Wilkinson v. Austin, 545 U.S. 209, 227 (2005) (ensuring prison guard safety);
164. Muehler v. Mena, 544 U.S. 93, 100 (2005) (protecting officers from inherently dangerous situation of executing search warrant in drug house);
165. Hiibel v. 6th Jud. Dist. Ct., 542 U.S. 177, 186 (2004) (permitting police to know if suspect is wanted, mentally ill, or violent and permitting officer to better address dangerous domestic situations);
166. Florida v. J.L., 529 U.S. 266, 272 (2000) (preserving balance struck in Terry);
167. Maryland v. Wilson, 519 U.S. 408, 413-14 (1997) (protecting officers from assault and oncoming traffic);
168. Maryland v. Buie, 494 U.S. 325, 333 (1990) (protecting officers from hidden attack, offering police protection during dangerous phase of criminal justice process, and increasing police protection in unfamiliar territory);
169. Michigan v. Long, 463 U.S. 1032, 1051-52 (1983) (protecting officers from suspects breaking away and retrieving a weapon, from obtaining a weapon while briefly reentering a vehicle, and from a suspect not placed under arrest accessing a weapon, especially at close range).
170. In fourteen out of forty-nine of its balancing cases since 1990, the Court has invoked this factor. Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1518 (2012) (promoting inmate and prisonstaff health through strip searches);
171. Johnson, 555 U.S. at 330-32 (protecting public from armed criminals and minimizing risk of harm to vehicle occupants by permitting frisks and officer complete command);
172. Herring v. United States, 555 U.S. 135, 141 (2009) (preventing the release of dangerous criminals);
173. Virginia v. Moore, 553 U.S. 164, 174 (2008) (preventing continuing violations of the law);
174. Samson v. California, 547 U.S. 843, 853 (2006) (reducing recidivism);
175. Wilkinson, 545 U.S. at 227 (ensuring safety of public from gang retaliation);
176. Hiibel, 542 U.S. at 186 (allowing officers to address possible danger to victims in domestic situations);
177. Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 834 (2002) (preventing child drug abuse);
178. McKune v. Lile, 536 U.S. 24, 33 (2002) (plurality opinion) (reducing recidivism);
179. United States v. Knights, 534 U.S. 112, 120 (2001) (increasing control on population segment that had high recidivism rates);
180. J.L., 529 U.S. at 272 (preserving balance struck by Terry);
181. Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365 (1998) (preventing recidivism);
182. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661 (1995) (protecting children from harmful effects of illegal drugs);
183. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 666 (1989) (preventing promotion of drug users to specific positions and deterring drug use among those eligible for those positions);
184. New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (preserving school order);
185. New York v. Quarles, 467 U.S. 649, 657 (1984) (protecting public from dangers posed by hidden gun);
186. Long, 463 U.S. at 1051-52 (allowing officers to conduct sweep to protect others from danger).
187. In fifteen out of forty-nine of its balancing cases since 1990, the Court has invoked this factor. Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (promoting judicial economy by avoiding difficulties of proof);
188. Maryland v. Shatzer, 559 U.S. 98, 106 (2010) (conserving judicial resources regarding difficult determinations of voluntariness);
189. Montejo v. Louisiana, 556 U.S. 778, 783-85, 794 (2009) (avoiding difficulties in creating new rule because Miranda already sufficiently protects right);
190. Arizona v. Gant, 556 U.S. 332, 346-47 (2009) (removing uncertainty from Belton);
191. Pearson v. Callahan, 555 U.S. 223, 242 (2009) (eliminating substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of a case);
192. Boumediene v. Bush, 553 U.S. 723, 772-73 (2008) (providing meaningful relief to parties that have been denied judicial relief for a number of years);
193. Moore, 553 U.S. at 176 (promoting uniformity);
194. Hudson, 547 U.S. at 595 (avoiding creating flood of litigation);
195. United States v. Patane, 542 U.S. 630, 645 (2004) (Kennedy, J., concurring) (holding that highly probative, reliable physical evidence aids fact finder);
196. Wyoming v. Houghton, 526 U.S. 295, 305 (1999) (avoiding excessive litigation);
197. Scott, 524 U.S. at 366-67 (avoiding increase in litigation);
198. Withrow v. Williams, 507 U.S. 680, 694 (1993) (preserving Miranda's bright-line nature)
199. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (avoiding imposing costly retrials and promoting swift administration of justice);
200. White v. Illinois, 502 U.S. 346, 357 (1992) (avoiding imposing unnecessary litigation costs)
201. Coleman v. Thompson, 501 U.S. 722, 738 (1991) (avoiding burdening state courts)
202. Arizona v. Roberson, 486 U.S. 675, 681 (1988) (informing courts when statements are not admissible);
203. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1048-49 (1984) (promoting judicial economy with "deliberately simple" deportation hearing system).
204. Acton, 515 U.S. at 665 (upholding suspicionless urinalysis).
205. The government lost 22% (11/49) of criminal procedure cases engaging in cost-benefit analysis since 1990.
206. Chandler v. Miller, 520 U.S. 305, 322 (1997) (rejecting as symbolic the interest of being tough on drugs);
207. see also City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000) (finding that a "checkpoint program [that was] indistinguishable from the general interest in crime control" was invalid).
208. This happened in 6% of the cases (3/49). Boumediene, 553 U.S. at 743 (furthering government interests in resolving separation of power issue and providing meaningful relief to parties);
209. Withrow, 507 U.S. at 692 (promoting judicial economy); McCarthy v. Madigan, 503 U.S. 140, 156 (1992) (promoting various procedural values).
210. J.D.B. v. North Carolina, 131 S. Ct. 2394, 2408 (2011) (increasing fairness and protecting children)
211. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 376-77 (2009) (protecting students from unjustified intrusions);
212. Arizona v. Gant, 556 U.S. 332, 345 (2009) (protecting individual privacy from unbridled police discretion)
213. Georgia v. Randolph, 547 U.S. 103, 115 (2006) (protecting home as castle);
214. Florida v. J.L., 529 U.S. 266, 272 (2000) (protecting individuals from harassment)
215. Knowles v. Iowa, 525 U.S. 113, 114 (1998) (preventing intrusions on privacy);
216. James v. Illinois, 493 U.S. 307, 319 (1990) (avoiding giving police incentives to violate constitutional rights)
217. Schlup v. Delo, 513 U.S. 298, 324-25 (1995) (promoting interest of not executing innocent person).
218. Fourth Amendment concerns overcame government interests in 12% (6/49) of criminal procedure cases engaging in balancing since 1990. Redding, 557 U.S. at 376-77 (protecting students from unjustified intrusions);
219. Gant, 556 U.S. at 345 (protecting individual privacy from unbridled police discretion)
220. Randolph, 547 U.S. at 115 (protecting home as castle)
221. 529 U.S. at 272. See infra text accompanying notes 109-14 for discussion of Terry v. Ohio, 392 U.S. 1 (1968).
222. New York v. Belton, 453 U.S. 454, 462-63 (1981) (holding that law enforcement may search the passenger compartment of an automobile incident to a lawful arrest).
223. Arizona v. Gant, 556 U.S. 332, 344-45 (2009).
224. See Christian Halliburton, Leveling the Playing Field: A New Theory of Exclusion for a Post- PATRIOT Act America, 70 MO. L. REV. 519, 542 (2005) (discussing Fourth Amendment doctrines as distorting the structures prescribed by the Bill of Rights by giving the government an advantage over the individual);
225. David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271, 298, 308 (noting that three of the four decisions dealing with traffic stops and search and seizures during the Supreme Court's 1995-1997 Terms "gave significant latitude to law enforcement" and demonstrated "a pronounced pattern of ruling in favor of the government");
226. Jeffrey J. Rachlinski, Evidence-Based Law, 96 CORNELL L. REV. 901, 919 (2011).
227. See, e.g., Craig S. Lerner, The Reasonableness of Probable Cause, 81 TEX. L. REV. 951, 958-59, 971 (2003) (noting that in the preventative detention context, safety of others has surpassed importance of individual liberty and overshadowed requirements of probable cause in favor of the government's interest).
228. See CHRISTOPHER SLOBOGIN, PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE FOURTH AMENDMENT 38 (2008) ("Probable cause is often equated with a more-likely-than-not (51 percent) finding, or perhaps a level of certainty somewhat below that.")
229. Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process, 85 MICH. L. REV. 510 (1986) (discussing the failure of balancing of interests in the pretrial detention context).
230. See Lerner, supra note 107, at 999; see also Brown v. Texas, 443 U.S. 47, 50-53 (1979) (analyzing the reasonableness of the seizure by introducing a balancing test weighing the gravity of the public concerns served by the seizure and the degree to which the seizure advances the public interest against the severity of the interference with individual liberty, and reversing the conviction based on an absence of reasonable suspicion of misconduct).
