concurring in part, dissenting in part.
Without any suspicion that defendant was engaging in unlawful activity, a Jackson County sheriffs deputy selected defendant’s car at random and entered its license plate number into the patrol car’s computer to obtain information from the Department of Motor Vehicles (DMV) database and discovered that the owner of the car had a suspended license. The officer stopped defendant and cited him for that offense. ORS 811.182. Defendant moved to suppress the evidence derived from the database on the ground that, in accessing private information about him without any suspicion of unlawful activity, the officer conducted a search in violation of Article I, section 9, of the Oregon Constitution, and that, in randomly choosing defendant’s car as the subject of an inquiry, the officer failed to treat him “on the same terms, * * * equally,” with other citizens, in violation of Article I, section 20. The court denied the motion. Defendant renews his constitutional arguments on appeal.
The lead opinion concludes that accessing defendant’s personal information was not a search for purposes of Article I, section 9, and that the random selection of defendant’s car as the subject of the inquiry did not offend Article I, section 20.1 concur with the lead opinion’s conclusion regarding Article I, section 9. A person who voluntarily provides DMV with personal information does not suffer any loss of freedom from unwanted scrutiny when a state law enforcement officer observes that information in the course of enforcing traffic laws. See State v. Campbell, 306 Or 157, 171, 759 P2d 1040 (1988) (defining “search” as a “practice, if *366engaged in wholly at the discretion of the government, will significantly impair ‘the people’s’ freedom from scrutiny”). However, I believe the lead opinion’s Article I, section 20, analysis is wrong, and I therefore dissent from that part of the opinion.
A well-established and unambiguous body of Supreme Court precedent establishes the framework for adjudicating the Article I, section 20, issue in this case. Oregon’s equality guarantee protects “citizen[s]” as well as “class[es]” of citizens. It provides, “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” Or Const, Art I, § 20. The latter protection has its counterpart in traditional federal Equal Protection Clause jurisprudence: A person claims that he or she is unlawfully denied a privilege or immunity based on the person’s membership in some societally recognized class such as race, religion, or gender. The former protection is less familiar: An individual claims that he or she is denied (or that another person is granted) a privilege or immunity, not based on the person’s class membership, but based simply on the fact that other individuals who are similarly situated for all relevant purposes are receiving the benefit and the claimant is not (or vice versa) — that, in other words, the privilege or immunity is not made available to all individuals “upon the same terms.” State v. Clark, 291 Or 231, 237, 630 P2d 810, cert den, 454 US 1084 (1981).
This court and the Supreme Court have developed a familiar, if not always seamless, approach to class-based Article I, section 20, claims. See, e.g., Tanner v. OHSU, 157 Or App 502, 520-23, 971 P2d 435 (1998) (summarizing analysis; calling it a “work in progress”). The court’s approach to individual-based claims is less familiar, but it is more consistent and more easily stated. The prohibition against unlawful individual-based distribution of privileges or immunities applies not only against those who enact laws — legislators or the people through the initiative — but to those who administer laws through delegated authority. Clark, 291 Or at 239. Unlawful individual-based denial (or *367conferral) of a privilege or immunity occurs when government engages in “wholly standardless application of a general law,” id., that is, when government distributes privileges or immunities “purely haphazardly or otherwise on terms that have no satisfactory explanation,” State v. Edmonson, 291 Or 251, 254, 630 P2d 822 (1981). Article I, section 20, restrains “haphazard, purely ad hoc, use of discretion.” State v. Freeland, 295 Or 367, 373, 667 P2d 509 (1983). There must be “consistency among similar cases.” Id. at 374. Choices must “adhere[ ] to sufficiently consistent standards to represent a coherent, systematic policy.” Id. at 375. The rule has broad application: “Whenever a person is denied some advantage to which he or she would be entitled but for a choice made by a government authority, Article I, section 20, requires that the government decision to offer or deny the advantage be made ‘by permissible criteria and consistently applied.’ ” City of Salem v. Bruner, 299 Or 262, 268-69, 702 P2d 70 (1985) (emphasis added).
