(a) A policing action constitutes a heightened intrusion if it raises special privacy or dignitary concerns, poses a substantial risk of serious bodily injury to an individual, or significant damage to property.
(b) A policing action that involves a heightened intrusion only should be used when society’s interest in its use clearly outweighs the harm that is reasonably likely to result from the intrusion. Even then, it should be conducted in a manner that minimizes the risk of harm so that the extent of the intrusion is proportionate to the law-enforcement goal that justifies it.
(c) Agencies should develop clear written policies to limit the use of heightened intrusions and should require officers to minimize the risk of harm that may result from their use.
Comment:
a. Intrusiveness. Courts and legislatures have recognized a variety of investigative tactics as especially intrusive and have imposed limitations on their use. Some of these tactics, such as strip searches, body-cavity searches, wiretaps, and government use of malware and other hacking technologies, raise heightened dignity or privacy concerns. Others tactics, such as the use of special-weapons-and-tactics (SWAT) teams or no-knock entries, involve a substantial risk of danger or unusual show or use of force. Finally, some tactics may be considered intrusive based on the characteristics of the person against whom they are used. For example, handcuffing a young child may be unreasonable in circumstances in which handcuffing an adult would not be.
b. Proportionality. Agencies should limit the use of intrusive tactics to circumstances in which society’s need for their use clearly outweighs the risk of harm. This idea is at the heart of the various standards that both courts and legislatures have adopted to regulate the use of more intrusive tactics. For example, in assessing the reasonableness of various bodily intrusions, such as body-cavity searches or searches that involve breaking the skin, courts balance society’s interest in uncovering evidence of criminal activity against the privacy and dignitary interests at stake. In doing so, courts consider the likelihood of uncovering probative evidence, the seriousness of the offense that officers are investigating, and the likelihood that the investigation could be furthered using some other means. Similarly, some jurisdictions have limited the use of SWAT teams to investigation of more serious crimes, as well as to circumstances in which an individual could not be apprehended using less intrusive tactics. Still, courts at times have approved the use of these techniques without fully appreciating the extent of the intrusion or risk or scrutinizing closely enough whether a less intrusive approach would have achieved the same ends.
c. Additional safeguards. Agencies also should consider additional safeguards to minimize the risk of harm and ensure that intrusive tactics are used only when they in fact are warranted. Many agencies already require that officers obtain supervisor approval—often from someone high up in the command structure—before using certain intrusive techniques. Agencies also often require officers to take additional steps to confirm the accuracy of the information that gave rise to their suspicions and demonstrate that they have exhausted available, less intrusive means. Agencies often limit which officers are permitted to use particular tactics to ensure that those who do are properly trained to minimize harm. Finally, when it comes to more intrusive tactics, clear policies are essential, both to encourage politically accountable officials to consider their appropriateness and take responsibility for how they are used, and to provide sufficient guidance to officers on using these techniques in a manner that minimizes harm.
Reporters’ notes
1. Tactics. Courts, legislatures, and agencies have recognized certain tactics as being unusually intrusive. See, e.g., Winston v. Lee, 470 U.S. 753, 759 (noting that some searches are unreasonably intrusive even if conducted upon probable cause); United States v. McMurray, 747 F.2d 1417, 1420 (11th Cir. 1984) (discussing a “hierarchy of intrusiveness of searches,” from “minimally intrusive” frisks and luggage inspections to “highly intrusive” body-cavity examinations).
Some tactics are intrusive because they raise special privacy or dignitary concerns. For example, the U.S. Supreme Court has said that searches involving intrusions into the body, such as blood draws or surgeries, implicate the “most personal and deep-rooted expectations of privacy.” See Winston v. Lee, 470 U.S. 753, 760 (1985); Kiel Brennan-Marquez & Andrew Tutt, Offensive Searches: Toward a Two-Tier Theory of Fourth Amendment Protection, 52 Harv. C.R.-C.L. L. Rev. 103, 129 (2017). Likewise, Justice William O. Douglas compared wiretaps to “a dragnet” which “intrudes upon the privacy of those not even suspected of crime and intercepts the most intimate of conversations.” Berger v. New York, 388 U.S. 41, 65 (1967) (Douglas, J., concurring).
Tactics involving an unusual show or use of force or heightened risk of danger also are intrusive. Courts have noted, for example, that deployment of a special-weapons-and-tactics (SWAT) team to execute a warrant “necessarily involves the decision to make an overwhelming show of force—force far greater than that normally applied in police encounters with citizens.” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1190 (10th Cir. 2001). Similarly, the use of flash-bang grenades is intrusive because of the substantial risk of physical injury and property damage they pose. See Boyd v. Benton County, 374 F.3d 773, 779 (9th Cir. 2004); Bing ex. rel. Bing v. City of Whitehall, Ohio, 456 F.3d 555, 570 (6th Cir. 2006). No-knock warrants are intrusive because they involve a heightened risk of danger and raise significant privacy and dignitary concerns. As courts have observed, the knock-and-announce requirement helps to prevent “deadly encounters between police and citizens,” People v. Condon, 592 N.E.2d 951, 957 (Ill. 1992), and gives individuals an “opportunity . . . to pull on clothes or get out of bed,” Richards v. Wisconsin, 520 U.S. 385, 393 n.5 (1997).