231. 73 Cal. Rptr. 819, 821 (Ct. App. 1968), disapproved of by People v. Collins, 463 P.2d 403, 406-07 (Cal. 1970). The court in Collins stated that an officer must be able to "point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon" and that Armenta "is disapproved insofar as it conflicts with" this view. Collins, 463 P.2d at 406-07
232. However, later California cases continue to engage in fanciful speculation to justify police officers' actions. See, e.g., People v. Wood, No. F054304, 2008 WL 4527655, at *4 (Cal. Ct. App. Oct. 7, 2008) (justifying the search of defendant because he was parked in front of a residence that was being searched and he "could have come up behind the officers in the process of executing the search warrant").
233. See, e.g., United States v. Oliver, 550 F.3d 734, 738 (8th Cir. 2008) (upholding a search because "if Oliver was armed and dangerous" and the officer did not search him, he "could have turned and shot the officer")
234. United States v. Raymond, 152 F.3d 309, 311-12 (4th Cir. 1998) (upholding the search of the defendant because he got out of a two-door car from the backseat "somewhat awkwardly" while holding a cup full of soda and then "clutched his stomach" and "awkwardly leaned against the car");
235. United States v. Simmons, 567 F.2d 314, 318 (7th Cir. 1977) (upholding the search of an area around a nude woman because "[w]omen are not unknown as accomplices in serious crimes")
236. United States v. Vigo, 487 F.2d 295, 298 (2d Cir. 1973) (justifying the search of Ms. Pagan's purse because "[a] loaded concealed gun had just been found on her companion Vigo")
237. United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971) (upholding the search of the wife of a forgery suspect because "[i]t is inconceivable that a peace officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a shot in the back from defendant's associate")
238. People v. Glaser, 902 P.2d 729, 731 (Cal. 1995) (justifying the detention and search of the defendant and his truck when the defendant was "about to open the gate" to the yard of a house that was being searched because the officer needed to determine what connection the defendant had to the premises);
239. People v. Hart, 86 Cal. Rptr. 2d 762, 767 (Ct. App. 1999) (upholding the search of a van and a purse in the van because, after the defendant had vacated the vehicle, the officer was concerned there might be a concealed weapon inside)
240. Johnson v. State, 679 S.E.2d 340, 343 (Ga. 2009) (holding that an officer was justified in searching a jacket hanging on a closed bathroom door in an empty hotel room because the officer entering the empty room was "justifiably concerned for his safety and was worried whether the bulge in the jacket was a gun");
241. Commonwealth v. Johnson, 908 N.E.2d 729, 733-34 (Mass. 2009) (upholding search of defendant because an officer is not required to accept the ambiguities of whether defendant was reaching into a pocket to get a weapon or for a variety of legitimate purposes)
242. Commonwealth v. Matthews, 244 N.E.2d 908, 909 (Mass. 1969) (justifying the search of defendant because he was carrying a shopping bag full of clothes that were not the defendant's size even though he had a receipt);
243. Perry v. State, 927 P.2d 1158, 1163 (Wyo. 1996) (using the "automatic companion rule" to justify the search of the defendant when the police were arresting the defendant's son).
244. See, e.g., United States v. Oates, 560 F.2d 45, 62 (2d Cir. 1977) ("[T]o 'substantial dealers in narcotics' firearms are as much 'tools of the trade' as are most commonly recognized articles of narcotics paraphernalia."
245. (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir. 1975)));
246. People v. Thurman, 257 Cal. Rptr. 517, 520 (Ct. App. 1989) (justifying the "brief, relatively private intrusion" of searching a defendant who was "quietly seated on a sofa" in a "nonthreatening" manner because the officer was executing a search warrant of a residence for narcotics)
247. Brown v. State, 641 S.E.2d 551, 553 (Ga. Ct. App. 2006) (upholding a search because the police officer testified that "weapons and drugs they go together usually").
248. See, e.g., People v. Collier, 83 Cal. Rptr. 3d 458, 460 (Ct. App. 2008) (justifying a search of defendant because the officer "was concerned about his safety" based on the defendant's size and baggy clothing, and because the officer believed the defendant or another passenger in the car "may have been smoking marijuana");
249. Davis v. State, 658 S.E.2d 788, 789 (Ga. Ct. App. 2008) (upholding search of Davis where an officer turned his car around and approached Davis after observing that Davis "moved his hand to his right waistband and gave it a quick upward tug")
250. People v. Henderson, 925 N.Y.S.2d 827, 828 (App. Div. 2011) (upholding a search because police officers saw a bulge that "resembled the outline of the grip of a pistol");
251. People v. Flores, 641 N.Y.S.2d 14, 15 (App. Div. 1996) (justifying a search of defendant because officers saw defendant "adjusting something around his waistband" and saw a bulge in that area, and because defendant fit the "general description" of someone involved in a shooting)
252. In re Wilberto R., 633 N.Y.S.2d 15, 15 (App. Div. 1995) (upholding a search because the officers were responding to a report of a man with a gun and the officers saw that defendant had a "drooping" pocket).
253. United States v. Bohanon, 629 F. Supp. 2d 802, 809 (E.D. Tenn. 2009) (upholding a search because defendant looked nervous, had a criminal record, and his hand was "near a pocket in the [car] door that was large enough to conceal a weapon"), aff'd, 420 F. App'x 576 (6th Cir. 2011);
254. People v. Rogers, No. D034303, 2002 WL 27609, at *2 (Cal. Ct. App. Jan. 9, 2002) (upholding the search of defendant's vehicle because if he was not handcuffed in the patrol car he could have returned to his car and accessed a gun)
255. Commonwealth v. Boyd, 17 A.3d 1274, 1279 (Pa. Super. Ct. 2011) (upholding the search of defendant's car because officers observed him moving around the center console of the car and because if he was not in custody he could "return to his vehicle and access any possible weapons secreted in the console");
256. Douglas v. State, No. 04-01-00341-CR, 2002 WL 432572, at *1 (Tex. App. Mar. 20, 2002) (upholding the search of defendant's car because officers observed defendant "bend over the 'center area' of his car twice").
257. E.g., Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1518-19 (2012) (risks posed by sickness, gang violence, and contraband);
258. Arizona v. Johnson, 555 U.S. 323, 330 (2009) (high risk of harm to officers and vehicle occupants during traffic stops)
259. Hudson v. Michigan, 547 U.S. 586, 595 (2006) (risk of violence against officers)
260. United States v. Knights, 534 U.S. 112, 120 (2001) (high risk of recidivism);
261. See, e.g., Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1519 (2012) (using statistics regarding the high number of assaults on prison staff to support its reasoning);
262. Maryland v. Shatzer, 559 U.S. 98, 108-09 (2010) (reasoning that allowing the Edwards presumption to continue would be disastrous in light of data regarding the high frequency of recidivism);
263. Maryland v. Craig, 497 U.S. 836, 855 (1990) (using the "growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court" to support the holding).
264. ARMAND CHARPENTIER, THE DREYFUS CASE 52-53 (J. Lewis May trans., 1935).
265. Donald G. Henry, On the Uses of Statistical Evidence in Litigation, 19 INT'L SOC'Y BARRISTERS Q. 405, 405 (1984) ("The introduction of quantitative social science data into the judicial process dates at least to the appearance of the first 'Brandeis brief[]' in 1908. .").
266. See, e.g., Media Advisory, Vera Institute of Justice, Delaware Governor Markell to Sign Justice Reinvestment Act (S.B. 226) (Aug. 7, 2012), available at http://www.vera.org/news/delaware-governormarkell- sign-justice-reinvestment- act-sb-226 (reporting the passage of a Delaware act that focuses on data analysis and risk assessments in pretrial release and recidivism in order to reduce costs and improve public safety).
267. Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, 55 HARV. L. REV. 364, 402-03 (1942) (stating that the facts that inform a judge's legislative judgment, such as social and economic data, can be called "legislative facts"); see also Davis, supra note 166, at 952.
268. Cathy Cochran, Surfing the Web for a "Brandeis Brief": The Internet and Judicial Use of Legislative Facts, 70 TEX. B.J. 780, 781 (2007).
269. MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE § 331, at 766-69 (Edward W. Cleary ed., 2d ed. 1972).
270. David M. O'Brien, The Seduction of the Judiciary: Social Science and the Courts, 64 JUDICATURE 8, 11 (1980).
271. Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41VAND. L. REV. 111, 121 (1988).
272. See Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61VA. L. REV. 1187, 1225-26 (1975).
273. Id. at 1216. ("The Court has taken judicial notice of innumerable facts and factors, some which are expressly referred to in the Court's decision and some which are unknown to the parties but which apparently were extricated from various sources by the Court's diligent research, which facts nevertheless should be subject to refutation and counterevidence since they form the foundation for the Court's opinion." (quoting Petition for Rehearing at 2-4, Doe v. Bolton, 410 U.S. 179 (1973)).
