ARTICLES
Rebalancing the Fourth Amendment
SHIMA BARADARAN*
Fourth Amendment decisions primarily rely on balancing tests. None of
these tests account for the fundamental flaw that skews the balance in these
cases. The Fourth Amendment aims to protect the privacy of all individuals
against government intrusion but is always presented to courts by a criminal
defendant whose hands are dirty. Thus, when a court considers a balance of
privacy interests against a government’s interest in effective law enforcement,
the government wins almost every time. Without mitigation of the central
weakness in Fourth Amendment balancing—that a criminal defendant is protecting the rights of all of society—these constitutional inquiries fail to protect
broader privacy rights and equal protection interests implicated by the Fourth
Amendment.
This Article takes an in-depth look at this fundamental flaw with an original
and comprehensive analysis of Supreme Court cases and proposes a new model
of the Fourth Amendment that alleviates this problem. This Article reveals that
since 1990, the Supreme Court sided with government interests in approximately eight out of ten criminal procedure cases. It also discovers that parties
fail to present data to courts, which leaves courts lacking appropriate information. This leads to what I refer to as “blind balancing.” Indeed, blind
balancing demonstrates several dangers—specifically common-sense errors,
inconsistences between similar cases, and reliance on hypothetical threats.
After identifying these problems, this Article considers a new model for the
Fourth Amendment. This model envisions a major shift in Fourth Amendment
balancing towards considering broader statistical data and facts to inform
decisions and educate courts to consider not only the defendant before them but
the rights of society implicated in every case.
* Associate Professor of Law, University of Utah College of Law. © 2013, Shima Baradaran.
Thanks to the participants of the Southwest Criminal Law Conference, Rocky Mountain Junior
Scholars Conference, the JRCS–AALS Conference, and the AALS Mid-year Criminal Justice Section
Meeting for comments, including Anne Traum, Jennifer Koh, Justin Marceau, Laura Appleman, Carissa
Hessick, Andy Hessick, Arnold Loewy, Ian Farrell, Jack Chin, Derek Bambauer, Bernard Chao, Emily
Chiang, Eric Jensen, Shaakirrah Sanders, Michael Teter, David Pimentel, Lynn Wardle, Jason Nance,
Betsy Bennion, Mark Cammack, Mehrsa Baradaran, Gordon Smith, Jim Rasband, Richard Peterson,
Jennifer Laurin, Ion Meyn, and Orin Kerr. I would also like to thank Hyrum Hemingway, Leilani
Fisher, Chris Hardy, Kathryn Duque, Spencer Driscoll, Spencer Paul, Mark Kam, Jared Hatch, and
Mitch McClellan for excellent research assistance, and BYU Law School for research grant support for
this Article.
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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
I. JUDICIAL BALANCING AS BLIND JUSTICE . . . . . . . . . . . . . . . . . . . .
8
A.
BRIEF HISTORY OF BALANCING
........................
10
B.
BRIEF HISTORY OF FOURTH AMENDMENT BALANCING
.........
11
II. A STUDY OF SUPREME COURT BALANCING . . . . . . . . . . . . . . . . . . .
14
A.
GOVERNMENT INTERESTS TRUMP INDIVIDUAL RIGHTS
.........
15
B.
JUDGES OVERESTIMATE POTENTIAL RISKS
.................
20
C.
DISPARITIES BETWEEN DEFENDANTS
.....................
25
III. INFORMED BALANCING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29
A.
........................
30
1.
Data as Legislative Fact . . . . . . . . . . . . . . . . . . . . . . . .
30
2.
Supreme Court Use of Data . . . . . . . . . . . . . . . . . . . . .
32
3.
Additional Data May Matter . . . . . . . . . . . . . . . . . . . . .
36
..............................
39
1.
The Role of Information . . . . . . . . . . . . . . . . . . . . . . . .
40
2.
An Informed Balance . . . . . . . . . . . . . . . . . . . . . . . . . .
43
....................
47
1.
Judicial Role and Morality . . . . . . . . . . . . . . . . . . . . . .
47
2.
Evaluating Risk and Preventing Crime . . . . . . . . . . . . .
49
3.
Accountability and Bias . . . . . . . . . . . . . . . . . . . . . . . .
51
.....................
52
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
56
B.
C.
D.
DATA ANALYSIS BY THE COURT
INFORMED BALANCING
CRITIQUES OF INFORMED BALANCING
THE IMPORTANCE OF INFORMATION
INTRODUCTION
Anthony Henry, an eighth grader in Brownsville, New York, was walking to
school before 8 a.m. when a big Jeep pulled up alongside him. Five police
officers jumped out and told him to put his hands up. The officers frisked him,
threw his books out of his backpack onto the ground, and questioned him about
drugs and gang members. He denied knowing anyone in a gang, so they took
him home to verify. His mother confirmed that her son was not involved in drug
or gang activity. Hardly acknowledging the error, one officer patted him on the
head and said, “My bad.” By the time his mother drove the frightened boy to
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school, he had already missed first and second period.1 On June 3, 2011, Alvin,
a Latino teenager, was stopped and frisked by the police.2 He had no guns or
contraband. When he asked why he was being arrested, the officers threatened
to punch him, calling him a “f****** mutt.”3 These isolated searches, though
inappropriate, warrant no remedy under our current constitutional scheme because these individuals were innocent.
In the above situations, the Fourth Amendment is implicated, but the privacy
and potential equal protection violations go unnoticed by any court. And in the
isolated case in which the search reveals contraband and a person can claim a
Fourth Amendment violation, courts generally hold that the harms to individual
privacy are outweighed by government interests in effective law enforcement.
The court never considers the situations of the countless other innocent individuals searched, rather only the one who has acted illegally. This is the fundamental
flaw of the Fourth Amendment—that a criminal defendant represents the rights
of all of society, yet the information before the court often relates only to the
individual defendant. This flaw is due to a problem—not yet articulated by any
scholars—as to why the harm to all individuals is not considered in the Fourth
Amendment balance. The problem starts with parties failing to give broader
data about and context to privacy concerns, and it ends with judges making
decisions based on common sense.4 This is what I refer to as “blind balancing.”
Yet this practice of blind balancing—the process of decision making based
simply on common sense and a gut assessment of risk, without consideration of
data, evidence, or empirical studies—has gone virtually unexamined by legal
scholars despite its prevalence in many areas of the law.5 And although this
1. Ailsa Chang, For City’s Teens, Stop and Frisk Is Black and White (WNYC radio broadcast
May 29, 2012).
2. Ross Tuttle & Erin Schneider, Will the New York City Council Curb Stop-and-Frisk Abuses?,
NATION (Oct. 12, 2012), http://www.thenation.com/article/170523/will-new-york-city-council-curb-stopand-frisk-abuses#.
3. Jesse Alejandro Cottrell, ‘Stop and Frisk’ May Be Working—But Is It Racist?, ATLANTIC (Jan. 23,
2013), http://www.theatlantic.com/national/archive/2013/01/stop-and-frisk-may-be-working-but-is-itracist/267417/.
4. This may be part of a broader problem of making law through cases that sometimes have bad
facts. See Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 884 (2006) (arguing
that all cases, not just bad cases, create the possibility of making bad law).
5. Indeed, blind balancing not only appears in Fourth Amendment decisions but also in procedural
due process, Arnett v. Kennedy, 416 U.S. 134, 167–68 (1974) (discussing the need to weigh the
government’s interest in determining whether due process was satisfied in an employee dismissal case),
Goldberg v. Kelly, 397 U.S. 254, 266–67 (1970) (deciding that a fair trial should be provided according
to due process before terminating welfare benefits because the private interests outweighed the
government’s interests); the Equal Protection Clause, Trimble v. Gordon, 430 U.S. 762, 775 (1977)
(balancing rights of illegitimate children to inherit versus the state’s interest to prevent this type of
inheritance as discrimination under the Equal Protection Clause); substantive due process, Youngberg v.
Romeo, 457 U.S. 307, 320–24 (1982) (concluding that an involuntarily committed, mentally incompetent petitioner had rights to safe conditions, freedom of bodily movement, and training when balancing
his interests against the state’s interests), Poe v. Ullman, 367 U.S. 497, 542 (1961) (dismissing a claim
that a statute prohibiting married couples from using contraceptive devices was unconstitutional and
stating that the balancing required in substantive due process claims represents “the balance which our
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Article tackles the Fourth Amendment as a case study of blind balancing, it
recognizes that there are many other areas of constitutional law where this
analysis is equally applicable.6
Fourth Amendment blind balancing is particularly problematic due to the
nature of the privacy concerns at stake. The important privacy rights enshrined
in the Fourth Amendment are protected by individuals who are seen as criminals in the eyes of the court. Indeed, the rights of all to be free from police
intrusion are protected by an individual with contraband she seeks to suppress.
This is how the majority of Fourth Amendment cases are presented to the
court.7 But the Fourth Amendment extends beyond protection of criminal
defendants—it also seeks to protect innocent citizens. And because the harmed
party is identified as a criminal at the outset, the balance starts skewed in favor
of the government. Thus, the Fourth Amendment model must counterbalance
this intrinsic preference that favors government interests over the interests of all
individuals affected by Fourth Amendment violations.8
Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty
and the demands of organized society”); the Contracts Clause, Energy Reserves Grp., Inc. v. Kan.
Power & Light Co., 459 U.S. 400, 410–13 (1983) (balancing the importance of a contractual interest
and impairment of the contract against the significance and legitimacy of public interest in the change);
Union Dry Goods Co. v. Ga. Pub. Serv. Corp., 248 U.S. 372, 375 (1919) (“[P]rivate contract rights
must yield to the public welfare, where the latter is appropriately declared and defined and the two
conflict . . . .”); the Privileges and Immunities Clause, Supreme Court of N.H. v. Piper, 470 U.S. 274,
284 (1985) (balancing in a privileges and immunities case the substantial reason for discrimination and
whether it is related to the state’s objective); self-incrimination, Moran v. Burbine, 475 U.S. 412,
426–27 (1986) (balancing the two competing concerns in custodial interrogations: their effectiveness
for enforcing the law versus the risk that during interrogations the police will cross the line “between
legitimate efforts to elicit admissions and constitutionally impermissible compulsion”); double jeopardy, United States v. Ursery, 518 U.S. 267, 277 (1996) (balancing in a double jeopardy case the
punitive effects of the forfeiture and the remedial nature of the proceeding); the jury trial right, Ballew
v. Georgia, 435 U.S. 223, 245 (1978) (balancing the interest of the state in reducing jury sizes with the
threat to Sixth Amendment rights), Baldwin v. New York, 399 U.S. 66, 73–74 (1970) (stating that,
when a person cannot be imprisoned for more than six months if convicted, “the benefits that result
from speedy and inexpensive nonjury adjudications” outweigh the disadvantages to the accused that
may result if a jury trial is not granted); prohibition against cruel and unusual punishment, Estelle v.
Gamble, 429 U.S. 97, 102–03 (1976) (balancing the concept of dignity and humanity when determining
if treatment constitutes cruel and unusual punishment); and Fourteenth Amendment due process
protections, Ake v. Oklahoma, 470 U.S. 68, 78–83 (1985) (stating that courts weigh the private interest
in life or liberty against the state’s interest when determining due process in criminal proceedings).
6. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943,
947–48 (1987) (citing a number Supreme Court cases where defendants’ personal constitutional
rights—First, Fifth, Sixth, Eighth and Fourteenth Amendment rights, among others—are balanced
against competing government interests); see also infra note 7.
7. See, e.g., Elkins v. United States, 364 U.S. 206, 218 (1960) (“Courts can protect the innocent
against [police] invasions only indirectly and through the medium of excluding evidence obtained
against those who frequently are guilty.” (quoting Brinegar v. United States, 338 U.S. 160, 181 (1949)
(Jackson, J., dissenting))); Arnold H. Loewy, The Fourth Amendment as a Device for Protecting the
Innocent, 81 MICH. L. REV. 1229, 1272 (1983) (“Criminals or those who possess evidence of crime are
allowed to object to the manner in which such evidence was obtained only because the search or seizure
may have created an unjustifiably high risk of an intrusion upon an innocent person’s privacy.”).
8. This preference invokes the question of whether there are any differences between determining
constitutional rights and legislation and regulation. Some have argued that judicial creation of rights
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The preference for government and the disparities caused by blind balancing
in the Fourth Amendment context can be extensive.9 Innocent individuals,
particularly minorities, endure more than their fair share of intrusive searches
by police without any constitutional recourse.10 Blind balancing also leads to
government interests trumping individual rights in most criminal procedure
cases. It can also lead to an overestimation of risk in the criminal context. Often,
courts use common sense to assess the risk to police or society, and if data were
considered, they would be proven wrong. The Fourth Amendment generally
involves the balancing of individual rights to privacy with the right of society to
be safe. The risks to safety can often be exaggerated where the government
relies on hypothetical threats or common sense rather than threats grounded in
evidence.11
The primary consideration in Fourth Amendment balancing is reasonableness, from the first probable cause determination by a lower court to determinations of constitutionality by the Supreme Court.12 Reasonableness does not take
does not “depend on . . . some qualitatively different, privileged source of democratic validation.”
Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 937
(1999).
9. Peter Goldberger, Consent, Expectations of Privacy, and the Meaning of “Searches” in the Fourth
Amendment, 75 J. CRIM. L. & CRIMINOLOGY 319, 330–31 (1984) (noting that, depending on whether the
court focuses on “search” or “consent,” the court can come to different outcome); Daniel M. Harris,
Back to Basics: An Examination of the Exclusionary Rule in Light of Common Sense and the Supreme
Court’s Original Search and Seizure Jurisprudence, 37 ARK. L. REV. 646, 649–50 (1983) (concluding
that it is impossible to administer justice equally among guilty defendants because the exclusionary rule
allows criminals to go free as a result of mistakes by law enforcement officials but convicts other
criminals).
10. N.Y. CIVIL LIBERTIES UNION, STOP-AND-FRISK 2011: NYCLU BRIEFING (May 9, 2009), http://
www.nyclu.org/files/publications/NYCLU_2011_Stop-and-Frisk_Report.pdf (finding that approximately 90% of people stopped by police were innocent and that minorities made up a disproportionate
amount of the stops by police); Tonja Jacobi, The Law and Economics of the Exclusionary Rule, 87
NOTRE DAME L. REV. 585, 588, 617 (2011) (showing that the Court’s remedies to unconstitutional
searches provide no remedy to the innocent and do nothing to protect minorities from racist police
officers); Loewy, supra note 7, at 1272 (stating that the exclusionary rule “has been restricted so much
that it fails to offer innocent citizens the protection to which they should be entitled under the fourth
amendment”); see also Josephine Ross, Can Social Science Defeat a Legal Fiction? Challenging
Unlawful Stops Under the Fourth Amendment, 18 WASH. & LEE J. CIVIL RTS. & SOC. JUST. 315, 315
(2012) (suggesting that a legal fiction arises when police are allowed to search a person based on the
person’s choice to allow the search, when in reality no person would reasonably feel free to refuse the
search). Unfortunately, “[t]he usual Fourth Amendment constraints on police intrusions simply do not
apply when courts determine that the stop was really a consensual encounter.” Ross, supra, at 316.
Social science can “help[] judges to properly adjudicate motions involving the ‘free-to-leave’ test.” Id.
at 321.
11. Even judges have written that judicial discretion should be guided by more than common sense.
See, e.g., Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir. 1993) (Posner, J.) (commenting that there
should at least be some “loose and approximate . . . guidelines for the exercise of that discretion”); In re
Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1334 (7th Cir. 1992) (“Discretion is not unbridled; it is
exercised under law.”); Henry J. Friendly, Indiscretion About Discretion, 31 EMORY L.J. 747, 768–70
(1982) (quoting Blackwelder Furniture Co. v. Selig Mfg. Co., 550 F.2d 189, 193 (4th Cir. 1977) (“A
judge’s discretion is not boundless . . . .”)).
12. New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (“The fundamental command of the Fourth
Amendment is that searches and seizures be reasonable . . . .”); Tennessee v. Garner, 471 U.S. 1, 7–8
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into account the probability that the search is likely to yield the evidence for
which police are justified to search. Instead, a search can be reasonable even if
the chances of finding what the police are looking for are one in ten thousand or
statistically unlikely. Usually, judges allow their common-sense notions of what
is suspicious and their concept of the import of government interest to define
reasonableness rather than requiring that searches be supported by data.
For an example, where relevant data can be informative and possibly change
the Fourth Amendment balance, consider the stop-and-frisk scenarios at the
beginning of this introduction. Indeed, many judges would uphold such stop-andfrisks of youths like Alvin and Anthony in high-crime neighborhoods, given an
officer’s reasonable suspicion. Officer safety would certainly trump a defendant’s right to privacy in these isolated cases. However, some broader information may change this reasonableness determination in an individual’s case.
Indeed, if there were evidence that police conducted 500,000 such searches each
year, 80% of which targeted minorities,13 and if only approximately .1% of
them amounted to discovery of a gun14 and 1.75% of contraband,15 this would
certainly weaken the government’s arguments for officer safety and change the
balance of factors.16 It would also be appropriate to consider other factors as
well, such as the drop in crime rates in New York17 and any data that link the
(1985) (noting “the many cases in which this Court, by balancing the extent of the intrusion against the
need for it, has examined the reasonableness of the manner in which a search or seizure is conducted”);
Dunaway v. New York, 442 U.S. 200, 219 (1979) (White, J., concurring) (“[T]he key principle of the
Fourth Amendment is reasonableness—the balancing of competing interests.”).
13. Christopher Mathias, NYPD Stop and Frisk: New Report Reveals Depth of Racial Disparity in
Program, Polls Call for Reform, HUFFINGTON POST (May 10, 2012, 1:21 PM), http://www.huffingtonpost.
com/2012/05/10/nypd-stop-and-frisk-new-nyclu-racial-disparities_n_1506391.html (finding that the
NYPD disproportionately stops and frisks blacks and Latinos and that nine out of ten stops are of
innocent people).
14. Report of Jeffrey Fagan at 63, Floyd v. City of New York, 739 F. Supp. 2d 376 (S.D.N.Y. 2010)
(No. 08 Civ. 01034) (analyzing data from stop-and-frisks in New York from 2004 to 2009 to show that
police seized guns in only .15% of all stops and general weapons in only .94% of all stops, and that
contraband—such as drugs or stolen property—was seized in only 1.75% of stops). The Southern
District of New York decided that the New York City Police’s stop-and-frisk tactics were unconstitutional and that police have been systematically stopping innocent people without justification, in a
policy of indirect racial profiling. Floyd v. City of New York, No. 08 Civ. 1034, 2013 WL 4046217 at
*7 (S.D.N.Y. Aug. 12, 2013). Judge Scheindlin notably concluded that government officials have turned
a blind eye to evidence that police stop individuals in a racially discriminatory manner. Id.
15. Id.
16. And indeed these arguments, when considered, have been successful. See Ligon v. City of
New York, No. 12 Civ. 2274, 2013 WL 628534, at *3–4, *10 (S.D.N.Y. Feb. 14, 2013) (finding in a
New York stop-and-frisk case that “while it may be difficult to say where, precisely, to draw the line
between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has
systematically crossed it when making trespass stops outside TAP buildings in the Bronx”); Joseph
Goldstein, Police Stop-and-Frisk Program in Bronx Is Ruled Unconstitutional, N.Y. TIMES (Jan. 8,
2013), http://www.nytimes.com/2013/01/09/nyregion/judge-limits-nypd-stop-and-frisk-program-inbronx.html?pagewanted⫽1&_r⫽2&.
17. Floyd v. City of New York, 813 F. Supp. 2d 417, 422 (S.D.N.Y. 2011) (noting that since the
mid-1990s, New York has seen a drop in crime rates, and since 2003, violent crime has dropped
approximately 76%, but also noting that reasons for this decline are unclear); Press Release, NYCLU,
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increase of stop-and-frisk to the decrease in violent crime.18 At the very least,
the broad information on both sides would inform the balance of factors and
provide an important (and otherwise nonexistent) argument in favor of privacy
rights, possibly changing the result in the case.
This Article identifies blind balancing as a central flaw in Fourth Amendment
jurisprudence. The lack of scholarly discussion of this common practice is
unfortunate because blind balancing routinely allows common-sense errors to
overestimate the risk of harm, allows disparities between defendants, and favors
the government in most cases. And more fundamentally, it prevents courts from
considering the Fourth Amendment rights of a broader swath of society than
just the criminal defendant before them.
After exploring blind balancing, this Article proposes a new model of
Fourth Amendment balancing. Under this approach, called “informed balancing,” judges have discretion to make individualized decisions, but the process is
guided by use of the current best evidence available on policy matters that can
be reasonably measured.19 Particularly, in Fourth Amendment and other constitutional areas where the Supreme Court aims to determine reasonable intrusions
on an individual’s privacy or liberty rights as balanced against governmental
interests and public safety, informed balancing has the potential to create a more
New NYCLU Report Finds NYPD Stop-and-Frisk Practices Ineffective, Reveals Depth of Racial
Disparities, (May 9, 2012), available at http://www.nyclu.org/news/new-nyclu-report-finds-nypd-stopand-frisk-practices-ineffective-reveals-depth-of-racial-dispar (“Black and Latino New Yorkers were
more likely to be frisked than whites and were less likely to be found with a weapon.”); see also supra
note 14.
18. Craig Menchin, Note, Why NYPD Terry Stops are More Problematic Than You Think, 8 STAN.
J. C.R. & C.L. 299, 318 (2012) (finding that violent crime declined from 59,448 incidents in 2003 to
46,357 incidents in 2009); see also Rebecca Harshbarger & David Seifman, Crime Way Up After
Stop-&-Frisk Drop, N.Y. POST (Aug. 4, 2012), http://nypost.com/2012/08/04/crime-way-up-after-stopfrisk-drop/ (reporting that the crime rate in New York City increased when the number of stop-andfrisks conducted decreased, with stops falling from 203,500 in January–March to 133,934 in April–
June); Heather Mac Donald, To See Its Value, See How Crime Rose Elsewhere, N.Y. TIMES (July 17,
2012), http://www.nytimes.com/roomfordebate/2012/07/17/does-stop-and-frisk-reduce-crime/to-see-itsvalue-see-how-crime-rose-elsewhere (arguing that New York’s “astounding homicide drop—82 percent
from 1990 to 2009—is driven by a decline in gun crime,” which in turn is a result of the NYPD’s
stop-and-frisk policy); New York Police Tout Improving Crime Numbers to Defend Frisking Policy,
CNN (May 13, 2012), http://www.cnn.com/2012/05/13/us/new-york-police-policy/index.html (citing
the NYPD’s stop-and-frisk policy as being key in a 21% year-to-date drop in the murder rate and a 31%
increase in the number of illicit guns taken away for the first three months of 2012); Dennis C. Smith,
Stop and Frisk Has Lowered Crime in Other Cities, N.Y. TIMES (July 19, 2012), http://www.nytimes.com/
roomfordebate/2012/07/17/does-stop-and-frisk-reduce-crime/stop-and-frisk-has-lowered-crime-in-othercities (finding that when stop and frisks occur in greater numbers, crime decreases, but when the
number of stop and frisks declines, the crime rate increases). But see FRANKLIN E. ZIMRING, THE CITY
THAT BECAME SAFE: NEW YORK’S LESSONS FOR URBAN CRIME AND ITS CONTROL 137, 145–47 (2012)
(stating that the effectiveness of stop and frisk cannot be determined because too many changes
happened all together in New York City, including manpower levels, arrest risks, CompStat, hot spot
analysis, and stop-and-frisk levels).
19. RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION 8 (2001) (discussing the importance of
the Supreme Court considering “human psychology, institutional sociology, prevailing values, history,
and economics—to implement constitutional norms at acceptable costs”).
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even assessment by considering broader societal concerns for equal protection,
privacy, and fairness. Informed balancing requires consideration of wider information contained in statistical data, clinical evidence, and experience, rather
than common sense alone. This shift in balancing also welcomes parties to
present relevant scientific and empirical data, while still maintaining the importance of considering individual circumstances in making a determination. Although the nature of Fourth Amendment balancing should remain flexible and
individualized, it does not have to be blind to broader societal concerns expressed in relevant evidence and social science data that consider the rights of
all members of society.
