I previously blogged about the debate between Justices Scalia and Ginsburg in Ashcroft v. al-Kidd about the nature of individualized suspicion. This discussion, which Justice Scalia elaborated on at some length, feeds into the constitutional framework I propose in the Constitutionality of Social Cost. What type of “individualized suspicion” is sufficient to justify a warrant (and the accordant deprivation of a person’s individual liberty): a suspicion that someone committed some wrongdoing (the position of RBG), or that someone knows something about a crime (Nino’s position).

The difference between Scalia’s position,and Ginsburg’s position, is that the actor in Scalia’s scenario need not be shown to pose a threat, or harm to others. Someone who committed some ac of wrongdoing, poses a threat to society at large, or in the term of my article, a social cost. The actor in Scalia’s version poses much less of a social cost, if any at all. Ginsburg would only be willing to find a violation of the Fourth Amendment reasonableness if someone actually posed a threat to others. Scalia would broaden it, and permit a reduction of individual liberty even if someone merely knows of some wrongdoing. This is a bifurcation that sounds in the Constitutionality of Social Cost.

Scalia opines at some length on a chain of precedents (that I rely heavily on in my article) to demonstrate where a suspicionless search (that is, a search in the absence of any prospective or possible social costs) are permissible:

There is one category of exception, upon which the Court of Appeals principally relied. In Edmond, 531 U. S. 32, we held that the Fourth Amendment could not condone suspicionlessvehicle checkpoints set up for the purpose of detecting illegal narcotics. Although we had previously approvedvehicle checkpoints set up for the purpose of keeping off the road unlicensed drivers, Delaware v. Prouse, 440 U. S. 648, 663 (1979), or alcohol-impaired drivers, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990); and for the purpose of interdicting those who illegally cross the border, United States v. Martinez-Fuerte, 428 U. S. 543 (1976); we found the drug-detection purpose in Edmond invalidating because it was “ultimately indistinguishablefrom the general interest in crime control,” 531 U. S., at44.

In other words, deprivations of individual liberty merely on the grounds that there is a general possibility of reducing crime is insufficient. There must be something more–suspicion of actual wrongdoing.

In the Court of Appeals’ view, Edmond established that “‘programmatic purpose’ is relevant to Fourth Amendment analysis of programs of seizures without probable cause.” 580 F. 3d, at 968. That was mistaken. It was not the absence of probablecause that triggered the invalidating-purpose inquiry in Edmond. To the contrary, Edmond explicitly said that it would approve checkpoint stops for “general crime control purposes” that were based upon merely “some quantum of individualized suspicion.” 531 U. S., at 47. Purpose was relevant in Edmond because “programmatic purposes maybe relevant to the validity of Fourth Amendment intru-sions undertaken pursuant to a general scheme without individualized suspicion,” id., at 45–46 (emphasis added)

Scalia conceded that at the minimum there must be “some quantum of individualized suspicion.” In other words, some evidence of social cost. Scalia thus views knowledge of a crime, and fleeing before trial, a social cost that must be avoided. Ginsburg does not see it this way.

Now, the subtle turn is how Scalia defines suspicion.:

Needless to say, warrantless, “suspicionless intrusions pursuant to a general scheme,” id., at 47, are far removed from the facts of this case. A warrant issued by a neutral Magistrate Judge authorized al-Kidd’s arrest. The affidavit accompanying the warrant application (as al-Kidd concedes) gave individualized reasons to believe that he was a material witness and that he would soon disappear.The existence of a judicial warrant based on individualized suspicion takes this case outside the domain of not onlyour special-needs and administrative-search cases, but of Edmond as well.

The individualized reasons provided in the affidavit did not show that al-Kidd by himself posed a threat to others, or exhibited social cost. No. rather, there was suspicion that he was a “material witness and that he would soon disappear.” This, is enough in Scalia’s mind to justify the warrant.

This finding is in some tension with Justice Kennedy’s concurring opinion, where he notes that the Material Witness Statute might be outside of the scope of the Fourth Amendment, as warrants are not issued based on probable cause someone committed a crime, but rather that someone knows something about a crime:

In considering these issues, it is important to bear in mind that the Material Witness Statute might not providefor the issuance of warrants within the meaning of theFourth Amendment’s Warrant Clause. The typical arrestwarrant is based on probable cause that the arrestee hascommitted a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probablecause for purposes of the Fourth Amendment’s WarrantClause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement forseizures of the person. See United States v. Watson, 423
U. S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness arrests might be consistent with statutory and constitutional requirements.

This is likely not the last case discussing this topic. With Justice Kagan on board, Justice Scalia’s position may become a dissent in the near-future.

It is very interesting how the issue of social cost pops up in so many disparate constitutional contexts. I hope to explore this further in future works. Or, when you have a hammer everything looks like a nail. Not sure.