274. See, e.g., Henry, supra note 169, at 415 (arguing that data's "complexity makes it incomprehensible to most participants in the trial process"); Lawrence B. Lindsey, Detecting Discrimination by the Numbers, 14 ANN. REV. BANKING L. 177, 183 (1995) ("[W]hat will the judicial process do when confronted with batteries of opposing statisticians and economists?").
275. John S. Irving, Jr., Carl L. Taylor & Barbara Childs Wallace, General "Empirical" Studies: Not a Substitute for Proof in Individual NLRB Proceedings, 1981 U. ILL. L. REV. 99, 110 (1981) ("All of these examples illustrate the Board's obvious aversion to facts in its cases, and its search for devices to assist it in avoiding these facts.").
276. It is not suggested here that empirical data should be required in every standard criminal procedure case, but if it became more of an expectation, parties would be more likely to cultivate this kind of data. In some cases, significant fact-finding is required to produce necessary empirical data, like in United States v. Defreitas, 701 F. Supp. 2d 297, 306 (E.D.N.Y. 2010)
277. and In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 172-73 (2d Cir. 2008).
278. United States v. Cortez, 449 U.S. 411, 418 (1981) (" Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same - and so are law enforcement officers.")
279. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 125 (2000) ("Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.");
280. Smith v. Illinois, 469 U.S. 91, 104 (1984) ("Common sense suggests that the police should both complete reading petitioner his rights and then ask him to state clearly what he elects to do, even if he indicated a tentative desire while he was being informed of his rights.");
281. Illinois v. Gates, 462 U.S. 213, 238 (1983) ("The task of the issuing magistrate is simply to make a practical, common-sense decision. [based on] all the circumstances set forth in the affidavit before him. ."); United States v. Cortez, 449 U.S. 411, 418 (1981) ("Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same - and so are law enforcement officers.").
282. But see Winston v. Lee, 470 U.S. 753, 765-66 (1985) (analyzing the evidentiary value of the bullet in terms of its marginal probative effect in light of the considerable evidence already obtained). Tribe criticizes the Court's use of marginal analysis for permitting the Court to overturn longstanding constitutional principles, arguing that because these decisions affect who we ought to be as a nation, cost-benefit analysis and utility maximization are ill suited to the task. Tribe, supra note 25, at 611-14.
283. In forty-nine cases that have engaged in cost-benefit analysis since 1990, thirty-six did not rely on data in the analysis. See Davis v. United States, 131 S. Ct. 2419 (2011);
284. City of Ontario, California v. Quon, 130 S. Ct. 2619 (2010);
285. Berghuis v. Thompkins, 560 U.S. 370 (2010);
286. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009);
287. Montejo v. Louisiana, 556 U.S. 778 (2009);
288. Kansas v. Ventris, 556 U.S. 586 (2009);
289. Arizona v. Gant, 556 U.S. 332 (2009);
290. Arizona v. Johnson, 555 U.S. 323 (2009);
291. Pearson v. Callahan, 555 U.S. 223 (2009);
292. Herring v. United States, 555 U.S. 135 (2009);
293. Boumediene v. Bush, 553 U.S. 723 (2008);
294. Virginia v. Moore, 553 U.S. 164 (2008);
295. Hudson v. Michigan, 547 U.S. 586 (2006);
296. Muehler v. Mena, 544 U.S. 93 (2005);
297. United States v. Patane, 542 U.S. 630 (2004);
298. Hiibel v. 6th Jud. Dist. Ct., 542 U.S. 177 (2004);
299. Illinois v. Lidster, 540 U.S. 419 (2004);
300. United States v. Arvizu, 534 U.S. 266 (2002);
301. Atwater v. City of Lago Vista, 532 U.S. 318 (2001);
302. Illinois v. McArthur, 531 U.S. 326 (2001);
303. Florida v. J.L., 529 U.S. 266 (2000);
304. Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152 (2000);
305. Wyoming v. Houghton, 526 U.S. 295 (1999);
306. Knowles v. Iowa, 525 U.S. 113 (1998);
307. Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357 (1998);
308. Chandler v. Miller, 520 U.S. 305 (1997);
309. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995);
310. Schlup v. Delo, 513 U.S. 298 (1995);
311. Brecht v. Abrahamson, 507 U.S. 619 (1993);
312. Withrow v. Williams, 507 U.S. 680 (1993);
313. McCarthy v. Madigan, 503 U.S. 140 (1992);
314. White v. Illinois, 502 U.S. 346 (1992);
315. Coleman v. Thompson, 501 U.S. 722 (1991);
316. Michigan v. Harvey, 494 U.S. 344 (1990);
317. Maryland v. Buie, 494 U.S. 325 (1990);
318. James v. Illinois, 493 U.S. 307 (1990).
319. Only twelve, or twenty-seven percent, relied on data. See Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1520 (prison-assault statistics);
320. J.D.B. v. North Carolina, 131 S. Ct. 2394, 2402, 2407 (2011) (falseconfession statistics and child-development studies);
321. Maryland v. Shatzer, 559 U.S. 98, 109 n.6 (2010) (recidivism rates);
322. Samson v. California, 547 U.S. 843, 844 (2006) (recidivism data);
323. Georgia v. Randolph, 547 U.S. 103, 126 (2006) (domestic-violence data);
324. Wilkinson v. Austin, 545 U.S. 209, 213-14 (2005) (prison use statistics);
325. United States v. Flores-Montano, 541 U.S. 149, 153-54 (2004) (data regarding effectiveness of gas-tank searches);
326. Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 834 n.5 (2002) (child drug-abuse statistics);
327. McKune v. Lile, 536 U.S. 24, 32-33 (2002) (sex-offender statistics);
328. Maryland v. Wilson, 519 U.S. 408, 413 (1997) (officer injury and death figures);
329. Maryland v. Craig, 497 U.S. 836, 855 (1990) (child-development studies);
330. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990) (drunken-driving statistics).
331. See, e.g., United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005) ("Because weapons and violence are frequently associated with drug transactions, it is reasonable for an officer to believe a person may be armed and dangerous when the person is suspected of being involved in a drug transaction.");
332. United States v. Johnson, 364 F.3d 1185, 1194-95 (10th Cir. 2004) (upholding a Terry stop where the defendant was suspected of involvement with "drug dealing, kidnapping, or prostitution" which "are typically associated with some sort of weapon, often guns");
333. United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998) ("[I]n connection with a lawful traffic stop of an automobile, when the officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence of factors allaying his safety concerns, order the occupants out of the vehicle and pat them down briefly for weapons to ensure the officer's safety and the safety of others.");
334. State v. Ugalino, 111 P.3d 39, 49 (Haw. Ct. App. 2005) (justifying a Terry stop in part because "the officers knew that they were executing warrants for serious drug offenses, that guns and the use of violence are often associated with drug crimes, and that [the defendant] might have a desire to prevent his girlfriend's arrest");
335. State v. Johnson, 2007 WI 32, 40-41, 299 Wis.2d 675, N.W.2d 182 (considering that the defendant was not suspected of a crime associated with weapons possession in its Terry analysis)
336. But see, e.g., T.P. v. State, 585 So. 2d 1020, 1022 (Fla. Dist. Ct. App. 1991) ("General 'safety concerns' of an officer involved in an investigative stop will not justify the frisk of a citizen even where the suspected crime is associated with weapons.").
337. United States v. Barnett, 505 F.3d 637, 640 (7th Cir. 2007).
338. Id.; United States v. Moore, 817 F.2d 1105, 1108 (4th Cir. 1987) (holding that it was reasonable for officer responding to burglar alarm to stop and frisk suspect).
339. See, e.g., United States v. Blackshear, No. 11-227, 2011 WL 5129952, at *7 (E.D. Pa. Oct. 28, 2011) (holding that officers' "examination of the Jeep for safety reasons was justified" because they "had reason to believe that Defendants were engaged in a narcotics transaction and that such transactions are frequently associated with guns");
340. United States v. Crippen, 627 F.3d 1056, 1063 (8th Cir. 2010) (concluding that a pat-down search was reasonable where the officer suspected the defendant "was involved in a drug transaction");
341. United States v. Garcia, 459 F.3d 1059, 1064 (10th Cir. 2006) ("[A]n individual's involvement with drug transactions or distribution can support reasonable suspicion to frisk that individual for weapons.");
342. United States v. Jacob, 377 F.3d 573, 579 (6th Cir. 2004) (holding that "officers who stop a person who is 'reasonably suspected of carrying drugs' are entitled to rely on their experience and training in concluding that weapons are frequently used in drug transactions")
343. (quoting United States v. Heath, 259 F.3d 522, 530 (6th Cir. 2001));
344. United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1086 (9th Cir. 2000) (holding that "it was not unreasonable to believe that [the suspect] might be armed");
345. United States v. Lopez, 441 F. App'x 910, 914-15 (3d Cir. 2011) (holding that "it was reasonable for the officers to believe that the suspects may have been armed and dangerous" where the defendants "conducted a car-switch transaction. which often involve[s] large amounts of drugs and armed participants");
346. State v. Crooks, 244 P.3d 261, 266 (Idaho Ct. App. 2010) ("[T]he presence of organized or ongoing drug dealing is a factor to be considered when determining whether a frisk was lawful.").