This Article proceeds as follows. Part I provides a brief description of modern
judicial balancing, identifying the phenomenon of blind balancing and its
effects. Part II relies on a comprehensive, original study of 600 Supreme Court
opinions from 1990 to 2012 and a close analysis of all Fourth Amendment
opinions in that time period to identify the dangers of judicial balancing in the
Fourth Amendment context. Part III proposes a model of informed balancing
that may better educate judges by requiring relevant data and broader context
from litigants, forcing courts to consider not just the criminal defendant before
them but also the constitutional rights of a broader swath of society. Part III also
relies on the original study, which reveals that the lack of broad relevant data
presented to the Supreme Court by parties often leads to the Supreme Court
relying on common sense to support its opinions. It concludes by discussing the
role of information in addressing the privacy and equal protection concerns of
society captured by the Fourth Amendment.
I. JUDICIAL BALANCING AS BLIND JUSTICE
Judicial balancing involves identifying, valuing, and comparing competing
interests or values to determine constitutional doctrine and its application.20 A
balance is the opposite of a standard or general rule to be applied in every
case.21 A balance usually considers community interests in examining the
constitutionality of a law or government action.22 In Fourth Amendment cases,
a typical balance looks at whether an individual’s right to privacy in the sanctity
20. See Aleinikoff, supra note 6, at 945; Louis Henkin, Infallibility Under Law: Constitutional
Balancing, 78 COLUM. L. REV. 1022, 1024 (1978); see also Michel Rosenfeld, Judicial Balancing in
Times of Stress: Comparing the American, British, and Israeli Approaches to the War on Terror, 27
CARDOZO L. REV. 2079, 2081 (2006) (explaining that judicial balancing “is common and widespread in
dealing with conflicts between liberty and security, and more generally, between individual rights and
important societal goals”).
21. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1179–80 (1989)
(noting that in “the real world of appellate judging, it displays more judicial restraint to adopt [a rule]
than to announce that, ‘on balance,’ we think the law was violated here—leaving ourselves free to say
in the next case that, ‘on balance,’ it was not”).
22. See, e.g., Saia v. New York, 334 U.S. 558, 571 (1948) (“Courts must balance the various
community interests in passing on the constitutionality of local regulations of the character involved
here.”).
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of her home outweigh the government’s desire to keep society free of crime.23
Judicial balancing in the Fourth Amendment context occurs in almost every
Fourth Amendment decision, starting from the lower court and through any
constitutional appeal.24 A judicial balance historically has grown out of a
consideration of an individual’s privacy rights, not in a vacuum, but with a
broader consideration of societal welfare.25 But at the same time, judges are not
legislators tasked with making public policy and must consider an individual’s
claims as a discrete matter.26
Nevertheless, an examination of the Fourth Amendment cases below demonstrates that the focus of courts is often not solely on individual rights but also on
overall societal wellbeing.27 However, though judicial balancing focuses mainly
on societal welfare, it does not consider a full panoply of information. Judges
often consider the individual situation and the impact of a potential ruling on
other cases, without taking into account all of the relevant factors.28
To further complicate matters, judicial reasoning when using a balancing
test is usually overly reliant on hypothetical scenarios and oftentimes leads to
unfairness to the defendant, particularly when the court weighs all factors
equally where one factor may actually be more significant than the others
combined.29 Instead of leading to consistency, Fourth Amendment balancing
23. See, e.g., Delaware v. Prouse, 440 U.S. 648, 654 (1979) (“[T]he permissibility of a particular law
enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment
interests against its promotion of legitimate governmental interests.”); United States v. Martinez-Fuerte,
428 U.S. 543, 554–55 (1976) (“The Fourth Amendment imposes limits on search-and-seizure powers in
order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and
personal security of individuals. . . . In delineating the constitutional safeguards applicable in particular
contexts, the Court has weighed the public interest against the Fourth Amendment interest of the
individual . . . .”) (citations omitted).
24. See infra notes 40–50 and accompanying text.
25. See Aleinikoff, supra note 6, at 952–62 (discussing the various pressures that preceded the
arrival of constitutional balancing); Laurence H. Tribe, Constitutional Calculus: Equal Justice or
Economic Efficiency?, 98 HARV. L. REV. 592, 596 (1985) (discussing the law and economic view of
constitutional balancing).
26. See Aleinikoff, supra note 6, at 984 (noting that one “common objection to balancing as a
method of constitutional adjudication is that it appears to replicate the job that a democratic society
demands of its legislature”).
27. See, e.g., Duckworth v. Eagan, 492 U.S. 195, 209–10 (1989) (discussing Miranda as a balance
between “society’s interest in uncovering evidence of crime and punishing those who violate its laws”)
(O’Connor, J., concurring); Brewer v. Williams, 430 U.S. 387, 422 (1977) (considering whether
applying the exclusionary rule “outweigh[s] its obvious social costs” including society’s interest in
effective prosecution of criminals) (Burger, C.J., dissenting); Alderman v. United States, 394 U.S. 165,
175 (1969) (balancing the benefits of the exclusionary rule with public interest in prosecuting those
accused of crime); Barenblatt v. United States, 360 U.S. 109, 154 (1959) (relying on a balancing test
that compared individual interests with government interests); Breithaupt v. Abram, 352 U.S. 432, 439
(1957) (balancing the interests of society in determining intoxication with an individual’s right of
personal privacy).
28. Nancy Leong, Making Rights, 92 B.U. L. REV. 405, 462 (2012) (discussing how Fourth
Amendment cases that discuss only one context are flawed).
29. See Nadine Strossen, The Fourth Amendment in the Balance: Accurately Setting the Scales
Through the Least Intrusive Alternative Analysis, 63 N.Y.U. L. REV. 1173, 1185 (1988) (noting that the
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tests often lead to divergent standards among jurisdictions, ending in disparate
results among similar defendants.
Section A draws a brief history of judicial balancing and the increasing
importance in decisions of social welfare over individual rights. Section B
briefly describes Fourth Amendment balancing.
A. BRIEF HISTORY OF BALANCING
Balancing took hold in the eighteenth century as judges went from considering the law alone30 to considering social circumstances and pragmatic realities
surrounding the law in an effort to improve societal welfare.31 Now, it is safe to
say, all judges, regardless of their judicial philosophy, balance in some cases.32
Historically, judicial balancing was problematic because it was not appropriate to consider general welfare in making judicial decisions.33 Societal welfare
was the prerogative of the legislature, not judges. Though balancing is a critical
part of constitutional decision making today,34 the first introduction of balancing
into constitutional jurisprudence caused substantial opposition.35 However, to-
Court routinely devalues individual fundamental rights of defendants by evaluating possible infringements with relatively low scrutiny, resulting in an absence of the special protections that individual
rights were intended to receive).
30. Duckworth, 492 U.S. at 213 (noting that balancing of state and federal interests has long been a
tradition in habeas corpus cases); RICHARD A. POSNER, OVERCOMING LAW 235 (1995) (“[A]s Holmes put
it, judges legislate ‘interstitially,’ which is to say they make law, only more cautiously, more slowly, and
in more principled, less partisan, fashion than legislators.”).
31. Aleinikoff, supra note 6, at 952–62 (discussing the various pressures that opened the door for
balancing to enter constitutional law); Owen M. Fiss, The Supreme Court, 1978 Term—Foreword: The
Forms of Justice, 93 HARV. L. REV. 1, 30 (1979) (noting that a judge’s role is not to resolve disputes but
to give “proper meaning to our public values”); Jared A. Goldstein, Equitable Balancing in the Age of
Statutes, 96 VA. L. REV. 485, 546–47 (2010) (discussing the societal changes that led to balancing
entering the common law and statutory law); Henkin, supra note 20, at 1022 (arguing that balancing is
here to stay); Patrick M. McFadden, The Balancing Test, 29 B.C. L. REV. 585, 587 (1988) (same).
32. See Aleinikoff, supra note 6, at 958 (discussing the idea that the adoption of constitutional
balancing was inevitable); Ronald J. Bacigal, Making the Right Gamble: The Odds on Probable Cause,
74 MISS. L.J. 279, 323 (2004) (noting the prevalent use of probable cause balancing tests by the Court);
Goldstein, supra note 31, at 515 (arguing that equitable balancing became generally accepted in the
early part of the twentieth century).
33. See Henkin, supra note 20, at 1024–25; ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 193 (2012) (acknowledging that “[d]etermining what is reasonably
implied [by the words of a statute] takes some judgment” and demonstrating that sometimes judges rely
on common-sense interpretations); see also Richard A. Posner, The Incoherence of Antonin Scalia, NEW
REPUBLIC (Aug. 24, 2012), http://www.newrepublic.com/article/magazine/books-and-arts/106441/scaliagarner-reading-the-law-textual-originalism (noting that even textualists “consider the range of commonsensical but non-textual clues to meaning that come naturally to readers trying to solve an interpretive
puzzle”). .
34. See supra notes 20–26 and accompanying text.
35. See Aleinikoff, supra note 6, at 944–45; Henkin, supra note 20, at 1023; McFadden, supra note
30, at 586. See generally H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM (1st
ed. 1953) (considering issues within the federal court system); Laurent B. Frantz, Is the First
Amendment Law? A Reply to Professor Mendelson, 51 CALIF. L. REV. 729 (1963) (disputing that a
balancing test is capable of giving impartial results, or even the appearance of impartial results);
Laurent Frantz, The First Amendment in the Balance, 71 YALE L.J. 1424 (1962) (criticizing the Supreme
2013]
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day it has universal application in many areas of the law.36 Judges balance
factors in favor of government interests and societal welfare with little controversy and with the ultimate goal of determining how best to identify the
interests of society.37
Despite criticism that balancing undermines constitutional rights38 and allows
the judiciary to engage in a legislative function,39 the Supreme Court has
expanded the use of balancing to more and more areas of law.40
B. BRIEF HISTORY OF FOURTH AMENDMENT BALANCING
In the context of criminal procedure, the Supreme Court has made it clear
that balancing is the “key principle of the Fourth Amendment.”41 Indeed, these
balancing decisions are made daily by lower courts and appellate courts, both
state and federal. Accordingly, courts have used balancing as the primary tool to
determine “the scope of the Fourth Amendment,”42 “the definition of a search,”43
“the reasonableness of a search,”44 “the reasonableness of a seizure,”45 “the
Court’s use of balancing-of-interests test in free speech cases). But see generally Wallace Mendelson,
On the Meaning of the First Amendment: Absolutes in the Balance, 50 CALIF. L. REV. 821 (1962)
(contending that open balancing provides particularized rationale and judicial accountability); Wallace
Mendelson, The First Amendment and the Judicial Process: A Reply to Mr. Frantz, 17 VAND. L. REV.
479 (1964) (arguing that the balancing test is rational and preferable to other approaches).
36. See supra notes 31–32.
37. As a result, constitutional balancing became a way for law to respond to real world interests. See
Aleinikoff, supra note 6, at 958–60. Furthermore, because balancing is so sensitive to the specifics of a
particular case, it accommodated gradual change, rejected absolutes, and kept all parties in the game,
thus providing “flexibility without sacrificing legitimacy.” Id. at 961; see, e.g., State v. Hamdan,
665 N.W.2d 785, 800 (Wis. 2003) (“In analyzing reasonableness, one must balance the conflicting
rights of an individual to keep and bear arms for lawful purposes against the authority of the State to
exercise its police power to protect the health, safety, and welfare of its citizens.”); State v. McAdams,
714 P.2d 1236, 1237 (Wyo. 1986) (“Thus, a balance must be struck between the individual’s right to
exercise each constitutional guarantee and society’s right to enact laws which will ensure some
semblance of order.”).
38. See, e.g., McFadden, supra note 31, at 636–38.
39. Id. at 641–42.
40. See Aleinikoff, supra note 6, at 944; Henkin, supra note 20, at 1022; McFadden, supra note 31,
at 587 (noting the “recent appearance and rapid growth [of the balancing test] mark [it] as one of the
most significant developments in judging practice in the twentieth century”).
41. Tennessee v. Garner, 471 U.S. 1, 8 (1985) (quoting Michigan v. Summers, 452 U.S. 692,
700 n.12 (1981)); Aleinikoff, supra note 6, at 965.
42. Aleinikoff, supra note 6, at 965, 981 (citing Hudson v. Palmer, 468 U.S. 517, 547 (1984)
(balancing the conflict between a prisoner’s privacy rights under the Fourth Amendment and the
government’s interest in prison security)).
43. Aleinikoff, supra note 6, at 965 (citing United States v. Place, 462 U.S. 696, 703 (1983)
(balancing the reasonableness of the government’s actions in confiscating a traveler’s luggage, searching it, and not returning it within ninety minutes against the traveler’s privacy rights)).
44. Aleinikoff, supra note 6, at 965 (citing New York v. Class, 475 U.S. 106, 128–29 (1986)
(balancing the government interest in searching a car against the government intrusion into private
space)).
45. Aleinikoff, supra note 6, at 965 (citing Garner, 471 U.S. at 7–8 (1985) (balancing the
government interests in effective law enforcement against the individual’s rights under the Fourth
Amendment to determine the the reasonableness of using deadly force to seize an individual)).
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meaning of probable cause,”46 “the level of suspicion required to support stops
and detentions,”47 “the scope of the exclusionary rule,”48 “the necessity of
obtaining a warrant,”49 and “the legality of pretrial detention of juveniles.”50 In
general, Fourth Amendment questions balance the depth of an intrusion into a
person’s rights against the government’s need for the practice.51
Although Fourth Amendment balancing tests on their faces seem intuitively
simple, they have led to some troubling results. Scholars have criticized Fourth
Amendment balancing as being a sham,52 unpredictable,53 the Supreme Court’s
“tarbaby,”54 and “a theoretical embarrassment.”55 Justice Scalia himself criticized Fourth Amendment law as being so fact specific that opinions merely
reflect “variation 3,542.”56 The case law is criticized as confusing,57 nonbinding
in future cases,58 anathema to core values,59 and lacking clear guidance for
46. Aleinikoff, supra note 20, at 965 (citing Camara v. Mun. Court, 387 U.S. 523, 536–37 (1967)
(concluding that there is no ready test for determining the reasonableness of establishing probable cause
as the standard for administrative searches except by balancing the need of the search against the
invasion that a search entails)).
47. Aleinikoff, supra note 20, at 965 (citing United States v. Martinez-Fuerte, 428 U.S. 543, 560–61
(1976) (concluding that determining if reasonable suspicion is a prerequisite for a valid stop requires
balancing the need of the government to make routine checkpoint stops against the intrusions on Fourth
Amendment interests)).
48. Aleinikoff, supra note 20, at 965 (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1042 (1984)
(holding that the balance of applying the exclusionary rule in deportation hearings outweighs the likely
social benefits of excluding unlawfully seized evidence in these type of proceedings)).
49. Aleinikoff, supra note 20, at 965 (citing New Jersey v. T.L.O., 469 U.S. 325, 340–41 (1985)
(dictum) (balancing the need of school administration to be able to search a student’s belongings
against the invasion that the search entails)).
50. Aleinikoff, supra note 20, at 965 (citing Schall v. Martin, 467 U.S. 253, 263 (1984) (balancing
the risks that a juvenile poses to himself and to society against the intrusion to the juvenile’s due
process and Fourth Amendment rights by holding him in pretrial detention)).
51. Henkin, supra note 20, at 1024 (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 316 (1978)).
52. See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 758, 761
(1994) (explaining that the Fourth Amendment has become an embarrassment because of its contradictory interpretation and application by the Court); Scott E. Sundby, “Everyman”’s Fourth Amendment:
Privacy or Mutual Trust Between Government and Citizen, 94 COLUM. L. REV. 1751, 1769 (1994)
(discussing the “[q]uagmire of [r]easonableness”).
53. Morgan Cloud, Pragmatism, Positivism, and Principles in Fourth Amendment Theory, 41 UCLA
L. REV. 199, 204 (1993); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The
Limits of Lawyering, 48 IND. L.J. 329, 329–30 (1973) (noting that complaints about the disarray of
Fourth Amendment law have long been a staple of legal scholarship); David E. Steinberg, Restoring
The Fourth Amendment: The Original Understanding Revisited, 33 HASTINGS CONST. L.Q. 47, 47
(2005).
54. Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1468 (1985).
55. Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 HARV. L. REV.
476, 478 (2011).
56. Id. at 480.
57. Bradley, supra note 54, at 1469.
58. Frank I. Michelman, The Supreme Court, 1985 Term—Foreword: Traces of Self-government,
100 HARV. L. REV. 4, 34 (1986).
59. Christopher Slobogin, Let’s Not Bury Terry: A Call for Rejuvenation of the Proportionality
Principle, 72 ST. JOHN’S L. REV. 1053, 1054 (1998).
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police officers seeking to know their own limits.60 Indeed, Fourth Amendment
balancing tests have caused confusion61 and failed to predictably protect core
values.
Further aggravating this situation, remedies for Fourth Amendment violations
are in flux, and there is no viable remedy for race-biased Fourth Amendment
searches. Historically, the exclusionary rule has been the remedy for Fourth
Amendment violations.62 This rule provides that any evidence obtained through
a search or seizure that violates the privacy of a defendant is not used against
the defendant.63 Traditionally, the exclusionary rule has successfully deterred
police from violating privacy rights of both the guilty and innocent alike.64
Over time, however, the exclusionary rule has been weakened as it became a
balancing test that no longer required exclusion of bad evidence in every case.65
As a result, much of the evidence once found contrary to the Fourth Amendment is now admissible.66 Thus, the exclusionary rule may not serve the
deterrent effect that it once served, and so it fails to protect innocent people
from unconstitutional searches.67 What is more, some equal protection cases
60. See Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503, 538–39
(2007).
61. See Nadine Strossen, The Fourth Amendment in the Balance: Accurately Setting the Scales
Through the Least Intrusive Alternative Analysis, 63 N.Y.U. L. REV. 1173, 1184 (1988).
62. Mapp v. Ohio, 367 U.S. 643, 657 (1961) (holding that “the exclusionary rule is an essential part”
of the Fourth Amendment); William Geller, Enforcing the Fourth Amendment: The Exclusionary Rule
and Its Alternatives, 1975 WASH. U. L.Q. 621, 623 (1975) (“The exclusionary rule compels the
suppression, in federal and state criminal prosecutions, of evidence seized by police in violation of the
fourth amendment.”).
63. See Illinois v. Rodriguez, 497 U.S. 177, 183 (1990) (stating that the exclusionary rule dictates
that “no evidence seized in violation of the Fourth Amendment will be introduced at . . . trial”).
64. See Albert W. Alschuler, Demisesquicentennial: Studying the Exclusionary Rule: An Empirical
Classic, 75 U. CHI. L. REV. 1365, 1371 (2008) (“Studies by Canon and others have revealed a substantial increase in the use of search warrants following Mapp v. Ohio.”); Bradley Canon, The
Exclusionary Rule: Have Critics Proven that it Doesn’t Deter Police?, 62 JUDICATURE 398, 401 (1979)
(showing that “compliance with the Fourth Amendment increased significantly” in the years following
Mapp v. Ohio).
65. See, e.g., Davis v. United States, 131 S. Ct. 2419, 2427 (2011) (“For exclusion to be appropriate,
the deterrence benefits of suppression must outweigh its heavy costs.”); Herring v. United States, 555
U.S. 135, 144 (2009) (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate
that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the
price paid by the justice system.”); Hudson v. Michigan, 547 U.S. 586, 591 (2006) (stating that the
exclusionary rule should only be applied where its deterrence benefits outweigh its social costs).
66. See, e.g., Davis, 131 S. Ct. at 2427 (limiting the exclusionary rule to situations where the
deterrence benefits of suppression outweigh the “heavy costs” of suppressing the evidence and setting
“the criminal loose in the community without punishment”).
67. See Herring, 555 U.S. at 142, 144; David A. Harris, How Accountability-Based Policing Can
Reinforce—Or Replace—The Fourth Amendment Exclusionary Rule, 7 OHIO ST. J. CRIM. L. 149, 154
(2009) (citing a 2004 study that showed that “Fourth Amendment violations, some quite egregious,
showed up in almost a third of all the observed police investigations”). Because the Supreme Court
believes that the exclusionary rule will only deter “deliberate, reckless, or grossly negligent conduct, or
in some circumstances recurring or systemic negligence,” a broad range of police conduct is no longer
covered by the exclusionary rule. See Herring, 555 U.S. at 144. For example, the Supreme Court would
not exclude evidence that was obtained unconstitutionally if the officer acted in good faith. Id. at 142.
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have indicated that police can have racist motivations in searching individuals
without violating the Fourth Amendment.68 And though the Equal Protection
Clause is still theoretically a remedy, recent cases have dramatically limited the
ability of defendants to prove racial bias in such searches.69 Indeed, the disparities caused by Fourth Amendment jurisprudence have even more dire effects
because the only available remedy allowed is not often applied and is not likely
to protect the innocent. Despite the importance of balancing to Fourth Amendment decision making, it fails to protect the privacy rights of innocent members
of society, including minorities.
The next section explores the realities of modern judicial balancing by the
Supreme Court in the Fourth Amendment context.
II. A STUDY OF SUPREME COURT BALANCING
To assess the Supreme Court’s use of balancing in criminal procedure cases, I
analyzed all cases from 1990 to 2012 that contain references to the Fourth,
Fifth, Sixth, or Eighth Amendments.70 That search returned over 600 cases.
Cases that did not actually involve questions of criminal procedure were
eliminated, and the remaining cases (about 350) were analyzed for evidence of
balancing. In some instances, it was easy to make a determination, as the Court
explicitly stated it was balancing, weighing, or engaging in a cost–benefit
analysis. However, in other cases, the Court failed to use such language but
nevertheless reasoned in a manner that reflected a balance of competing interests. These cases were also included, though admittedly their inclusion represents an exercise in judgment with which reasonable minds may disagree.71
Courts have the daunting task of weighing competing interests against each
other in balancing rights. Nowhere are the stakes more severe than in the
Thus, the exclusionary rule will no longer deter a host of unconstitutional activities as long as the
officer acted in good faith when violating a person’s rights.
68. E.g., Whren v. United States, 517 U.S. 806, 813 (1996) (refusing to consider the “actual
motivations of the individual officers involved” in a Fourth Amendment search despite stating that the
“Constitution prohibits selective enforcement of the law based on considerations such as race”).
69. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 309 (1987) (showing potential racial bias in
sentencing). In McCleskey, the Court rejected as evidence of racial bias the use of a detailed statistical
study showing a racial bias in sentencing. Id. at 312–13. The Court held that the defendant must “prove
that the decisionmakers in his case acted with discriminatory purpose.” Id. at 292. However, the Court
limited the defendant’s ability to do so because the Court upheld the policy to grant government officers
“wide discretion,” which suggests “the impropriety of . . . requiring prosecutors to defend their decisions.” Id. at 296. Thus the defendant, who could show a pattern of discrimination, was neither allowed
to do so, nor was he allowed to provide evidence of the particular prosecutor’s possible racial bias
because the Court found that it was inappropriate to make the prosecutor defend his decision.
70. Although the focus of this Article is the Fourth Amendment, a broader initial search of balancing
in the criminal procedure context was warranted to ensure that all potential search and seizure cases
were captured.
71. Six research assistants conducted initial research for this project on WestlawNext. They kept
meticulous spreadsheets documenting identifiers such as the rule’s cost, the rule’s benefit, any data
relied upon by the Court, sources of contention, and who prevailed in the case.
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15
context of criminal procedure.72 Balancing tests are convenient and theoretically appealing to a court in the position of weighing these competing interests.73 And in theory, a well-articulated balancing test should produce consistent
results among defendants and across jurisdictions, but rarely has this proven to
be the case. There are three distinct problems identified with Fourth Amendment balancing tests: (1) government interests typically trump individual rights;
(2) balancing tests inflate risk of harm by using hypothetical threats without
relying on broader relevant data; and (3) balancing creates disparities between
similarly situated defendants. Drawing on the Fourth Amendment cases identified by this study, the following section explores the challenges posed by the
Court’s current balancing approach.
