Article

Randomization and the Fourth Amendment

Bernard E. Harcourt

Julius Kreeger Professor of Law and Criminology, and Professor and Chair, Department of Political Science, The University of Chicago

Tracey L. Meares

Deputy Dean and Walton Hale Hamilton Professor of Law, Yale Law School

We thank Bruce Ackerman, Heather Gerken, Richard Helmholz, Aziz Huq, Maximo Langer, Daniel Markovits, Jonathan Masur, Richard McAdams, Adam Samaha, David Sklansky, and Carol Steiker for valuable comments on earlier drafts. We are also grateful to faculty workshop participants at Quinnipiac University Law School, The University of Chicago Law School, Vanderbilt University Law School, and Yale Law School, and to the participants at the University of Chicago Criminal Justice Roundtable. For outstanding research assistance, we thank Jacob Gardener, Liza Khan, Sam Lim, Basha Rubin, Nicolas Thompson, and Diana Watral.

Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists, checkpoint searches violate the central requirement of valid Fourth Amendment searches—namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of “individualized” suspicion is misleading; most suspicion in the modern policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on the question of suspicion-based versus suspicionless police searches, but on the level of suspicion that attaches to any search program and on the evenhandedness of the program. In essence, we argue for a new paradigm of randomized encounters that satisfy a base level of suspicion and that will provide the benefits of both privacy protection (by ensuring a minimum level of suspicion) and evenhandedness (by cabining police discretion), the very values we wish to protect through the Fourth Amendment.

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