12. “Terry Transcripts,” supra note 11, at 1456.

  13. Id. at 1418, 1456.

  14. Id. at 1411, 1418.

  15. Id. at 1413.

  16. Id. at 1416, 1429, 1444.

  17. See Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), 275–78; Risa Goluboff, Vagrant Nation (2016), 216–17; Earl C. Dudley, Jr., “Terry v. Ohio, the Warren Court, and the Fourth Amendment: A Law Clerk’s Perspective,” St. John’s L. Rev. 72 (1998): 892.

  18. Goluboff, Vagrant Nation, supra note 17, at 216 (describing the political climate leading up to Terry); Lewis R. Katz, “Terry v. Ohio at Thirty-Five: A Revisionist View,” Miss. L.J. 74 (2004): 438 (noting the proximity of the decision to the Kennedy assassination); Terry, 392 U.S. at 10 (“[I]t is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess.”); The Challenge of Crime in a Free Society: A Report by the President’s Commission on Law Enforcement and Administration of Justice (1967); The Kerner Report: The 1968 Report of the National Advisory Commission on Civil Disorders (1968).

  19. “Terry Transcripts,” supra note 11, at 1444.

  20. Terry, 392 U.S. at 17 (quoting L. L. Priar and T. F. Martin, “Searching and Disarming Criminals,” J. Crim. L. Criminology & Police Sci. 45 (1954): 481).

  21. Id. at 24; id. at 36 (Douglas, J., dissenting).

  22. Id. at 20 (majority opinion).

  23. Id. at 15 (emphasis added).

  24. Id. at 27, 30; id. at 31–32 (Harlan, J., concurring).

  25. See generally Kimberly J. Winbush, Annotation, “Propriety of Stop and Search by Law Enforcement Officers Based Solely on Drug Courier Profile,” A.L.R. 5th 37 (1996): 1.

  26. United States v. Condelee, 915 F.2d 1206, 1208–09 (8th Cir. 1990).

  27. Id. at 1209–10.

  28. Id. at 1209; id. at 1211 (Gibson, J., dissenting).

  29. United States v. Weaver, 966 F.2d 391, 397 (8th Cir. 1992) (Arnold, J., dissenting). For another “drug courier profile” case invovlving Agent Hicks, see United States v. McKines, 933 F.2d 1412 (8th Cir. 1991).

  30. United States v. Hooper, 935 F.2d 484, 499 (2d Cir. 1991) (Pratt, J., dissenting).

  31. Id. at 499–500.

  32. Id. at 500.

  33. Floyd, 959 F. Supp. 2d at 558–59.

  34. Navarette v. California, 134 S. Ct. 1683, 1686–87 (2014).

  35. Compare Williams v. Adams, 436 F.2d 30, 38 (2d Cir. 1970) (Friendly, J., dissenting) (“There is too much danger that instead of the stop being the object and the protective frisk an incident thereto, the reverse will be true.”), rev’d en banc, 441 F.2d 394 (2d Cir. 1971), rev’d, 407 U.S. 143 (1972), with David M. Dorsen, Henry Friendly (2012), 214–15, 219 (highlighting the influence of Judge Friendly’s relatively conservative emphasis on actual innocence in habeas corpus inquiries), Henry J. Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal Judgments,” U. Chi. L. Rev. 38 (1970): 142 (taking a more conservative stance on habeas review), Henry Friendly, “The Fifth Amendment Tomorrow: The Case for Constitutional Change,” U. Cin. L. Rev. 37 (1968): 671 (criticizing the Warren Court’s modern interpretations of the right against self-incrimination), and Yale Kamisar, “The Warren Court and Criminal Justice: A Quarter-Century Retrospective,” Tulsa L.J. 31 (1995): 1 (referring to Judge Friendly as “perhaps the most formidable critic of the Warren Court’s criminal procedure cases”).

  36. David A. Harris, “Frisking Every Suspect: The Withering of Terry,” U.C. Davis L. Rev. 28 (1994): 24–26 (describing courts’ rationales in approving frisks for weapons based on suspected drug transactions and citing numerous examples); United States v. Clark, 24 F.3d 299, 301 (D.C. Cir. 1994).

  37. Id. at 302–304.

  38. N.Y. Penal Law § 221.05 (McKinney) (punishing simple possession of marijuana by only a fine, with possible imprisonment for recidivists); N.Y. Penal Law § 221.10 (McKinney) (punishing possession of marijuana as a class B misdemeanor when in public view or when the amount possessed exceeds 25 grams). Editorial, “No Crime, Real Punishment,” N.Y. Times, June 5, 2012, www.nytimes.com/2012/06/05/opinion/no-crime-real-punishment.html (describing the practice of making the marijuana “public”).

