Second, if enough people are searched, the political process itself will serve as a safeguard of our liberty. The more people who are subjected to police searching of this sort, and put up with it, the more we can be comfortable knowing that people at least believe the effort is appropriate and worthwhile.55

  Face it—going through airport security is a pain in the keister. But while people may grumble about the lines, there is no widespread call to stop the searches. The public is persuaded the inconvenience is worth it to avoid airborne terrorism. Note, though, that when the TSA started to use X-ray machines that were too revealing of people’s bodies, there was an immediate outcry and the practice was stopped. The public deemed the intrusion too great given the payoff. With a truly general search, the decision about legitimate government interests and minimal intrusions rests where it should: with the public.56

  Indeed, consistent with our notion of democratic policing, these sorts of searches should be approved in advance by the public anyway. And with these suspicionless searches, the government has little argument about the need for keeping them secret. The whole point of the searches is deterrence; people knowing only helps the plan succeed.

  So, there you have it. By asking a very simple question, the law governing searches and seizures can be simplified greatly. When examining the constitutionality of police tactics, the first question should be: is it suspicion-based or suspicion-less? If the former, then the protections of sufficient cause (usually probable cause) and warrants are required. If the latter, then we need to ensure that the search is conducted in a way that avoids arbitrariness—usually by making sure everyone is searched.

  GETTING IT RIGHT

  Now, finally, the answer to the judges’ confusion in Bill Bruce’s case should be obvious. If the police had sufficient suspicion to search Wholesale Auto Salvage, which they did not, then they should have gotten a warrant based on probable cause. On the other hand, if it was truly an administrative search, it should have been random, which it also was not. What the police did at Wholesale Auto that day violated Bill Bruce’s constitutional rights.

  Either a search is suspicion-based, and there should be adequate suspicion (plus a warrant when possible). Or a search is suspicionless, and then must be universal, or at least truly random.

  The failure to recognize that cause-based and suspicionless searches require very different safeguards against arbitrariness has led the Supreme Court to exacerbate two deeply regrettable problems.

  First, allowing suspicion-based searches on something less than probable cause leads to the arbitrary treatment of people like Bill Bruce.

  Second, prohibiting suspicionless searches, even for “ordinary law enforcement” (so long as the search is truly general or random), invalidates some searches, like the roadblocks in Indianapolis, that may well be both valuable and appropriate.

  The scheme of drug interdiction roadblocks in Edmond was set up to avoid officer arbitrariness and discretion. The affidavits in the case explained that the checkpoint locations were chosen by supervisors “weeks in advance,” “taking into consideration area crime statistics and the ability to locate the checkpoints in a location which will minimize the interference with normal traffic flow.” Cars were stopped in predetermined groups (i.e., five cars at a time), and even if police or fire department vehicles were in that group they were stopped. Most important, the officers were instructed that “every vehicle stopped must be examined in the same manner until particularized suspicion or probable cause develops.” It was emphasized that there was “no discretion given to any officer” in terms of which cars were stopped.57

  Whether such roadblocks are a good or bad idea is for each community to decide, but it is hard to see them as unconstitutional.

  We’ve lost sight of the reason the Fourth Amendment exists in the first place, and having done so we’ve become confused about what police agencies may and may not do. Yet it is not complicated. Suspicion-based searches should require probable cause. And suspicionless searches need regularity, i.e., subjecting everyone or at least some random set to the search, and avoiding any arbitrariness or discrimination, any whim or caprice.

  Two types of searches, two very different protections. In this quite simple way, we can reconcile the Framers’ concerns about general searches with the imperatives of the new deterrent-based policing.

  There still is one last, important problem we need to solve. Often suspicionless searches are aimed not at everyone, but at a particular group. The next chapter tackles that problem, by turning to another part of the Constitution, the Equal Protection Clause.

  8

  DISCRIMINATORY SEARCHES

  Often, the government singles out a group to search. In common parlance, and in law, some of this is called “profiling.” It happens to racial minorities in drug interdiction. It happens to ethnic and religious minorities in the war on terror. There is an ongoing and heated debate about when, or even whether, profiling is justified.1

  The Fourth Amendment standing alone doesn’t really help us much in dealing with these discriminatory practices, but another part of the Constitution does: the Fourteenth Amendment’s Equal Protection Clause. When it comes to law enforcement and counterterrorism, though, judges tend to ignore the legal precedents implementing the Constitution’s guarantee of equality. Instead they make up a special set of rules under the Fourth Amendment. That’s unfortunate. Relying on settled nondiscrimination law not only would help with fraught questions regarding racial and religious profiling, it would clarify our thinking even when the group singled out is more innocuous, such as people who fly on planes rather than taking trains (and thus are subjected to extensive preboarding security), or drug-testing only students who participate in extracurricular activities.

