The Definition of Suspicion in an Era of Modern Policing

Jane Bambauer, Hassle, 113 Mich. L. Rev. 461 (2015).

Every Fourth Amendment scholar is familiar with the concept of “individualized suspicion.” The classic example comes from Terry v. Ohio, where Officer McFadden watched two men walk up and down in front of a storefront numerous times, consult with another individual, and then return to checking out the storefront. The Supreme Court held that, while McFadden did not have probable cause for arrest, he had a “particularized” belief that the three men were up to no good and thus could stop them and, when they gave unsatisfactory answers about their activity, frisk them as well.

That type of case is often contrasted with what are sometimes called “suspicionless” searches and seizures. The classic example of that type of police action is the license or sobriety checkpoint that stops individuals who drive up to it. The Court has indicated that such seizures are permissible despite the absence of suspicion that any particular driver seized has an expired license or is drunk, as long as the police stop everyone who comes to the checkpoint or rely on neutral criteria in deciding whom to stop (such as whether the car occupies a pre-selected position in line).

Although to most the distinction between the two situations is intuitive, it is blurrier than it might initially appear. Seizures at license checkpoints are based on suspicion in the sense that the department operating them believes that a certain percentage of drivers stopped will have expired licenses. Thus, while the suspicion with respect to any particular driver is very low, it is still the case that every car stopped at the checkpoint is associated with some degree of suspicion. At the same time, one could say the stop in Terry was based on the same type of “generalized suspicion” involved in the checkpoint scenario, in the sense that Officer McFadden was operating on preexisting stereotypes about the behaviors that are consistent with burglary.

As modern policing increasingly relies on algorithms and profiles, the connection between “suspicion-based” and “suspicionless” searches and seizures will become increasingly obvious. Facial-recognition technology, data-mining algorithms, hot-spot policing, and other predictive policing techniques allow police to scan large segments of the population for suspicious activity or individuals. Although these techniques function like checkpoints, they are based on calculations that the individuals identified are more likely to be involved in criminal activity than those who do not fit the profile.

Enter Jane Bambauer’s article Hassle. Bambauer begins by making clear why the word “individualized” in the phrase “individualized suspicion” obscures the fact that, in both Terry-type cases and checkpoint-type cases, police who conduct searches and seizures are acting with some quantum of suspicion about the person, entity, or item affected. The only difference is that in the situations usually thought of as individualized suspicion cases, courts specifically discuss whether that quantum is sufficient, whereas in “suspicionless” cases (often involving what the courts call “special needs”), they don’t.

Bambauer also debunks the idea that individualized suspicion is somehow more accurate or more desirable than generalized suspicion. Scholars have decried the use of profiles on the ground that they have significant error rates. But so do all searches and seizures. Some factors—such as race—should never appear in profiles, both because using such a factor is particularly repugnant and because race is not a very good predictor of crime. But, as the example with Officer McFadden illustrates, even cases we call “individualized” ultimately rest on profiles.

Others have made this point. As Bambauer notes, Fred Schauer has stated: “[O]nce we understand that most of the ordinary differences between general and particular decisionmaking are differences of degree and not differences in kind, we become properly skeptical of a widespread but mistaken view that the particular has some sort of natural epistemological or moral primacy over the general.” The more innovative part of Bambauer’s article—the “hassle” part—is the explication of how the individualization requirement has inadvertently acted as a break on dragnet searches and seizures. As Bambauer defines it, hassle measures the chance that an innocent person will experience a search or seizure. When courts require the cop on the street to have “individualized,” as opposed to generalized, suspicion for a stop, they are not only requiring officers to have good justification for their actions but also implicitly prohibiting police from hassling large numbers of innocent people. As Bambauer puts it, “individualization has kept hassle low by entrenching old methods of investigation,” methods such as relying on tips and individual conduct rather than technologically-oriented panvasive techniques.

One might react to this point by concluding that the courts’ take on individualization is a good thing. But not Bambauer. She points out that modern techniques can improve policing by reducing error rates, limiting reliance on vague suspicion factors such as “nervousness” or “bulges” (which can often be covers for race), and making policing more evidence-based. Bambauer also recognizes, however, that these techniques come with a cost—a potential for increased hassle. Thus, she argues that the Fourth Amendment requires attention not only to “hit rates” (the suspicion part of individualized suspicion) but also to hassle rates (the number of innocent people affected by a given police technique). She suggests that hassle can be limited through keeping profile programs small or through randomization that reduces the number of people affected by the search or seizure. Another possibility—most likely relevant when, as with checkpoints, significant hassle cannot be avoided—is to ensure hassle rates are explicitly contemplated and authorized by a legislative body representative of those people likely to be affected by the search or seizure.

Bambauer begins her article with a hypothetical. Suppose an officer comes to a judge seeking a warrant based on a methodologically sound study showing that 60% of Harvard dorm rooms contain drugs. The officer also provides the judge with an affidavit listing ten dorm rooms selected through a random number generator and stating that no other dorm rooms will be searched on the basis of the study. The first piece of information provides the hit rate (a high one). The second ensures that the hassle rate will be low. Bambauer thinks the warrant should issue. Whether or not you agree, her article points the way to interpreting the Fourth Amendment in a way that better regulates old techniques and provides a methodology for evaluating new ones.

Cite as: Christopher Slobogin, The Definition of Suspicion in an Era of Modern Policing, JOTWELL (June 2, 2016) (reviewing Jane Bambauer, Hassle, 113 Mich. L. Rev. 461 (2015)), http://crim.jotwell.com/the-definition-of-suspicion-in-an-era-of-modern-policing/.