347. United States v. Edwards, 53 F.3d 616, 618 (3d Cir. 1995) (holding that a frisk was reasonable where "fraud occurred at a bank in broad daylight" and therefore "the perpetrators might have armed themselves to facilitate their escape if confronted").
348. Trice v. United States, 849 A.2d 1002, 1005-06 (D.C. 2004) (holding that in a stabbing case, where an "officer has a reasonable articulable suspicion of a crime of violence, or that the person lawfully stopped may be armed and dangerous, then a limited frisk for weapons is. permissible and may be 'immediate and automatic'")
349. (quoting Terry v. Ohio, 392 U.S. 1, 33 (1968) (Harlan, J., concurring)).
350. United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007) (holding that because the driver could not produce registration information and could not identify owner, the police officer had reasonable suspicion that he had stolen the car and "car theft is a crime that often involves the use of weapons and other instruments of assault that could jeopardize police officer safety, and thus justifie[d] a protective frisk").
351. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, WEAPON USE BY OFFENSE TYPE, http://bjs.gov/index.cfm?ty=tp&tid=43 (last visited Sept. 12, 2012);
352. FED. BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, CRIME IN THE UNITED STATES 2010, tbl.15 (2010), http://www.fbi.gov/about-us/cjis/ucr/crime-inthe-u. s/2010/crime-in-the-u.s.-2010/tables/10tbl15.xls;
353. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CRIMINAL VICTIMIZATION, 2008 tbl.7 (2009), available at http://bjs.ojp.usdoj.gov/content/ pub/pdf/cv08.pdf;
354. F. Georgann Wing, Putting the Brakes on Carjacking or Accelerating It? The Anti Car Theft Act of 1992, 28 U. RICH. L. REV. 385, 390 n.35 (1994) ("Firearms were used in 31 percent of all murders, robberies and aggravated assaults in 1991.").
355. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, VICTIMIZATION DURING HOUSEHOLD BURGLARY tbl.18, (2010), http://bjs.gov/index.cfm?ty- pbdetail&iid-2172.
356. U.S. SENTENCING COMM'N, OVERVIEW OF FEDERAL CRIMINAL CASES FISCAL YEAR 2010, at 7 (2012), available at http://www.ussc.gov/Research-and-Statistics/ Research-Publications/2012/FY10-Overview-Federal-Criminal-Cases.pdf (noting weapon use "rang[es] from 27.6 percent of crack cocaine cases to 7.8 percent of marijuana cases" in federal court).
357. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CARJACKING, 1993-2002 at 1 (2004), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/ c02.pdf;
358. Michael E. Donahue et al., Accounting for Carjackings: An Analysis of Police Records in a Southeastern City, 13 AM. J. POLICE 91, 101 (1994) (reporting that in 1992, 69.1% of carjacking suspects in Savannah used weapons);
359. See also New Jersey v. T.L.O., 469 U.S. 325, 352-53 (1984) (Blackmun, J., concurring) (arguing that possession of weapons and drug use have become increasingly common in young offenders);
360. United States v. Wilson, 105 F.3d 219, 221 (5th Cir. 1997) (recognizing a connection between the foreseeability of a weapon being present in a drug transaction and the amount of drugs involved in the transaction and concluding that in a transaction over $5,000, it was foreseeable that a weapon would be present).
361. FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, CRIME IN THE UNITED STATES, 2010 available at http://www.fbi.gov/about-us/cjis/ucr/crime-in- the-u.s/2010/crime-in-the-u.s.-2010.
362. Although probable cause is not usually tied to a statistical likelihood, most would agree that it is requires a likelihood above 1%. Cf. Ronald J. Bacigal, Making the Right Gamble: The Odds on Probable Cause, 74 MISS. L.J. 279, 282 (2004) ("Like the Supreme Court, semantic interpretation of the term 'probable' seems comfortable only with placing the term somewhere between the range of a 1% to 100% likelihood.").
363. See, e.g., Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 633 (1989) (holding that a railroad could require its employees to take drug tests because such testing was "not an undue infringement on the justifiable expectations of privacy");
364. New Jersey v. T.L.O., 469 U.S. 325, 341, 347-48 (1984) (holding that a school's search of a fourteen-year-old student's purse was justified because it was reasonable under the circumstances).
365. This phenomenon is partially described by Anthony O'Rourke, who claims that criminal procedure decision making is a type of delegation and that judges may choose how much discretion to give to law enforcement in deciding whether to make permissive or restrictive doctrinal rules. See Anthony O'Rourke, Structural Overdelegation in Criminal Procedure, 103 J. CRIM. L. & CRIMINOLOGY 407 (2013).
366. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
367. Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1513-14 (2012) ("In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.").
368. Hudson v. Palmer, 468 U.S. 517, 530 (1984) (holding that a prisoner has no reasonable expectation of privacy to protect his cell from searches conducted randomly as prison officials see fit).
369. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 453-54 (1990) ("[T]he choice among. reasonable alternatives [for apprehending intoxicated drivers] remains with the governmental officials. including. police officers.");
370. United States v. William, 603 F.3d 66, 69-70 (1st Cir. 2010) ("[W]hether and where to establish a stop is primarily a judgment for state or local officials.");
371. Brouhard v. Lee, 125 F.3d 656, 660 (8th Cir. 1997) ("Choices between reasonable law enforcement techniques are properly left to politically accountable officials, not the courts.").
372. See Youngberg v. Romeo, 457 U.S. 307, 320 (1982) ("In determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance 'the liberty of the individual' and 'the demands of an organized society.'"
373. (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting));
374. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) ("[C]ourts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and this Court cannot reasonably demand scientific certainty [from judges or law enforcement officers] where none exists. Thus, the reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior."); Miranda v. Arizona, 384 U.S. 436, 503 (1966) (noting that, in evaluating the rules of custodial interrogation, courts use a totality of the circumstances test which the Supreme Court has "for so long recognized as a justifiable and proper tool in balancing individual rights against the rights of society").
375. See Allison Orr Larsen, Confronting Supreme Court Fact Finding, 98 VA. L. REV. 1255, 1258-59 (2012) (discussing the increasing reliance of courts on information outside of the record, including legislative facts).
376. Terry v. Ohio, 392 U.S. 1, 26 (1968).
377. These facts are not far from a recently litigated case, Floyd v. City of New York, 282 F.R.D. 153, 168 (S.D.N.Y. 2012), detailing that only one person in sixty-nine stops conducted by NYPD between 2004 and 2009 actually had possession of a gun.
378. See, e.g., Report of Jeffrey Fagan at 120, Floyd v. City of New York, 739 F. Supp. 2d 376 (S.D.N.Y. 2010) (No. 08 Civ. 01034) (finding that in New York City, over 51.52% of suspects stopped between 2004 and 2009 were black, and only slightly more than 10% were white).
379. See Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L. REV. 956, 960 (1999) (discussing the racial implications of stops);
380. Benjamin Weiser, A Judge's Education, a Sentence at a Time, N.Y. TIMES (Oct. 7, 2011), http://www.nytimes.com/2011/10/09/nyregion/judge-denny-chin-of- federal-court-discusses-sentencing.html?pagewanted=all (interviewing then federal District Court Judge Chin who said that "weighing conflicting concerns and interests" was something judges "have to do all the time," by doing "what [they] think is best for the defendant [and] for society").
381. See ROBERT C. DAVIS, RAND CTR. ON QUALITY POLICING, SELECTED INTERNATIONAL BEST PRACTICES IN POLICE PERFORMANCE MEASUREMENT 13 (2012), available at http://www.rand.org/content/dam/rand/pubs/technical-reports/2012/ RAND-TR1153.pdf (arguing that modern technological advances now enable police departments to release performance data which may have previously been cost prohibitive).
382. LAWRENCE W. SHERMAN, POLICE FOUND., IDEAS IN AMERICAN POLICING: EVIDENCE-BASED POLICING 4-5 (1998), available at http://www.policefoundation. org/sites/pftest1.drupalgardens.com/files/Sherman%20%281998%29%20-%20Evidence- Based%20Policing.pdf (explaining that evidence-based policing includes data-intensive performance tracking to feed results back to researchers who then further refine policing guidelines);
383. Jim Bueermann, Being Smart on Crime With Evidence-Based Policing, 269 NAT'L INST. JUST. J. 12, 14 (2012), available at https://www.ncjrs.gov/ pdffiles1/nij/237723.pdf (listing a number of police stations that have incorporated evidence-based policing techniques).
