24. R. Joseph Gelarden, “ICLU’s Roadblock Sparks Lawsuit,” Indianapolis Star, Oct. 21, 1998, at B1.

  25. Sitz, 496 U.S. at 449–52, 455 (weighing the intrusion on the “average motorist” against the “magnitude of the drunken driving problem [and] the States’ interest in eradicating it”).

  26. City of Indianapolis v. Edmond, 531 U.S. 32, 42, 52 (2000) (“The seizure is objectively reasonable as it lasts, on average, two to three minutes and does not involve a search.”). Compare id. at 35, 41–42 (finding the roadblock unreasonable despite an overall hit rate of approximately 4.7 percent for narcotics offenses and 9 percent for all crimes), with Sitz, 496 U.S. at 454–55 (finding the roadblock reasonable with a hit rate for DUI arrests of 1.6%).

  27. Edmond, 531 U.S. at 37, 41–42.

  28. Compare Ferguson v. City of Charleston, 532 U.S. 67, 83–84 (2001) (“While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes”), with id. at 86–87 (Kennedy, J., concurring) (disagreeing with the majority’s distinction between “immediate” and “ultimate” law enforcement objectives in interpreting Edmond).

  29. Compare Davis v. State, 788 So. 2d 1064, 1065–66 (Fla. Dist. Ct. App. 2001) (drawing a distinction, in a case out of Tampa involving a driver’s license checkpoint, between checkpoints to arrest people and checkpoints to improve roadway safety), with United States v. Funaro, 253 F. Supp. 2d 286, 296–97 (D. Conn. 2003) (“[DEA] agents may conduct an administrative inspection for the simultaneous pursuit of an administrative objective and the gathering of evidence for criminal purposes if the administrative inspection is authorized and legitimate.”). There has been rampant confusion among the lower courts. See, e.g., Mills v. District of Columbia, 584 F. Supp. 2d 47, 56–57 (D.D.C. 2008) (approving a system of checkpoints outside high-crime neighborhoods because the goal was deterrence, not “mak[ing] arrests” or “detect[ing] evidence of ordinary criminal wrongdoing”), rev’d, 571 F.3d 1304, 1311–12 (D.C. Cir. 2009) (holding that the distinction between ordinary law enforcement and special needs does not turn on whether the goal is evidence gathering or deterrence, but rather whether the objectives are criminal versus regulatory); People v. Jackson, 782 N.E.2d 67, 71–72 & n.2 (N.Y. 2002) (rejecting roadblocks with purposes including general crime control but lacking a clear primary purpose, and explicitly avoiding a decision as to whether it would be lawful if the asserted primary purpose was to prevent, rather than investigate, carjacking and taxi robbery); cf. City of Overland Park v. Rhodes, 257 P.3d 864, 871, 875 (Kan. Ct. App. 2011) (Atcheson, J., dissenting) (deeming a DUI checkpoint designed to “educat[e] the public as a whole as far as the effects of alcohol on their driving” impermissible because, while a primary purpose cannot be ordinary law enforcement, it cannot be too far from ordinary law enforcement either). For scholarship challenging the logic of Edmond’s distinction, see Barry Friedman and Cynthia Benin Stein, “Redefining What’s ‘Reasonable’: The Protections for Policing,” Geo. Wash. L. Rev. 84 (2016): 293–97.

  30. Camera, 387 U.S. at 536–38.

  31. Delaware v. Prouse, 440 U.S. 648, 650–51 (1979).

  32. Id. at 657–59 (considering the state’s interest in road safety against the intrusion and effectiveness of spot checks).

  33. Id. at 659–60.

  34. Id. at 657, 659–60 (finding its “incremental contribution to highway safety” insufficient to justify the stop under the Fourth Amendment).

  35. Id. at 663 (emphasis added).

  36. Id. at 664 (Rehnquist, J., dissenting); Leo Sheep Co. v. United States, 440 U.S. 668 (1979).

  37. Prouse, 440 U.S. at 653–54 (footnote omitted) (quoting Marshall v. Barlow’s Inc., 436 U.S. 307, 312 (1978)); Camara, 387 U.S. at 528 (1967) (“The basic purpose of [the Fourth] Amendment … is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”).

