After the Age of Discretion: Policing and Privacy in a World of Automated Roadway Enforcement

Authors

Trayce Hockstad
Lawrence Cappello

Document Type

Article

Abstract

(Excerpt)

Our Fourth Amendment attempts to harmonize in fifty-eight words the tenuous, antagonistic relationship between privacy and public safety. These two values appear to be deadlocked in a contentious legal orbit, leaving behind them a trail of fascinating but foreboding jurisprudence in American law. The fundamental need of individuals for spaces of seclusion from government surveillance has endured a slow siphoning of its constitutional protection by the encroaching definition of the “public” and the perceived need to police every person and place that may be considered so. Nowhere has this proven truer than our nation’s roadways. As the judicial system wrestled with the societal impact of the early automobile age and the enforcement pressures of public safety legislation during the Prohibition Era, it willingly doled out to increasingly professionalized police forces the power of discretionary search and seizure. Proliferating criminalization of traffic infractions brought civilians into routine contact with police on an unprecedented level, but the touchstone of Fourth Amendment “reasonability” the Court established for constitutional police behavior proved woefully incapable of keeping pace with the developing methods of reconnaissance that became available to the state. Today, Fourth Amendment protections rest on a confusing, inconsistent set of procedural restrictions intended to prevent governmental incursions on an individual’s “reasonable expectation” of privacy. But the reasonableness of expecting any measure of privacy in public places has shriveled conspicuously in the present atmosphere of pervasive state surveillance of our roads. Our vehicles—and by extension ourselves—are tagged, tracked, and ticketed with increasingly little human oversight or interaction. The technology of automated enforcement now stands poised to replace the system of discretionary policing we have, burdened with balancing privacy and public security. And just as the technological advancements of our science of observation can predict the end of stars, so it may foretell the end of our Eta Carinae of criminal procedure.

This Article argues that the current system of Fourth Amendment privacy protection as it relates to “public spaces” has been constructed to rely on police discretion in a way the Framers of our Constitution never intended. The history of that construction occurred in large part through the jurisprudence of the automobile. Now, as the world of traffic safety and enforcement moves evermore toward incorporating systems of automated enforcement, the need to prophylactically consider the legal implications of that implementation is paramount. As Anthony Amsterdam observed, “the Fourth Amendment is not clear,” and “[t]he work of giving concrete and contemporary meaning to that brief, vague general unilluminating text written nearly two centuries ago is inescapably judgmental.” But our formulation of the Amendment’s principles is nothing less than ultimately a “value judgment” about the type of society in which we wish to live. Part I of the Article considers how our nation’s founders anticipated the tension between our government and its citizens in the realm of searches and seizures and acknowledges that the legal standard for what constitutes a “reasonable” search has rarely been clear or predictable. Still, the concern for the protection of privacy from overzealous policing has been deeply rooted in common law for centuries. Officers in the Framing Era had little authority to act without the authorization of a magistrate, but by the beginning of the twentieth century, the call for policing the newly designated “common areas” of roadways for the protection of the public prompted expanded powers on the street. Part II examines how the advent of personal vehicles contributed to the expansion of police power to search and seize traveling citizens. The very nature of police discretion made it impossible to sincerely adhere to any kind of right to be left alone, as a system built on the restraint of government interference with a protected right will never provide the robust protection that the individual’s right is entitled to under the Constitution. Today, Fourth Amendment claimants confront a weighted system that has been structured to defer to police, as the case law of vehicle search and seizure demonstrates. Part III of this Article considers how law enforcement, particularly in the world of traffic safety, is preparing to turn over many functions of everyday policing to automated enforcement systems (“AES”), and how the replacement of human police officers will interact with a legal structure built on the discretion of those officers. Discretion has been aptly used as “a neutral description of the gap between full enforcement and what police can realistically achieve.” As the history of the Fourth Amendment confirms, what police can realistically achieve is an ever-changing standard thanks to advancements in surveillance technology and predictive machine learning processes. The possibility of evading detection for an illegal act committed in a public space is arguably lower than ever thanks to the government’s powers of observation. But only those who believe in state infallibility advocate for the total destruction of the people’s ability to commit even minor illegalities. “The Fourth Amendment was intended to function in a concrete dimension to regulate the power of government to intrude physically on people and their property, but it also rests abstractly on a sweeping vision of privacy and autonomy.” It has perhaps never been more important to understand the costs associated with the loss of that privacy and the dangerous speed at which that possibility is approaching us.