7. GENERAL SEARCHES

0.    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).

0.    Bass Dep. at 2–3, 5–6.

0.    Root Dep. at 44, 60–68.

0.    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”).

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

0.    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.

0.    Bruce, 498 F.3d at 1245, 1250.

0.    Id. at 1235–36.

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

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

0.  Root Dep. at 21–23.

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

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

0.  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).

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

0.  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).

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

0.  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.”).

0.  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”).

0.  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.

0.  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.

0.  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).

0.  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.

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

0.  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”).

0.  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%).

0.  Edmond, 531 U.S. at 37, 41–42.

0.  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).

0.  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.

0.  Camera, 387 U.S. at 536–38.

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

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

0.  Id. at 659–60.

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

0.  Id. at 663 (emphasis added).

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

0.  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.”).

0.  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.”).

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

0.  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).

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

0.  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).

0.  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.

0.  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”).

0.  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.

0.  Burger, 482 U.S. at 691, 693–96.

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

0.  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”).

0.  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.”).

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

0.  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).

0.  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).

0.  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”).

0.  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”).

0.  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).

0.  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).

0.  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).