384. See Gordan Guyatt et al., Evidence-Based Medicine: A New Approach to Teaching the Practice of Medicine, 268 JAMA 2420, 2421, 2423 (1992) (noting that a profusion of published articles, textbooks, and seminars describing methodological advances in clinical practice is a manifestation of a new paradigm shift in medical practice called evidence-based medicine, which recognizes the limitations of relying on "intuition, experience, and understanding" in making strong inferences in clinical practice);
385. see also David M. Eddy, Evidence-Based Medicine: A Unified Approach, 24 HEALTH AFF. 9, 9 (2005) (explaining that evidence-based medicine has "spread through medicine with amazing speed" and that "[t]he pace speaks to the attraction and fundamental soundness of the core idea: that what happens to patients should be based, to the greatest extent possible, on evidence");
386. Gordan Guyatt et al., Evidence Based Medicine Has Come a Long Way, 329 BRIT. MED. J. 990, 990 (2004) (outlining that a decade after the introduction of the term "evidence-based medicine" and the first comprehensive description of its tenets in the early 1990s, the "principles of evidence based medicine have become core concepts of. medical education");
387. Terrence Shaneyfelt et al., Instruments for Evaluating Education in Evidence-Based Practice: A Systematic Review, 296 JAMA 1116, 1116 (2006) (explaining that since the introduction of evidence-based medicine "professional organizations have called for increased training in evidence-based practice (EBP) for all health care professions and at all levels of education").
388. For examples of critiques of evidence-based practice in medicine, see Romana Hasnain-Wynia, Is Evidence-Based Medicine Patient-Centered and Is Patient-Centered Care Evidence-Based?, 41 HEALTH SERVICES RES. 1, 3 (2006) (explaining that detractors of evidence-based medicine "charge that it discourages individualized patient care and instead promotes a 'cookbook' approach to medicine. that may not represent each individual patient");
389. Gary Taubes, Looking for the Evidence in Medicine, 272 SCI. 22, 22 (1996) (quoting doctors critical of evidence-based medicine saying that "medicine can't always be done by cookbook" and that "[g]ood clinical practice will involve some elements of inference and judgment leavened by experience");
390. Stefan Timmermans & Aaron Mauck, The Promises and Pitfalls of Evidence-Based Medicine, 24 HEALTH AFF. 18, 21 (2005) (noting that a major criticism of evidence-based medicine is that it encourages practitioners to "follow protocols that treat all patients as essentially interchangeable," instead of using the "craft" or "art" of individual expertise and judgment for each patient) (internal quotation marks omitted).
391. See, e.g., Illinois v. Gates, 462 U.S. 213, 230 (1983) (discussing the decision before a magistrate in determining whether there is a probable cause that a crime will occur as a "commonsense, practical question").
392. See generally Shima Baradaran & Frank L. McIntyre, Predicting Violence, 90 TEX. L. REV. 497 (2012).
393. See Rucker Johnson & Steven Raphael, How Much Crime Reduction Does the Marginal Prisoner Buy?, 55 J.L. & ECON. 275, 277 (2012) (analyzing the effect that incarceration has on crime rates, and finding that "recent increases in incarceration rates have generated much less value for investment in terms of crime rate reduction").
394. See Shima Baradaran, The Costs of Pretrial Detention 14, tbl.3 (unpublished manuscript) (on file with author).
395. See Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. PA. L. REV. 1789, 1790, 1792 (2012) (explaining that civil death refers to the old practice of extinguishing the civil rights of a person convicted of a crime and warning that today, persons convicted of crimes suffer substantial and permanent changes in legal status via collateral consequences including disenfranchisement, deportation for noncitizens, criminal registration and community notification requirements, and legal prohibitions to participate in certain societal activities);
396. Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. REV. 457, 461 (2010) (identifying three factors currently exacerbating the collateral consequences of conviction problems: (1) an increase in the number of collateral consequences, (2) the record number of individuals being released from incarceration, and (3) collateral consequences that hinder reentry and result in recidivism);
397. see also Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 FORDHAM URB. L.J. 1705, 1718-19, 1727-28 (2003) (discussing ways in which collateral consequences of conviction, such as losing voting rights, are handled federally and in the various states).
398. See Gary M. Vilke et al., Are Heroin Overdose Deaths Related to Patient Release after Prehospital Treatment with Naloxone?, 3 PREHOSPITAL EMERGENCY CARE 183, 183 (1999) ("Naloxone is frequently used by prehospital care providers to treat suspected heroin and opiod overdoses.");
399. David A. Wampler et al., No Deaths Associated with Patient Refusal of Transport After Naloxone- Reversed Opioid Overdose, 15 PREHOSPITAL EMERGENCY CARE 320, 320-21 (2011) (explaining that naloxone is a pure opioid antagonist used for direct reversal of the effect of opioid overdose).
400. See MATTHEW D. ADLER & ERIC A. POSNER, NEW FOUNDATIONS OF COST-BENEFIT ANALYSIS 1 (2006) (noting that judges historically, as they are now, were generalists that depended on expert testimony and that the judicial system was decentralized)
401. See Dan M. Kahan, "Ideology in" or "Cultural Cognition of"Judging: What Difference Does It Make?, 92 MARQ. L. REV. 413, 420 (2009);
402. Dan M. Kahan, The Cognitively Illiberal State, 60 STAN. L. REV. 115, 116-17 (2007).
403. See Lisa G. Aspinwall et al., The Double-Edged Sword: Does Biomechanism Increase or Decrease Judges' Sentencing of Psychopaths?, 337 SCI. 846, 846-49 (2012) (examining the impact and influence biomechanism of a psychopath has on judges' perception and sentencing of an accused suspect and presenting results that suggest that judges were inclined to view the characteristics of the psychopath biomechanism provided as mitigating and not aggravating factors in terms of liability for the crime, but where a suspect's biomechanism was viewed as a mitigating factor, judges reduced the suspect's criminal liability and consequently reduced the sanctions imposed on the suspect).
404. Republican Party of Minn. v. White, 536 U.S. 765, 803-04 (2002) (Ginsberg, J., dissenting) ("Unlike their counterparts in the political branches, judges are expected to refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. Their mission is to decide 'individual cases and controversies' on individual records.");
405. Melcher v. Fed. Open Mkt. Comm., 644 F. Supp. 510, 513 (D.D.C. 1986) ("The courts' role in the constitutional scheme consists of deciding highly particularized disputes between individual litigants and avoiding broad public policy determinations that are more appropriately made by the political branches.").
406. See, e.g., Michigan v. Tucker, 417 U.S. 433, 450 (1974) (considering "society's interest in the effective prosecution of criminals in light of" the constitutional rights of defendants in deciding whether to exclude witness testimony).
407. Pell v. Procunier, 417 U.S. 817, 823 (1974) (discussing penal objectives of rehabilitation within correctional facilities and internal security of the facilities in light of the constitutional rights of the inmates within the facilities).
408. See, e.g., Gall v. United States, 552 U.S. 38, 57 (2007) (considering whether defendant will be a danger to society in determining sentencing);
409. Skipper v. South Carolina, 476 U.S. 1, 5 (1986) (considering future danger to the community as a factor in sentencing).
410. See, e.g., Spaziano v. Florida, 468 U.S. 447, 486-88 (1984) (discussing the importance of determining community values in a jury determining guilt).
411. See, e.g., United States v. Salerno, 481 U.S. 739, 755 (1987) (allowing detention pretrial where arrestees are deemed to "pose a threat to the safety of individuals or to the community which no condition of release can dispel").
412. A similar critique is that it is not morally appropriate to consider costs when determining the fate of an individual defendant. Critics in other contexts have charged that considering costs excludes abstract values from consideration that, although difficult to quantify, are of fundamental importance to organizing a just society. Adler and Posner name a few choices, including that cost-benefit analysis "discounts important values" such as the "claims of poor people and future generations" and that it "neglects concerns about rights." ADLER & POSNER, supra note 271, at 4. However, there may not be much of a difference between balancing costs and benefits of a certain decision with or without monetary value. See LISA HEINZERLING & FRANK ACKERMAN, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING 165-66 (2004). Essentially, when the government makes decisions targeted at meeting the general welfare of society, it is considering its duty to "maximize overall welfare," asking which procedure or policy best considers the benefits and costs paid by society and whether this particular decision is worth the losses that may have to be paid. See ADLER & POSNER, supra note 271, at 101. Considering dollar amounts next to costs, and numbers next to evidence, may just be a more precise way of considering these relative values.