  38. James Otis, “Speech Against the Writs of Assistance,” Feb. 24, 1761, reprinted in John Wesley Hall, Jr., Search and Seizure, 2nd ed. (1991), 1:8; Wilkes v. Wood, (1763) 98 Eng. Rep. 489, 498 (K.B.); see, e.g., Skinner, 489 U.S. at 621–22 (“An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.”); United States v. Cannon, 29 F.3d 472, 475 (9th Cir. 1994) (“Courts have long recognized that … arbitrariness is unreasonable within the meaning of the Fourth Amendment.”); United States v. Guzman, 864 F.2d 1512, 1516 (10th Cir. 1988) (“It is the need to restrain the arbitrary exercise of discretionary police power that has been the driving force behind the Court’s decisions forbidding police practices not amenable to objective review.”); Anthony G. Amsterdam, “Perspectives on the Fourth Amendment,” Minn. L. Rev. 58 (1974): 417 (“A paramount purpose of the fourth amendment is to prohibit arbitrary searches and seizures as well as unjustified searches and seizures.”); Monrad G. Paulsen, “The Exclusionary Rule and Misconduct by the Police,” J. Crim. L. & Criminology 52 (1961): 264 (“All the other freedoms, freedom of speech, of assembly, of religion, of political action, presuppose that arbitrary and capricious police action has been restrained.”); M. Blane Michael, Lecture, “Reading the Fourth Amendment: Guidance from the Mischief That Gave It Birth,” N.Y.U. L. Rev. 85 (2010): 921 (“[T]he mischief that gave birth to the Fourth Amendment was the oppressive general search, executed through the use of writs of assistance and general warrants. The lesson from this mischief is that granting unlimited discretion to customs agents and constables inevitably leads to incursions on privacy and liberty.”).

  39. Camara, 387 U.S. at 532; Prouse, 440 U.S. at 661.

  40. Camara, 387 U.S. at 535 (“[T]he agency’s decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building.”); id. at 538–39 (“[Standards for inspection] may be based upon the passage of time, the nature of the building (e.g., a multi-family apartment house), or the condition of the entire area.… Such an approach … best fulfills the historic purpose behind the constitutional right to be free from unreasonable government invasions of privacy.”); id. at 533–34 (holding that safety inspection schemes nevertheless require the “individualized review” of a magistrate to adequately safeguard against Fourth Amendment intrusions).

  41. Prouse, 440 U.S. at 657 (“[A]nd he is much less likely to be frightened or annoyed by the intrusion.”).

  42. Cf. Kimberlianne Podlas, “Guilty on All Accounts: Law & Order’s Impact on Public Perception of Law and Order,” Seton Hall J. Sports & Ent. L. 18 (2008): 1 (discussing the cumulative influence of crime entertainment on viewer knowledge).

  43. See Randy W. Elder et al., Effectiveness of Sobriety Checkpoints for Reducing Alcohol-Involved Crashes (2002), 266–67, www.wrap.org/pdfs/2010TIPElderCDCPaper.pdf (“Although sobriety checkpoints remove some drinking drivers from the road, their primary goal is to deter driving after drinking by increasing the perceived risk of arrest.”); Office of Nat’l Drug Control Policy, Measuring the Deterrent Effect of Enforcement Operations on Drug Smuggling, 1991–1999 (2001), 1–3, www.ncjrs.gov/ondcppubs/publications/pdf/measure_deter_effct.pdf.

  44. There are other sorts of regulatory goals that police are permitted to further as well: for example, the police can require a driver to get out of a car they’ve stopped to ensure the safety of officers. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (justifying the Court’s rule in the face of “legitimate concerns for the officer’s safety”).

  45. See Camara, 387 U.S. at 532–33 (describing the protections provided by the warrant requirement); Brinegar v. United States, 338 U.S. 160, 175–76 (1949) (describing the protections provided by probable cause). For responses to the arguments that warrants are not required by the Fourth Amendment and that probable cause is not always the appropriate standard, see supra Chapters 5 and 6.

  46. Burger, 482 U.S. at 691, 693–96.

  47. Id. at 696, 710 (“[S]urprise is crucial if the regulatory scheme aimed at remedying this major social problem is to function at all.”).

  48. Id. at 703, 711–12 (holding that the regulatory statute must serve as an “adequate substitute for a warrant” by having a “properly defined scope” and “limit[ing] the discretion of the inspecting officers”).

  49. Id. at 694n2; id. at 725–26 (Brennan, J., dissenting) (“[I]t is factually impossible that the search was intended to discover wrongdoing subject to administrative sanction.”).

  50. Brinegar, 338 U.S. at 181 (Jackson, J., dissenting).

  51. See, e.g., Thomas K. Clancy, “The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures,” U. Mem. L. Rev. 25 (1995): 517–20, 626–32 (framing the preference for warrants and probable cause, as articulated by Justice Frankfurter).

  52. Prouse, 440 U.S. at 663 (permitting the “[q]uestioning of all oncoming traffic at roadblock-type stops” as a measure free from individual discretion).