  JUSTIFIED PARANOIA

  Inside the cluttered, busy office of Linda Sarsour, Executive Director of the Arab American Association of New York, there’s a clear—albeit jarring—message. A neglected computer sits in the corner, dusty and covered with papers, including a holiday card from the Obamas. (Sarsour’s a White House “Champion of Change.”) The walls and surfaces urge visitors to “Organize, Register, Vote.” But the dominant motif is spying. Police spying. Posters and cartoons declare: “#sayno2spying,” “We are not anti-police, we are anti–police spying,” “NYPD stop spying on us.” A photograph of the cadet class at the Police Academy contains cutout faces of Muslim women wearing the hijab.2

  Sarsour, too, wears the hijab, though she proclaims she is not so much religious as nationalist Palestinian. She’s in constant motion, a young woman filled with nervous energy, keeping track of a bustling organization and office. The waiting room is full of people, mostly older women, who have come for social services. Eid Al-Adha, the Muslim holy day marking the end of the Hajj, the pilgrimage to Mecca, has come and gone; Islamic Relief is set up outside handing out packets of frozen beef, the product of the holiday’s ritual sacrifice, to the needy. And Sarsour is rushing around monitoring it all, while describing how paranoid she is: “I’m paranoid, I’m a paranoid executive director.”3

  Between all the posters, and Sarsour’s talk, you might think she was crazy paranoid—except for the documentary record that indicates she’s not. After 9/11 the NYPD began “mapping” Muslim communities. It sent informants into mosques and other Muslim or Arab organizations, and set cameras up outside them. NYPD officers went underground as spies. People stopped lingering after prayer services, and imams closed mosques—traditional gathering places for the community—when services were not in session. Student groups doing charity work were shunned by other Muslims when word got out that informants had infiltrated them. Muslim groups of all sorts discouraged any talk of any topic remotely political or controversial.4

  Sarsour describes with visible stress the time she was told by the Associated Press that it had documents showing attempts by the NYPD to put an undercover agent on her not-for-profit board. All the sudden, the most innocent-seeming events deserved scrutiny, like the guy from Libya who showed up out of the blue wanting to help, claiming he was getting a master’s degree, no apparent day job to go to, and who—after Sarsour drove him off—surfaced again at a Barnard poetry reading among some Muslim friends. She’s outraged by it all. Her board, she points out, is not a public place where anyone can enter. It is a private organization. “They have no right to be here.” The board discusses financial issues, trips they’ve taken. But “people get afraid to talk.”5

  Sarsour has a complicated relationship with the NYPD. She feels close to the local precinct, has the captain’s cell phone number on hand, believes they are doing their job and doing it with integrity. It’s the top brass with whom she has issues; she objects to the creation of the “Demographics Unit”—the ones who did the spying—and the use of training materials like the NYPD’s Radicalization in the West: The Homegrown Threat, which tars the entire Muslim community. She explains how the people of her community have real needs for the police at times, but she has to reassure them it is okay to call.6

  It’s hard to imagine anyone tolerating this at Catholic churches and welfare organizations in the United States, or Jewish synagogues and schools. If the First Amendment is about anything, it is that we don’t take names and pictures of people going to pray, to receive community services, to engage in political activism. Indeed, this was just the very sort of conduct that got the FBI and CIA in trouble in the 1960s and 1970s, spying on domestic organizations, on people doing what they had every right to do under the United States Constitution.7

  Yet people have defended and will continue to defend what the NYPD was doing here. New York’s Mayor Michael Bloomberg did. Though his successor, Mayor Bill de Blasio, was quick to settle litigation involving stop-and-frisk, an ACLU case involving spying in the Muslim community lingered on for quite a while before settling. After all, many people say—and have said since 9/11—Isn’t that where the trouble comes from? The conservative commentator Charles Krauthammer made just this point right after 9/11. So did the liberal Michael Kinsley, who in his September 30, 2001, column in The Washington Post said, “[T]oday we’re at war with a terror network that just killed 6,000 innocents and has sent anonymous agents in our country plotting more slaughter. Are we really supposed to ignore the one identifiable fact we know about them?” 8

  What should the rules be when government takes Krauthammer’s and Kinsley’s advice—not just in this instance, but generally—and singles out a particular group for surveillance or searching? We’ve already seen that when the government searches to deter crime, the proper constitutional protection is to search everyone. That’s what we do at airports, and it is exactly what Krauthammer was complaining about. Why are we patting down female flight attendants, he asked, when we know the bad guys who are part of al-Qaeda are “young, Islamic, Arab and male”?9

  This sort of selective searching happens all the time. Welfare recipients are subjected to drug tests, while those who do not require government assistance are excused. Cars containing people of Latino appearance are targeted for immigration inquiries. Jurisdictions have mandatory DNA testing for some arrestees but not others.10 In fact, few searches are truly as general as the last chapter suggests they should be. We search everyone at airports, but not at bus stations or railways. Sometimes the grouping can be subtle: Roadblocks are placed at one location, not on every road, meaning only motorists in a particular neighborhood will be stopped.11