413. See JACK M. BEERMAN, INSIDE ADMINISTRATIVE LAW: WHAT MATTERS AND WHY 167 (2011);
414. CASS SUNSTEIN, RISK AND REASON 124-26 (2002) (stating that the cost of a regulation that will save lives is not limited to the monetary costs borne by corporations but also the potential harmful conseqences borne by others like consumers, workers, or the unemployed).
415. Broadly speaking, liberal policymakers tend to focus on fairness and equality whereas conservative/ libertarian policymakers focus on economic efficiency. See JONATHAN HAIDT, THE RIGHTEOUS MIND: WHY GOOD PEOPLE ARE DIVIDED BY POLITICS AND RELIGION 169 (2012) (arguing that liberals relate fairness to equality whereas conservatives identify fairness with economic proportionality).
416. Shepley W. Orr, Values, Preferences, and the Citizen-Consumer Distinction in Cost-Benefit Analysis, 6 POL. PHIL. & ECON. 107, 115 (2007) (contending that cost analyses seek "efficient outcomes [that] may be unjust or morally undesirable").
417. See Report of Jeffrey Fagan at 52-55, 63, Floyd v. City of New York, 739 F. Supp. 2d 376 (S.D.N.Y. 2010) (No. 08 Civ. 01034) (concluding that a study of New York City stop-and-frisk methods that revealed that at least 31% of all Terry stops were either facially unconstitutional or were lacking sufficient information regarding the stop to make a complete determination of the constitutionality of the stop "challenge[s] the viability of the current regulatory regime for assessing the presence of reasonable and articulable suspicion in a pedestrian stop" and that the high use of "furtive movements" and "high-crime area" by police officers in justifying the legality of stops "raises doubts about whether stops based on these factors are valid markers of [reasonable and articulable suspicion]"); id. at 63 (presenting data from New York between 2004 and 2009 that showed police seized guns in only 0.15% of all stops, general weapons in only 0.94% of all stops, and contraband - such as drugs or stolen property - in only 1.75% of stops).
418. Andrew E. Taslitz, Racial Profiling, Terrorism, and Time, 109 PENN ST. L. REV. 1181, 1201 (2005) (proposing that cognitive and social forces make it hard to accurately predict defendants' risks and the end result is that judges tend to overestimate risks)
419. Christina E. Wells, Questioning Deference, 69 MO. L. REV. 903, 907-08 (2004) (observing that psychologists have proven that the use of cognitive shortcuts can distort the risk assessment process especially where decisions are made "in an atmosphere of. intense social pressure")
420. Jack F. Williams, Process and Prediction: A Return to a Fuzzy Model of Pretrial Detention, 79 MINN. L. REV. 325, 337-38 (1994) (noting that studies have shown that that decision makers such as judges "can predict dangerousness within acceptable limits,"
421. see also Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759, 792-93 (1995) (arguing that judicial decision-making behavior in highly publicized cases is heavily influenced by the political ramifications of making a controversial or unpopular decision high-profile capital cases)
422. Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 29 (2007) (arguing that judges rely heavily on intuition in judicial decision making, which can affect the way a judge views the defendant and the evidence)
423. Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777, 784 (2001) (noting that the results from an exhaustive study of over 150 federal magistrate judges indicated that judges are susceptible to cognitive biases and heuristics in judicial decision making that can produce systematic errors in judgment). For a detailed description of the types of cognitive bias present in judicial decision making
424. see Amitai Aviram, Bias Arbitrage, 64 WASH. & LEE L. REV. 789, 794-95 (2007)
425. Darryl K. Brown, Cost-Benefit Analysis in Criminal Law, 92 CALIF. L. REV. 323, 342 (2004).
426. Christopher Slobogin, The Civilization of the Criminal Law, 58 VAND. L. REV. 121, 165 (2005).
427. See Michael Marcus, MPC - The Root of the Problem: Just Deserts and Risk Assessment, 61 FLA. L. REV. 751, 771-76 (2009) (arguing that the Model Penal Code should utilize evidence-based practices and risk assessment in relation to sentencing guidelines);
428. J. C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. REV. 1329, 1353 (2011) ("Empirical data can provide judges with essential information about the factors associated with increased risks of future crime; research about these variables can provide a theoretical context for understanding risk.");
429. Roger K. Warren, Evidence-Based Practices and State Sentencing Policy: Ten Policy Initiatives to Reduce Recidivism, 82 IND. L.J. 1307, 1308 (2007) (stating that greater dependence on evidence-based practices "would allow. courts to improve the effectiveness of. sentencing outcomes, reduce recidivism, and, at the same time, reduce over-reliance on incarceration and promote the utilization of community-based alternatives for appropriate offenders" and outlining ten initiatives courts should pursue to fully integrate "evidence-based practices into. sentencing policy").
430. Kristin Henning, Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform, 98 CORNELL L. REV. 383, 388 (2013) (asserting that prosecutors "track charging decisions by race and neighborhood" to work with the community on how these decisions impact juveniles).
431. See Christopher Slobogin & Lauren Brinkley-Rubinstein, Putting Desert in Its Place, 65 STAN. L. REV. 77, 82 (2013) ("Under these hybrid approaches, Joe might receive a sentence somewhere between five and nine years (depending on his individual culpability) or might simply be given a maximum sentence of nine years, with the precise time of release dictated by the risk of reoffending that he poses.").
432. See Samson v. California, 547 U.S. 843, 855 (2006) ("Petitioner observes that the majority of States and the Federal Government have been able to further similar interests in reducing recidivism and promoting reintegration, despite having systems that permit parolee searches based upon some level of suspicion. Thus, petitioner contends, California's system is constitutionally defective by comparison. Petitioner's reliance on the practices of jurisdictions other than California, however, is misplaced. That some States and the Federal Government require a level of individualized suspicion is of little relevance to our determination whether California's supervisory system is drawn to meet its needs and is reasonable, taking into account a parolee's substantially diminished expectation of privacy.").
433. See, e.g., id. (applying a regional standard); United States v. Montoya de Hernandez, 473 U.S. 531, 549 (1985) (discussing a national Fourth Amendment standard);
434. New Jersey v. T.L.O., 469 U.S. 325, 343 (1985) (using a local standard).
435. For example, depending on the methodology employed, researchers have quantified the average social cost of a burglary to be as low as $2,500 and as high as $25,000. See Jeffery A. Butts & John K. Roman, Juvenile Crime Interventions, in INVESTING IN THE DISADVANTAGED 103, 105 (David L. Weimer and Aidan R. Vining eds., 2009);
436. BEERMAN, supra note 283, at 165; see also STEPHEN BREYER, REGULATION AND ITS REFORM 83-91 (1982) (noting that complex evaluative factors may allow agencies to hide biases behind ostensibly objective selection criteria).
437. In the criminal law context, for example, researchers struggled for years to show that increasing police presence actually decreases crime. The difficulty stems from the fact that municipalities dispatch additional officers in response to increased crime. Teasing out the true relationship between these twomaximum sentence of nine years, with the precise time of release dictated by the risk of reoffending that he poses."). relationship between these twofactors requires advanced statistical techniques and precinct-level data collected over a long period of time. See W. DAVID ALLEN, CRIMINALS AND VICTIMS 21-22 (2011).
438. See Douglas A. Berman, Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 NOTRE DAME L. REV. 21, 80-92 (2000) (discussing judicial authority to depart from sentencing guidelines);
439. Sandra D. Jordan, Have We Come Full Circle? Judicial Sentencing Discretion Revived in Booker and Fanfan, 33 PEPP. L. REV. 615, 616 (2006) (describing the revival of judicial discretion before and after United States v. Booker and United States v. Fanfan);
440. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 YALE L.J. 1420, 1496 (2008) (describing sentencing rules as obstacles to judicial discretion).
441. Laurence H. Tribe, Seven Deadly Sins of Straining the Constitution Through a Pseudo- Scientific Sieve, 36 HASTINGS L.J. 155, 168 (1984).
442. See, e.g., Kathleen Hughney, Emotional Anecdotes Can Spark Bills with Unforeseen Results, ORLANDO SENTINEL (Oct. 30, 2011), http://articles. orlandosentinel.com/2011-10-30/business/fl-legislationby-anecdote-20111030-1- gun-ownership-legislative-process-anecdotes.
443. See BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 370 (2009) ("The people and their elected representatives have had the ability all along to assert pressure on the judges, and they have done so on numerous occasions. The accountability of the justices (and thus the Constitution) to the popular will has been established time and time again. To the extent that the judges have had freedom to act, it has been because the American people have given it to them.");
444. Neal Devins & Nicole Mansker, Public Opinion and State Supreme Courts, 13 U. PA. J. CONST. L. 455, 455 (2010) ("Most state supreme court justices have no choice but to take into account 'The Will of the People.'");
445. Lee Epstein & Andrew D. Martin, Does Public Opinion Influence the Supreme Court? Possibly Yes (But We're Not Sure Why), 13 U. PA. J. CONST. L. 263, 263 (2010) (using statistical analysis to find that "[w]hen the 'mood of the public' is liberal (conservative), the Court is significantly more likely to issue liberal (conservative) decisions").