A. GOVERNMENT INTERESTS TRUMP INDIVIDUAL RIGHTS
To those familiar with modern criminal procedure jurisprudence, it should not
come as a surprise that government interests typically trump individual rights.74
From 1990 to 2012,75 a review of Supreme Court opinions on criminal procedure matters indicates that individual rights have overcome government interests in just 20% of cases where the Court balanced these interests.76 However,
72. See J. Alexander Tanford & Anthony J. Bocchino, Rape Victim Shield Laws and the Sixth
Amendment, 128 U. PA. L. REV. 544, 545 (1980) (“There is no more serious undertaking of the state
than accusing a person of a crime, with the concomitant threat of loss of liberty or life.”).
73. See Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court’s Balancing Test, 76 HARV. L. REV. 755, 758 (1963) (arguing that balancing tests are “so laconic or so ambiguous
as to suggest interpretations . . . which set up too nicely for crushing criticism”).
74. Laurence Tribe has been an outspoken critic of this trend. See Tribe, supra note 25, at 596; see
also Cloud, supra note 53, at 242 n.192 (discussing Professor Sundby’s conclusion that “balancing
naturally favors the government’s interests over the individual’s privacy interests, because governmental interests are tangible and visible, while privacy interests are less tangible and pale in comparison”);
David L. Faigman, Reconciling Individual Rights and Government Interests: Madisonian Principles
Versus Supreme Court Practice, 78 VA. L. REV. 1521, 1523 (1992) (“Because the threshold question
regarding the existence of constitutional rights has become infected with the government’s countervailing interests, those individual rights have lost much of their vitality, if not their very existence.”);
Gerald S. Reamey, When “Special Needs” Meet Probable Cause: Denying the Devil Benefit of Law,
19 HASTINGS CONST. L.Q. 295, 302 (1992) (criticizing the erosion of probable cause in favor of the
balancing test of government interests versus individual rights); Strossen, supra note 61, at 1175–76
(discussing and criticizing the balancing test of government interests versus private rights because it
results in equating rights with something other than what they actually are).
75. Notwithstanding the debates over balancing in the 1950s and late 1980s, by 1990 it appears that
the entirety of the Court acknowledged that balancing is appropriate. See, e.g., James v. Illinois, 493
U.S. 307 (1990) (containing three opinions, including Justice Kennedy’s dissent, that justified their
reasoning by balancing competing interests). Thus, I start my analysis of Supreme Court balancing
here.
76. Although the government won almost 78% (38/49) of the criminal procedure cases where the
court engaged in a balancing of costs and benefits, the protection of individual rights overcame
government interests in only 22% of cases (11/49). Compare J.D.B. v. North Carolina, 131 S. Ct. 2394,
2408 (2011) (increasing fairness and protecting children by holding that a child’s age may trigger the
Miranda custody analysis), Arizona v. Gant, 556 U.S. 332, 345 (2009) (protecting individual privacy
from unbridled police discretion by holding that police may search an automobile incident to an arrest
only if the occupant has access to it or if it is reasonable to believe that the automobile contains
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not all government interests are created equally. It turns out that the stated need
for effective law enforcement seems to persuade the Court more often than any
other interest and was invoked in over half of cases since 1990.77
The Supreme Court most often relied on the need for effective law enforce-
evidence directly related to the search), Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 376–77
(2009) (protecting students from unjustified intrusions by holding that a strip search of a student at
school was unreasonable), and Georgia v. Randolf, 547 U.S. 103, 115 (2006) (protecting home as castle
by holding that a physically present co-occupant’s nonconsent to permit a warrantless search makes the
warrantless search unreasonable), with Boumediene v. Bush, 553 U.S. 723, 797 (2008) (furthering
government interests in resolving separation-of-power issue; providing meaningful relief to parties),
Chandler v. Miller, 520 U.S. 305, 322 (1997) (holding that required drug tests for candidates running
for state office is an illegitimate government interest), Withrow v. Williams, 507 U.S. 680, 687 (1993)
(promoting judicial economy), and McCarthy v. Madigan, 503 U.S. 140, 156 (1992) (promoting
various procedural values).
77. Since 1990, the Court’s criminal procedure cases invoked this factor over 55% of the time
(27/49). See, e.g., Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1518–19, 1521–22 (2012)
(assisting efforts to eliminate gang violence, preventing the proliferation of contraband, and avoiding
the imposition of an undue burden on prison administration); Davis v. United States, 131 S. Ct. 2419,
2429 (2011) (avoiding deterring officers from performing duty); Berghuis v. Thompkins, 130 S. Ct.
2250, 2260 (2010) (providing clear guidance to officers in the face of ambiguity and avoiding placing
undue burden on police work); Maryland v. Shatzer, 559 U.S. 98, 108–09 (2010) (avoiding deterring
police from obtaining sincere voluntary confessions); Montejo v. Louisiana, 556 U.S. 778, 793 (2009)
(furthering society’s “interest in finding, convicting, and punishing those who violate the law”); Kansas
v. Ventris, 556 U.S. 586, 593 (2009) (preventing perjury); Gant, 556 U.S. at 345 (providing police with
a clear rule); Arizona v. Johnson, 555 U.S. 323, 330 (2009) (allowing police officers to react quickly to
threats); Herring v. United States, 555 U.S. 135, 141 (2009) (avoiding letting potentially guilty and
dangerous criminals go free as a result of mere isolated negligence in bookkeeping); Virginia v. Moore,
553 U.S. 164, 174 (2008) (enabling officers to investigate); Hudson v. Michigan, 547 U.S. 586, 595
(2006) (avoiding the creation of counterproductive police incentives); United States v. Patane, 542 U.S.
630, 645 (2004) (Kennedy, J., concurring) (permitting highly probative, reliable physical evidence to
assist the trier of fact); Hiibel v. 6th Jud. Dist. Ct., 542 U.S. 177, 186 (2004) (providing police with
useful information that allows them to appropriately focus their attention where it is needed); Illinois v.
Lidster, 540 U.S. 419, 427 (2004) (permitting officers to investigate crime that caused a death and
permitting effective officer search); McKune v. Lile, 536 U.S. 24, 34–35 (2002) (plurality opinion)
(deterring sex offenses); United States v. Arvizu, 534 U.S. 266, 275 (2002) (providing officers with a
useful standard that guides them to correct decisions); United States v. Knights, 534 U.S. 112, 120–21
(2001) (preventing probationers from committing more crimes and promoting the successful completion of probation); Atwater v. City of Lago Vista, 532 U.S. 318, 347–51 (2001) (providing police with a
bright-line rule and avoiding the deterrence of valuable law-enforcement activity); Illinois v. McArthur,
531 U.S. 326, 336 (2001) (preserving evidence of bailable offense); Illinois v. Wardlow, 528 U.S. 119,
125 (2000) (allowing officers confronted with unprovoked flight to investigate and resolve the
ambiguity); Florida v. J.L., 529 U.S. 266, 272 (2000) (preserving the balance struck by Terry);
Wyoming v. Houghton, 526 U.S. 295, 304 (1999) (avoiding impairing effective law enforcement);
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663 (1995) (deterring child drug abuse); Mich. Dep’t of
State Police v. Sitz, 496 U.S. 444, 451 (1990) (promoting the eradication of drunk driving); Michigan v.
Harvey, 494 U.S. 344, 351 (1990) (preventing perjury); James, 493 U.S. at 318 (avoiding giving police
improper incentives); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 666 (1989) (deterring
drug use); Arizona v. Roberson, 486 U.S. 675, 681 (1988) (providing police officers with specific
guidance about what they may do); New Jersey v. T.L.O., 469 U.S. 325, 339–40 (1985) (promoting the
flexible, swift, and informal discipline essential to the operation of schools); Oregon v. Elstad, 470 U.S.
298, 312 (1985) (not imposing a “high cost to legitimate law enforcement activity”); I.N.S. v.
Lopez-Mendoza, 468 U.S. 1032, 1047 (1984) (ending violations of the law that would otherwise
continue); Imbler v. Pachtman, 424 U.S. 409, 427–28 (1976) (allowing prosecutors to focus on law
enforcement); United States v. Calandra, 414 U.S. 338, 350 (1974) (avoiding the frustration of the
2013]
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ment when ruling for the government. For example, in Florence v. Board of
Chosen Freeholders, the Court considered a constitutional challenge to suspicionless strip searches of suspects charged with minor crimes before introducing
them into the jail’s general population.78 In holding the searches constitutional,
the Court gave considerable weight to three separate law-enforcement factors:
eliminating gang violence, preventing the introduction of contraband, and avoiding the imposition of an undue standard on prison administration.79 Florence
allowed a substantial intrusion on individual liberty with a strip search.80
Nevertheless, without a consideration of evidence on the necessity for strip
searches to satisfy government interests, the stated need for effective law enforcement overcame individual rights.81
The government’s need for effective law enforcement dominates other interests when the Court determines the constitutionality of suspicionless searches,
such as traffic checkpoints for checking sobriety, stemming the flow of illegal
immigration, or interrupting the flow of narcotics.82 Although the Court purports to balance the government interest against an individual’s expectation of
privacy, oftentimes the government purpose becomes inflated in a balancing
test.83 The number of arrests made bolster the state’s argument, although the
arrests themselves may constitute the product of a constitutionally questionable
instrument and provide no comparison to the number of arrests made without
checkpoints or data on the effectiveness of such checkpoints. As a result,
government checkpoints allow searches that might otherwise be constitutionally
suspect if evidence of their effectiveness were considered along with government interests.
Other common government interests that frequently persuade the Court include officer safety (18%),84 public safety (28%),85 and judicial economy
grand jury’s law enforcement purpose); White v. Illinois, 502 U.S. 346, 357 (1992) (preserving valuable
evidence).
78. 132 S. Ct. at 1512–14.
79. Id. at 1518–19, 1521–22.
80. Id. at 1523.
81. The erosion of fundamental constitutional rights at the hands of cost–benefit analysis is of grave
concern to some. Tribe, supra note 25, at 596.
82. Edwin J. Butterfoss, A Suspicionless Search and Seizure Quagmire: The Supreme Court Revives
the Pretext Doctrine and Creates Another Fine Fourth Amendment Mess, 40 CREIGHTON L. REV. 419,
424–26, 471, 488 (2007).
83. Id. at 467; see also Fried, supra note 73, at 763 (arguing that inflating the government interest in
a balancing test conceals the conflict to be resolved by the test).
84. In nine out of forty-nine of its balancing cases since 1990, the Court has invoked this factor.
Arizona v. Johnson, 555 U.S. 323, 330 (2009) (allowing frisks to protect police from armed persons and
unquestioned command to minimize risk of harm to officer); Hudson v. Michigan, 547 U.S. 586, 598
(2006) (avoiding requiring officers to wait and give greater opportunity against them); Wilkinson v.
Austin, 545 U.S. 209, 227 (2005) (ensuring prison guard safety); Muehler v. Mena, 544 U.S. 93, 100
(2005) (protecting officers from inherently dangerous situation of executing search warrant in drug
house); Hiibel v. 6th Jud. Dist. Ct., 542 U.S. 177, 186 (2004) (permitting police to know if suspect is
wanted, mentally ill, or violent and permitting officer to better address dangerous domestic situations);
Florida v. J.L., 529 U.S. 266, 272 (2000) (preserving balance struck in Terry); Maryland v. Wilson, 519
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(30%).86 Although not as prevalent as appeals to effective law enforcement,
these interests are equally convincing to the Court when it considers invasions
of individual liberty. In other cases, the physical dangers of drugs,87 and the
safety of police and prison personnel,88 overcame individual liberty rights. In all
of these balancing tests, there was no consideration of broader evidence of the
U.S. 408, 413–14 (1997) (protecting officers from assault and oncoming traffic); Maryland v. Buie, 494
U.S. 325, 333 (1990) (protecting officers from hidden attack, offering police protection during
dangerous phase of criminal justice process, and increasing police protection in unfamiliar territory);
Michigan v. Long, 463 U.S. 1032, 1051–52 (1983) (protecting officers from suspects breaking away and retrieving a weapon, from obtaining a weapon while briefly reentering a vehicle, and from
a suspect not placed under arrest accessing a weapon, especially at close range).
85. In fourteen out of forty-nine of its balancing cases since 1990, the Court has invoked this factor.
Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1518 (2012) (promoting inmate and prisonstaff health through strip searches); Johnson, 555 U.S. at 330–32 (protecting public from armed
criminals and minimizing risk of harm to vehicle occupants by permitting frisks and officer complete
command); Herring v. United States, 555 U.S. 135, 141 (2009) (preventing the release of dangerous
criminals); Virginia v. Moore, 553 U.S. 164, 174 (2008) (preventing continuing violations of the law);
Samson v. California, 547 U.S. 843, 853 (2006) (reducing recidivism); Wilkinson, 545 U.S. at 227
(ensuring safety of public from gang retaliation); Hiibel, 542 U.S. at 186 (allowing officers to address
possible danger to victims in domestic situations); Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536
U.S. 822, 834 (2002) (preventing child drug abuse); McKune v. Lile, 536 U.S. 24, 33 (2002) (plurality
opinion) (reducing recidivism); United States v. Knights, 534 U.S. 112, 120 (2001) (increasing control
on population segment that had high recidivism rates); J.L., 529 U.S. at 272 (preserving balance struck
by Terry); Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365 (1998) (preventing recidivism);
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661 (1995) (protecting children from harmful effects of
illegal drugs); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 666 (1989) (preventing
promotion of drug users to specific positions and deterring drug use among those eligible for those
positions); New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (preserving school order); New York v.
Quarles, 467 U.S. 649, 657 (1984) (protecting public from dangers posed by hidden gun); Long, 463
U.S. at 1051–52 (allowing officers to conduct sweep to protect others from danger).
86. In fifteen out of forty-nine of its balancing cases since 1990, the Court has invoked this factor.
Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (promoting judicial economy by avoiding
difficulties of proof); Maryland v. Shatzer, 559 U.S. 98, 106 (2010) (conserving judicial resources
regarding difficult determinations of voluntariness); Montejo v. Louisiana, 556 U.S. 778, 783–85, 794
(2009) (avoiding difficulties in creating new rule because Miranda already sufficiently protects right);
Arizona v. Gant, 556 U.S. 332, 346–47 (2009) (removing uncertainty from Belton); Pearson v.
Callahan, 555 U.S. 223, 242 (2009) (eliminating substantial expenditure of scarce judicial resources on
difficult questions that have no effect on the outcome of a case); Boumediene v. Bush, 553 U.S. 723,
772–73 (2008) (providing meaningful relief to parties that have been denied judicial relief for a number
of years); Moore, 553 U.S. at 176 (promoting uniformity); Hudson, 547 U.S. at 595 (avoiding creating
flood of litigation); United States v. Patane, 542 U.S. 630, 645 (2004) (Kennedy, J., concurring)
(holding that highly probative, reliable physical evidence aids fact finder); Wyoming v. Houghton,
526 U.S. 295, 305 (1999) (avoiding excessive litigation); Scott, 524 U.S. at 366–67 (avoiding increase
in litigation); Withrow v. Williams, 507 U.S. 680, 694 (1993) (preserving Miranda’s bright-line nature);
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (avoiding imposing costly retrials and promoting
swift administration of justice); White v. Illinois, 502 U.S. 346, 357 (1992) (avoiding imposing
unnecessary litigation costs); Coleman v. Thompson, 501 U.S. 722, 738 (1991) (avoiding burdening
state courts); Arizona v. Roberson, 486 U.S. 675, 681 (1988) (informing courts when statements are not
admissible); I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1048–49 (1984) (promoting judicial economy
with “deliberately simple” deportation hearing system).
87. Acton, 515 U.S. at 665 (upholding suspicionless urinalysis).
88. Wilkinson, 545 U.S. at 228 (declining to require state to implement further procedures to guard
against inmates being improperly placed in a high security prison).
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likelihood of threats to police officers, but rather a simple stated threat by the
government was sufficient to persuade the Court.
However, on occasion, the government fails to persuade the Court to rule in
favor of its security interests.89 In some instances, the government loses because
the interests it was seeking to further were found to be illegitimate.90 In a few
other cases, the government lost because it found itself on the wrong end of a
balance weighing competing governmental (and not private) interests.91 And in
eight instances, the government lost because the threat to fundamental liberty
interests was too great.92 Thus, in a handful of cases, individual rights prevailed
over government interests, though these cases constitute the exception to the
rule.
In a small minority of Fourth Amendment cases (12%) involving a balance,
individual privacy concerns overcame government interests.93 For instance, in
Florida v. J.L., the Court declined to create a firearm exception to Terry that
would allow a stop and frisk even if the tip failed to meet presearch reliability
standards.94 In addition to upsetting the balance struck in Terry,95 creating an
exception, the Court said, “would enable any person seeking to harass another
to set in motion an intrusive, embarrassing police search” just by making an
anonymous false report.96 Similarly, the Court in Winston v. Lee held that the
Fourth Amendment prohibits a state from compelling a suspect to undergo
89. The government lost 22% (11/49) of criminal procedure cases engaging in cost–benefit analysis
since 1990.
90. Chandler v. Miller, 520 U.S. 305, 322 (1997) (rejecting as symbolic the interest of being tough
on drugs); see also City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000) (finding that a “checkpoint
program [that was] indistinguishable from the general interest in crime control” was invalid).
91. This happened in 6% of the cases (3/49). Boumediene, 553 U.S. at 743 (furthering government
interests in resolving separation of power issue and providing meaningful relief to parties); Withrow,
507 U.S. at 692 (promoting judicial economy); McCarthy v. Madigan, 503 U.S. 140, 156 (1992)
(promoting various procedural values).
92. J.D.B. v. North Carolina, 131 S. Ct. 2394, 2408 (2011) (increasing fairness and protecting
children); Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 376–77 (2009) (protecting
students from unjustified intrusions); Arizona v. Gant, 556 U.S. 332, 345 (2009) (protecting individual
privacy from unbridled police discretion); Georgia v. Randolph, 547 U.S. 103, 115 (2006) (protecting
home as castle); Florida v. J.L., 529 U.S. 266, 272 (2000) (protecting individuals from harassment);
Knowles v. Iowa, 525 U.S. 113, 114 (1998) (preventing intrusions on privacy); James v. Illinois, 493
U.S. 307, 319 (1990) (avoiding giving police incentives to violate constitutional rights); Schlup v. Delo,
513 U.S. 298, 324–25 (1995) (promoting interest of not executing innocent person).
93. Fourth Amendment concerns overcame government interests in 12% (6/49) of criminal procedure cases engaging in balancing since 1990. Redding, 557 U.S. at 376–77 (protecting students from
unjustified intrusions); Gant, 556 U.S. at 345 (protecting individual privacy from unbridled police
discretion); Randolph, 547 U.S. at 115 (protecting home as castle); J.L., 529 U.S. at 272 (protecting
individuals from harassment); Knowles, 525 U.S. at 114 (preventing intrusions on privacy); James, 493
U.S. at 319 (avoiding giving police incentives to violate constitutional rights).
94. 529 U.S. at 272. See infra text accompanying notes 109–14 for discussion of Terry v. Ohio, 392
U.S. 1 (1968).
95. J.L., 529 U.S. at 272 (recognizing that “[f]irearms are dangerous” and that “extraordinary
dangers sometimes justify unusual precautions” and explaining that Terry responds to the “serious
threat that armed criminals pose to public safety”).
96. Id.
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surgery under general anesthetic to remove a bullet lodged in his chest in an
effort to obtain evidence.97 The evidentiary value of the bullet was eclipsed by
the risks posed by the procedure to the suspect’s health98 as well as the nature99
and invasive scope of the procedure.100 Likewise, in Arizona v. Gant, the Court
adopted a narrow reading of Belton,101 motivated in part by fear that the
alternative would have “create[d] a serious and recurring threat to the privacy of
countless individuals.”102 The Court found the very possibility of giving police
unbridled discretion to look through private effects to be extremely offensive to
the Fourth Amendment.103 These cases demonstrate that when core values
protected by the Constitution are threatened in a significant manner, those
interests have a chance to overcome even strong government interests. However, the overwhelming message in Supreme Court Fourth Amendment jurisprudence is that when individual rights are balanced against government interests,
personal liberty generally loses.104
A review of Fourth Amendment cases before the Court between 1990 and
2012 demonstrates that in a balance with the government’s concern for effective
policing and officer safety, individual rights typically lose. And the balance
often favors the pursuit of effective law enforcement, which can be verified with
evidence and broader public data but, as shown above, rarely is.
B. JUDGES OVERESTIMATE POTENTIAL RISKS
Judges often rely on anecdotal information or hypotheticals rather than
evidence, which may lead them to overestimate potential risks in Fourth Amendment cases.105 This occurs even if there is little evidence or contradictory
evidence of the likelihood of the threat of harm.106 Moreover, courts tend to
97. 470 U.S. 753, 755 (1985).
98. Id. at 764 (noting that surgery risked infection and permanent damage to the suspect’s body).
99. Id. (noting that although one surgeon stated the surgery would take 15 to 20 minutes, another
predicted it could take up to 2.5 hours).
100. The Court held that taking control of the suspect’s body, inducing a state of unconsciousness,
and probing beneath the skin was an extensive intrusion. Id. at 764–66.
101. New York v. Belton, 453 U.S. 454, 462–63 (1981) (holding that law enforcement may search
the passenger compartment of an automobile incident to a lawful arrest).
102. Arizona v. Gant, 556 U.S. 332, 344–45 (2009).
103. Id. at 345.
104. See Christian Halliburton, Leveling the Playing Field: A New Theory of Exclusion for a PostPATRIOT Act America, 70 MO. L. REV. 519, 542 (2005) (discussing Fourth Amendment doctrines as
distorting the structures prescribed by the Bill of Rights by giving the government an advantage over
the individual); David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth
Amendment, 1997 SUP. CT. REV. 271, 298, 308 (noting that three of the four decisions dealing with
traffic stops and search and seizures during the Supreme Court’s 1995–1997 Terms “gave significant
latitude to law enforcement” and demonstrated “a pronounced pattern of ruling in favor of the
government”); id. at 301 (“Far more often than not, federal judges find the inferences drawn and actions
taken by law enforcement officers reasonable, and deny suppression motions challenging those inferences and actions.”).
105. Jeffrey J. Rachlinski, Evidence-Based Law, 96 CORNELL L. REV. 901, 919 (2011).
106. Id. at 919–22.
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sacrifice individual liberty when they overestimate risks.107
A balancing approach not informed by data results in law rooted in hypotheticals that do not mirror reality.108 Courts employing such an approach risk
inserting implicit bias and diminishing individual privacy rights because these
courts do not consider the full panoply of privacy concerns for those individuals
not before them. It can also result in courts overestimating the risk of harm that
may result and favoring the government more often for this reason.
Terry v. Ohio was an early Supreme Court tangle with balancing that has
increased the legitimacy of overestimation of risk. In Terry, an officer watching
three men conferring outside of a store suspected the men of “casing a job,”
stopped the men, and frisked one of them.109 Although the officer did not have
probable cause to suspect that the men had guns before stopping them, he found
a gun in the first man’s overcoat, which prompted him to pat down the other two
men.110 The Court found that these were searches and seizures111 and analyzed
the reasonableness of the officer’s action by balancing government interests
against the intrusion on the citizen.112 The Court emphasized the risk of harm to
officers posed by armed criminals and noted how many officers are injured on
the job each year. It placed great emphasis on the potential risk to officers if
they were unable to conduct such searches, without actually considering the
number of instances where such intrusions are actually necessary. And although
the circumstances in Terry may have warranted the searches, the Terry stop-andfrisk doctrine has allowed the police to intrude on the privacy of a vast number
of innocent individuals113 based on little to no evidence of any threat of
harm.114
In many stop-and-frisk cases, judges rely on the Terry doctrine to include
speculative risks to justify a warrantless search of an individual. For example, in
State v. Lombardi, the Supreme Court of Rhode Island applied this U.S.