  53. Id. at 663–64 (Blackmun, J., concurring) (noting that the majority opinion does not foreclose spot checks “that do not involve the unconstrained exercise of discretion”).

  54. Cf. Max Minzner, “Putting Probability Back into Probable Cause,” Tex. L. Rev. 87 (2009): 913 (comparing the high hit rates in searches pursuant to warrants to the lower hit rates in warrantless searches). As the mayor said in Edmond, if publicity around the program was successful, they might catch only a few people at the roadblocks precisely because the roadblocks are working at deterring the prohibited activity. Birchfield, “Roadblocks Will Feature Drug Dogs,” supra note 21 (quoting former Mayor Stephen Goldsmith as acknowledging that the roadblocks may not catch a lot of offenders, but they may “deter people from engaging in activity that could land them in jail”).

  55. See Christopher Slobogin, “Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine,” Geo. L.J. 102 (2014): 1733–45 (explaining political process theory and its applicability to searches and seizure affecting large groups that have access to the legislature); William J. Stuntz, “Implicit Bargains, Government Power, and the Fourth Amendment,” Stan. L. Rev. 44 (1992): 588 (“Fourth Amendment regulation is usually unnecessary where large numbers of affected parties are involved. Citizens can protect themselves in the same way that they protect themselves against most kinds of government misconduct—they can throw the rascals out.”); Richard C. Worf, “The Case for Rational Basis Review of General Suspicionless Searches and Seizures,” Touro L. Rev. 23 (2007): 93, 115 (arguing that courts should defer to legislative judgments about society-wide group search and seizure practices, and that “so long as there is significant spreading of costs … the theoretical possibilities of different preferences, concentrated costs, and collective action problems do not justify the costs of judicial review…”); Tracey L. Meares and Dan M. Kahan, “The Wages of Antiquated Procedural Thinking: A Critique of Chicago v Morales,” U. Chi. Legal F. 1998: 209–10 (concluding that the political process should govern where a community has internalized the burden of law enforcement techniques).

  56. See FAA Modernization and Reform Act of 2012, § 826, 49 U.S.C. § 44901 (2012) (prohibiting the TSA from using body scanners that do not incorporate privacy filters); Ron Nixon, “Unpopular Full-Body Scanners to Be Removed from Airports,” N.Y. Times, Jan. 18, 2013, www.nytimes.com/2013/01/19/us/tsa-to-remove-invasive-body-scanners.html (reporting that the TSA would remove the controversial body scanners from airports).

  57. Affidavit of Marshall DePew at ¶ 3, Edmond v. Goldsmith, 38 F. Supp. 2d 1016 (S.D. Ind. 1998); Drug Checkpoint Contact Officer Directives by Order of the Chief of Police at ¶¶ 8–9, Stipulation of the Parties, Edmond v. Goldsmith, 38 F. Supp. 2d 1016 (S.D. Ind. 1998).

  8. DISCRIMINATORY SEARCHES

    1. Samuel R. Gross and Debra Livingston, “Racial Profiling Under Attack,” Colum. L. Rev. 102 (2002): 1415 (“[R]acial profiling occurs whenever a law enforcement officer … investigates a person because the officer believes that members of that person’s racial or ethnic group are more likely than the population at large to commit the sort of crime the officer is investigating.”).

    2. Interview by Barry Friedman with Linda Sarsour, Nov. 3, 2014 (hereinafter Sarsour Interview); Champions of Change, The White House, www.whitehouse.gov/champions/giving-back-to-community/linda-sarsour (last visited Feb. 22, 2016).

    3. Sarsour Interview, supra note 2.

    4. See, e.g., Matt Apuzzo and Adam Goldman, “Inside the Spy Unit that NYPD Says Doesn’t Exist,” AP, Aug. 31, 2011, www.ap.org/Content/AP-In-The-News/2011/Inside-the-spy-unit-that-NYPD-says-doesnt-exist (“mapping”); Adam Goldman and Matt Apuzzo, “With Cameras, Informants, NYPD Eyed Mosques,” AP, Feb. 23, 2012, www.ap.org/Content/AP-In-The-News/2012/Newark-mayor-seeks-probe-of-NYPD-Muslim-spying; Matt Apuzzo and Adam Goldman, “Documents Show NY Police Watched Devout Muslims,” AP, Sept. 6, 2011, www.ap.org/Content/AP-In-The-News/2011/Documents-show-NY-police-watched-devout-Muslims; NYPD Intelligence Division, Intelligence Collection Coordinator, “Deputy Commissioner’s Briefing,” Apr. 25, 2008, http://hosted.ap.org/specials/interactives/documents/nypd/dci-briefing-04252008.pdf (describing informants’ activities and reports); Muslim American Civil Liberties Coalition et al., Mapping Muslims: NYPD Spying and Its Impact on American Muslims (2013), 12–15, 39–40, http://aaldef.org/Mapping%20Muslims%20NYPD%20Spying%20and%20its%20Impacts%20on%20American%20Muslims.pdf (describing the impact on mosque activities and student groups) (hereinafter Mapping Muslims).