446. See Shima Baradaran, Race, Prediction and Discretion, 81 GEO. WASH. L. REV. 157, 161 (2013).
447. Lizette Alvarez, No Savings Are Found From Welfare Drug Tests, N.Y. TIMES, Apr. 18, 2012, at A14; see, e.g., GA. CODE ANN. § 49-4-193 (2012) (requiring drug tests for all Temporary Assistance to Needy Families (TANF) applicants);
448. MO. REV. STAT. § 208.027 (2012) (requiring drug tests for welfare recipients suspected with reasonable cause of drug use);
449. OKLA. STAT. tit. 56, § 230.52 (2012) (requiring that all TANF applicants be screened for drug use); S.B. 1620, 50th Leg., 1st Reg. Sess. (Ariz. 2011), available at http://www.azleg.gov/legtext/50leg/1r/bills/sb1620h. pdf (requiring drug tests during the fiscal year 2011-2012 for welfare recipients suspected with reasonable cause to engage in drug use);
450. S.B. 2580, 107th Gen. Assemb., 2d Reg. Sess. (Tenn. 2011) available at http://www.capitol.tn.gov/Bills/ 107/Bill/SB2580.pdf (requiring a substance abuse test for all welfare applicants);
451. H.B. 155, 59th Leg., Gen. Sess. (Utah 2012) available at http://le.utah.gov/2012/bills/hbillenr/HB0155.htm (requiring drug tests for welfare recipients if a state official has reason to believe the recipient is engaging in drug use and allowing the state to terminate benefits for refusal to take a test);
452. see also NAT'L CONFERENCE OF STATE LEGISLATURES, Drug Testing and Public Assistance, http://www.ncsl.org/issues-research/humanservices/ drug-testing-and-public-assistance.aspx (last visited Jan. 23, 2013) (listing twenty-eight states that proposed legislation during 2012 involving drug tests for TANF applicants).
453. See Alvarez, supra note 315; see also BILL SUMMARY, H.R. 1067, 53d Leg., 1st Sess. (Okla. 2011), available at http://webserver1.lsb.state.ok.us/cf/2011- 12%20SUPPORT%20DOCUMENTS/BILLSUM/House/HB1067%20INT%20BILLSUM.DOC (estimating a cost of $2,161,179 if 10% of TANF applicants are tested);
454. N.Y. STATE ASSEMBLY, MEMORANDUM IN SUPPORT OF LEGISLATION, A.B. A04474, 2011 Reg. Sess. (2011), available at http://assembly.state.ny.us/leg/?default- fld-&bn-A04474 &term-2011&Memo-Y (estimating that drug testing welfare recipients would cost the state $20 million annually);
455. U.S. DEP'T OF HEALTH & HUMAN SERVS., ASPE ISSUE BRIEF: DRUG TESTING WELFARE RECIPIENTS: RECENT PROPOSALS AND CONTINUING CONTROVERSIES 7 (2011) available at http://aspe.hhs.gov/hsp/11/DrugTesting/ib.pdf ("[N]one of the legislative costs estimates we identified estimated net savings as a result of the proposed drug testing programs.");
456. Steve Contorno, Va. GOP Revives Drug Testing for Welfare Recipients, WASH. EXAMINER (Dec. 4, 2012), http://washingtonexaminer.com/va.-goprevives- drug-testing-for-welfare-recipients/article/2515096#.UQC-zydEG3W (noting that Virginia's drugtesting legislation previously failed because the $229,000 benefit did not outweigh the $1.5 million cost);
457. Editorial: Drug Testing Welfare Applicants Nets Little, USA TODAY (Mar. 18, 2012), http://usatoday30.usatoday.com/news/opinion/editorials/story/2012-03- 18/drug-testing-welfare-applicants/ 53620604/1 (stating that, in Arizona, only one welfare applicant tested positive out of the 87,000 "subjected" to the drug-test program);
458. Dustin Hurst, DHW Study Says Welfare Recipient Drug Testing Would Cost State More Money Than It's Worth, IDAHO REP. (Feb. 9, 2011), http://www.idahoreporter.com/ 2011/dhw-study-says-welfare-recipient-drug- testing-would-cost-state-more-money-than-its-worth/ (explaining that the state of Idaho found that drug tests would cost more than their projected savings);
459. Welfare Drug Screening Law Costs Oklahoma Thousands of Dollars, KOKH FOX 25 (Nov. 15, 2012),http://www.okcfox.com/newsroom/top-stories/videos/kokh-vid- 8165.shtml (stating that in Oklahoma, an initial screening and drug test cost the state $139 and that "out of 3,711 adults enrolled in Temporary Assistance for Needy Families (TANF), about 100 screened positive for drugs").
460. Using Fourth Amendment analysis, the Eleventh Circuit unanimously upheld an injunction blocking enforcement of a Florida law mandating suspicionless drug testing for welfare recipients. See Lebron v. Sec'y, Fla. Dep't of Children & Families, 710 F.3d 1202, 1214 (11th Cir. 2013) ("[S]eeking public assistance does not deprive a [welfare] applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy.").
461. See Alvarez, supra note 315; see also Press Release, Nat'l Insts. of Health, NIAAA Researchers Estimate Alcohol and Drug Use, Abuse, and Dependence Among Welfare Recipients (Oct. 23, 1996), available at http://www.niaaa.nih.gov/ news-events/news-releases/niaaa-researchers-estimatealcohol- and-drug-use-abuse-and-dependence-among (finding that the proportion of welfare recipients that abuse drugs is consistent with the overall population);
462. Walker Newell, Tax Dollars Earmarked for Drugs? The Policy and Constitutionality of Drug Testing Welfare Recipients, 43 COLUM. HUM. RTS. L. REV. 215, 246 (2011) (explaining that although suspicion-based drug testing laws are not per se unconstitutional, their standards may commonly be applied in an unconstitutional way).
463. MO. ATT'Y GEN., EXECUTIVE SUMMARY FOR 2011 MISSOURI VEHICLE STOPS 2, available at http://ago.mo.gov/VehicleStops/2011/.
464. Minnesota reported finding contraband in 17.14% of searches. INST. ON RACE AND POVERTY, MINNESOTA STATEWIDE RACIAL PROFILING REPORT: ALL PARTICIPATING JURISDICTIONS 22 (2003), available at http://www.law.umn.edu/uploads/cb/94/ cb94cf65dc50826424729d 214a1f6b82/27-Racial-Profiling-Aggregate-Report.pdf.
465. GARY CORDNER ET AL., VEHICLE STOPS IN SAN DIEGO: 2001, at 31 (2002), available at http://www.sandiego.gov/police/pdf/stoprpt.pdf.
466. CTR. FOR CONSTITUTIONAL RIGHTS, RACIAL DISPARITY IN NYPD STOPS-AND-FRISKS 12 (2009), available at http://www.ccrjustice.org/files/Report-CCR-NYPD-Stop- and-Frisk.pdf (finding that from 2005 to 2008, fewer than 2% of stops resulted in the police finding contraband).
467. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CONTACTS BETWEEN POLICE AND THE PUBLIC, 2008 10 (2011), available at http://bjs.ojp.usdoj.gov/ content/pub/pdf/cpp08.pdf.
468. See Katherine Y. Barnes, Assessing the Counterfactual: The Efficacy of Drug Interdiction Absent Racial Profiling, 54 DUKE L.J. 1089, 1137 (2005).
469. Julie Dressner & Edwin Martinez, The Scars of Stop-and-Frisk, N.Y. TIMES (June 12, 2012),http://www.nytimes.com/2012/06/12/opinion/the-scars-of- stop-and-frisk.html?-r=0 (reporting that Tyquan Brehon, a young black man in Brooklyn without a criminal record, reports being stopped more than sixty times before age eighteen);
470. see Second Am. Compl., Floyd v. City of New York, No. 08 Civ.01034 (SAS), 2008 WL 4179210 (S.D.N.Y. Sept. 10, 2008).