Supreme Court standard and held that the “slight intrusion” of patting down a
107. See, e.g., Craig S. Lerner, The Reasonableness of Probable Cause, 81 TEX. L. REV. 951,
958–59, 971 (2003) (noting that in the preventative detention context, safety of others has surpassed
importance of individual liberty and overshadowed requirements of probable cause in favor of the
government’s interest).
108. See CHRISTOPHER SLOBOGIN, PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE
FOURTH AMENDMENT 38 (2008) (“Probable cause is often equated with a more-likely-than-not (51
percent) finding, or perhaps a level of certainty somewhat below that.”); Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process, 85 MICH. L.
REV. 510 (1986) (discussing the failure of balancing of interests in the pretrial detention context).
109. See Terry v. Ohio, 392 U.S. 1, 6–7 (1968).
110. Id. at 7.
111. Id. at 19.
112. Id. at 21.
113. See Lerner, supra note 107, at 999; see also Brown v. Texas, 443 U.S. 47, 50–53 (1979)
(analyzing the reasonableness of the seizure by introducing a balancing test weighing the gravity of the
public concerns served by the seizure and the degree to which the seizure advances the public interest
against the severity of the interference with individual liberty, and reversing the conviction based on an
absence of reasonable suspicion of misconduct).
114. See infra section III.A.3 for a discussion of statistics about Terry searches.
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defendant did not violate the defendant’s Fourth Amendment rights where the
officer was not seeking to arrest the defendant but was simply offering him a
ride home because he was too intoxicated to drive.115 Although the officer
testified that the defendant did not appear to be armed and dangerous, he frisked
him anyway.116 The court justified this frisk, saying, “[a]n ordinary pen or
pencil, when plunged into the neck of the police officer by an intoxicated
passenger seated in the back seat of the police cruiser, would have been as lethal
as any hand gun.”117 Thus, even though the individual did not appear to be
armed and there was no evidence of such hypothetical pen stabbings, the court
permitted the frisk. This is an example of a court entertaining a hypothetical
situation to justify an otherwise unreasonable search.
The unfounded hypothetical used by the court in Lombardi is not particularly
unusual. In People v. Armenta, a California court used the possibility that a
person might have a “rubber water pistol loaded with carbolic acid or some
other liquid, which if used by a suspect could permanently blind an officer,” to
justify a pat-down search.118 And there are many more examples.119 Although
115. 727 A.2d 670, 674 (R.I. 1999).
116. Id.
117. Id.
118. 73 Cal. Rptr. 819, 821 (Ct. App. 1968), disapproved of by People v. Collins, 463 P.2d 403,
406–07 (Cal. 1970). The court in Collins stated that an officer must be able to “point to specific and
articulable facts which reasonably support a suspicion that the particular suspect is armed with an
atypical weapon” and that Armenta “is disapproved insofar as it conflicts with” this view. Collins, 463
P.2d at 406–07. However, later California cases continue to engage in fanciful speculation to justify
police officers’ actions. See, e.g., People v. Wood, No. F054304, 2008 WL 4527655, at *4 (Cal. Ct.
App. Oct. 7, 2008) (justifying the search of defendant because he was parked in front of a residence that
was being searched and he “could have come up behind the officers in the process of executing the
search warrant”).
119. See, e.g., United States v. Oliver, 550 F.3d 734, 738 (8th Cir. 2008) (upholding a search because
“if Oliver was armed and dangerous” and the officer did not search him, he “could have turned and shot
the officer”); United States v. Raymond, 152 F.3d 309, 311–12 (4th Cir. 1998) (upholding the search of
the defendant because he got out of a two-door car from the backseat “somewhat awkwardly” while
holding a cup full of soda and then “clutched his stomach” and “awkwardly leaned against the car”);
United States v. Simmons, 567 F.2d 314, 318 (7th Cir. 1977) (upholding the search of an area around a
nude woman because “[w]omen are not unknown as accomplices in serious crimes”); United States v.
Vigo, 487 F.2d 295, 298 (2d Cir. 1973) (justifying the search of Ms. Pagan’s purse because “[a] loaded
concealed gun had just been found on her companion Vigo”); United States v. Berryhill, 445 F.2d 1189,
1193 (9th Cir. 1971) (upholding the search of the wife of a forgery suspect because “[i]t is inconceivable that a peace officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a
shot in the back from defendant’s associate”); People v. Glaser, 902 P.2d 729, 731 (Cal. 1995)
(justifying the detention and search of the defendant and his truck when the defendant was “about to
open the gate” to the yard of a house that was being searched because the officer needed to determine
what connection the defendant had to the premises); People v. Hart, 86 Cal. Rptr. 2d 762, 767 (Ct. App.
1999) (upholding the search of a van and a purse in the van because, after the defendant had vacated the
vehicle, the officer was concerned there might be a concealed weapon inside); Johnson v. State, 679
S.E.2d 340, 343 (Ga. 2009) (holding that an officer was justified in searching a jacket hanging on a
closed bathroom door in an empty hotel room because the officer entering the empty room was
“justifiably concerned for his safety and was worried whether the bulge in the jacket was a gun”);
Commonwealth v. Johnson, 908 N.E.2d 729, 733–34 (Mass. 2009) (upholding search of defendant
because an officer is not required to accept the ambiguities of whether defendant was reaching
2013]
FOURTH AMENDMENT
23
these are not Supreme Court cases, they cite and apply Supreme Court standards
and demonstrate the problems in application of these principles in the lower
courts.
In addition to using hypotheticals that are unlikely to ever occur, courts often
use other speculative reasoning to uphold searches of citizens. For example,
courts often uphold searches when the only indication the officer had that a
weapon might be present was that the person may have been in possession of
narcotics,120 the suspect was wearing baggy clothing or had something in his
pocket,121 or the individual reached for something in a car (that could have been
identification) after being pulled over.122 Without relying on data to support
government interests, what results is a lack of specific guidance to police who
do not know their limits and to judges who overestimate the threats faced by
officers compared to the importance of individual rights.
In some cases, the mere possibility of great danger creates a sufficient
into a pocket to get a weapon or for a variety of legitimate purposes); Commonwealth v. Matthews,
244 N.E.2d 908, 909 (Mass. 1969) (justifying the search of defendant because he was carrying a
shopping bag full of clothes that were not the defendant’s size even though he had a receipt); Perry v.
State, 927 P.2d 1158, 1163 (Wyo. 1996) (using the “automatic companion rule” to justify the search of
the defendant when the police were arresting the defendant’s son).
120. See, e.g., United States v. Oates, 560 F.2d 45, 62 (2d Cir. 1977) (“[T]o ‘substantial dealers in
narcotics’ firearms are as much ‘tools of the trade’ as are most commonly recognized articles of
narcotics paraphernalia.” (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir. 1975))); People v.
Thurman, 257 Cal. Rptr. 517, 520 (Ct. App. 1989) (justifying the “brief, relatively private intrusion” of
searching a defendant who was “quietly seated on a sofa” in a “nonthreatening” manner because the
officer was executing a search warrant of a residence for narcotics); Brown v. State, 641 S.E.2d 551,
553 (Ga. Ct. App. 2006) (upholding a search because the police officer testified that “weapons and
drugs they go together usually”).
121. See, e.g., People v. Collier, 83 Cal. Rptr. 3d 458, 460 (Ct. App. 2008) (justifying a search of
defendant because the officer “was concerned about his safety” based on the defendant’s size and baggy
clothing, and because the officer believed the defendant or another passenger in the car “may have been
smoking marijuana”); Davis v. State, 658 S.E.2d 788, 789 (Ga. Ct. App. 2008) (upholding search of
Davis where an officer turned his car around and approached Davis after observing that Davis “moved
his hand to his right waistband and gave it a quick upward tug”); People v. Henderson, 925 N.Y.S.2d
827, 828 (App. Div. 2011) (upholding a search because police officers saw a bulge that “resembled the
outline of the grip of a pistol”); People v. Flores, 641 N.Y.S.2d 14, 15 (App. Div. 1996) (justifying a
search of defendant because officers saw defendant “adjusting something around his waistband” and
saw a bulge in that area, and because defendant fit the “general description” of someone involved in a
shooting); In re Wilberto R., 633 N.Y.S.2d 15, 15 (App. Div. 1995) (upholding a search because the
officers were responding to a report of a man with a gun and the officers saw that defendant had a
“drooping” pocket).
122. United States v. Bohanon, 629 F. Supp. 2d 802, 809 (E.D. Tenn. 2009) (upholding a search
because defendant looked nervous, had a criminal record, and his hand was “near a pocket in the [car]
door that was large enough to conceal a weapon”), aff’d, 420 F. App’x 576 (6th Cir. 2011); People v.
Rogers, No. D034303, 2002 WL 27609, at *2 (Cal. Ct. App. Jan. 9, 2002) (upholding the search of
defendant’s vehicle because if he was not handcuffed in the patrol car he could have returned to his car
and accessed a gun); Commonwealth v. Boyd, 17 A.3d 1274, 1279 (Pa. Super. Ct. 2011) (upholding the
search of defendant’s car because officers observed him moving around the center console of the car
and because if he was not in custody he could “return to his vehicle and access any possible weapons
secreted in the console”); Douglas v. State, No. 04-01-00341-CR, 2002 WL 432572, at *1 (Tex. App.
Mar. 20, 2002) (upholding the search of defendant’s car because officers observed defendant “bend over
the ‘center area’ of his car twice”).
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justification to curtail individual liberty.123 In Wilkinson v. Austin, the Court
deemed a risk of violence especially weighty where inmates were placed in an
Ohio high-security facility.124 Indeed, the Court determined that no additional
physical protections against violence were required for inmates placed in this
prison without procedural protections guarding due process rights because these
inmates would risk nothing in performing further criminal conduct; thus the
threat to guards and prison staff justified the curtailing of liberty.125 However,
the Court here did not consider the statistics on prison violence in such circumstances either in Ohio or elsewhere. The Court heavily deferred to the
opinions of prison administrators who determined that the procedures were
constitutionally adequate.126 Again, the Court here did not require the parties to
assess the risk of danger but took the government’s word on its determination of
risk.
The Supreme Court itself has recognized that the more acute the risk of
danger, the less reliable a tip needs to be to justify infringing individual rights.
For example, “a report of a person carrying a bomb need [not] bear the indicia
of reliability [the Court] demand[s] for a report of a person carrying a firearm
before the police can constitutionally conduct a frisk.”127 However, the presence
of data or examples of a risk actually occurring may carry weight in at least
some cases.128 For example, in National Treasury Employees Union v. Von
Raab, Justice Scalia attacked the government’s justifications for their lack of
“even a single instance in which any of the speculated horribles actually
123. E.g., Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1518–19 (2012) (risks posed by
sickness, gang violence, and contraband); Arizona v. Johnson, 555 U.S. 323, 330 (2009) (high risk of
harm to officers and vehicle occupants during traffic stops); Hudson v. Michigan, 547 U.S. 586, 595
(2006) (risk of violence against officers); United States v. Knights, 534 U.S. 112, 120 (2001) (high risk
of recidivism); Florida v. J.L., 529 U.S. 266, 273 (2000) (“[T]he danger alleged in an anonymous tip
might be so great as to justify a search even without a showing of reliability.”); Maryland v. Wilson,
519 U.S. 408, 413 (1997) (risk of assault or death); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444,
451 (1990) (vast problem of drunk driving); Maryland v. Buie, 494 U.S. 325, 333 (1990) (high risk of
danger to officers when arresting in a home); New Jersey v. T.L.O., 469 U.S. 325, 339 (1985) (risk of
drugs and violent crime among school children).
124. Wilkinson v. Austin, 545 U.S. 209, 227 (2005).
125. Id.
126. Id. at 228.
127. J.L., 529 U.S. at 273–74.
128. See, e.g., Florence, 132 S. Ct. at 1519 (noting that inmates assault correctional staff more than
10,000 times each year); Chandler v. Miller, 520 U.S. 305, 319 (1997) (asserting that evidence of a real
problem “would [have] shore[d] up an assertion of special need”); Wilson, 519 U.S. at 413 (noting that
5762 officer assaults and eleven officer deaths in one year during traffic pursuits and traffic stops); id. at
416 (Stevens, J., dissenting) (attacking the majority’s rule because there is “not even a scintilla of
evidence of any potential risk” to officers, suggesting that with sufficient evidence he would have
supported the holding); Sitz, 496 U.S. at 451 (citing statistics of over 25,000 deaths, almost one million
injuries, and over $5 billion in property damage each year due to drunk driving); id. at 469–70
(Stevens, J., dissenting) (criticizing the holding because of a lack of data demonstrating that sobriety
checkpoints produced more arrests than conventional methods would have); Buie, 494 U.S. at 340
(Brennan, J., dissenting) (criticizing the Court for merely assuming that the danger of home ambushes
approaches that of “on-the-beat” street confrontations, suggesting that actual evidence may have
swayed his vote).
2013]
FOURTH AMENDMENT
25
occurred.”129 Indeed, Justice Scalia demonstrates that there are some instances
in which the Court requires a demonstration of the risk of violence. Though in
many cases, the Court relies on the government to estimate this risk without
serious consideration of any counterargument based on relevant data.
In fact, in some judicial determinations, courts make decisions not based on
relevant evidence and informed risk calculation but on gut instinct or something
else much less consistent.130 If judges considered the data on crime in a
particular context they would be able to base release decisions, for example, on
reality rather than on a hypothetical risk. The miscalculation of risk in the
Fourth Amendment context131 tracks similar overestimations of risk in other
areas.132 A reconsideration of whether (and how) to account for evidence is in
order along with a consideration of whether this leads to more fairness for
defendants. Although judges should certainly retain discretion in constitutional
decisions, blinding themselves to evidence and relying on hypotheticals may
not be necessary.
C. DISPARITIES BETWEEN DEFENDANTS
Fourth Amendment cases—including drug testing, suspicionless searches,
and highway checkpoint cases—all demonstrate the disparities between defendants created by balancing tests.
129. Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 683 (1989) (Scalia, J., dissenting)
(“[A]n instance, that is, in which the cause of bribe-taking, or of poor aim, or of unsympathetic law
enforcement, or of compromise of classified information, was drug use. Although the Court points out
that several employees have in the past been removed from the Service for accepting bribes and other
integrity violations, and that at least nine officers have died in the line of duty since 1974, there is no
indication whatever that these incidents were related to drug use by Service employees.” (citation
omitted)).
130. See 41 GEORGE E. DIX & JOHN M. SCHMOLESKY, CRIMINAL PRACTICE AND PROCEDURE § 21:29
(3d ed. 2012) (describing a case where a judge did not consider any facts or data but denied bail simply
because he felt like the defendant was a danger to the community, and the appeals court that frowned
upon the judge’s methodology but upheld his decision anyway).
131. See, e.g., Galen v. Cnty. of Los Angeles, 477 F.3d 652, 656 (9th Cir. 2007) (upholding increase
of bail in a case where a man was charged with domestic abuse where the evidence offered was that the
defendant lived in a “nice house” and presumed victim said she feared for her safety but gave no other
specifics); State v. Holler, 32 P.3d 679, 683–84 (Idaho 2001) (holding that an officer had reasonable
suspicion that the defendant was armed because there was a visible bulge in his left front pocket, he
was nervous and agitated when asked to remove his hands from his pockets, and the encounter
happened early in the morning when the defendant claimed he was looking for his lost dog); State v.
Collins, 847 P.2d 919, 922–24 (Wash. 1993) (en banc) (holding that an officer had reasonable suspicion
that the defendant was armed because the stop occurred at night, the officer knew the defendant had
been arrested for a felony two months earlier, and in the earlier arrest, the defendant had ammunition
and a holster but no weapon).
132. See, e.g., Wickard v. Filburn, 317 U.S. 111, 128–29 (1942) (holding that a man growing wheat
for personal consumption was subject to a constitutional regulation based on the hypothetical that if
everyone decided to grow their own wheat this would substantially affect the national economy, but
without considering that the nation’s workforce is specialized and most people would not grow their
own wheat if given the chance); Pearson v. Bridges, 544 S.E.2d 617, 620 (S.C. 2001) (using
hypothetical situations that had 30% or less chances of occurring, the jury awarded the full amount of
damages for each hypothetically needed medical treatment, including a liver transplant).
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A large proportion of individuals arrested in America test positive for
illegal substances,133 and drug use is often a consideration in criminal
cases.134 However, courts and police respond dissimilarly to drug crimes and
balancing of privacy rights in the drug context. Although it is recommended that
a large percentage of defendants receive drug treatment, some similarly situated
defendants receive a sentence when others receive treatment.135 Not only that,
but case law demonstrates that courts do not consistently balance individual
privacy rights when it comes to drug testing.
Since 1988, the Court has reviewed seven cases involving Fourth Amendment challenges to random drug testing.136 In the course of its decisions,
invocation of balancing has led the Court to different outcomes in substantially
similar scenarios.137 For example, in Chandler v. Miller, the Court struck down
a Georgia statute mandating drug tests for all state office candidates.138 The
statute’s requirements were relatively noninvasive, permitting drug testing with
private physicians and giving candidates complete control regarding the dissemination of the results.139 Due to the limited invasiveness, the Court focused on
the government’s interest.140 It explained that evidence of a real problem would
have strengthened the State’s case, but advancing a symbolic interest was an
insufficient government interest.141 And even though in similar cases the Court
133. See, e.g., OFFICE OF NAT’L DRUG CONTROL POLICY, EXEC. OFFICE OF THE PRESIDENT, THE NATIONAL
DRUG CONTROL STRATEGY: 1997, at 18 (1997) (noting that, for men arrested, the percentage testing
positive for drugs ranged from 51% to 83%, and for females arrested, it ranged from 41% to 84%);
Data Suggests Drug Treatment Can Lower US Crime, FOX NEWS (May 17, 2012), http://www.foxnews.
com/health/2012/05/17/data-suggests-drug-treatment-can-lower-us-crime/ (showing positive drug tests
ranging from 64% for men arrested in Atlanta to 81% for men arrested in Sacramento); Douglas A.
Smith & Christina Polsenburg, Specifying the Relationship Between Arrestee Drug Test Results and
Recidivism, 83 J. CRIM. L. & CRIMINOLOGY 364, 369 (1992) (analyzing data collected by the District of
Columbia’s Pretrial Services Agency and the National Institute of Justice’s Drug Use Forecasting
program showing that over 50% of arrestees tested positive for drugs).
134. In 2004, 18% of federal inmates and 17% of state inmates admitted to committing their crimes
to obtain drug money. TINA L. DORSEY & PRISCILLA MIDDLETON, U.S. DEP’T OF JUSTICE, DRUGS AND CRIME
FACTS 6 (2006), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/dcf.pdf. In 2007, 14,831 homicides
were known to be narcotics related. Id. at 7; see also John S. Goldkamp et al., Pretrial Drug Testing
and Defendant Risk, 81 J. CRIM. L. & CRIMINOLOGY 585, 588–89 (1990) (discussing various laws that
allow judges to take various criterion into consideration—sometimes including drug use—in bail and
pretrial release decisions). See generally Sarah French Russell, Rethinking Recidivist Enhancements:
The Role of Prior Drug Convictions in Federal Sentencing, 43 U.C. DAVIS L. REV. 1135 (2010)
(discussing sentence enhancements brought about by qualifying drug convictions under federal law).
135. OFFICE OF NAT’L DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE PRESIDENT, ARRESTEE DRUG
ABUSE MONITORING PROGRAM II: 2011 ANNUAL REPORT 2 (2012), http://www.whitehouse.gov/sites/default/
files/email-files/adam_ii_2011_annual_rpt_web_version_corrected.pdf.
136. Bd. of Educ. of Indep. Sch. Dist. No. 92. v. Earls, 536 U.S. 822 (2002); Ferguson v. City of
Charleston, 532 U.S. 67 (2001); Chandler v. Miller, 520 U.S. 305 (1997); Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646 (1995); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989); Skinner v.
Ry. Labor Execs. Ass’n, 489 U.S. 602 (1989).
137. Compare Chandler, 520 U.S. at 314, with Earls, 536 U.S. at 830.
138. 520 U.S. at 309.
139. Id. at 318.
140. Id. at 318–20.
141. Id. at 319, 322.
2013]
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approved drug tests for state employees in other states, the Court rejected this
particular drug test.
In contrast, in Board of Education of Independent School District No. 92 v.
Earls, the Court upheld suspicionless drug tests for high school students participating in extracurricular activities.142 Beginning with student privacy, the Court
reasoned that the scholastic setting implied a reduced expectation of privacy
because students were required to submit to controls that would be inappropriate for adults.143 The tests were relatively noninvasive: students were allowed to
produce their samples in stalls and the schools kept results confidential.144 Even
though there was no particularized evidence of a problem among students
involved in extracurricular activities,145 various incidents around the school and
generalized data convinced the Court that drug use was a serious problem.146
The Court concluded that drug tests were an effective means of preventing drug
use, and the State’s interest in doing so trumped any privacy concerns.147
In both cases, the privacy concerns were seen as relatively insignificant. In
both cases, there was no evidence suggesting that the targeted group suffered
from a particularized substance-abuse problem. However, in Chandler, the
Court’s balancing analysis led it to reject suspicionless drug tests, whereas its
balancing analysis in Earls produced the opposite conclusion. It is unclear why
deterring drug use in high school students tipped the scales against privacy,
while deterring drug use in state officers did not, particularly when governmentmandated drug tests have passed constitutional scrutiny in other contexts.148
This difference in treatment of similar drug tests illustrates the disparities
caused by Fourth Amendment balancing.
Highway checkpoints are another area of Fourth Amendment law where the
use of balancing has produced different outcomes for defendants in similar
situations. In City of Indianapolis v. Edmond, the Court held that suspicionless
narcotic interdiction checkpoints violate the Fourth Amendment.149 In so doing,
the Court categorically rejected checkpoints with the primary purpose of ferreting out “ordinary criminal wrongdoing.”150 Four years later, however, in Illinois
v. Lidster, the Court held that a checkpoint designed to elicit information
142. 536 U.S. at 825.
143. Id. at 830–31.
144. Id. at 832–33.
145. Id. at 835.
146. Id. at 834–35.
147. Id. at 837.
148. See, e.g., Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 674 (1989) (allowing U.S.
Customs Service to continue a program that required employees to provide a urine sample for drug
testing when they applied for a position where they would handle classified material); Skinner v. Ry.
Labor Execs. Ass’n, 489 U.S. 602, 633–34 (1989) (finding constitutional the Federal Railroad Administration’s regulations that require railroads to take blood and urine samples of covered employees after
certain accidents and permitting, but not requiring, railroads to take blood and urine samples of
employees who break certain safety rules).
149. 531 U.S. 32, 44 (2000).
150. Id. at 41–42.
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regarding a hit-and-run accident from the week before did not violate the Fourth
Amendment.151 The Court began by distinguishing Edmond, explaining that its
holding was limited to situations where police were searching for evidence of
wrongdoing by vehicle occupants.152 The Court then engaged in a balancing test
that weighed the government’s interest, the degree to which the checkpoint
advanced that interest, and the intrusion on individual liberty.153 Beginning with
the government’s interest, the Court argued that investigating a crime that resulted in a human death was quite important.154 Additionally, the time and place
of the checkpoint—about one week after the incident on the same highway at
the same time of night—significantly advanced that concern.155 Lastly, the stops
were minimally intrusive: stops of a few minutes and just a few seconds of
interaction with police.156
Although the Court justified its divergent holdings by restricting the broad
language of Edmond, it is hard to see how asking motorists about a recent crime
does not fall into the prohibition on checkpoints meant to uncover evidence of
criminal wrongdoing. The checkpoints were quite similar in terms of invasiveness. It seems the Court used its balancing analysis to free itself from its prior
holding, leaving the rights of motorists dependent on the particular balance
struck by the Court. The end result is disparity in balancing the privacy rights of
individuals and an inability to predict the principles guiding these decisions.
