Thursday, March 13, 2014
When police perform a search or seizure, they typically must meet the probable cause or reasonable suspicion standard. Moreover, even if the police meet the appropriate standard, their evidence must be “individualized” to the target and cannot rely on purely probabilistic inferences. Scholars and courts have long defended the distinction between “individualized” and “purely probabilistic” evidence, but their theories fail to articulate principles that are descriptively accurate or normatively desirable. They overlook the only thing that matters: hassle.
Hassle measures the chance that the police will stop or search any particular person. Because some investigation methods meet the relevant suspicion standards but nevertheless impose too many stops and searches on the innocent, courts must have a lever independent from the suspicion standard to constrain the effects of criminal investigations. The individualization requirement has unwittingly performed this function, but not in an optimal way.
So far, individualization has kept hassle low by entrenching old methods of investigation. Because courts designate practices as individualized when they are costly (e.g. gumshoe methods) or lucky (e.g. tips), the requirement has limited law enforcement to practices that cannot scale. By reforming individualization to focus directly on hassle, courts can enable innovations that are more accurate and fair than traditional police investigations.