  39. Plaintiff’s Third Report to Court and Monitor on Stop and Frisk Practices at 9, Bailey v. City of Philadelphia, No. 10-cv-5952 (E.D. Pa. Mar. 19, 2013) (indicating, that in the first half of 2012, Philadelphia police made 215,000 stops, and recovered contraband of any kind in 1.57 percent of stops and guns in 0.16 percent of stops, only three weapons total); ACLU of Massachusetts, Black Brown and Targeted (2014), 1–2, https://aclum.org/app/uploads/2015/06/reports-black-brown-and-targeted.pdf (study of Boston stop-and-frisk analyzing over 200,000 encounters between 2007 and 2010; only 2.5 percent resulted in seizure of contraband); Ian Ayres and Jonathan Borowsky, A Study of Racially Disparate Outcomes in the Los Angeles Police Department (2008), i, http://islandia.law.yale.edu/ayres/Ayres%20LAPD%20Report.pdf (reporting that stopped blacks were 127 percent more likely to be frisked than stopped whites, but were 42.3 percent less likely to be found with a weapon after they were frisked, 25 percent less likely to be found with drugs, and 33 percent less likely to be found with other contraband, and reporting similar findings for Hispanics).

  40. See, e.g., Anthony G. Amsterdam, “Perspectives on the Fourth Amendment,” Minn. L. Rev. 58 (1974): 356–60 (noting relative stability of the Fourth Amendment before Katz and discussing the requirements for Terry stops).

  41. See, e.g., id. at 413 (noting that exceptions to the warrant requirement should still be founded on determinations of probable cause in the case of arrests).

  42. Terry, 392 U.S. at 26–27.

  43. See Goluboff, Vagrant Nation, supra note 17, at 186–88 (noting that conventional wisdom says Terry was a response to the end of vagrancy laws, but arguing that vagrancy laws actually continued past the 1960s); David A. Harris, “Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked,” Ind. L.J. 69 (1994): 659, 683 (suggesting that of the justices then on the Court, only Justice Scalia would be amenable to a return to pre-Terry law); David A. Harris, “Frisking Every Suspect: The Withering of Terry,” U.C. Davis L. Rev. 28 (1994): 39–40 (explaining that the doctrine is more likely to go the other direction, i.e., that the limits Terry placed on automatic frisking will likely soon be dispensed with); Terry, 392 U.S. at 10 (“[I]t is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess.”); Jeffrey Fagan and Amanda Geller, “Following the Script: Narratives of Suspicion in Terry Stops in Street Policing,” U. Chi. L. Rev. 82 (2015): 51 (surveying studies of police officer behavior in the 1960s and 1970s); Craig S. Lerner, “Reasonable Suspicion and Mere Hunches,” Vand. L. Rev. 59 (2006): 427–28 (describing the leeway given to government officials in American history). New York and Rhode Island legislatures passed stop-and-frisk laws in 1964 and 1956, respectively. Goluboff, Vagrant Nation, supra note 17, at 202–203.

  44. Terry, 392 U.S. at 14, 20 (acknowledging that the law “is powerless to deter invasions of other constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal”); see also Harris, “Frisking Every Suspect,” supra note 36, at 13–14 (arguing that Terry was a practical concession to give power back to the police as a compromise after Mapp v. Ohio, 367 U.S. 643, 655 (1961), which extended the Fourth Amendment’s exclusionary rule—“all evidence obtained by an unconstitutional search and seizure [i]s inadmissible”—to the states).