Balancing has created disparate results for similar defendants in vehicular
searches at the border as well. In United States v. Rivas, the Fifth Circuit held
that border patrol officers drilling a small hole into a trailer as part of a
suspicionless search violated the Fourth Amendment.157 The holding in the case
relied on a distinction between routine and nonroutine searches, the latter
requiring at least reasonable suspicion of wrongdoing.158 Six years later, the
Supreme Court eliminated this distinction in United States v. Flores-Montano,
in part by relying on a balance of private and government interests.159 One year
later, the Ninth Circuit in United States v. Chaudhry confronted the issue of
suspicionless exploratory drilling in a truck bed at the border.160 In reaching its
decision, the court focused on two factors: the damage inflicted on the vehicle
and the potential impairment of the vehicle’s safe operation.161 Weighing these
factors, the court concluded that a 5/16-inch hole did not cause sufficient
destruction nor undermine the vehicle’s safe operation enough to require suspi-
151.
152.
153.
154.
155.
156.
157.
158.
159.
160.
161.
540 U.S. 419, 428 (2004).
Id. at 423–24.
Id. at 427.
Id.
Id.
Id. at 427–28.
157 F.3d 364, 368 (5th Cir. 1998).
Id. at 367.
541 U.S. 149, 152–53, 155–56 (2004).
424 F.3d 1051, 1052 (9th Cir. 2005).
Id. at 1053.
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cion for the search.162
Before the Supreme Court introduced balancing into this area of the law, both
defendants would have prevailed in court. However, once the categorical rule
was eliminated in Flores-Montano, balancing allowed the court in Chaudhry to
come to the exact opposite conclusion even though the defendant was practically identical to the defendant in Rivas.
This section demonstrates that Fourth Amendment balancing allows government interests to supersede individual rights in most cases,163 which may lead to
an improper calculation of potential risks posed by a defendant and often allows
conflicting outcomes between similarly situated defendants. This unpredictability may violate the principle of legality—that policy matters should not be
left for judges to determine on an ad hoc and subjective basis—which is a core
principle of criminal law. The next section explores informed balancing as an
alternative approach that may mitigate these problems.
III. INFORMED BALANCING
It is important for judges to consider the individual rights of defendants. It is
even appropriate for judges to balance these rights with the rights of the public
and police to be safe. However, using common sense or judicial gut instinct
alone leads to disparity, often favoring the government, and allows for overestimation of risk. A balancing test may lead to some disparity and possibly
injustice, but the more objective information expected and used in the decision,
the less likely that the decision will be a blind one. That is, the broader the
information considered, the less likely it is that the test will fail to consider the
privacy and equal protection concerns of the wider portion of society not
represented in the courtroom.
Informed balancing involves a consideration of relevant data and clinical
expertise as well as a consideration of individual rights and societal welfare.
Because it considers more than just best practices, fundamental rights, and the
legal standards involved, it is not entirely evidence based.164 Also, informed
balancing retains a considerable judicial discretion because judges are not tied
to any mathematical formula.165 At the same time, parties are expected to
provide context for the decisions they ask judges to make. This Part will discuss
the new concept of informed balancing: the consideration of data, clinical
162. Id.
163. See supra note 76 and accompanying text.
164. See Rachlinski, supra note 105, at 901 (rejecting evidence-based decisions because “[l]aw’s
political nature does not render empirical testing of widely held myths a hopeless misadventure but
complicates the hope (and the value) of creating an evidence-based law”).
165. Susan R. Klein, Enhancing the Judicial Role in Criminal Plea and Sentence Bargaining,
84 TEX. L. REV. 2023, 2053 (2006) (“[M]oving substantive sentencing discretion from judges to prosecutors is unlikely to improve transparency or equality.”). See generally Marc L. Miller & Ronald F.
Wright, The Black Box, 94 IOWA L. REV. 125 (2008) (discussing the importance of internally regulating
prosecutorial discretion effectively).
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evidence, and best practices in making a judicial decision. Specifically, the next
two sections involve a discussion of how effectively the Supreme Court considers data in balancing the rights of individuals and what role this information
should play.
A. DATA ANALYSIS BY THE COURT
Although there is precedent to support the use of data and clinical expertise
by courts in constitutional cases, the Supreme Court has been reluctant to rely
on data systematically or have them replace common-sense judgments.
1. Data as Legislative Fact
Data analysis and expertise of various fields—sometimes called legislative
facts166—have played an important role in criminal cases.167 There is early
precedent for judges relying on scientific expertise and data.168 At least since
the early 1900s, social science data have been relevant to the Supreme Court.169
Modern criminal cases rely on data and evidence for decision making, though
often on the legislative and policy-making levels rather than on the judicial
level.170
Empirical data and social science studies have been called “legislative facts.”171
Legislative facts are those that help courts make decisions considering the law
and social policy.172 These facts include social studies, statistical data, and anecdotes that legislatures use when making law.173 They are used by courts to
consider the impact of prior and proposed laws to facilitate lawmaking through
judicial decisions. They also are considered when the court consults legislative
166. Kenneth Culp Davis, Judicial Notice, 55 COLUM. L. REV. 945, 952 (1955).
167. See, e.g., Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1519 (2012) (using statistics
regarding the high number of assaults on prison staff to support its reasoning); Maryland v. Shatzer, 559
U.S. 98, 108–09 (2010) (reasoning that allowing the Edwards presumption to continue would be
disastrous in light of data regarding the high frequency of recidivism); Maryland v. Craig, 497 U.S.
836, 855 (1990) (using the “growing body of academic literature documenting the psychological
trauma suffered by child abuse victims who must testify in court” to support the holding).
168. ARMAND CHARPENTIER, THE DREYFUS CASE 52–53 (J. Lewis May trans., 1935).
169. Donald G. Henry, On the Uses of Statistical Evidence in Litigation, 19 INT’L SOC’Y BARRISTERS
Q. 405, 405 (1984) (“The introduction of quantitative social science data into the judicial process dates
at least to the appearance of the first ‘Brandeis brief[]’ in 1908 . . . .”).
170. See, e.g., Media Advisory, Vera Institute of Justice, Delaware Governor Markell to Sign Justice
Reinvestment Act (S.B. 226) (Aug. 7, 2012), available at http://www.vera.org/news/delaware-governormarkell-sign-justice-reinvestment-act-sb-226 (reporting the passage of a Delaware act that focuses on
data analysis and risk assessments in pretrial release and recidivism in order to reduce costs and
improve public safety).
171. Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process,
55 HARV. L. REV. 364, 402–03 (1942) (stating that the facts that inform a judge’s legislative judgment,
such as social and economic data, can be called “legislative facts”); see also Davis, supra note 166,
at 952.
172. See Davis, supra note 166, at 952.
173. Cathy Cochran, Surfing the Web for a “Brandeis Brief”: The Internet and Judicial Use of
Legislative Facts, 70 TEX. B.J. 780, 781 (2007).
2013]
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history and the public-policy basis for legal rules.174 These facts are universal
and do not vary depending on the facts of the case.175 Adjudicative facts, in
contrast, are relevant to the specific facts of the case at hand that help the judge
determine how a case should come out.176
Empirical data and social-science studies may influence judges and help
them make more informed decisions.177 One advantage of data is that data are
arguably not troubled by human limitations of “perception, memory, bias, or
interest.”178 Other benefits of relying on social science may include insight
into considerations of social impact, the education of judges on the possible
consequences of their decisions, and the prospect for compliance with the
laws.179
Some argue that using legislative facts in judicial decisions will turn judging
into a legislative or administrative process and “will undermine the legitimacy
of the courts.”180 However, others explain that decisions in constitutional law
are not different from the decisions made in statutes and regulations, and thus
judicial decision making with constitutional issues is no different from legislative decision making.181 Recognizing this similarity, judicial decisions, like
legislative decisions, can also depend on empirical and policy considerations.182
On the other hand, there is certainly evidence of judges relying on studies
and other facts that bias them in the decision-making process.183 And indeed
courts have been criticized for focusing less on adjudicative facts than on larger,
more general problems,184 treating the court like a legislative committee,185
and introducing new doctrine to parties from the bench.186 However, with an
174. MCCORMICK’S HANDBOOK OF THE LAW OF EVIDENCE § 331, at 766–69 (Edward W. Cleary ed.,
2d ed. 1972).
175. Davis, supra note 166, at 952 (“Legislative facts are ordinarily general and do not concern the
immediate parties.”).
176. Id. (stating that adjudicative facts “are those to which the law is applied” in a court case).
177. Henry, supra note 169, at 406 (“At least one survey suggests that lawyers and judges in the
United States believe that judges and juries find scientific evidence to be more credible than other
evidence.”)
178. Id.
179. David M. O’Brien, The Seduction of the Judiciary: Social Science and the Courts, 64 JUDICATURE 8, 11 (1980).
180. Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 VAND. L. REV. 111,
121 (1988).
181. See, e.g., Levinson, supra note 8, at 938.
182. Id.
183. See Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and
the Flow of Information to the Justices: A Preliminary Inquiry, 61 VA. L. REV. 1187, 1225–26 (1975).
184. Id. at 1193 (noting that although the Court will not issue advisory opinions, it will go “far
beyond the facts of a case to attempt to settle cases not then before the Court”).
185. Id. at 1199–1208.
186. Id. at 1216. (“The Court has taken judicial notice of innumerable facts and factors, some which
are expressly referred to in the Court’s decision and some which are unknown to the parties but which
apparently were extricated from various sources by the Court’s diligent research, which facts nevertheless should be subject to refutation and counterevidence since they form the foundation for the Court’s
opinion.” (quoting Petition for Rehearing at 2–4, Doe v. Bolton, 410 U.S. 179 (1973)).
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expectation of considering relevant data and studies, courts may adopt a more
methodical approach to considering data, rather than using data only when the
data support their view on an issue.
Another concern with using scientific data is the potential problem of conflicting statistical evidence.187 This data cannot be tested,188 is not subject to the
rules of evidence, and its methodology is not subject to cross-examination.189
In addition, courts may misinterpret data, give the data certitude greater than
they merit,190 or twist data to support an outcomes they desire.191 Judges and
parties may also simply defer to social scientists, rather than basing arguments and decisions strictly on the law.192 Even if parties assist in gathering
data, some facts are not easily discovered through litigation and may require
more significant fact-finding.193
Overall, a concern is that courts may be institutionally ill-suited to appropriately use the information necessary to balance in constitutional cases. The next
section discusses how the Supreme Court fares with considering data.
2. Supreme Court Use of Data
In light—or in spite—of these potential issues with consideration of data,
courts, particularly in balancing, have overwhelmingly rejected the importance
of data and empirical studies in favor of “commonsense judgments.”194
The Supreme Court in particular often rejects consideration of data and
187. See, e.g., Henry, supra note 169, at 415 (arguing that data’s “complexity makes it incomprehensible to most participants in the trial process”); Lawrence B. Lindsey, Detecting Discrimination by the
Numbers, 14 ANN. REV. BANKING L. 177, 183 (1995) (“[W]hat will the judicial process do when
confronted with batteries of opposing statisticians and economists?”).
188. Miller & Barron, supra note 183, at 1211.
189. See id. at 1202, 1236.
190. See id. at 1212–13 (“The difficulty with Blackmun’s opinion [in Roe v. Wade] is that he states
conclusions about medicine with a certitude the data does not support.”).
191. John S. Irving, Jr., Carl L. Taylor & Barbara Childs Wallace, General “Empirical” Studies: Not
a Substitute for Proof in Individual NLRB Proceedings, 1981 U. ILL. L. REV. 99, 110 (1981) (“All of
these examples illustrate the Board’s obvious aversion to facts in its cases, and its search for devices to
assist it in avoiding these facts.”).
192. See id. at 109.
193. It is not suggested here that empirical data should be required in every standard criminal
procedure case, but if it became more of an expectation, parties would be more likely to cultivate this
kind of data. In some cases, significant fact-finding is required to produce necessary empirical data, like
in United States v. Defreitas, 701 F. Supp. 2d 297, 306 (E.D.N.Y. 2010), and In re Terrorist Bombings of
U.S. Embassies in East Africa, 552 F.3d 157, 172–73 (2d Cir. 2008).
194. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (“Thus, the determination of reasonable
suspicion must be based on commonsense judgments and inferences about human behavior.”); Smith v.
Illinois, 469 U.S. 91, 104 (1984) (“Common sense suggests that the police should both complete
reading petitioner his rights and then ask him to state clearly what he elects to do, even if he indicated a
tentative desire while he was being informed of his rights.”); Illinois v. Gates, 462 U.S. 213, 238 (1983)
(“The task of the issuing magistrate is simply to make a practical, common-sense decision . . . [based
on] all the circumstances set forth in the affidavit before him . . . .”); United States v. Cortez, 449 U.S.
411, 418 (1981) (“Long before the law of probabilities was articulated as such, practical people
formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers.”).
2013]
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instead relies on common sense. For instance, in Illinois v. Wardlow, the
Supreme Court determined that an officer had reasonable suspicion to stop an
individual in a high-crime area who fled from the police.195 In conducting this
analysis, the Court specifically said that in considering constitutional rights,
courts do not have to consider “available empirical studies dealing with inferences drawn from suspicious behavior” and that “we cannot reasonably demand
scientific certainty from judges or law enforcement officers where none exists.”196 Thus, the Court’s decision must be based on “commonsense judgments
and inferences about human behavior.”197 As such, the majority was satisfied
relying on the hypothetical or common-sense assessment that fleeing in a
high-crime area is suspicious, rather than on evidence that may exist on this
issue. The dissenters came to the opposite conclusion, countering that unprovoked flight is normal in a high-crime area.198 They relied on evidence supporting the reasonableness of flight in these areas due to crime concerns.199 If the
Court does not require “scientific certainty” that unprovoked flight can be
suspicious at times, the dissent said in response to the majority, then it should
not require scientific uncertainty to show that unprovoked flight can occur for
“innocent reasons.”200
Both sides of the Court in Wardlow seemed to acknowledge the potential
relevance of data; however, neither side was willing to abdicate “commonsense” in favor of scientific certainty. Wardlow does demonstrate that the
modern Court is confronted with data and sometimes applies them in constitutional analysis. And though scientific certainty should not be expected from
judges, using relevant data as a part of a constitutional balance allows an
analysis to be grounded in real issues rather than hypothetical concerns.
The use of data demonstrates that sometimes courts deny individual rights
based on threats that are marginal but persuasive to the court without a proper
consideration of data.201 The Court’s decision in Michigan Department of State
Police v. Sitz provides a useful example of an improper application of data.202
In evaluating the effectiveness of the state’s sobriety checkpoints, the Court
considered Michigan’s 1.6% success rate and concluded that it was sufficient to
justify the corresponding intrusion on individual privacy.203 In dissent, Justice
195. 528 U.S. at 124–25.
196. Id.
197. Id. at 125.
198. Id. at 132–33 (Stevens, J., dissenting).
199. Id. at 133–34.
200. Id. at 135.
201. But see Winston v. Lee, 470 U.S. 753, 765–66 (1985) (analyzing the evidentiary value of the
bullet in terms of its marginal probative effect in light of the considerable evidence already obtained).
Tribe criticizes the Court’s use of marginal analysis for permitting the Court to overturn longstanding
constitutional principles, arguing that because these decisions affect who we ought to be as a nation,
cost–benefit analysis and utility maximization are ill suited to the task. Tribe, supra note 25, at 611–14.
202. 496 U.S. 444, 447 (1990).
203. Id. at 454–55 (two arrests for drunken driving out of 126 stops).
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Stevens criticized the Court for failing to evaluate the program’s effectiveness,204 arguing that “the net effect of sobriety checkpoints on traffic safety is
infinitesimal and possibly negative.”205 He discussed a Maryland program
upon which Michigan’s was patterned, noting a success rate there of 0.3%
over several years, resulting in 143 arrests from 125 different checkpoints.206
He argued that, even assuming that the 143 arrests represented a net increase
in the number of drunken driving arrests annually, 143 arrests would be
insignificant compared to the 71,000 arrests made without checkpoints by
Michigan police in one year.207 More troubling for Stevens was that there was
no evidence to show that the number of drunken driving arrests would not have
been higher if police resources had been used in conventional methods.208
In fact, Maryland’s own studies questioned the effectiveness of their checkpoints in reducing fatal accidents.209 Justice Stevens’s use of empirical data
demonstrates that the failure of considering broader data that impacts the case at
hand may lead the Court to inappropriately evaluate the government’s interest.
Without a consideration of data on the effectiveness of checkpoints for reducing
drunken driving, it was impossible for the Court to appropriately balance
individual privacy interests and the government interest in highway safety.
This debate among the Justices over data continued recently in Florence v.
Board of Chosen Freeholders.210 Justice Breyer, considering the empirical
effectiveness of strip searches, pointed out that such searches only revealed one
instance of contraband in 23,000 suspicionless searches in a similar facility.211
These data, though not determinative, demonstrate that the importance of the
government interest may be less than what was initially perceived by the
204. Id. at 469 (Stevens, J., dissenting).
205. Id. at 460.
206. Id. at 461.
207. Id. at 461–62.
208. Id. at 469–70.
209. Id. at 462 (“Maryland had conducted a study comparing traffic statistics between a county
using checkpoints and a control county. The results of the study showed that alcohol-related accidents
in the checkpoint county decreased by ten percent, whereas the control county saw an eleven percent
decrease; and while fatal accidents in the control county fell from sixteen to three, fatal accidents in the
checkpoint county actually doubled from the prior year.”).
210. 132 S. Ct. 1510 (2012). The Court debated the use of data supporting the justification for strip
searches, and was concerned that requiring reasonable suspicion before effecting a search would
impose too great a burden on the administration of prisons and permit dangerous contraband to enter
correctional facilities. Id. at 1521–23 (2012).
211. Dissenting from that view, Justice Breyer launched an empirical assault. First, he highlighted a
study of a correctional facility in Orange County, New York, of 23,000 strip searches that showed that
the searches uncovered contraband in only 5 cases. Id. at 1528 (Breyer, J., dissenting). However, in four
of the incidents, there may have been reasonable suspicion, meaning that suspicionless searches
revealed only one instance of contraband in 23,000 searches. Id. Data from another facility showed that
out of 75,000 searches, there were 16 instances of contraband being found. Id. at 1528–29. However, 13
of those would have been detected with pat downs and outer-clothing searches, and the remaining 3
instances involved cases where there would have been reasonable suspicion to conduct the search. Id. at
1529. In effect, Breyer argued, there are no data to support the conclusion that requiring reasonable
suspicion would increase contraband smuggling. Id.
2013]
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Justices. In other words, common sense may lead one to believe that many
inmates try to smuggle contraband into jails, but data show that this is not
necessarily the case. This demonstrates that the consideration of data allows a
fuller understanding of the context in which constitutional rights operate with
the potential to expand protections of privacy rights for society.
Despite the importance of data in informed balancing, the Court is often
unpersuaded even by relevant data in its consideration of constitutional rights.
The Court’s decision in Maryland v. Wilson provides another example of this
difficulty.212 In holding that an officer may order passengers of a stopped
vehicle to exit, the Court placed great weight on data that showed 5,762 officer
assaults and 11 officer deaths occurring during traffic pursuits and stops in just
one year.213 In his dissent, Justice Stevens criticized the Court for giving weight
to these data.214 He began by pointing out that the data on which the Court
relied aggregated police injury and death from both pursuits and stops, even
though pursuit is a situation in which an officer would be unable to order a
passenger to exit.215 More problematic, the data did not show how many
assaults were caused by passengers.216 In addition, the data did not show how
many passenger assaults were caused from inside the car, nor did the data
suggest how many assaults could be avoided by ordering a passenger out.217
After assuming that passengers account for 25% of officer assaults, Justice
Stevens argued that the Court’s per se rule allowing officers to order passengers
out of a stopped vehicle would likely only provide some advantage in about one
out of 20,000 stops.218 Because police would likely have reasonable suspicion
to order passengers out in truly dangerous situations, Justice Stevens concluded
that this tiny benefit could not justify the intrusion it imposed on passengers.219
However, ultimately, the Court was not convinced by Justice Stevens’s analysis.
The Supreme Court is often willing to base decisions on assumptions that
lack supporting data, even when purportedly weighing the factors on both
sides.220 The Court frequently engages in balancing without any empirical support to back its reasoning.221 Justice Stevens criticized the Court in Montejo v.
212. 519 U.S. 408 (1997).
213. Id. at 413.
214. Id. at 416 (Stevens, J., dissenting).
215. Id. at 418 n.4.
216. Id. at 416.
217. Id. at 416–17.
218. Id. at 418.
219. Id. at 420.
220. Tribe attacks cost–benefit analysis as merely a front for the Court to make decisions based on
unstated principles. Tribe, supra note 25, at 608–09.
221. In forty-nine cases that have engaged in cost–benefit analysis since 1990, thirty-six did not rely
on data in the analysis. See Davis v. United States, 131 S. Ct. 2419 (2011); City of Ontario, California
v. Quon, 130 S. Ct. 2619 (2010); Berghuis v. Thompkins, 560 U.S. 370 (2010); Safford Unified Sch.
Dist. No. 1 v. Redding, 557 U.S. 364 (2009); Montejo v. Louisiana, 556 U.S. 778 (2009); Kansas v.
Ventris, 556 U.S. 586 (2009); Arizona v. Gant, 556 U.S. 332 (2009); Arizona v. Johnson, 555 U.S. 323
(2009); Pearson v. Callahan, 555 U.S. 223 (2009); Herring v. United States, 555 U.S. 135 (2009);
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Louisiana for assuming that an alternative ruling imposed high costs to government despite the fact that “several amici with interest in law enforcement have
conceded that the application of [the alternate rule] rarely impedes prosecution.”222 Likewise, in Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, Justice Breyer was troubled by the fact that the Court provided no
evidence to show that allowing individuals to refuse to disclose their identities
had interfered with law enforcement.223 And finally, in Illinois v. Wardlow, in
response to the Court’s complaints regarding the lack of empirical data to aid in
the interpretation of suspicious behavior,224 Justice Stevens provided statistics
on bystander victimization, police brutality of minorities, stop-to-arrest ratios,
racial bias, and minority motorist treatment that he argued should have guided
the Court.225 The rest of the Court was not persuaded by these data and has
displayed a tendency not to be persuaded by data, even if pertinent to the
decision at hand. While the Supreme Court has not systematically relied on data
or evidence in its decisions, the next section describes the potential benefits of
such information.
3. Additional Data May Matter
In some situations where judges balance, broader data could create more
informed decisions. More informed decisions reduce the risk of blind balancing
that is prevalent in Fourth Amendment cases. For instance, in Terry stop-andfrisk cases, police often frisk individuals based on the fact that they have
Boumediene v. Bush, 553 U.S. 723 (2008); Virginia v. Moore, 553 U.S. 164 (2008); Hudson v.
Michigan, 547 U.S. 586 (2006); Muehler v. Mena, 544 U.S. 93 (2005); United States v. Patane, 542
U.S. 630 (2004); Hiibel v. 6th Jud. Dist. Ct., 542 U.S. 177 (2004); Illinois v. Lidster, 540 U.S. 419
(2004); United States v. Arvizu, 534 U.S. 266 (2002); Atwater v. City of Lago Vista, 532 U.S. 318
(2001); Illinois v. McArthur, 531 U.S. 326 (2001); Florida v. J.L., 529 U.S. 266 (2000); Martinez v.
Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152 (2000); Wyoming v. Houghton, 526 U.S.
295 (1999); Knowles v. Iowa, 525 U.S. 113 (1998); Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357
(1998); Chandler v. Miller, 520 U.S. 305 (1997); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646
(1995); Schlup v. Delo, 513 U.S. 298 (1995); Brecht v. Abrahamson, 507 U.S. 619 (1993); Withrow v.
Williams, 507 U.S. 680 (1993); McCarthy v. Madigan, 503 U.S. 140 (1992); White v. Illinois, 502
U.S. 346 (1992); Coleman v. Thompson, 501 U.S. 722 (1991); Michigan v. Harvey, 494 U.S. 344
(1990); Maryland v. Buie, 494 U.S. 325 (1990); James v. Illinois, 493 U.S. 307 (1990). Only twelve, or
twenty-seven percent, relied on data. See Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1520
(prison-assault statistics); J.D.B. v. North Carolina, 131 S. Ct. 2394, 2402, 2407 (2011) (falseconfession statistics and child-development studies); Maryland v. Shatzer, 559 U.S. 98, 109 n.6 (2010)
(recidivism rates); Samson v. California, 547 U.S. 843, 844 (2006) (recidivism data); Georgia v.