    5. Sarsour Interview, supra note 2; NYPD Intelligence Division, Debriefing Initiative: CI Profiles (2009), 2, http://hosted.ap.org/specials/interactives/documents/nypd/Informant_Profiles.pdf (noting the desirability of getting a confidential informant “on the board of … the Arab American Association of New York [AAANY]”).

    6. Sarsour Interview, supra note 2; Mitchell D. Silber and Arvin Bhatt, NYPD Intelligence Division, Radicalization in the West: The Homegrown Threat (2007), www.brennancenter.org/sites/default/files/legacy/Justice/20070816.NYPD.Radicalization.in.the.West.pdf. Pursuant to the settlement in Raza v. City of New York, the materials have been removed from the NYPD’s website. Settlement Stipulation and Order at Ex. A, Raza v. City of New York, No.13-3448 (S.D.N.Y. 2016), available at www.aclu.org/legal-document/raza-v-city-new-york-exhibit-settlement-stipulation-and-order-proposed-modified.

    7. For a discussion of FBI and CIA spying in the 1960s and 1970s, see infra Chapter 12.

    8. Al Baker and Kate Taylor, “Bloomberg Defends Police’s Monitoring of Muslim Students on Web,” N.Y. Times, Feb. 21, 2012, www.nytimes.com/2012/02/22/nyregion/bloomberg-defends-polices-monitoring-of-muslim-student-web-sites.html; Hina Shamsi, “Landmark Settlement in Challenge to NYPD Surveillance of New York Muslims: What You Need to Know,” ACLU: Speak Freely, Jan 7. 2016, www.aclu.org/blog/speak-freely/landmark-settlement-challenge-nypd-surveillance-new-york-muslims-what-you-need (describing the settlement agreement in Raza, which includes—subject to court approval—the appointment of an independent civilian monitor and a limitation on the use of undercover officers); Settlement Stipulation and Order at Ex. A, Raza v. City of New York, No.13-3448 (S.D.N.Y. 2016), available at www.aclu.org/legal-document/raza-v-city-new-york-exhibit-settlement-stipulation-and-order-proposed-modified; Paul J. Browne, “NYPD’s ‘Muslim Mapping’ Saved Lives,” N.Y. Post, Apr. 20, 2014, http://nypost.com/2014/04/20/nypds-muslim-mapping-saved-lives/ (arguing that the Demographics Unit was instrumental in thwarting some of “terrorists’ relentless post-9/11 efforts to again target New York”); Charles Krauthammer, “The Case for Profiling,” Time, Mar. 10, 2002, http://content.time.com/time/magazine/article/0,9171,216319,00.html; Michael Kinsley, “When Is Racial Profiling Okay?,” Wash. Post, Sept. 30, 2001, www.washingtonpost.com/archive/opinions/2001/09/30/when-is-racial-profiling-okay/4fdb1630-d0b1-4810-aa11-8237c5bbbafc/.

    9. Krauthammer, “The Case for Profiling,” supra note 8.

  10. National Institute of Justice, DNA Sample Collection from Arrestees (last visited Apr. 8, 2016), www.nij.gov/topics/forensics/evidence/dna/pages/collection-from-arrestees.aspx.

  11. Drug Testing for Welfare Recipients and Public Assistance, National Conference of State Legislatures, www.ncsl.org/research/human-services/drug-testing-and-public-assistance.aspx (noting that more than a dozen states have approved some form of welfare drug testing since 2010); Marc Lacey, “U.S. Finds Pervasive Bias Against Latinos by Arizona Sheriff,” N.Y. Times, Dec. 15, 2011, www.nytimes.com/2011/12/16/us/arizona-sheriffs-office-unfairly-targeted-latinos-justice-department-says.html; Matt Apuzzo and Michael S. Schmidt, “U.S. to Continue Racial, Ethnic Profiling in Border Policy,” N.Y. Times, Dec. 5, 2014, www.nytimes.com/2014/12/06/us/politics/obama-to-impose-racial-profiling-curbs-with-exceptions.html; National Institute of Justice, DNA Sample Collection from Arrestees, www.nij.gov/topics/forensics/evidence/dna/pages/collection-from-arrestees.aspx.