  45. See Sherry Colb, “The Qualitative Dimension of Fourth Amendment Reasonableness,” Colum. L. Rev. 98 (1998): 1691–93 (contending that fidelity to Terry would cabin permissible stops to the originally announced rationale of preventing crime and protecting police in dangerous situations and rejecting expansion to completed felonies or trivial offenses); David Keenan and Tina M. Thomas, Note, “An Offense-Severity Model for Stop-and-Frisks,” Yale L.J. 123 (2014): 1452–53 (suggesting that Terry stops for petty offenses should be presumptively invalid); Harris, “Frisking Every Suspect,” supra note 36, at 48–49 (proposing that Terry be limited to situations where the suspected crime involves the use of force, violence, or weapons); Memorandum Submitting Consensus Seattle Police Department Policies and Order Approving Same at 3–5, United States v. City of Seattle, No. C12-1282JLR (W.D. Wash., Jan. 17, 2014), www.justice.gov/crt/about/spl/documents/spd_docket118.pdf (approving a consent decree, following a DOJ investigation, under which police cannot stop and frisk on reasonable suspicion of a misdemeanor unless there is reason to believe the suspect poses a public safety risk and must also keep detailed records, including demographic information, about each stop); Commonwealth v. Cruz, 945 N.E.2d 899, 908 (Md. 2011) (holding that an officer cannot order a person out of a car without suspicion of a criminal—rather than civil—offense); Consent Decree at 20, United States v. City of Newark, No. 16-cv-01731 (D.N.J. May. 5, 2016), www.justice.gov/opa/file/836901/download (providing that Newark police must collect and analyze “the age, race, ethnicity, gender, location, time of day, reason for stop, post-stop activity, duration, and result or outcome of each encounter”); David A. Harris, “How Accountability-Based Policing Can Reinforce—or Replace—the Fourth Amendment Exclusionary Rule,” Ohio St. J. Crim. L. 7 (2009): 166–68, 173–75 (encouraging a more robust review of citizen complaints, as well as improved departmental policies and procedures); Andrew Guthrie Ferguson, “Policing ‘Stop and Frisk’ with ‘Stop and Track’ Policing,” Huffington Post, Aug. 17, 2014, www.huffingtonpost.com/andrew-guthrie-ferguson/policing-stop-and-frisk-w_b_5686208.html (proposing “random audits of people stopped … to compare the reported sentiment with the actual sentiment”); “America’s Police on Trial,” Economist, Dec. 13, 2014, www.economist.com/news/leaders/21636033-united-states-needs-overhaul-its-law-enforcement-system-americas-police-trial (“It must be easier to sack bad cops.”). According to one study, 90 percent of Americans support the use of body cameras, and President Obama recently designated $74 million to the cause. Justin T. Ready and Jacob T. N. Young, “A Tale of Two Cities,” Slate, Dec. 10, 2014, www.slate.com/articles/technology/future_tense/2014/12/police_body_cams_won_t_help_unless_they_come_with_the_right_policies.html. Cameras are not an antidote to bad police behavior, as countless YouTube videos are testament, but they do facilitate data collection and resolve factual disputes when officer conduct is challenged. See id.; David A. Harris, “Picture This: Body-Worn Video Devices (Head Cams) as Tools for Ensuring Fourth Amendment Compliance by Police,” Tex. Tech L. Rev. 43 (2010): 369–70 (discussing how cameras improve officer behavior).

  46. Terry, 392 U.S. at 6, 21, 23.

  47. Floyd, 959 F. Supp. 2d at 559.

  48. Id. at 575, 614.

  49. Terry, 392 U.S. at 22. Applying strict scrutiny to investigations rooted in a suspect description or profile including a suspect classification would address this concern as it would require officers to explain precisely why the classification is relevant. Cf. Brown v. City of Oneonta, 235 F.3d 769, 774, 777 (2d Cir. 2000) (Walker, J., concurring in denial of rehearing en banc) (explaining that if equal protection doctrine were extended to policing, “[o]fficers would be forced to justify” their “non-articulable hunches,… intuition, and sense impressions,” but finding such an approach “unworkable”).

  50. Terry, 392 U.S. at 22, 24. See generally Harris, “Frisking Every Suspect,” supra note 36, at 24–26.

  51. For courts applying a “reasonable suspicion” standard to auto stops, see, for example, United States v. Jenkins, 452 F.3d 207, 212 (2d Cir. 2006); United States v. Cortez-Galaviz, 495 F.3d 1203, 1206 (10th Cir. 2007); Weaver v. Shadoan, 340 F.3d 398, 407 (6th Cir. 2003).

  52. Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007), 79.

  53. Weaver, 966 F.2d at 397 (Arnold, J., dissenting).

  54. Id.

  7. GENERAL SEARCHES

    1. Bruce v. Beary, 498 F.3d 1232, 1236 (11th Cir. 2007); Root Dep. at 27, 36–38, 92–93, Bruce v. Beary, No. 6:04-cv-1595-Orl-22DAB slip op. at 37 (M.D. Fla. Aug. 16, 2006), vacated 498 F.3d 1232 (2007) (Bloomberg Law, Litigation and Dockets); Bass Dep. at 3, 6 Bruce, (M.D. Fla. Aug. 16, 2006).

    2. Bass Dep. at 2–3, 5–6.

    3. Root Dep. at 44, 60–68.

    4. Root Dep. at 33, 95–96; Bruce Dep. at 84, Bruce, (M.D. Fla. Aug. 16, 2006). The basis for charging Bruce initially was for violating Florida law prohibiting having loose VINs. But see Fla. Stat. § 319.30(5)(c) (exempting from prosecution anyone “who removes, possesses, or replaces a manufacturer’s or state-assigned identification number plate, in the course of performing repairs on a vehicle”).

