Policing as administration.

Author:Slobogin, Christopher
Position:Introduction through II. The Court and its Critics, p. 91-120

Police agencies should he governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court's special needs jurisprudence (practices that this Article calls "panvasive"). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors--as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection--they should have to engage in notice-and-comment rulemaking or a similar democratically oriented process and avoid arbitrary and capricious rules. Courts would have the authority to ensure that policies governing panvasive actions are authorized by statute and implemented evenhandedly, both in individual instances and as they are distributed within the agency's jurisdiction. Furthermore, these principles would apply regardless of whether the panvasive practice has been designated a search or seizure under the Fourth Amendment.

Introduction I. Relevant Constitutional Jurisprudence A. Inspections B. Checkpoints C. Drug Testing D. DNA Sampling E. Surveillance Programs F. Summary II. The Court and Its Critics A. The Supreme Court's Free-For-All B. The Strict Scrutiny Alternative C. The New Administrativists III. Why Administrative Law Applies to Panvasive Searches and Seizures A. Police and the Development of Administrative Law B. Supreme Court Case Law Redux C. The Structure of Administrative Law and of Policing IV. Administrative Law as a Vehicle for Regulating the Police A. Notice and Comment B. Explanation of the Policy C. Implementation of the Policy D. Legislative Authorization and Oversight E. Future Directions Conclusion Introduction

Searches and seizures carried out by law enforcement agencies can be divided into two types: "suspicion-based" and "panvasive." (1) Most police efforts to detect and deter crime involve a decision about whether to seize a particular person or search his or her possessions, based on "probable cause" or "reasonable suspicion." (2) The officer in the field determines whether the confrontation takes place, the unit of investigation is usually no more than a few individuals, and the motivation behind the police action is suspicion of crime.

Panvasive searches and seizures, which have also been called dragnets (3) and programmatic searches and seizures, (4) are something quite different. (5) These police actions usually share three characteristics: (1) they occur pursuant to a legislative or executive branch policy, written or unwritten, that officers are directed to follow; (2) they seek to ferret out or deter undetected wrongdoing, usually within a designated group, rather than focus on a particular crime known to have already occurred; and, relatedly, (3) they are purposefully suspicionless with respect to any particular individual, and thus will almost inevitably affect a significant number of people not involved in wrongdoing. (6) Examples of panvasive actions include residential and business inspection programs, checkpoints (aimed at detecting, inter alia, illegal immigration, drunken drivers, or drivers without licenses), drug testing programs, creation of DNA databases, collection of communications metadata, and establishment of surveillance regimes involving cameras, tracking systems, and the like. (7)

Although all of these investigative techniques involve searching for and seizing items or people, not all of these techniques (for instance, metadata collection and public camera surveillance) are considered searches or seizures under the Fourth Amendment. (8) When the courts do find that a particular investigation program is a search or a seizure, they usually conclude that the government interest in the program outweighs its intrusiveness, often using what has come to be called "special needs" analysis, on the theory that these situations are outside the typical bailiwick of the police. (9) Thus, the Supreme Court has upheld, against Fourth Amendment challenge, suspicionless inspections of gun stores, liquor stores, mining operations, and junkyards, suspicionless stops at border and sobriety checkpoints, suspicionless drug testing of government officials, railway workers, and school children, and suspicionless DNA sampling of arrestees, and lower courts have upheld suspicionless operation of counterterrorist checkpoints, metadata programs, and camera surveillance systems. (10)

These decisions have been controversial and are currently in a state of flux. Some scholars would impose the traditional suspicion-based warrant regime in many of these situations, (11) or would preclude prosecutorial use of any evidence thereby obtained, (12) whereas others agree with the Court's intuition that balancing is required, but would require a much weightier, "compelling" government interest before upholding a panvasive action. (13) The Court itself has begun to backtrack from its early decisions narrowly construing the Fourth Amendment's threshold. (14) And just last Term, in City of Los Angeles v. Patel, the Court signaled that it may also rethink its highly deferential special needs jurisprudence. (15)

The time for rethinking is at hand. But the template should be neither traditional Fourth Amendment law nor strict scrutiny analysis. In fact, constitutional law should largely be beside the point in this setting, functioning only as a backstop protection for fundamental liberties and as an exhortation that panvasive actions be reasonable. Instead, the concrete rules governing panvasive techniques should be viewed through the entirely different prism of administrative law.

The reason administrative law should be the primary mechanism in this setting is simple: police departments are agencies, and as such should have to abide by the same constraints that govern other agencies. Although scholars from as long ago as the 1970s have recognized that administrative law can be a useful means of regulating the police, (16) and a few scholars have recently rejuvenated this idea, (17) none have provided a convincing rationale for why the administrative template is required in this setting or fleshed out in any detail how it might work.

The myopia on the part of most of the academy and the courts results in part from the understandable belief that the Fourth Amendment, as a practical matter, has preempted the field of police regulation. But it also derives from the fact that the usual starting point of analysis conceives of police work as a suspicion-based endeavor. An officer's decision to stop, arrest, or search someone is typically thought of as an individualized assessment, and most Fourth Amendment cases have in fact involved just such a search or seizure. In administrative law parlance, the suspicion-based model of policing could be characterized as a form of "adjudication" by the officer on the street, and thus not amenable to the administrative regulatory mechanisms that focus on legislative-like "rulemaking." (18) In a suspicion-based regime, to the extent legislative pronouncements are relevant at all, the governing rules come from the criminal law; law enforcement officials who act based on suspicion are engaged in determining when a person may have violated a criminal statute.

By contrast, when police instead carry out searches and seizures that are panvasive in nature, they are not adjudicating whether the people who are stopped or searched violated a criminal or regulatory prohibition enacted by the legislature. Rather, they are enforcing a rule, often adopted by the police themselves, that purposefully impedes perfectly innocent activity, such as driving on the roads, going to school, or relying on common carriers to communicate. Like Environmental Protection Agency rules requiring pollution-reduction regimens or Food and Drug Administration rules mandating certain types of food processing, panvasive actions by the police impose conditions on everyday, legitimate conduct of potentially huge numbers of people, enforced by coercive measures or avoidable only by changing that conduct. Because, as explained earlier, panvasive searches and seizures are policy-driven, group-based, and suspicionless, they are legislative in nature. They are carried out in aid of a generally applicable regime that, if promulgated by any other executive agency, would be considered a form of rule governed by administrative law principles.

That conclusion has significant regulatory implications. For instance, it means that panvasive actions have to be legislatively authorized. It triggers notice-and-comment or analogous procedures that ensure public input into police rulemaking. And it occasions "hard look" judicial review (19) of both the substance of police agency regulations and the process by which they are created. While that review does not amount to strict scrutiny, it requires meeting more than the minimal rationality standard that the Supreme Court usually applies to panvasive searches and seizures. (20) Furthermore, the hard look standard applies regardless of whether the government program is designated a Fourth Amendment "search" or "seizure."

A reorientation of panvasive search and seizure jurisprudence toward administrative law principles stakes out a middle position that many of those involved in the debate about panvasive actions might find palatable. Critics of the Court and of current ways of policing might welcome the greater emphasis on the rule of law, public input, and judicial rationality-with-bite review, as well as the fact that these constraints do not depend on the Court's definition of the Fourth Amendment's threshold. At the same time, a reframing of panvasive searches and seizures as administrative actions gives significant...

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