ADMINISTRATIVE REGULATION OF PROGRAMMATIC POLICING: WHY LEADERS OF A BEAUTIFUL STRUGGLE IS BOTH RIGHT AND WRONG.

In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore’s aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionally problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers of people. Because individualized suspicion does not exist with respect to any of these people’s information, an individual-specific warrant requirement can never be met by such a program. When police engage in suspicionless searches and seizures of the type exemplified by AIR, a different regulatory approach is needed, one that provides the protection against arbitrariness that the warrant process affords but does not require findings that specific people have violated the law. This Article argues that this regulatory alternative can be derived from administrative law principles. The logic of administrative law dictates that legislatures and agency rulemaking must be involved any time a policing agency wants to establish a program that will intentionally affect sizeable numbers of concededly innocent people. If administrative law principles applied, programs like AIR would not be permitted unless a legislature has delegated appropriate authority to the relevant police agency, implemented regulations have survived notice-and-comment and hard look judicial review, and the agency carried out the program in an even-handed fashion that minimizes discretion. At the same time, contrary to the holding in Leaders of a Beautiful Stuggle, if these requirements are met, the Fourth Amendment—at least the part of it requiring warrants and probable cause—would be irrelevant. [ABSTRACT FROM AUTHOR]