Posted: 8 May 2010
Date Written: 1995
The requirement of some level of individualized suspicion operates to limit the government's discretionary authority to search and seize. Individualized suspicion, also called particularized suspicion, serves to preclude arbitrary and general searches and seizures and mandates specific justification for each intrusion. It places the focus of the inquiry concerning the permissibility of a search or seizure upon the circumstances presented by the private party or object of the search or seizure; if and only if the individual or object provides a reason for governmental inquiry may the government intrude. Thus, the justification for the government's actions are not based upon circumstances within the control of the government. The principle of individualized suspicion limits not only the circumstances under which the government may initiate actions but also the scope and details of the search or seizure by ensuring that the intrusion actually performed is reasonably related to the circumstances that justified the initial interference.
Although the concept of individualized suspicion has an explicit constitutional basis only in the particularity requirement contained in the Warrant Clause of the Fourth Amendment, it historically has been required of all searches and seizures. Exceptions to the requirement of individualized suspicion were few and grounded on a showing of necessity. In recent years, however, the Supreme Court has sanctioned an increasing variety of suspicionless searches and seizures, and suspicionless intrusions now occur in many aspects of everyday life. The expanding list of permissible suspicionless actions has coincided with a radical alteration by the Supreme Court of the constitutional balancing test that regulates dispensing with individualized suspicion. There has been a drift toward unprincipled “reasonableness” analysis and an abandonment of requiring that the governmental actions be premised on a showing of need. These trends could result in suspicionless searches and seizures becoming ubiquitous, thereby significantly degrading interests long considered within the core protections of the Fourth Amendment.
This Article examines the role of individualized suspicion as an element of a reasonable search or seizure. In Part II, the origins and historical importance of the principle of individualized suspicion are explored. That Part also examines the extent to which the framers intended to incorporate into the Fourth Amendment the need to establish individualized justification for a search or seizure. The Supreme Court has considered when individualized suspicion is required in a diverse number of circumstances, and those decisions are detailed in Part III. That Part also demonstrates that exceptions to the rule requiring individualized suspicion have become numerous. Part IV details the principal factors the Supreme Court utilizes in assessing whether individualized suspicion is required and shows that the current test fails to fulfill the goal of properly assessing the role individualized suspicion should play. Part V posits that, without individualized suspicion as a guide, suspicionless search and seizure practice will expand dramatically and significantly impact on all aspects of daily life. Part V brings together the lessons of the preceding Parts and draws the conclusion that individualized suspicion is both an inherent element of the framers' concept of what constituted a reasonable search and seizure and a needed objective guide for courts in assessing the reasonableness of an intrusion. Based on that conclusion, this Article maintains that individualized suspicion is a vital element of all reasonable searches and seizures. This Article concludes in Part VI that, if the historical context and purpose of the Fourth Amendment's use of the term “unreasonable” is understood and respected, combined with a recognition that a principled reasonableness analysis, with individualized suspicion as a core component, is necessary to guide courts and law enforcement officials, then suspicionless searches and seizures will remain aberrational, founded upon a strong showing of governmental necessity.
Keywords: Fourth Amendment, Search and Seizure, Constitutional Law, Criminal Procedure
Suggested Citation: Suggested Citation
Clancy, Thomas K., The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures (1995). Available at SSRN: https://ssrn.com/abstract=1602057