Randolph, 547 U.S. 103, 126 (2006) (domestic-violence data); Wilkinson v. Austin, 545 U.S. 209,
213–14 (2005) (prison use statistics); United States v. Flores-Montano, 541 U.S. 149, 153–54 (2004)
(data regarding effectiveness of gas-tank searches); Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls,
536 U.S. 822, 834 n.5 (2002) (child drug-abuse statistics); McKune v. Lile, 536 U.S. 24, 32–33 (2002)
(sex-offender statistics); Maryland v. Wilson, 519 U.S. 408, 413 (1997) (officer injury and death
figures); Maryland v. Craig, 497 U.S. 836, 855 (1990) (child-development studies); Mich. Dep’t of
State Police v. Sitz, 496 U.S. 444, 451 (1990) (drunken-driving statistics).
222. Montejo, 556 U.S. at 807 n.3 (Stevens, J., dissenting).
223. Hiibel, 542 U.S. at 199 (Breyer, J., dissenting).
224. 528 U.S. 119, 124–25 (2000).
225. Id. at 131–33 nn.6–10 (Stevens, J., dissenting).
2013]
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allegedly committed a crime associated with carrying a weapon or are armed
and dangerous.226 In applying these standards, courts often hold that protective frisks are permissible to ensure officer safety when the officer has reasonable suspicion that the crime committed involved or is associated with a
weapon. In determining what is reasonable, however, many courts always
deem frisks “reasonable” when the nature of the crime “suggest[s] . . . the
presence” of a weapon.227 Crimes where frisks have been deemed reasonable,
regardless of circumstance, include burglary,228 drug crimes,229 bank fraud,230
226. See, e.g., United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005) (“Because weapons
and violence are frequently associated with drug transactions, it is reasonable for an officer to believe a
person may be armed and dangerous when the person is suspected of being involved in a drug
transaction.”); United States v. Johnson, 364 F.3d 1185, 1194–95 (10th Cir. 2004) (upholding a Terry
stop where the defendant was suspected of involvement with “drug dealing, kidnapping, or prostitution” which “are typically associated with some sort of weapon, often guns”); United States v. Sakyi,
160 F.3d 164, 169 (4th Cir. 1998) (“[I]n connection with a lawful traffic stop of an automobile, when
the officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence
of factors allaying his safety concerns, order the occupants out of the vehicle and pat them down briefly
for weapons to ensure the officer’s safety and the safety of others.”); State v. Ugalino, 111 P.3d 39, 49
(Haw. Ct. App. 2005) (justifying a Terry stop in part because “the officers knew that they were
executing warrants for serious drug offenses, that guns and the use of violence are often associated with
drug crimes, and that [the defendant] might have a desire to prevent his girlfriend’s arrest”); State v.
Johnson, 2007 WI 32, ¶¶ 40–41, 299 Wis.2d 675, N.W.2d 182 (considering that the defendant was not
suspected of a crime associated with weapons possession in its Terry analysis). But see, e.g., T.P. v.
State, 585 So. 2d 1020, 1022 (Fla. Dist. Ct. App. 1991) (“General ‘safety concerns’ of an officer
involved in an investigative stop will not justify the frisk of a citizen even where the suspected crime is
associated with weapons.”).
227. United States v. Barnett, 505 F.3d 637, 640 (7th Cir. 2007).
228. Id.; United States v. Moore, 817 F.2d 1105, 1108 (4th Cir. 1987) (holding that it was reasonable
for officer responding to burglar alarm to stop and frisk suspect).
229. See, e.g., United States v. Blackshear, No. 11-227, 2011 WL 5129952, at *7 (E.D. Pa. Oct. 28,
2011) (holding that officers’ “examination of the Jeep for safety reasons was justified” because they
“had reason to believe that Defendants were engaged in a narcotics transaction and that such transactions are frequently associated with guns”); United States v. Crippen, 627 F.3d 1056, 1063 (8th Cir.
2010) (concluding that a pat-down search was reasonable where the officer suspected the defendant
“was involved in a drug transaction”); United States v. Garcia, 459 F.3d 1059, 1064 (10th Cir. 2006)
(“[A]n individual’s involvement with drug transactions or distribution can support reasonable suspicion to frisk that individual for weapons.”); Bustos-Torres, 396 F.3d at 943 (“Because weapons and
violence are frequently associated with drug transactions, it is reasonable for an officer to believe a
person may be armed and dangerous when the person is suspected of being involved in a drug
transaction.”); United States v. Jacob, 377 F.3d 573, 579 (6th Cir. 2004) (holding that “officers who stop
a person who is ‘reasonably suspected of carrying drugs’ are entitled to rely on their experience and
training in concluding that weapons are frequently used in drug transactions”) (quoting United States v.
Heath, 259 F.3d 522, 530 (6th Cir. 2001)); United States v. $109,179 in U.S. Currency, 228 F.3d 1080,
1086 (9th Cir. 2000) (holding that “it was not unreasonable to believe that [the suspect] might be
armed”); United States v. Lopez, 441 F. App’x 910, 914–15 (3d Cir. 2011) (holding that “it was
reasonable for the officers to believe that the suspects may have been armed and dangerous” where the
defendants “conducted a car-switch transaction . . . which often involve[s] large amounts of drugs and
armed participants”); State v. Crooks, 244 P.3d 261, 266 (Idaho Ct. App. 2010) (“[T]he presence of
organized or ongoing drug dealing is a factor to be considered when determining whether a frisk was
lawful.”).
230. United States v. Edwards, 53 F.3d 616, 618 (3d Cir. 1995) (holding that a frisk was reasonable
where “fraud occurred at a bank in broad daylight” and therefore “the perpetrators might have armed
themselves to facilitate their escape if confronted”).
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aggravated assault,231 and car theft.232 In some of these crimes, data exist to
show how often a weapon is statistically used during the crime. For instance,
around 47% of robberies233 and 30.1% of burglaries involve a firearm or other
weapon;234 25% of drug trafficking crimes, 16% of drug possession crimes,235
around 74% of car thefts,236 and almost no fraud cases involve a weapon.237
Indeed, depending on the type of crime, the risk of a weapon being present may
dramatically differ—yet courts rarely if ever take this information into account,
often assuming that weapons are involved in all drug cases238 when typically
weapons are present in less than a quarter of such crimes. Thus, rather than
basing a determination of reasonableness of a search on the data supporting the
likelihood of the person having a weapon, courts rely on common sense, which
may prevent a more careful and potentially robust determination of Fourth
Amendment rights.
231. Trice v. United States, 849 A.2d 1002, 1005–06 (D.C. 2004) (holding that in a stabbing case,
where an “officer has a reasonable articulable suspicion of a crime of violence, or that the person
lawfully stopped may be armed and dangerous, then a limited frisk for weapons is . . . permissible and
may be ‘immediate and automatic’”) (quoting Terry v. Ohio, 392 U.S. 1, 33 (1968) (Harlan, J.,
concurring)).
232. United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007) (holding that because the driver
could not produce registration information and could not identify owner, the police officer had
reasonable suspicion that he had stolen the car and “car theft is a crime that often involves the use of
weapons and other instruments of assault that could jeopardize police officer safety, and thus justifie[d]
a protective frisk”).
233. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, WEAPON USE BY OFFENSE TYPE, http://bjs.gov/
index.cfm?ty⫽tp&tid⫽43 (last visited Sept. 12, 2012); FED. BUREAU OF INVESTIGATION, U.S. DEP’T OF
JUSTICE, CRIME IN THE UNITED STATES 2010, tbl.15 (2010), http://www.fbi.gov/about-us/cjis/ucr/crime-inthe-u.s/2010/crime-in-the-u.s.-2010/tables/10tbl15.xls; BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF
JUSTICE, CRIMINAL VICTIMIZATION, 2008 tbl.7 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/
cv08.pdf; F. Georgann Wing, Putting the Brakes on Carjacking or Accelerating It? The Anti Car Theft
Act of 1992, 28 U. RICH. L. REV. 385, 390 n.35 (1994) (“Firearms were used in 31 percent of all
murders, robberies and aggravated assaults in 1991.”).
234. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, VICTIMIZATION DURING HOUSEHOLD BURGLARY tbl.18, (2010), http://bjs.gov/index.cfm?ty⫽pbdetail&iid⫽2172.
235. U.S. SENTENCING COMM’N, OVERVIEW OF FEDERAL CRIMINAL CASES FISCAL YEAR 2010, at 7 (2012),
available at http://www.ussc.gov/Research_and_Statistics/Research_Publications/2012/FY10_Overview_
Federal_Criminal_Cases.pdf (noting weapon use “rang[es] from 27.6 percent of crack cocaine cases to
7.8 percent of marijuana cases” in federal court).
236. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CARJACKING, 1993–2002 at 1 (2004),
available at http://bjs.ojp.usdoj.gov/content/pub/pdf/c02.pdf; Michael E. Donahue et al., Accounting for
Carjackings: An Analysis of Police Records in a Southeastern City, 13 AM. J. POLICE 91, 101 (1994)
(reporting that in 1992, 69.1% of carjacking suspects in Savannah used weapons); Wing, supra note
233, at 390 n.35 (“In the majority of carjackings, handheld firearms are the weapons of choice.”
(quoting INTERSTATE THEFT PROGRAM, U.S. DEP’T OF JUSTICE, AN ANALYSIS OF CARJACKING IN THE UNITED
STATES 3 (1992)) (internal quotation marks omitted).
237. The FBI does not even gather statistics on weapon use in fraud cases.
238. See also New Jersey v. T.L.O., 469 U.S. 325, 352–53 (1984) (Blackmun, J., concurring)
(arguing that possession of weapons and drug use have become increasingly common in young
offenders); United States v. Wilson, 105 F.3d 219, 221 (5th Cir. 1997) (recognizing a connection
between the foreseeability of a weapon being present in a drug transaction and the amount of drugs
involved in the transaction and concluding that in a transaction over $5,000, it was foreseeable that a
weapon would be present).
2013]
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Furthermore, federal data indicate that only 3.4% of assaults on police
officers are performed with firearms.239 Courts generally have not required any
evidence to support the assertion that individuals charged with assault on a
police officer often carry weapons and indeed have claimed that the officers can
rely solely on their “experience and training” in concluding that weapons are
used in various crimes.240 Courts, by presuming reasonable suspicion based on
past crimes involving various degrees of weapon use, ignore the data completely. A more informed assessment of officer safety in Terry-frisk situations
and other cases in which an officer knows of the defendant’s previous crimes
includes a consideration of the percentage of such crimes involving a weapon
and information on police assaults with firearms.
The Supreme Court and other courts hesitate to rely on data and evidence in
balancing constitutional rights. Courts have often outright rejected the application of data or have applied data incorrectly. It is unclear, though, what role
this type of evidence should play in judicial determinations and whether the
Supreme Court’s rejection of data in many cases is appropriate. As such, the
next section explores the role of information in judicial decisions and how it
may mitigate the fundamental flaw of the Fourth Amendment—and bias in
favor of the government—that diminishes individual privacy rights.
B. INFORMED BALANCING
A fundamental problem in Fourth Amendment balancing is that judges know
whether the defendant had contraband before determining whether the search
was constitutional.241 This information has a tendency to sway courts in favor
of the government the majority of the time.242 To offset this natural bias in
Fourth Amendment decision making, courts must take the rights of innocent
members of society into account for a more informed balance. When judges
take a broader view of Fourth Amendment privacy rights, consider evidence of
potential racial targeting, or realize that Fourth Amendment searches may not be
reasonable given statistical information, they may be more likely to invalidate
the search. For instance, when a search is based on probable cause, maybe it is
unreasonable if the likelihood of the individual having a weapon is less than
1%.243 This broader view achieves the goal of improving societal welfare as a
whole, which is why balancing became an important judicial tool evaluating for
239. FEDERAL BUREAU OF INVESTIGATION, U.S. DEP’T OF JUSTICE, CRIME IN THE UNITED STATES, 2010
available at http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010.
240. See supra note 238.
241. See Loewy, supra note 7, at 1256.
242. See supra note 104 (discussing balancing coming out in favor of the government in most
cases).
243. Although probable cause is not usually tied to a statistical likelihood, most would agree that it
is requires a likelihood above 1%. Cf. Ronald J. Bacigal, Making the Right Gamble: The Odds on
Probable Cause, 74 MISS. L.J. 279, 282 (2004) (“Like the Supreme Court, semantic interpretation of
the term ‘probable’ seems comfortable only with placing the term somewhere between the range of a
1% to 100% likelihood.”).
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possible constitutional violations in the first place.244 The next two sections
discuss the role that information has played in Fourth Amendment decisions as
well as how it may mitigate the existing flaws through informed balancing.
1. The Role of Information
Without additional information on societal interests, a Fourth Amendment
balance places great emphasis on a defendant’s criminal wrongdoing. A core
problem with Fourth Amendment balancing is that without additional information, it is difficult for judges to determine what society’s expectations of privacy
are, and thus they either rely on common sense245 or defer to the executive
branch for those determinations.246 The central question in determining an
individual’s privacy rights is whether society would have an expectation of
privacy in a certain act or place.247 Judges usually rely on their own experience
and background in determining what is reasonable to expect in terms of privacy.
Without gathering additional facts and relevant experience or data, it is difficult
for courts to provide an informed opinion on an issue. This problem is evidenced in the Fourth Amendment cases where the Court deferred to prison
officials in determining whether strip searches were necessary,248 whether
prison procedures posed a threat to prison safety,249 and where courts deferred
to police on whether road checkpoints were necessary for police work.250
Judicial balancing aims to weigh individual rights against societal welfare.251
244. See supra section I.A.
245. See, e.g., Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 633 (1989) (holding that a railroad
could require its employees to take drug tests because such testing was “not an undue infringement on
the justifiable expectations of privacy”); New Jersey v. T.L.O., 469 U.S. 325, 341, 347–48 (1984)
(holding that a school’s search of a fourteen-year-old student’s purse was justified because it was
reasonable under the circumstances).
246. This phenomenon is partially described by Anthony O’Rourke, who claims that criminal
procedure decision making is a type of delegation and that judges may choose how much discretion to
give to law enforcement in deciding whether to make permissive or restrictive doctrinal rules. See
Anthony O’Rourke, Structural Overdelegation in Criminal Procedure, 103 J. CRIM. L. & CRIMINOLOGY
407 (2013).
247. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
248. Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1513–14 (2012) (“In addressing this
type of constitutional claim courts must defer to the judgment of correctional officials unless the record
contains substantial evidence showing their policies are an unnecessary or unjustified response to
problems of jail security.”).
249. Hudson v. Palmer, 468 U.S. 517, 530 (1984) (holding that a prisoner has no reasonable
expectation of privacy to protect his cell from searches conducted randomly as prison officials see fit).
250. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 453–54 (1990) (“[T]he choice among . . .
reasonable alternatives [for apprehending intoxicated drivers] remains with the governmental officials . . . including . . . police officers.”); United States v. William, 603 F.3d 66, 69–70 (1st Cir. 2010)
(“[W]hether and where to establish a stop is primarily a judgment for state or local officials.”);
Brouhard v. Lee, 125 F.3d 656, 660 (8th Cir. 1997) (“Choices between reasonable law enforcement
techniques are properly left to politically accountable officials, not the courts.”).
251. See Youngberg v. Romeo, 457 U.S. 307, 320 (1982) (“In determining whether a substantive
right protected by the Due Process Clause has been violated, it is necessary to balance ‘the liberty of the
individual’ and ‘the demands of an organized society.’” (quoting Poe v. Ullman, 367 U.S. 497, 542
(1961) (Harlan, J., dissenting)); see also supra section II.A.
2013]
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Many courts have asserted that, after considering the law, of course, common
sense is the best way to determine what these individual rights are.252 However,
with the increasing availability of data and scientific advances that provide
relevant information in deciding the relative importance of rights on both sides,
it may be time to consider additional outside data.253 It may never become the
goal to reach scientific certainty in judicial decisions, but it is unlikely that we
will approach that extreme anytime soon. Indeed, judicial balancing may benefit
from improved information. And parties may play an even more important role
in educating courts with pertinent evidence and data supporting the issues they
litigate. With increased information providing judges improved perspective,
litigants are not left to trust the whims of common sense. If a court is expected
to consider reliable information in addition to common sense, the quality of this
information may also improve, which could improve rights of defendants.
Even if a court acknowledges the importance of data analysis in its decisions,
it is unclear in what circumstances it will be relevant and whether a court can
even be compelled to consider it. So we must ask whether there are any
constitutional implications of considering public data with respect to the application of constitutional law to an individual. For instance, an officer is permitted
to stop and frisk an individual on the street if the officer reasonably believes that
the individual is armed and dangerous.254 This low standard of scrutiny under
the Fourth Amendment is justified due to concerns for officer safety.255 To
determine whether a frisk is proper, a court can rely on testimony from the
government and defendant about the particular circumstances in a given stop.
An officer can testify that she was in a high-crime neighborhood and that the
defendant appeared to have a weapon in his backpack. The defendant can testify
that he was on his way home from school with friends and made no threatening
motions towards anyone. What if there was evidence, though, that police in this
jurisdiction performed an excessive number of stop-and-frisks on young people?
And in only 1% of stop-and-frisks in this particular locale was a defendant
armed?256 What if 80% of these stop-and-frisks were targeted at minority
252. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000) (“[C]ourts do not have available
empirical studies dealing with inferences drawn from suspicious behavior, and this Court cannot
reasonably demand scientific certainty [from judges or law enforcement officers] where none exists.
Thus, the reasonable suspicion determination must be based on commonsense judgments and inferences
about human behavior.”); Miranda v. Arizona, 384 U.S. 436, 503 (1966) (noting that, in evaluating the
rules of custodial interrogation, courts use a totality of the circumstances test which the Supreme Court
has “for so long recognized as a justifiable and proper tool in balancing individual rights against the
rights of society”).
253. See Allison Orr Larsen, Confronting Supreme Court Fact Finding, 98 VA. L. REV. 1255,
1258–59 (2012) (discussing the increasing reliance of courts on information outside of the record,
including legislative facts).
254. Terry v. Ohio, 392 U.S. 1, 26 (1968).
255. Id. at 30–31.
256. These facts are not far from a recently litigated case, Floyd v. City of New York, 282 F.R.D.
153, 168 (S.D.N.Y. 2012), detailing that only one person in sixty-nine stops conducted by NYPD
between 2004 and 2009 actually had possession of a gun.
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defendants, even where the population was predominantly white?257 Should
these questions be relevant in this constitutional consideration? And if data on
these issues exist, should a court be compelled to consider them in determining
whether the Fourth Amendment was violated? These questions are at the heart
of determining what factors a judicial balance should include.258
With informed balancing, considering information about the big picture of
stop-and-frisk would be relevant in examining the government’s interest in
officer safety. A claim of officer safety in frisking a young black male walking
home from school would be placed in perspective when the court considers the
volume of such frisks, how seldom weapons are found, and the fact that an
overwhelming number are targeted at minorities. Yet, courts are willing to
ignore such informative data in favor of a judge’s gut sense of a case or officers’
testimony about anecdotal experiences in particular neighborhoods. Under an
informed balancing regime, police would be less likely to relay these anecdotes
because law enforcement would soon realize that judges no longer give anecodetal information the same weight as clinical evidence, statistical data, and best
practices. This is not to say that outside information has no place in constitutional decisions today. However, currently, anecdotal information and judicial
common sense are given priority over clinical evidence, statistical data, and best
practices.
Most Fourth Amendment cases balance the need for effective law enforcement against an individual’s reasonable expectation of privacy. In fact, this
concern dominates Fourth Amendment balancing cases, appearing in more than
half of the cases, and often tips the balance in favor of the government.259
Another large portion of cases focuses on the need for public and officer safety.
Effective law enforcement practices as well as public and officer safety risks are
matters that are easily measured with data.260 In fact, many police stations in the
country have moved to a model of evidence-based policing and track most of
their actions—including searches, crimes reported and apprehended—and other
257. See, e.g., Report of Jeffrey Fagan at 120, Floyd v. City of New York, 739 F. Supp. 2d 376
(S.D.N.Y. 2010) (No. 08 Civ. 01034) (finding that in New York City, over 51.52% of suspects stopped
between 2004 and 2009 were black, and only slightly more than 10% were white).
258. See Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment,
74 N.Y.U. L. REV. 956, 960 (1999) (discussing the racial implications of stops); Benjamin Weiser, A
Judge’s Education, a Sentence at a Time, N.Y. TIMES (Oct. 7, 2011), http://www.nytimes.com/2011/10/09/
nyregion/judge-denny-chin-of-federal-court-discusses-sentencing.html?pagewanted⫽all (interviewing
then federal District Court Judge Chin who said that “weighing conflicting concerns and interests” was
something judges “have to do all the time,” by doing “what [they] think is best for the defendant [and]
for society”).
259. See supra note 77.
260. See ROBERT C. DAVIS, RAND CTR. ON QUALITY POLICING, SELECTED INTERNATIONAL BEST PRACTICES IN POLICE PERFORMANCE MEASUREMENT 13 (2012), available at http://www.rand.org/content/dam/rand/
pubs/technical_reports/2012/RAND_TR1153.pdf (arguing that modern technological advances now
enable police departments to release performance data which may have previously been cost prohibitive).
2013]
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safety risks to the public.261 Certainly, officer safety is critical to Fourth
Amendment considerations, but the only way to perform a proper balance in
these cases is with an accurate picture of the interests of the government, which can only be provided by a review of evidence in each case.
Otherwise, common sense dictates that government interests, particularly officer
safety, will always outweigh an individual’s right to privacy.
Informed balancing will not necessarily alter the government’s winning
percentage in Fourth Amendment cases; the government may continue to win
80% of the time and defendants 20%. Indeed, I make no normative statement on
the proper calibration of this scale. The important thing is that the process that
courts use is based on evidence, not speculation or common sense. Without
evidence to put safety concerns into proper perspective, courts will be unable to
make fair determinations in these cases. The next section takes a closer look at
creating a more informed Fourth Amendment model that relies less on common
sense and more on data.
2. An Informed Balance
Informed balancing involves relying on the best available data and a consideration of costs in making individual decisions in legal cases. It is parallel to
evidence-based practice that is the norm in other fields, such as medicine and
business, but adds the additional public-policy considerations relevant to analyzing the law.262 Although evidence-based practice currently dominates medicine,263 historically there was resistance to it because doctors did not want to
261. LAWRENCE W. SHERMAN, POLICE FOUND., IDEAS IN AMERICAN POLICING: EVIDENCE-BASED POLICING
4–5 (1998), available at http://www.policefoundation.org/sites/pftest1.drupalgardens.com/files/
Sherman%20%281998%29%20-%20Evidence-Based%20Policing.pdf (explaining that evidence-based
policing includes data-intensive performance tracking to feed results back to researchers who then
further refine policing guidelines); Jim Bueermann, Being Smart on Crime With Evidence-Based
Policing, 269 NAT’L INST. JUST. J. 12, 14 (2012), available at https://www.ncjrs.gov/pdffiles1/nij/
237723.pdf (listing a number of police stations that have incorporated evidence-based policing techniques).
262. See Rachlinski, supra note 105, at 922 (arguing that medicine and business have similar
challenges and goals as law but that cultural commitments like the public policy issues of the death
penalty and tort reform “have a much more superficial influence on these fields,” whereas public policy
has more influence on the empirical analysis of law because law “is a form of politics” and “is really
about governing society”).