    5. Bruce, 498 F.3d at 1238. The exceptions were a former employee’s car, and another for which the documents could not be found.

    6. Bruce, 498 F.3d at 1238 (“In March, the Orange County state attorney dropped all criminal charges against Bruce. Beary did not, however, return Bruce’s property.”); Bruce Dep. at 86–87.

    7. Bruce, 498 F.3d at 1245, 1250.

    8. Id. at 1235–36.

    9. Bruce Dep. at 53–57, 163–66, 167–68.

  10. Root Dep. at 23, 25; Bruce, 498 F.3d at 1242.

  11. Root Dep. at 21–23.

  12. Bruce, 498 F.3d at 1250 (Carnes, J., concurring).

  13. Id. at 1241, 1248 (majority opinion).

  14. See generally Edwin J. Butterfoss, “A Suspicionless Search and Seizure Quagmire: The Supreme Court Revives the Pretext Doctrine and Creates Another Fine Fourth Amendment Mess,” Creighton L. Rev. 40 (2007): 419 (detailing the Court’s fractured jurisprudence in suspicionless search cases).

  15. Terry v. Ohio, 392 U.S. 1, 27 (1968).

  16. Terry, 392 U.S. at 21 (quoting Camara v. Mun. Ct. of S.F., 387 U.S. 523, 534–535, 536–537 (1967) (balancing)); United States v. Martinez-Fuerte, 428 U.S. 543, 557, 559 (1976) (roadblocks).

  17. New Jersey v. T.L.O., 469 U.S. 325, 327–28, 336, 338 (1985).

  18. Board of Education v. Earls, 536 U.S. 822, 828 (2002) (emphasis added) (“Searches by public school officials, such as the collection of urine samples, implicate Fourth Amendment interests.”).

  19. See, e.g., Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990) (approving the use of drunk-driving roadblocks); New York v. Burger, 482 U.S. 691, 703 (1987) (upholding the constitutionality of warrantless inspections of vehicle-dismantling businesses); In re Sealed Case, 310 F.3d 717, 745-46 (FISA Ct. Rev. 2002) (eliminating the need for particularized suspicion for data collection under FISA because “FISA’s general programmatic purpose” is foreign intelligence gathering, as distinguished from “ordinary crime control”); United States v. Duka, 671 F.3d 329, 340–46 (3d Cir. 2011) (upholding the constitutionality of suspicionless electronic surveillance “given the government’s special interest in collecting foreign intelligence information”); Haskell v. Harris, 669 F.3d 1049, 1056–57 (9th Cir. 2012) (upholding a California DNA-testing statute because testing was “programmatic and applie[d] to all felony arrestees,” and did not “single out one individual”). On Earls, see Earls, 536 U.S. at 826; David Shipler, The Rights of the People: How Our Search for Safety Invades Our Liberties (2012), 190 (“Goody Two-Shoes”).

  20. Measuring Community Building Involving the Police: The Final Research Report of the Police-Community Interaction Project (2001), 5.7, www.ncjrs.gov/pdffiles1/nij/grants/213135.pdf.

  21. Rodger Birchfield, “Roadblocks Will Feature Drug Dogs,” Indianapolis Star, Sept. 22, 1995, at E1; R. Joseph Gelarden, “19 Suspects Nabbed in I-65 Drug Roadblock,” Indianapolis Star, Aug. 14, 1998, at A1.

  22. Birchfield, “Roadblocks Will Feature Drug Dogs,” supra note 21 (press conference); Office of Juvenile Justice & Delinquency Prevention, U.S. Dept. of Justice, Promising Strategies to Reduce Gun Violence (1999), 53, www.ojjdp.gov/pubs/gun_violence/173950.pdf (reporting slightly more than 1,000 stops and just over 100 arrests); Gelarden, “19 Suspects Nabbed in I-65 Drug Roadblock,” supra note 21 (marijuana).

  23. Birchfield, “Roadblocks Will Feature Drug Dogs,” supra note 21 (“deter people”); Stephen Beaver, “IPD Roadblock Draws Big Crowd, Mixed Reviews,” Indianapolis Star, Oct. 16, 1998, at C1 (“It’s not just the statistics.” “It’s the message.” “It made a statement.”); Stephen Beaver, “Police Roadblock Results in 29 Arrests,” Indianapolis Star, Sept. 30, 1998, at B5 (“You’re not going to be totally safe…”). On the shift from investigative to deterrent-based police practices, see Barry Friedman and Maria Ponomarenko, “Democratic Policing,” N.Y.U. L. Rev. 90 (2015): 1871–75.