Abstract

The constitutional requirement that police have individualized suspicion before a stop, search, or arrest was an essential limitation on the state’s power. It has been profoundly eroded. In Ybarra v. Illinois, the Court declared that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” The Court avowed that associating with suspicious companions will not subject an individual to “serious intrusion[s] upon the sanctity of the person.”

Yet in several contexts, police officers unconstitutionally transfer their suspicion regarding an individual to the company the individual keeps. First, when a companion’s consent to an officer’s request—even when not legally required—or the companion’s ability to evade police interaction is permitted, the individual’s refusal to comply or inability to leave appear suspicious by comparison, even when doing so is permitted. During these interactions, the individual suffers diminished Fourth Amendment protection because of their companion’s desire to avoid police interaction or violence. The second context occurs when an officer stretches their suspicion regarding one individual to an entire group. In each context, police unconstitutionally expand criminal suspicion in a way that paradoxically undermines relationships and communities. Related erosions of particularity are seen where an individual’s “suspicious” companions are not even present: when police surveil individuals associating with companions with alleged gang designations or with those subject to a form of community supervision.

While surfacing how these contexts weaken the Fourth Amendment’s purported requirement of particularized suspicion, this Article engages with the pervasive argument that the law should permit associational suspicion. It argues that relying on deflected suspicion violates individual liberties while targeting vulnerable communities, beginning a comprehensive case for reviving the Fourth Amendment’s individuality requirement.

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