263. See Gordan Guyatt et al., Evidence-Based Medicine: A New Approach to Teaching the Practice
of Medicine, 268 JAMA 2420, 2421, 2423 (1992) (noting that a profusion of published articles,
textbooks, and seminars describing methodological advances in clinical practice is a manifestation of a
new paradigm shift in medical practice called evidence-based medicine, which recognizes the limitations of relying on “intuition, experience, and understanding” in making strong inferences in clinical
practice); see also David M. Eddy, Evidence-Based Medicine: A Unified Approach, 24 HEALTH AFF. 9, 9
(2005) (explaining that evidence-based medicine has “spread through medicine with amazing speed”
and that “[t]he pace speaks to the attraction and fundamental soundness of the core idea: that what
happens to patients should be based, to the greatest extent possible, on evidence”); Gordan Guyatt et
al., Evidence Based Medicine Has Come a Long Way, 329 BRIT. MED. J. 990, 990 (2004) (outlining that
a decade after the introduction of the term “evidence-based medicine” and the first comprehensive
description of its tenets in the early 1990s, the “principles of evidence based medicine have become
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lose their discretion and ability to use common sense.264 There is similar
resistance in the legal world to relying more on data than intuition. To gain
perspective on how judicial decisions are made versus medical ones, an example is appropriate. If a man is charged with drug possession, he will be
brought before a judge. The judge may simply look at the crime with which he
is charged and determine, based on that crime, whether he should be released or
detained before his trial. In some jurisdictions where resources allow, the judge
will conduct a risk assessment that will also consider family history, ties to the
community, whether the individual has a job or a family, and other factors
relevant to the decision whether to release the man. But generally the judge will
ask the primary question: Is this person safe to release to the public? And the
answer will be based on unknown factors and will vary by the judge. Some
judges will rely on their own experience of what has worked with defendants in
the past, whereas some judges rely on common sense.265 A few may be familiar
with the empirical studies nationally, or the norm in their jurisdiction, and
consider these in their decision. Many will not consider the age of the defendant, even though this information has been shown to be extremely predictive of
whether the defendant is likely to fail to appear or commit another crime while
released before trial.266 Even fewer consider the costs to the county or city of
detaining this individual,267 the costs to society of such an individual’s loss of
income,268 or future collateral consequences.269 This balance leads to disparate
core concepts of . . . medical education”); Terrence Shaneyfelt et al., Instruments for Evaluating
Education in Evidence-Based Practice: A Systematic Review, 296 JAMA 1116, 1116 (2006) (explaining
that since the introduction of evidence-based medicine “professional organizations have called for
increased training in evidence-based practice (EBP) for all health care professions and at all levels of
education”).
264. For examples of critiques of evidence-based practice in medicine, see Romana Hasnain-Wynia,
Is Evidence-Based Medicine Patient-Centered and Is Patient-Centered Care Evidence-Based?, 41 HEALTH
SERVICES RES. 1, 3 (2006) (explaining that detractors of evidence-based medicine “charge that it
discourages individualized patient care and instead promotes a ‘cookbook’ approach to medicine . . .
that may not represent each individual patient”); Gary Taubes, Looking for the Evidence in Medicine,
272 SCI. 22, 22 (1996) (quoting doctors critical of evidence-based medicine saying that “medicine can’t
always be done by cookbook” and that “[g]ood clinical practice will involve some elements of
inference and judgment leavened by experience”); Stefan Timmermans & Aaron Mauck, The Promises
and Pitfalls of Evidence-Based Medicine, 24 HEALTH AFF. 18, 21 (2005) (noting that a major criticism of
evidence-based medicine is that it encourages practitioners to “follow protocols that treat all patients as
essentially interchangeable,” instead of using the “craft” or “art” of individual expertise and judgment
for each patient) (internal quotation marks omitted).
265. See, e.g., Illinois v. Gates, 462 U.S. 213, 230 (1983) (discussing the decision before a
magistrate in determining whether there is a probable cause that a crime will occur as a “commonsense,
practical question”).
266. See generally Shima Baradaran & Frank L. McIntyre, Predicting Violence, 90 TEX. L. REV. 497
(2012).
267. See Rucker Johnson & Steven Raphael, How Much Crime Reduction Does the Marginal
Prisoner Buy?, 55 J.L. & ECON. 275, 277 (2012) (analyzing the effect that incarceration has on crime
rates, and finding that “recent increases in incarceration rates have generated much less value for
investment in terms of crime rate reduction”).
268. See Shima Baradaran, The Costs of Pretrial Detention 14, tbl.3 (unpublished manuscript) (on
file with author).
2013]
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release choices by judges all over the country.
Now compare an emergency medical doctor who admits a drug patient who
has overdosed on heroin. In deciding how to treat the patient, the medical
literature seems to indicate that the doctor should follow a treatment plan based
on the evidence, which in this case currently shows that treatment with naloxone is the best course.270 Doctors rely on evidence that includes patients of all
ages, genders, and races and that shows the treatment outcome that is best for
all of those individuals. Although a doctor can and certainly should examine the
particular patient and create a custom treatment plan for the individual, relying
on her experience with such cases, she is also required to consider the relevant
information on this issue, established by scientific study and data. Doctors are
not permitted, when there is clear evidence to the contrary for most individuals,
to follow their own course with a particular patient based on common sense or a
gut feeling. It seems silly to discuss granting this sort of discretion to doctors in
treating medical emergencies, but we grant this type of discretion to every judge
in the country in determining the fate of criminal defendants in pretrial release,
sentencing, and constitutional balancing of rights. Judges are not held to a
standard that requires consideration of the best evidence on the particular issue
with which they are confronted. Granted, judges are generalists and not experts
in a particular field like doctors;271 however, it is still possible to further guide
them in their decisions by outlining accurately the risks and considerations to
make based on broader evidence about groups of defendants.
The burden of obtaining evidence to support government interests will fall on
the government, starting with police. Police must collect evidence (as they
typically do) to justify intrusions on the privacy of citizens. Both parties and
269. See Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass
Conviction, 160 U. PA. L. REV. 1789, 1790, 1792 (2012) (explaining that civil death refers to the old
practice of extinguishing the civil rights of a person convicted of a crime and warning that today,
persons convicted of crimes suffer substantial and permanent changes in legal status via collateral
consequences including disenfranchisement, deportation for noncitizens, criminal registration and
community notification requirements, and legal prohibitions to participate in certain societal activities);
Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and
Dignity, 85 N.Y.U. L. REV. 457, 461 (2010) (identifying three factors currently exacerbating the
collateral consequences of conviction problems: (1) an increase in the number of collateral consequences, (2) the record number of individuals being released from incarceration, and (3) collateral
consequences that hinder reentry and result in recidivism); see also Margaret Colgate Love, Starting
Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 FORDHAM URB.
L.J. 1705, 1718–19, 1727–28 (2003) (discussing ways in which collateral consequences of conviction,
such as losing voting rights, are handled federally and in the various states).
270. See Gary M. Vilke et al., Are Heroin Overdose Deaths Related to Patient Release after
Prehospital Treatment with Naloxone?, 3 PREHOSPITAL EMERGENCY CARE 183, 183 (1999) (“Naloxone is
frequently used by prehospital care providers to treat suspected heroin and opiod overdoses.”);
David A. Wampler et al., No Deaths Associated with Patient Refusal of Transport After NaloxoneReversed Opioid Overdose, 15 PREHOSPITAL EMERGENCY CARE 320, 320–21 (2011) (explaining that
naloxone is a pure opioid antagonist used for direct reversal of the effect of opioid overdose).
271. See MATTHEW D. ADLER & ERIC A. POSNER, NEW FOUNDATIONS OF COST–BENEFIT ANALYSIS 1
(2006) (noting that judges historically, as they are now, were generalists that depended on expert
testimony and that the judicial system was decentralized).
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judges have an obligation and interest in relying on these data under an
informed balancing model. Courts may not have been institutionally well-suited
to gather the necessary evidence (though evidence demonstrates that they are
now much better suited with internet advances),272 but they can expect broader
data from parties. For instance, courts may allow frisks of individuals with
particular characteristics—who are, for example, looking shifty, sweating, and
wearing black leather gloves—because common sense says that these individuals may have committed or are about to commit a crime. However, if that
happens in only one in a million cases, these frisks would probably be unreasonable. But the court has only its discretion unless parties provide this broader
information to inform the balance.273 Armed with this broader information,
judges do not lose their discretion, but as evidence-based decision makers
instead of common-sense decision makers, they are held to a more objective
standard. A more informed balance by judges may not rid judges of any
cognitive biases that they may hold,274 but studies show that informing judges
with relevant information and data may change outcomes in certain cases.275 At
the very least, it should make them more accountable to explain the evidence
with which they are confronted and ultimately less likely to settle on cases
based on speculation or common sense. Thus, informed balancing has the
potential to improve the information on both sides and possibly create an
expectation that judges rely less on common sense or hypotheticals in determining constitutional rights, which in turn will increase the predictability of how
balancing tests will come out.
Aside from the judges’ lack of expertise, there may be other other reasons to
hesitate in considering evidence and costs in determining individual constitutional rights. The next section discusses the main critiques of informed balancing.
272. Larsen, supra note 253, at 1262 (“[I]n the last decade or so, questions of legislative fact are
being researched ‘in house’—that is without reliance on the parties or amici—at an astonishing rate.
While surely some in-house research by the Justices and their staff has always occurred, the Internet
makes it easier, faster, and more convenient.”).
273. This presupposes that such evidence exists in such cases, and of course in some Fourth
Amendment cases there may not be any such relevant evidence. The evidence presented by each of the
parties may be biased, but if both parties present data, a more accurate picture should prevail.
274. See Dan M. Kahan, “Ideology in” or “Cultural Cognition of”Judging: What Difference Does
It Make?, 92 MARQ. L. REV. 413, 420 (2009); Dan M. Kahan, The Cognitively Illiberal State, 60 STAN.
L. REV. 115, 116–17 (2007).
275. See Lisa G. Aspinwall et al., The Double-Edged Sword: Does Biomechanism Increase or
Decrease Judges’ Sentencing of Psychopaths?, 337 SCI. 846, 846–49 (2012) (examining the impact and
influence biomechanism of a psychopath has on judges’ perception and sentencing of an accused
suspect and presenting results that suggest that judges were inclined to view the characteristics of the
psychopath biomechanism provided as mitigating and not aggravating factors in terms of liability for
the crime, but where a suspect’s biomechanism was viewed as a mitigating factor, judges reduced the
suspect’s criminal liability and consequently reduced the sanctions imposed on the suspect).
2013]
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C. CRITIQUES OF INFORMED BALANCING
If informed balancing is a viable approach to judicial decision making, three
significant critiques must be addressed. First, and most importantly, a judge’s
role is not to consider public policy, and it is imprudent and possibly immoral
for judges to consider costs and evidence as they are ill equipped to make such
determinations. Second, informed balancing may not appropriately evaluate risk
any better than ordinary balancing does; nor would it be any better at preventing
crime. Finally, judges lack skill in considering specialized information, so
considering it may infuse bias into their decisions.
1. Judicial Role and Morality
One important obstacle to judges considering outside information in determining rights is that a judge’s role is to decide discrete, individual cases, not to
make public policy.276 Indeed, the argument is that judges should consider a
petitioner’s claims separate from others or from the concerns of broader society,
as it is the legislature’s prerogative to make public policy. However, assuming
that decisions about constitutional rights, sentencing, and release are based
solely on an individual’s case, without reference to others, is false.277 Indeed,
the focus on constitutional protection in the criminal arena nominally has been
on individual punishment or individual welfare (of the victim), but in actuality
it is on overall societal welfare. As demonstrated above, the realities of decision
making today include balancing of society’s rights. For instance, in constitutional rights,278 sentencing,279 and other determinations,280 courts often consider
the impact on public safety and government legitimacy and consider other
community factors and expectations in making decisions.281 However, not
276. Republican Party of Minn. v. White, 536 U.S. 765, 803–04 (2002) (Ginsberg, J., dissenting)
(“Unlike their counterparts in the political branches, judges are expected to refrain from catering to
particular constituencies or committing themselves on controversial issues in advance of adversarial
presentation. Their mission is to decide ‘individual cases and controversies’ on individual records.”);
Melcher v. Fed. Open Mkt. Comm., 644 F. Supp. 510, 513 (D.D.C. 1986) (“The courts’ role in the
constitutional scheme consists of deciding highly particularized disputes between individual litigants
and avoiding broad public policy determinations that are more appropriately made by the political
branches.”).
277. See, e.g., Michigan v. Tucker, 417 U.S. 433, 450 (1974) (considering “society’s interest in the
effective prosecution of criminals in light of” the constitutional rights of defendants in deciding whether
to exclude witness testimony).
278. Pell v. Procunier, 417 U.S. 817, 823 (1974) (discussing penal objectives of rehabilitation within
correctional facilities and internal security of the facilities in light of the constitutional rights of the
inmates within the facilities).
279. See, e.g., Gall v. United States, 552 U.S. 38, 57 (2007) (considering whether defendant will
be a danger to society in determining sentencing); Skipper v. South Carolina, 476 U.S. 1, 5 (1986)
(considering future danger to the community as a factor in sentencing).
280. See, e.g., Spaziano v. Florida, 468 U.S. 447, 486–88 (1984) (discussing the importance of
determining community values in a jury determining guilt).
281. See, e.g., United States v. Salerno, 481 U.S. 739, 755 (1987) (allowing detention pretrial where
arrestees are deemed to “pose a threat to the safety of individuals or to the community which no
condition of release can dispel”).
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acknowledging what courts are actually doing has led to a focus on societal
welfare without a consideration of a full panoply of information and to less
informed judicial decisions. Judges often consider the individual situation, and
then consider the impact of a potential ruling from the current case on future
cases, by relying on common sense or speculation and not by considering all of
the relevant data involved. By considering the factors with fuller information,
including potential costs and the best evidence available, courts will be able to
more accurately measure and reflect societal welfare in their decisions.282
Of course, some policies that substantially advance fairness and equality
would unambiguously fail a cost–benefit analysis and fail to garner adequate
evidence, but that does not mean these goals are unworthy of society’s attention. Indeed, this methodology, according to critics, may exclude abstract values
like fairness and equality and may attempt to quantify concepts that cannot
morally be valued, human life being the most prominent example.283 The result,
according to some critics, creates an implicit bias towards conservative and
libertarian policy preferences,284 ignoring unquantifiable values like liberty and
equality.285 However, conducting an analysis of costs and evidence does not
tie the hands of judges, who must still consider constitutional rights and take
fairness into account to justify policies that may not necessarily offer the
greatest net benefit.286
Although the official judicial role is to consider individual rights alone,
balancing in most cases involves a broader consideration of societal welfare.
282. A similar critique is that it is not morally appropriate to consider costs when determining the
fate of an individual defendant. Critics in other contexts have charged that considering costs excludes
abstract values from consideration that, although difficult to quantify, are of fundamental importance to
organizing a just society. Adler and Posner name a few choices, including that cost–benefit analysis
“discounts important values” such as the “claims of poor people and future generations” and that it
“neglects concerns about rights.” ADLER & POSNER, supra note 271, at 4. However, there may not be
much of a difference between balancing costs and benefits of a certain decision with or without
monetary value. See LISA HEINZERLING & FRANK ACKERMAN, PRICELESS: ON KNOWING THE PRICE OF
EVERYTHING AND THE VALUE OF NOTHING 165–66 (2004). Essentially, when the government makes
decisions targeted at meeting the general welfare of society, it is considering its duty to “maximize
overall welfare,” asking which procedure or policy best considers the benefits and costs paid by society
and whether this particular decision is worth the losses that may have to be paid. See ADLER & POSNER,
supra note 271, at 101. Considering dollar amounts next to costs, and numbers next to evidence, may
just be a more precise way of considering these relative values.
283. See JACK M. BEERMAN, INSIDE ADMINISTRATIVE LAW: WHAT MATTERS AND WHY 167 (2011); CASS
SUNSTEIN, RISK AND REASON 124–26 (2002) (stating that the cost of a regulation that will save lives is not
limited to the monetary costs borne by corporations but also the potential harmful conseqences borne
by others like consumers, workers, or the unemployed).
284. Broadly speaking, liberal policymakers tend to focus on fairness and equality whereas conservative/libertarian policymakers focus on economic efficiency. See JONATHAN HAIDT, THE RIGHTEOUS MIND:
WHY GOOD PEOPLE ARE DIVIDED BY POLITICS AND RELIGION 169 (2012) (arguing that liberals relate
fairness to equality whereas conservatives identify fairness with economic proportionality).
285. Shepley W. Orr, Values, Preferences, and the Citizen–Consumer Distinction in Cost–Benefit
Analysis, 6 POL. PHIL. & ECON. 107, 115 (2007) (contending that cost analyses seek “efficient outcomes
[that] may be unjust or morally undesirable”).
286. SUNSTEIN, supra note 283, at 121–23, 125–26.
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Thus, considering costs and evidence in judicial determinations does not violate
the prescribed role of judges but only provides potential help for judges to make
more informed decisions that consider how society is affected, while still
protecting valuable individual rights.
2. Evaluating Risk and Preventing Crime
Another obstacle to judges considering outside data and information is that
this informed balancing might not appropriately evaluate the risk any better
than the traditional balancing and might not be better at preventing crime.
Despite this critique, it is highly probable that informed balancing can help
overcome inappropriate evaluations of risk that occur in judicial decisions.287
Put simply, people tend to overestimate the risk posed by a crime or recent
event.288 Highly publicized events are likely to lead to individuals perceiving
great risk for something that is actually low risk.289 And judges, who even if
unelected are subject to public opinion, are not immune from the overwhelming influence of public fear. This type of overestimation has crept into
pretrial detention decisions, searches and seizures, Terry stops,290 and other
criminal procedure areas particularly in the wake of a defendant being charged
with a highly publicized crime.291 And indeed, balancing is very susceptible to
287. Id. at 6–7.
288. Id.
289. Id. at 6–7, 78–79.
290. See Report of Jeffrey Fagan at 52–55, 63, Floyd v. City of New York, 739 F. Supp. 2d 376
(S.D.N.Y. 2010) (No. 08 Civ. 01034) (concluding that a study of New York City stop-and-frisk methods
that revealed that at least 31% of all Terry stops were either facially unconstitutional or were lacking
sufficient information regarding the stop to make a complete determination of the constitutionality of
the stop “challenge[s] the viability of the current regulatory regime for assessing the presence of
reasonable and articulable suspicion in a pedestrian stop” and that the high use of “furtive movements”
and “high-crime area” by police officers in justifying the legality of stops “raises doubts about whether
stops based on these factors are valid markers of [reasonable and articulable suspicion]”); id. at 63
(presenting data from New York between 2004 and 2009 that showed police seized guns in only 0.15%
of all stops, general weapons in only 0.94% of all stops, and contraband—such as drugs or stolen
property—in only 1.75% of stops).
291. See SUNSTEIN, supra note 283, at 6–7, 78–79; Andrew E. Taslitz, Racial Profiling, Terrorism,
and Time, 109 PENN ST. L. REV. 1181, 1201 (2005) (proposing that cognitive and social forces make it
hard to accurately predict defendants’ risks and the end result is that judges tend to overestimate risks);
Christina E. Wells, Questioning Deference, 69 MO. L. REV. 903, 907–08 (2004) (observing that
psychologists have proven that the use of cognitive shortcuts can distort the risk assessment process
especially where decisions are made “in an atmosphere of . . . intense social pressure”); Jack F.
Williams, Process and Prediction: A Return to a Fuzzy Model of Pretrial Detention, 79 MINN. L. REV.
325, 337–38 (1994) (noting that studies have shown that that decision makers such as judges “can
predict dangerousness within acceptable limits,” but predicting dangerousness is “only as good as a
decision maker’s ability to adhere to some strict guidelines, which are generally unrealistic in the
judicial process”); see also Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death:
Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759,
792–93 (1995) (arguing that judicial decision-making behavior in highly publicized cases is heavily
influenced by the political ramifications of making a controversial or unpopular decision high-profile
capital cases); Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L.
REV. 1, 29 (2007) (arguing that judges rely heavily on intuition in judicial decision making, which can
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the whims of public opinion. In situations such as this, informed balancing can
stem the tide of fear by providing the public with empirical evidence to support
a court’s decision and allow these decisions to be made rationally.
In addition, a focus on including and obtaining relevant scientific information
may improve efforts at crime prevention.292 If judges consider the improvement
of societal welfare, this may create a shift towards prevention rather than solely
on desert.293 For instance, with sentencing, there is room for judges to rely on
empirical data to make decisions based on the given risk and predicted harm
posed by a particular person or group.294 More emphasis on evidence by judges
should also force prosecutors and defense attorneys to collect information on
broad trends in the sentencing of minority groups, juveniles, and other groups.
This would allow judges to resolve these cases with the least cost to society,
largest reduction in recidivism, and adequate punishment to serve the demands
of justice.295 For instance, if a judge is sentencing a person previously convicted
of three drug crimes and charged with a fourth versus a person charged for the
first time with a drug crime, the analysis may be different if the judge considers
the likelihood of each of these individuals recidivating or posing a danger to
society or the potential effective punishments or treatments that may remedy the
underlying problem. Futhermore, the impacts on public safety can improve as
judges become informed about the risks posed by each individual and as they
consider these risks in determining a sentence.296
affect the way a judge views the defendant and the evidence); Chris Guthrie et al., Inside the Judicial
Mind, 86 CORNELL L. REV. 777, 784 (2001) (noting that the results from an exhaustive study of over 150
federal magistrate judges indicated that judges are susceptible to cognitive biases and heuristics in
judicial decision making that can produce systematic errors in judgment). For a detailed description of
the types of cognitive bias present in judicial decision making, see Amitai Aviram, Bias Arbitrage,
64 WASH. & LEE L. REV. 789, 794–95 (2007); Darryl K. Brown, Cost–Benefit Analysis in Criminal Law,
92 CALIF. L. REV. 323, 342 (2004).
292. Christopher Slobogin, The Civilization of the Criminal Law, 58 VAND. L. REV. 121, 165 (2005).
293. Id.
294. See Michael Marcus, MPC—The Root of the Problem: Just Deserts and Risk Assessment,
61 FLA. L. REV. 751, 771–76 (2009) (arguing that the Model Penal Code should utilize evidence-based
practices and risk assessment in relation to sentencing guidelines); J. C. Oleson, Risk in Sentencing:
Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. REV. 1329, 1353 (2011)
(“Empirical data can provide judges with essential information about the factors associated with
increased risks of future crime; research about these variables can provide a theoretical context for
understanding risk.”); Roger K. Warren, Evidence-Based Practices and State Sentencing Policy: Ten
Policy Initiatives to Reduce Recidivism, 82 IND. L.J. 1307, 1308 (2007) (stating that greater dependence
on evidence-based practices “would allow . . . courts to improve the effectiveness of . . . sentencing
outcomes, reduce recidivism, and, at the same time, reduce over-reliance on incarceration and promote
the utilization of community-based alternatives for appropriate offenders” and outlining ten initiatives
courts should pursue to fully integrate “evidence-based practices into . . . sentencing policy”).
295. Kristin Henning, Criminalizing Normal Adolescent Behavior in Communities of Color: The
Role of Prosecutors in Juvenile Justice Reform, 98 CORNELL L. REV. 383, 388 (2013) (asserting that
prosecutors “track charging decisions by race and neighborhood” to work with the community on how
these decisions impact juveniles).
296. See Christopher Slobogin & Lauren Brinkley-Rubinstein, Putting Desert in Its Place, 65 STAN.
L. REV. 77, 82 (2013) (“Under these hybrid approaches, Joe might receive a sentence somewhere
between five and nine years (depending on his individual culpability) or might simply be given a
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Another added benefit to an informed balance is a targeted standard for
determining government interest. Currently, it is unclear whether the standard to
judge government interest in Fourth Amendment cases is a national, regional, or
local community standard.297 Courts have relied on each of these standards to
support their arguments.298 When decisions are based solely on common-sense
assessments, constitutional decisions do not require a precise level of accuracy.
When decisions are based on evidence, parties can hold courts more accountable to dictate a standard and provide relevant evidence in considering public
safety concerns within that particular area.
3. Accountability and Bias
A potential concern with informed balancing is that it may reduce the
accountability of decision makers who can blame data for their decisions, which
may actually be rooted in bias. A consideration of costs and evidence may be
complex and uncertain299 and may disguise a decision maker’s bias from others.