471. Andrew Lee Scott Dead: Lake County Police Fatally Shoot Wrong Man While Hunting Murder Suspect, HUFFINGTON POST (July 17, 2012), http://www. huffingtonpost.com/2012/07/17/andrew-lee-scottdead- n-1679408.html (reporting an incident where the police shot and killed a man after the police knocked on the wrong door in the middle of the night and did not identify themselves as police officers);
472. Amanda Ciavarri, Police and Federal Agents Raid Charlotte Home by Mistake, WHEC (June 16, 2012), http://www.whec.com/news/stories/s2658110.shtml (reporting on a police raid on the wrong house where the police pointed a loaded gun at an innocent woman, handcuffed her, and almost started a gunfight with her son);
473. Dionne Cordell-Whitney, Family Says Police Raid Was Wrong and Vile, COURTHOUSE NEWS SERVICE (July 18, 2012), http://www.courthousenews.com/2012/07/ 18/ 48482.htm (reporting on a police intrusion that resulted in three children being handcuffed and forced to "sit next to the carcass of their dead and bloody pet for more than an hour" while the police searched the house and found nothing illegal);
474. Ex-Atlanta Officers Get Prison Time for Cover-Up in Deadly Raid, CNN (Feb. 24, 2009), http://www.cnn.com/2009/CRIME/02/24/atlanta.police/index.html (reporting that the police shot and killed a ninety-two-year-old woman following the execution of a no-knock warrant at the wrong address).
475. See Baradaran, supra note 314, at 157. In Los Angeles, Minnesota, New York, and other areas, although minorities were targeted for stops much more often than whites, the ratio of whites who were found with contraband, evidence, and drugs compared with overall number of whites stopped was higher than such ratios of minority groups. In other words, police were more likely to find contraband when stopping a white person than when stopping a person of minority race. See L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 MINN. L. REV. 2035, 2037-38 (2011).
476. 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," 42 DUKE L.J. 727, 775 (1993) (arguing that the judiciary should remind themselves of their own personal distance from police investigation, intrusiveness of police action, and sometimes community values so as to avoid underestimating the intrusiveness of police actions
477. Florida v. J.L., 529 U.S. 266, 273 (2000) ("[T]he danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability.");
478. Maryland v. Wilson, 519 U.S. 408, 413 (1997) (risk of assault or death);
479. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990) (vast problem of drunk driving);
480. Maryland v. Buie, 494 U.S. 325, 333 (1990) (high risk of danger to officers when arresting in a home);
481. New Jersey v. T.L.O., 469 U.S. 325, 339 (1985) (risk of drugs and violent crime among school children).
482. Wilkinson v. Austin, 545 U.S. 209, 227 (2005).
483. See, e.g., Florence, 132 S. Ct. at 1519 (noting that inmates assault correctional staff more than 10,000 times each year);
484. Chandler v. Miller, 520 U.S. 305, 319 (1997) (asserting that evidence of a real problem "would [have] shore[d] up an assertion of special need");
485. Wilson, 519 U.S. at 413 (noting that 5762 officer assaults and eleven officer deaths in one year during traffic pursuits and traffic stops); id. at 416 (Stevens, J., dissenting) (attacking the majority's rule because there is "not even a scintilla of evidence of any potential risk" to officers, suggesting that with sufficient evidence he would have supported the holding);
486. Sitz, 496 U.S. at 451 (citing statistics of over 25,000 deaths, almost one million injuries, and over $5 billion in property damage each year due to drunk driving);
487. id. at 469-70 (Stevens, J., dissenting) (criticizing the holding because of a lack of data demonstrating that sobriety checkpoints produced more arrests than conventional methods would have); Buie, 494 U.S. at 340 (Brennan, J., dissenting) (criticizing the Court for merely assuming that the danger of home ambushes approaches that of "on-the-beat" street confrontations, suggesting that actual evidence may have swayed his vote).
488. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 683 (1989) (Scalia, J., dissenting) ("[A]n instance, that is, in which the cause of bribe-taking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use. Although the Court points out that several employees have in the past been removed from the Service for accepting bribes and other integrity violations, and that at least nine officers have died in the line of duty since 1974, there is no indication whatever that these incidents were related to drug use by Service employees." (citation omitted)).
489. See, e.g., Galen v. Cnty. of Los Angeles, 477 F.3d 652, 656 (9th Cir. 2007) (upholding increase of bail in a case where a man was charged with domestic abuse where the evidence offered was that the defendant lived in a "nice house" and presumed victim said she feared for her safety but gave no other specifics); State v. Holler, 32 P.3d 679, 683-84 (Idaho 2001) (holding that an officer had reasonable suspicion that the defendant was armed because there was a visible bulge in his left front pocket, he was nervous and agitated when asked to remove his hands from his pockets, and the encounter happened early in the morning when the defendant claimed he was looking for his lost dog);
490. State v. Collins, 847 P.2d 919, 922-24 (Wash. 1993) (en banc) (holding that an officer had reasonable suspicion that the defendant was armed because the stop occurred at night, the officer knew the defendant had been arrested for a felony two months earlier, and in the earlier arrest, the defendant had ammunition and a holster but no weapon).
491. See, e.g., Wickard v. Filburn, 317 U.S. 111, 128-29 (1942) (holding that a man growing wheat for personal consumption was subject to a constitutional regulation based on the hypothetical that if everyone decided to grow their own wheat this would substantially affect the national economy, but without considering that the nation's workforce is specialized and most people would not grow their own wheat if given the chance);
492. Pearson v. Bridges, 544 S.E.2d 617, 620 (S.C. 2001) (using hypothetical situations that had 30% or less chances of occurring, the jury awarded the full amount of damages for each hypothetically needed medical treatment, including a liver transplant
493. See, e.g., OFFICE OF NAT'L DRUG CONTROL POLICY, EXEC. OFFICE OF THE PRESIDENT, THE NATIONAL DRUG CONTROL STRATEGY: 1997, at 18 (1997) (noting that, for men arrested, the percentage testing positive for drugs ranged from 51% to 83%, and for females arrested, it ranged from 41% to 84%);
494. Data Suggests Drug Treatment Can Lower US Crime, FOX NEWS (May 17, 2012), http://www.foxnews.com/health/2012/05/17/data-suggests-drug-treatment-can- lower-us-crime/ (showing positive drug tests ranging from 64% for men arrested in Atlanta to 81% for men arrested in Sacramento);
495. Douglas A. Smith & Christina Polsenburg, Specifying the Relationship Between Arrestee Drug Test Results and Recidivism, 83 J. CRIM. L. & CRIMINOLOGY 364, 369 (1992) (analyzing data collected by the District of Columbia's Pretrial Services Agency and the National Institute of Justice's Drug Use Forecasting program showing that over 50% of arrestees tested positive for drugs).
496. In 2004, 18% of federal inmates and 17% of state inmates admitted to committing their crimes to obtain drug money. TINA L. DORSEY& PRISCILLAMIDDLETON, U.S. DEP'T OF JUSTICE, DRUGS AND CRIME FACTS 6 (2006), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/dcf.pdf
497. In 2007, 14,831 homicides were known to be narcotics related. Id. at 7; see also John S. Goldkamp et al., Pretrial Drug Testing and Defendant Risk, 81 J. CRIM. L. & CRIMINOLOGY 585, 588-89 (1990) (discussing various laws that allow judges to take various criterion into consideration - sometimes including drug use - in bail and pretrial release decisions)
498. See generally Sarah French Russell, Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing, 43 U.C. DAVIS L. REV. 1135 (2010) (discussing sentence enhancements brought about by qualifying drug convictions under federal law).
499. OFFICE OF NAT'L DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE PRESIDENT, ARRESTEE DRUG ABUSE MONITORING PROGRAM II: 2011 ANNUAL REPORT 2 (2012), http://www.whitehouse.gov/sites/default/ files/email-files/adam-ii-2011-annual- rpt-web-version-corrected.pdf.
500. Bd. of Educ. of Indep. Sch. Dist. No. 92. v. Earls, 536 U.S. 822 (2002);
501. Ferguson v. City of Charleston, 532 U.S. 67 (2001);
502. Chandler v. Miller, 520 U.S. 305 (1997);
503. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995);
504. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989);
505. Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602 (1989).
506. Compare Chandler, 520 U.S. at 314, with Earls, 536 U.S. at 830.
507. See, e.g., Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 674 (1989) (allowing U.S. Customs Service to continue a program that required employees to provide a urine sample for drug testing when they applied for a position where they would handle classified material);
508. Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 633-34 (1989) (finding constitutional the Federal Railroad Administration's regulations that require railroads to take blood and urine samples of covered employees after certain accidents and permitting, but not requiring, railroads to take blood and urine samples of employees who break certain safety rules).
509. Susan R. Klein, Enhancing the Judicial Role in Criminal Plea and Sentence Bargaining, 84 TEX. L. REV. 2023, 2053 (2006)
510. ("[M]oving substantive sentencing discretion from judges to prosecutors is unlikely to improve transparency or equality."). See generally Marc L. Miller & Ronald F. Wright, The Black Box, 94 IOWA L. REV. 125 (2008) (discussing the importance of internally regulating prosecutorial discretion effectively).
511. Kenneth Culp Davis, Judicial Notice, 55 COLUM. L. REV. 945, 952 (1955).