  The Supreme Court has made a mess of what to do about these sorts of discriminatory searches. It is yet another example of the usual constitutional rules getting twisted beyond recognition when policing is at issue. In constitutional law, no sort of discrimination is more taboo than allowing the government to pick and choose on the basis of race. Yet, beginning with a 1975 immigration-stop case, Brignoni-Ponce, the justices have allowed law enforcement officers leeway to rely on racial characteristics in some instances. The Court has shown little confidence as to how to deal with other discriminations, be they subjecting some arrestees but not others to DNA testing, or demanding students who participate in extracurricular activities take drug tests while others need not. The justices have mostly just thrown up their hands, allowing government to choose as it will.12

  Once again, the courts have lost sight of the proper concern—government arbitrariness. In cases such as these, courts should require the government to answer the perennial question under the Constitution when one is searched or seized: “Why me?” But when the target is a group, not an individual, the most apt part of the Constitution is the Fourteenth Amendment’s Equal Protection Clause, not the Fourth Amendment. Courts reviewing government discrimination among groups in the policing context should engage in the same sort of inquiry that judges employ in nonpolicing discrimination cases.13

  We’ll start by looking at policing aimed at groups that traditionally have been the subjects of discrimination and get special protections under the Constitution—instances of racial, religious, ethnic, and gender and sexual-orientation-based discrimination. With these groups, the rules ordinarily would be quite clear, but the analysis ends up muddled because the issue is law enforcement. We’ll then move to even tougher cases, where the groupings don’t happen along such sensitive lines, but the constitutional right to be free from arbitrary searching or seizing is put at risk anyway.

  A MANHUNT IN ONEONTA

  In the wee hours of the morning, on September 4, 1992, an intruder entered a remote home in Oneonta, New York, and attacked an elderly woman who was visiting. Wielding a knife, the intruder stuffed a bandana in her mouth, and sat atop her intending to rape her. She struggled, was cut, the culprit fled. The woman could not identify her assailant, but told the police—based on her view of an arm and hand, and the timbre of voice—that it was a black male. The police concluded that he might have cut his hand. They decided, or she told them, that he was young.14

  And so the search was on, for a young black man with a cut on a hand. Oneonta, population 10,000, had about 300 black citizens, and another few hundred at the nearby college. The police decided to track them all down. A top college administrator prepared a list at police request—it came to be called “the black list”—and the police then chased after every black male student at the college. Officers burst into dorm rooms, threatened to take students downtown, forced them to show their hands in front of classmates who looked on, certain they’d done something wrong. In town things were yet more chaotic. Blacks were stopped on the street and ordered to put hands on cop cars; there was so little rhyme or reason to the manhunt that some were stopped several times in the dragnet that occurred over the course of several days. So were older black men, even women. One woman, an admissions officer at the college, was told she could not board a bus to visit her grandmother if she did not produce identification. The perpetrator was never found.15

  “We’ve tried to examine the hands of all the black people in the community,” explained the New York State Police investigator, H. Karl Chandler. No disrespect was intended, he insisted, it only made sense. “If your car has an accident, and there’s red paint on it, are you going to look for a green car?”16

  When it came time for the federal courts to rule, they basically agreed with Investigator Chandler. The judges said they were not “blind to the sense of frustration that was doubtlessly felt by those questioned by the police during the investigation.” What happened was “understandably upsetting.” But plaintiffs “were not questioned solely on the basis of their race.” Rather, the police legitimately were following a “physical description given by the victim.”17

  POLICING AND RACE: THE FIRST MISTAKE

  The first of two very wrong things courts say about policing based on racial or other similar characteristics is that the Constitution’s equality provision, the guarantee of “equal protection of the laws,” is not implicated when police are simply following a description of a culprit given by witnesses or a victim. As we’ll see, in most cases it is perfectly consistent with the Constitution for police to pursue such a lead. But to say that the police can do whatever they want when looking into what is reported to them, and that the Equal Protection Clause has nothing to say about it? That’s wrong.18

  The problem is that when it comes to policing, all the usual rules about race, ethnicity, gender, etc., get tossed out the window. Though proper application of those rules will not lead to a different outcome in most cases in which a witness offers a description of a perpetrator, it might well have in Oneonta. And it most certainly would in the sort of case we will be particularly concerned about here, when police are not following a victim description, but are engaging in racial profiling.

  The law regarding constitutional equality is not particularly complicated. It asks only two questions. Does the government have an important reason for what it is doing? And does dividing people into groups—classifying them, discriminating among them—achieve that goal? What we are trying to figure out is whether the division into groups accomplishes what the government has set out to do in a sensible, rational way. If not, we suspect the government is engaging in discrimination for impermissible reasons, either because it is being irrational or because it is biased by dislike for the disfavored group.

  What makes patrolling for discrimination tricky is that it’s impossible to govern and not divide people into groups. You have to be sixteen to drive, eighteen to vote, twenty-one to drink. Only people with incomes below a certain level get welfare benefits. Businesses over a certain size have to follow workplace safety rules, while some small businesses get off. You cannot drive over fifty-five miles an hour. Restaurants must store food at a certain temperature.19