Thus, far from limiting arbitrary decision making, evidence-based analysis may
provide “a false veneer of scientific analysis that hides contestable value choices
and political bias.”300 A decision maker may also not have the technical skills to
evaluate the results of such an analysis and may overly rely on experts or
litigants for interpretation of evidence. This may involve value judgments that
reflect personal bias, not the will of the people or elected representatives. And
the results from a review of evidence may not be determinative.301 There is also
the threat of informed decisions becoming standardized across jurisdictions and
maximum sentence of nine years, with the precise time of release dictated by the risk of reoffending
that he poses.”).
297. See Samson v. California, 547 U.S. 843, 855 (2006) (“Petitioner observes that the majority of
States and the Federal Government have been able to further similar interests in reducing recidivism
and promoting reintegration, despite having systems that permit parolee searches based upon some
level of suspicion. Thus, petitioner contends, California’s system is constitutionally defective by
comparison. Petitioner’s reliance on the practices of jurisdictions other than California, however, is
misplaced. That some States and the Federal Government require a level of individualized suspicion
is of little relevance to our determination whether California’s supervisory system is drawn to meet its
needs and is reasonable, taking into account a parolee’s substantially diminished expectation of
privacy.”).
298. See, e.g., id. (applying a regional standard); United States v. Montoya de Hernandez, 473 U.S.
531, 549 (1985) (discussing a national Fourth Amendment standard); New Jersey v. T.L.O., 469 U.S.
325, 343 (1985) (using a local standard).
299. For example, depending on the methodology employed, researchers have quantified the average
social cost of a burglary to be as low as $2,500 and as high as $25,000. See Jeffery A. Butts & John K.
Roman, Juvenile Crime Interventions, in INVESTING IN THE DISADVANTAGED 103, 105 (David L. Weimer
and Aidan R. Vining eds., 2009); see also BEERMAN, supra note 283, at 167 (noting that federal agencies
employ different estimates for the value of preserving human life or preventing injury).
300. BEERMAN, supra note 283, at 165; see also STEPHEN BREYER, REGULATION AND ITS REFORM 83–91
(1982) (noting that complex evaluative factors may allow agencies to hide biases behind ostensibly
objective selection criteria).
301. In the criminal law context, for example, researchers struggled for years to show that increasing
police presence actually decreases crime. The difficulty stems from the fact that municipalities dispatch
additional officers in response to increased crime. Teasing out the true relationship between these two
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removing discretion from judges. This has the potential to remove inherent
discretion or individual consideration from Federal Sentencing Guidelines and
other standardized decision-making tools.302
Indeed, informed balancing also has the potential to allow courts to abdicate
responsibility for choice.303 As Larry Tribe points out, in Roe v. Wade the Court
held that a state has a compelling interest in a fetus once it is “viable.”304 The
Court then relied on medical evidence to determine what it means to have a
viable fetus.305 As Tribe points out, this is a definition instead of a reason. The
Court was able to avoid providing a rationale for its decision by deferring to
others’ expertise.306 One cause for alarm is that the Court—by abdicating
responsibility—can engage in judicial activism under the guise of evidence.307
Accordingly, courts can use cost–benefit or evidence-based analyses to weigh
neutrally issues that have underlying values and then abdicate responsibility for
their decision.308 Thus, courts making constitutional decisions based on evidence have to be wary of keeping foremost their role to apply the law to protect
rights, rather than strategically considering data or costs.309 Ultimately, a court
is bound by the limits of the law and the Constitution and must maintain its
primary role.
Despite the weaknesses of considering data and costs, ideally, judgments
should be made with reference to the best information.310 The next section
provides a few examples that demonstrate the importance of information in
constitutional decision making.
D. THE IMPORTANCE OF INFORMATION
Too often judicial decisions are responses to anecdotal evidence that exaggerates the risk of a perceived harm. Nonspecialists, like judges and legislators,
generally hold mistaken perceptions about risk.311 This problem has been
factors requires advanced statistical techniques and precinct-level data collected over a long period of
time. See W. DAVID ALLEN, CRIMINALS AND VICTIMS 21–22 (2011).
302. See Douglas A. Berman, Balanced and Purposeful Departures: Fixing a Jurisprudence that
Undermines the Federal Sentencing Guidelines, 76 NOTRE DAME L. REV. 21, 80–92 (2000) (discussing
judicial authority to depart from sentencing guidelines); Sandra D. Jordan, Have We Come Full Circle?
Judicial Sentencing Discretion Revived in Booker and Fanfan, 33 PEPP. L. REV. 615, 616 (2006)
(describing the revival of judicial discretion before and after United States v. Booker and United States
v. Fanfan); Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion,
117 YALE L.J. 1420, 1496 (2008) (describing sentencing rules as obstacles to judicial discretion).
303. Laurence H. Tribe, Seven Deadly Sins of Straining the Constitution Through a PseudoScientific Sieve, 36 HASTINGS L.J. 155, 168 (1984).
304. 410 U.S. 113, 163 (1973).
305. Id.; Tribe, supra note 303, at 168–69.
306. Tribe, supra note 303, at 169.
307. Id. at 170.
308. Tribe, supra note 25, at 597.
309. Tribe, supra note 303, at 171.
310. SUNSTEIN, supra note 283, at 110.
311. For example, the 1970 Clean Air Act proposed a 90% reduction in emissions from new cars
within ten years. The law resulted from dueling proposals between the Nixon Administration and
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recognized in the legislative realm312 but not in the judicial realm. But judges,
like other decision makers, are subject to the whims of public concern,313
implicit bias,314 and the tradition of relying on common sense rather than on the
experience of skilled experts. As demonstrated in the examples of drug testing
for welfare benefits and searches, relying on blind balancing or common-sense
determinations unguided by data and scientific evidence may be problematic.
In a poignant example of the importance of data in Fourth Amendment cases,
a law in Florida (and one recently passed in many other states) requires drug
testing in order for individuals to receive welfare benefits.315 The costs of the
drug tests have been enormous, and only 2.6% of the applicants have failed
the drug test, demonstrating that drug abuse among welfare applicants is not
as problematic as legislators anticipated.316 Not only are these laws potential
Senator Edmund Muskie, who each wanted to outdo the other. Congress did not consider whether a
reduction of that magnitude was technologically possible or whether cars that met the new standard
would be generally affordable or safe. Id. at 16.
312. See, e.g., Kathleen Hughney, Emotional Anecdotes Can Spark Bills with Unforeseen Results,
ORLANDO SENTINEL (Oct. 30, 2011), http://articles.orlandosentinel.com/2011-10-30/business/fl-legislationby-anecdote-20111030_1_gun-ownership-legislative-process-anecdotes.
313. See BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE
SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 370 (2009) (“The people and their
elected representatives have had the ability all along to assert pressure on the judges, and they have
done so on numerous occasions. The accountability of the justices (and thus the Constitution) to the
popular will has been established time and time again. To the extent that the judges have had freedom to
act, it has been because the American people have given it to them.”); Neal Devins & Nicole Mansker,
Public Opinion and State Supreme Courts, 13 U. PA. J. CONST. L. 455, 455 (2010) (“Most state supreme
court justices have no choice but to take into account ‘The Will of the People.’”); Lee Epstein &
Andrew D. Martin, Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not
Sure Why), 13 U. PA. J. CONST. L. 263, 263 (2010) (using statistical analysis to find that “[w]hen the
‘mood of the public’ is liberal (conservative), the Court is significantly more likely to issue liberal
(conservative) decisions”).
314. See Shima Baradaran, Race, Prediction and Discretion, 81 GEO. WASH. L. REV. 157, 161 (2013).
315. Lizette Alvarez, No Savings Are Found From Welfare Drug Tests, N.Y. TIMES, Apr. 18, 2012,
at A14; see, e.g., GA. CODE ANN. § 49-4-193 (2012) (requiring drug tests for all Temporary Assistance to
Needy Families (TANF) applicants); MO. REV. STAT. § 208.027 (2012) (requiring drug tests for welfare
recipients suspected with reasonable cause of drug use); OKLA. STAT. tit. 56, § 230.52 (2012) (requiring
that all TANF applicants be screened for drug use); S.B. 1620, 50th Leg., 1st Reg. Sess. (Ariz. 2011),
available at http://www.azleg.gov/legtext/50leg/1r/bills/sb1620h.pdf (requiring drug tests during the
fiscal year 2011–2012 for welfare recipients suspected with reasonable cause to engage in drug use);
S.B. 2580, 107th Gen. Assemb., 2d Reg. Sess. (Tenn. 2011) available at http://www.capitol.tn.gov/Bills/
107/Bill/SB2580.pdf (requiring a substance abuse test for all welfare applicants); H.B. 155, 59th Leg.,
Gen. Sess. (Utah 2012) available at http://le.utah.gov/2012/bills/hbillenr/HB0155.htm (requiring drug
tests for welfare recipients if a state official has reason to believe the recipient is engaging in drug use
and allowing the state to terminate benefits for refusal to take a test); see also NAT’L CONFERENCE OF
STATE LEGISLATURES, Drug Testing and Public Assistance, http://www.ncsl.org/issues-research/humanservices/drug-testing-and-public-assistance.aspx (last visited Jan. 23, 2013) (listing twenty-eight states
that proposed legislation during 2012 involving drug tests for TANF applicants).
316. See Alvarez, supra note 315; see also BILL SUMMARY, H.R. 1067, 53d Leg., 1st Sess. (Okla.
2011), available at http://webserver1.lsb.state.ok.us/cf/2011-12%20SUPPORT%20DOCUMENTS/
BILLSUM/House/HB1067%20INT%20BILLSUM.DOC (estimating a cost of $2,161,179 if 10% of
TANF applicants are tested); N.Y. STATE ASSEMBLY, MEMORANDUM IN SUPPORT OF LEGISLATION, A.B.
A04474, 2011 Reg. Sess. (2011), available at http://assembly.state.ny.us/leg/?default_fld⫽&bn⫽A04474
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Fourth Amendment violations (and have been challenged as such),317 but they
have not led to fewer welfare cases as was predicted.318 This illustration of the
use of data under the Fourth Amendment demonstrates that data often do not
match even policymakers’ perceptions. When the government relies on evidence, more informed decisions result that may also better protect constitutional
rights.
Another telling example of the importance of information is the correlation
between location of a search and likelihood of finding contraband. Currently,
there is no consideration of this correlation in determining whether a Fourth
Amendment search is reasonable, but localized information on this is available
and can be helpful. Police nationally find contraband in less than a quarter of all
searches, but this number varies by location. For example, in 2011, Missouri
police found contraband in 22.52% of searches.319 However, many locales find
contraband in far fewer searches. Indeed, in San Diego, police reported finding
&term⫽2011&Memo⫽Y (estimating that drug testing welfare recipients would cost the state $20
million annually); U.S. DEP’T OF HEALTH & HUMAN SERVS., ASPE ISSUE BRIEF: DRUG TESTING WELFARE
RECIPIENTS: RECENT PROPOSALS AND CONTINUING CONTROVERSIES 7 (2011) available at http://aspe.hhs.
gov/hsp/11/DrugTesting/ib.pdf (“[N]one of the legislative costs estimates we identified estimated net
savings as a result of the proposed drug testing programs.”); Steve Contorno, Va. GOP Revives Drug
Testing for Welfare Recipients, WASH. EXAMINER (Dec. 4, 2012), http://washingtonexaminer.com/va.-goprevives-drug-testing-for-welfare-recipients/article/2515096#.UQC-zydEG3W (noting that Virginia’s drugtesting legislation previously failed because the $229,000 benefit did not outweigh the $1.5 million
cost); Editorial: Drug Testing Welfare Applicants Nets Little, USA TODAY (Mar. 18, 2012), http://
usatoday30.usatoday.com/news/opinion/editorials/story/2012-03-18/drug-testing-welfare-applicants/
53620604/1 (stating that, in Arizona, only one welfare applicant tested positive out of the 87,000
“subjected” to the drug-test program); Dustin Hurst, DHW Study Says Welfare Recipient Drug Testing
Would Cost State More Money Than It’s Worth, IDAHO REP. (Feb. 9, 2011), http://www.idahoreporter.com/
2011/dhw-study-says-welfare-recipient-drug-testing-would-cost-state-more-money-than-its-worth/ (explaining that the state of Idaho found that drug tests would cost more than their projected savings);
Welfare Drug Screening Law Costs Oklahoma Thousands of Dollars, KOKH FOX 25 (Nov. 15, 2012),
http://www.okcfox.com/newsroom/top_stories/videos/kokh_vid_8165.shtml (stating that in Oklahoma,
an initial screening and drug test cost the state $139 and that “out of 3,711 adults enrolled in Temporary
Assistance for Needy Families (TANF), about 100 screened positive for drugs”).
317. Using Fourth Amendment analysis, the Eleventh Circuit unanimously upheld an injunction
blocking enforcement of a Florida law mandating suspicionless drug testing for welfare recipients.
See Lebron v. Sec’y, Fla. Dep’t of Children & Families, 710 F.3d 1202, 1214 (11th Cir. 2013)
(“[S]eeking public assistance does not deprive a [welfare] applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy.”).
318. See Alvarez, supra note 315; see also Press Release, Nat’l Insts. of Health, NIAAA Researchers Estimate Alcohol and Drug Use, Abuse, and Dependence Among Welfare Recipients (Oct. 23,
1996), available at http://www.niaaa.nih.gov/news-events/news-releases/niaaa-researchers-estimatealcohol-and-drug-use-abuse-and-dependence-among (finding that the proportion of welfare recipients
that abuse drugs is consistent with the overall population); Walker Newell, Tax Dollars Earmarked for
Drugs? The Policy and Constitutionality of Drug Testing Welfare Recipients, 43 COLUM. HUM. RTS. L.
REV. 215, 246 (2011) (explaining that although suspicion-based drug testing laws are not per se
unconstitutional, their standards may commonly be applied in an unconstitutional way).
319. MO. ATT’Y GEN., EXECUTIVE SUMMARY FOR 2011 MISSOURI VEHICLE STOPS 2, available at
http://ago.mo.gov/VehicleStops/2011/. Minnesota reported finding contraband in 17.14% of searches.
INST. ON RACE AND POVERTY, MINNESOTA STATEWIDE RACIAL PROFILING REPORT: ALL PARTICIPATING JURISDICTIONS 22 (2003), available at http://www.law.umn.edu/uploads/cb/94/cb94cf65dc50826424729d
214a1f6b82/27-Racial-Profiling-Aggregate-Report.pdf.
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contraband in only 8.4% of searches,320 while New York City police found
contraband in fewer than 2% of searches.321 What these New York data
illustrate is that police in New York stopped 3000 people in order to find one
gun.322 And a national survey of the United States demonstrates that when
police conduct a search after making a traffic stop, the police rarely find
contraband.323 When the police searched the driver of the car they stopped, they
found contraband only 2.1% of the time.324 When the police searched the car,
they found contraband 1.6% of the time.325 Thus, in some states and cities,
police will search four or five innocent people before finding any contraband,
while in other places the police will search hundreds or even thousands of
people before finding any contraband. The likelihood of finding contraband
should be considered in the balancing test that determines the reasonableness of
a search. And, according to these data, the reasonableness may differ based on
the geographic location.
It is possible that when police start tracking the likelihood of finding contraband on individuals, individuals will adjust their behavior. For instance, with
random drug testing, employees may be less likely to take drugs than they were
previously, an arguably positive result. However, if data dictate fewer stop and
frisks, more individuals may no longer be deterred from carrying drugs and
weapons. There is a possibility that important variables will change if police
conduct fewer searches and conduct them more randomly. With that in mind,
the government must track crime rates and public-safety concerns as key
variables with any changes in law enforcement practice. The important factors
here are public safety and effective law enforcement—and these can be tracked
with careful police data. If a change in police practice is linked to increasing
crime rates, police can consider an evidence-based way to adjust their practices.
Leaving these decisions to common-sense assessments is no better for public
safety than it is for protecting constitutional rights.
While data are important, they cannot always dictate the outcome in a
particular case. For example, it may turn out that the balance of evidence suggests that selectively searching minorities is most effective for rooting out
320. GARY CORDNER ET AL., VEHICLE STOPS IN SAN DIEGO: 2001, at 31 (2002), available at http://www.
sandiego.gov/police/pdf/stoprpt.pdf.
321. CTR. FOR CONSTITUTIONAL RIGHTS, RACIAL DISPARITY IN NYPD STOPS-AND-FRISKS 12 (2009),
available at http://www.ccrjustice.org/files/Report-CCR-NYPD-Stop-and-Frisk.pdf (finding that from
2005 to 2008, fewer than 2% of stops resulted in the police finding contraband).
322. Perhaps even more unsettling, a 2011 report found that the number of people the New York
Police Department (NYPD) stopped increased by over 500,000 from 2003 to 2011, but the number of
guns found increased by a mere 176. See N.Y. CIVIL LIBERTIES UNION, supra note 10, at 14 (reporting
that in 2003, the NYPD recovered 604 guns in 160,851 stops, whereas in 2011, the NYPD recovered
only 780 guns in 685,724 stops).
323. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CONTACTS BETWEEN POLICE AND THE PUBLIC,
2008 10 (2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpp08.pdf.
324. Id.
325. Id. However, when the police searched both the driver and the vehicle, police found contraband
in 14.3% of searches. Id.
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crime.326 Even if evidence supports this sort of practice, judges have an
obligation to the Constitution first and should not allow this practice. With an
informed model based on data, these biased decisions by judges or officers
would be open to criticism and easier to root out than when there is no
expectation that data be consulted in the decision.
Consideration of evidence allows a decision maker to assess the true magnitude of a problem, to take into account the relevant data around the issue, and
to choose the best response.327 In that respect, an informed decision may
actually enhance accountability and democracy,328 allowing a decision based on
a fuller consideration of the concerns of both parties to a case and of society.329
And the results of an evidentiary analysis do not compel government action.
Indeed, a decision maker may still proceed with a choice that has a negative net
social benefit if, for example, there are fundamental rights at stake or there is a
conflict with the Constitution or other law. But at least the decision would be
one backed by a rational process after a full consideration of the data and
relevant evidence.330
CONCLUSION
An iconic symbol in the law is blind justice. The impartial Lady Justice
blindfolded and holding the scales of justice invokes an image of an unbiased
arbiter. The goal of blind justice is to remove bias towards particular defendants
and apply the law fairly in every case. Blind justice, in practice, also involves
judges participating in blind balancing. Blind balancing—determining the rights
of parties without considering relevant evidence or statistical data on either
side—has spread as a common judicial norm in constitutional jurisprudence.
Blind balancing explicitly rejects scientific certainty and is rooted in judicial
decisions based on common sense and a balance of incomplete factors. Its
results in the Fourth Amendment context, as this Article illuminates, have been
astounding. Black and white teens walk home from school on a similar route;
the white youth walks home uninterrupted while the black youth is stopped and
frisked at least sixty times by police by the time he is eighteen.331 Police intrude
on the privacy of many individuals in their homes and cars and with drug
testing, creating fear and sometimes harm, rarely uncovering any illegal activ-
326. See Katherine Y. Barnes, Assessing the Counterfactual: The Efficacy of Drug Interdiction
Absent Racial Profiling, 54 DUKE L.J. 1089, 1137 (2005).
327. SUNSTEIN, supra note 283, at 27.
328. ADLER & POSNER, supra note 271, at 101.
329. SUNSTEIN, supra note 283, at 34–35, 39.
330. Id. at 7.
331. Julie Dressner & Edwin Martinez, The Scars of Stop-and-Frisk, N.Y. TIMES (June 12, 2012),
http://www.nytimes.com/2012/06/12/opinion/the-scars-of-stop-and-frisk.html?_r⫽0 (reporting that
Tyquan Brehon, a young black man in Brooklyn without a criminal record, reports being stopped more
than sixty times before age eighteen); see Second Am. Compl., Floyd v. City of New York, No. 08 Civ.
01034 (SAS), 2008 WL 4179210 (S.D.N.Y. Sept. 10, 2008).
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ity.332 Minorities are targeted with searches and as a result are arrested and
imprisoned more often for drug crimes equally committed by all races.333 In all
of the above situations, the Fourth Amendment was implicated, but these
privacy and potential equal protection violations went unnoticed. Blind balancing has allowed government interests to trump individual rights in an overwhelming number of cases, led to disparities between similar defendants, and allowed
overestimation of risks, leading to unfairness for defendants. As it turns out,
blind justice may not actually achieve the fairest result.
Although no balancing test is perfectly fair or predictable, without considering relevant evidence and data, it is tempting for the government to inflate its
own interest or for judges to rely on anecdotes or their gut instincts.334 Judges
balance the opposing sides in a case to determine which side is most deserving.
When judges claim to be balancing, they are often considering the costs and
benefits of an issue for both parties and society. Often this analysis lacks
relevant factors and is incomplete. And often judicial balancing ignores broader
evidence that provides context to the individual case at hand.
This Article rejects Fourth Amendment blind balancing. A data culture change
would help to reform balancing in lower courts and appellate courts, both
federal and state. Courts balance constitutional rights daily. They rely on
broader data when it suits their interest. None of this is rigorous because the key
in balancing is common sense. Common sense is problematic when a judge is
staring in the face of a criminal and focusing her decision on his rights. Without
332. Andrew Lee Scott Dead: Lake County Police Fatally Shoot Wrong Man While Hunting Murder
Suspect, HUFFINGTON POST (July 17, 2012), http://www.huffingtonpost.com/2012/07/17/andrew-lee-scottdead_n_1679408.html (reporting an incident where the police shot and killed a man after the police
knocked on the wrong door in the middle of the night and did not identify themselves as police
officers); Amanda Ciavarri, Police and Federal Agents Raid Charlotte Home by Mistake, WHEC
(June 16, 2012), http://www.whec.com/news/stories/s2658110.shtml (reporting on a police raid on the
wrong house where the police pointed a loaded gun at an innocent woman, handcuffed her, and almost
started a gunfight with her son); Dionne Cordell-Whitney, Family Says Police Raid Was Wrong and
Vile, COURTHOUSE NEWS SERVICE (July 18, 2012), http://www.courthousenews.com/2012/07/18/
48482.htm (reporting on a police intrusion that resulted in three children being handcuffed and forced
to “sit next to the carcass of their dead and bloody pet for more than an hour” while the police searched
the house and found nothing illegal); Ex-Atlanta Officers Get Prison Time for Cover-Up in Deadly
Raid, CNN (Feb. 24, 2009), http://www.cnn.com/2009/CRIME/02/24/atlanta.police/index.html (reporting that the police shot and killed a ninety-two-year-old woman following the execution of a no-knock
warrant at the wrong address).
333. See Baradaran, supra note 314, at 157. In Los Angeles, Minnesota, New York, and other areas,
although minorities were targeted for stops much more often than whites, the ratio of whites who were
found with contraband, evidence, and drugs compared with overall number of whites stopped was
higher than such ratios of minority groups. In other words, police were more likely to find contraband
when stopping a white person than when stopping a person of minority race. See L. Song Richardson,
Arrest Efficiency and the Fourth Amendment, 95 MINN. L. REV. 2035, 2037–38 (2011).
334. Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and
Autonomy in Fourth Amendment Cases: An Empirical Look at “Understandings Recognized and
Permitted by Society,” 42 DUKE L.J. 727, 775 (1993) (arguing that the judiciary should remind
themselves of their own personal distance from police investigation, intrusiveness of police action, and
sometimes community values so as to avoid underestimating the intrusiveness of police actions).
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considering the broader picture of those harmed by her ruling, a judge cannot
appropriately weigh these constitutional problems. By instead relying on informed balancing, judges consider precedent and, where relevant, a balance of
the best data, studies, and judicial experience in deciding a particular case.
Although balances by their nature may not ever be exact, a more informed
balance, grounded with particular data and evidence on the issue at hand, would
be a step in the right direction. And not only would informed balancing be
fairer, it might also lead to a more robust protection of privacy rights and a
consideration of the broader racial implications affected by the Fourth Amendment because it would look beyond the defendant at bar to consider important
societal trends. While the nature of constitutional decision making should
certainly remain flexible and individualized, it cannot afford to be blind or
unaffected by important information. And with a more informed balance, Fourth
Amendment decisions can be rebalanced with data replacing gut instinct.