Intrusive tactics, when used unnecessarily or in the absence of appropriate safeguards, can endanger the safety of member of the public as well as officers, impose dignitary and privacy harms on individuals, and ultimately undermine public trust in law enforcement. To address these concerns, courts, legislatures, and agencies have adopted a variety of rules for when and how these tactics may be used. An effective policy typically should address: (1) the standard for determining when the tactic is appropriate; (2) steps that officers must take to minimize the risk of harm; and (3) procedures for how decisions regarding the use of the tactic should be made.
2. Substantive standard. At the heart of the substantive standards is the idea of proportionality: an intrusive tactic should only be used when society’s interest in its use clearly outweighs the resulting risk of harm. See also § 7.05 (Proportional Use of Force). For example, the U.S. Supreme Court has held that searches involving intrusions into the body are only reasonable when “the community’s need for evidence outweighs the substantial privacy interests at stake.” Winston, 470 U.S. at 760. In undertaking this balancing, courts consider the effectiveness of the challenged tactic, the existence of less intrusive alternatives, the potential risks to the suspect’s safety, and the extent to which the tactic intrudes upon the suspect’s dignitary interests. See Winston, 470 U.S. at 762 (recognizing the effectiveness of blood draws in determining whether an individual is under the influence of alcohol); United States v. Booker, 728 F.3d 535, 547 (2013) (noting that there are less intrusive means than a digital rectal exam to determine whether a suspect is hiding contraband); Maryland v. King, 133 S. Ct. 1958, 1979 (2013) (noting that a buccal swab does not involve significant risk, trauma, or pain). Applying these factors, courts have held, for example, that tactics such as forced urethral catheterization and bowel evacuation under anesthesia are unreasonable when less intrusive techniques are available. See Elliot v. Sheriff of Rush Cnty., Indiana, 686 F. Supp. 2d 840, 862 (S.D. Ind. 2010); George v. Edholm, 752 F.3d 1206, 1218-1220 (9th Cir. 2014).
Agencies and legislatures also have incorporated proportionality principles into their regulations. For example, many agencies use risk-assessment matrices to determine whether deployment of a SWAT team is warranted. See Int’l Assoc. of Chiefs of Police & Nat’l Tactical Officers Ass’n, National Special Weapons and Tactics (SWAT) Study 9 (2015) (finding that 57.8 percent of surveyed agencies used risk-assessment matrices). Criteria typically include whether the warrant location is fortified against entry, whether a subject at the location is known to illegally carry a firearm, and whether a subject at the location has made verified threats to law enforcement. See, e.g., Fairfax Cty. Police Dep’t, Warrant Risk Assessment Matrix 1. Legislatures and agencies likewise have prohibited certain techniques altogether. A number of states, for example, prohibit the use of strip searches in the investigation of minor offenses. See, e.g., 725 Ill. Comp. Stat. Ann. 5/103-1(c) (West 2017) (“No person arrested for a traffic, regulatory or misdemeanor offense, except in cases involving weapons or a controlled substance, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon or controlled substance.”). Many agencies also prohibit the use of force to prevent a suspect from swallowing contraband or evidence. See, e.g., Salt Lake City Police Dep’t Policies and Procedures Manual 176 (2017).
3. Special precautions. Even if use of an intrusive tactic is justified, agencies should ensure that officers take steps to minimize the risk of harm. For example, officers may be required to take certain safety precautions before detonating a flash-bang grenade. See, e.g., Milan v. Bolin, 795 F.3d 726, 730 (7th Cir. 2015) (stating that officers should visually inspect the area and carry a fire extinguisher before deploying a flash-bang grenade). Legislatures and agencies have imposed limits on who may be authorized to perform an intrusive tactic. For example, officers conducting wiretaps in Illinois must be certified by the Department of State Police. See 725 Ill. Comp. Stat. Ann. 5/108B-5(a)(4) (West 2017). In some cases, restrictions on where a tactic may be performed are appropriate. For example, searches involving medical procedures should generally be conducted only in a medical environment so as to minimize the “risk of infection and pain.” See Schmerber v. California, 384 U.S. 757, 771-772 (1966).
4. Procedural constraints. Agencies and legislatures also impose procedural requirements, which ensure that decisions about the use of intrusive tactics are made in a deliberate fashion, with approval from higher-level agency officials or officials outside of the executive branch. Under Connecticut law, for example, wiretaps require authorization by the unanimous vote of a three-judge panel, with a heightened showing on probable cause. See Conn. Gen. Stat. Ann. § 54-41d (West 2017) (requiring, inter alia, that a three-judge panel find probable cause that material, non-privileged information will be obtained in order to authorize a wiretap). Likewise, some agencies require a supervising officer to request or approve certain intrusive tactics such as strip searches or the deployment of a SWAT team. See, e.g., New York City Police Dep’t, Patrol Guide, Arrests – General Search Guidelines, at 2 (requiring a supervising officer to approve requests for strip searches); Charlotte-Mecklenburg Police Dep’t, Interactive Directives Guide, Special Weapons and Tactics (SWAT) Team, at 1 (requiring that requests for SWAT team deployment be made by the ranking supervisor on the scene or by an on-duty SWAT team member).