Several considerations limit the apparently dramatic sweep of this requirement limiting government actors’ discretion. First, the burden of proving the haphazard, systemless, ad hoc application of the law falls on the person challenging the government action — here, of course, defendant. The obvious difficulty of proving a negative probably accounts for the fact that an individual-based Article I, section 20, claim has succeeded in only one case: Freeland, 295 Or at 384. Second, the criteria that must be consistently applied need not be written; in fact, they need not be consciously adopted, pre-existing policies. “Even without predetermined rules or guidelines, policies * * * can develop from consistency in practice, and consistency in practice can be both furthered and shown to exist.” Id. at 378. Thus, the state can successfully defend against an individual-based Article I, section 20, challenge by articulating a rationale underlying the exercise of discretion, and that defense will defeat the challenge unless the challenger can demonstrate that the rationale has not been consistently followed.1
*368According to defendant, this case presents a rare but clear violation of Article I, section 20, that is not based on class membership. The arresting officer testified that his decision to enter defendant’s license plate number into the DMV database was “random,” by which he meant that, in deciding to run defendant’s license plate, he was not guided by any suspicion of unlawful conduct nor by any formal or informal policies:
“Q [by defense counsel]: [Deputy] Bartlett, was Mr. Davis breaking the law when you ran his license plate?
“A [by Deputy Bartlett]: At the time I ran his plate, no.
“Q: No. So just to be clear, at the time you ran his plate you didn’t have probable cause to believe that he had committed any traffic infraction?
“A: At the time (inaudible), no.
“Q: Okay. And did you have any suspicion to believe that he was engaged in any other criminal activity at that time?
“A: No, Ma’am.
“Q: Okay. So you just saw him driving and you thought you would run his license plate?
“A: Yes, Ma’am.
“Q: It was just a random occurrence?
“A: (No response heard.)
“Q: Yes? Okay. And you cited it as common practice that you run license plates. Do you do this without being in an investigation, or having any reason to believe that there is any criminal activity?
“A: Yes, Ma’am.
*369“Q: You do that just as a practice, and the Police Department does it as a practice?
“A: I randomly run plates (inaudible).
“* * * * *
“Q: Okay. Does Medford Police — I’m sorry, Jackson County Sheriffs Department — do you have a policy that creates standards or criteria for how you are going to conduct these random license plate searches?
“A: Not that I know, Ma’am.
“Q: There is no written policy? I have actually read the Policy & Procedures Manual, there is nothing in there. Correct?
“A: Not that I know of.
“Q: No. There is no like spoken custom or just informal policy that folks talk about in the Department?
“A: Not that I know of.”
Thus, defendant argues, the deputy engaged in conduct that “placed a distinct and real burden on defendant’s ability to be left alone and to anonymously go about his daily affairs [and] also led to a criminal prosecution, one of the most severe burdens the government may impose on a citizen” — and he did so on an ad hoc, haphazard basis without any criteria at all, much less permissible criteria consistently applied.
The state responds with two arguments. First, it argues that no issue arises under Article I, section 20, because the burden that Bartlett imposed on defendant does not rise to constitutional significance. In particular, the state focuses (as does defendant) on the invasion of defendant’s privacy, that is, on the impairment of his freedom from scrutiny and of his freedom to be left alone. I agree; as indicated above, I conclude that defendant had no freedom from scrutiny of the personal information that he voluntarily provided to DMV when the scrutiny is by a law enforcement officer in the line of duty. On the other hand, I agree with defendant that, when Bartlett ran his license plate, the deputy was initiating a law-enforcement investigation, and that such an act imposes a constitutionally significant burden on the person being investigated. In Clark, 291 Or at 241, the Supreme *370Court held that the burden of being charged by grand jury indictment as opposed to by information was of constitutional significance. In Bruner, 299 Or at 264-65, 269, the defendant was cited into municipal court for violating a city ordinance, and therefore was entitled to de novo review in circuit court but to Court of Appeals review only on the constitutionality of the ordinance. Had he been cited into municipal court for violating a state law or cited into circuit court in the first instance, he would have been entitled to full de novo review in the Court of Appeals. The Supreme Court held that receiving the former entitlement instead of the latter was a burden of constitutional magnitude for purposes of Article I, section 20. If the minor and technical procedural advantages in a criminal adjudication are a burden of constitutional significance then surely the advantage of not being subjected to a criminal adjudication at all is as well.
More importantly, this case, unlike the precedential Supreme Court cases, deals not with a privilege, but with an immunity. If that term from the text of Article I, section 20, means anything at all, it surely applies to the situation at issue here: one driver is subjected to a criminal investigation while other similarly situated drivers are, by virtue of the police officer’s exercise of discretion, immune.
The concurring opinion is a more nuanced version of the state’s argument. According to the concurrence, in running defendant’s license plate, the officer did not distribute a “privilege or immunity” as those terms are used in Article I, section 20. A privilege or immunity, the concurrence argues, is something to which a citizen is “entitled” by statute or constitution. 237 Or App at 366-67. (Sercombe, J., concurring).
“[A] privilege or immunity under Article I, section 20, must be ‘granted’ in the sense of achieving that status by legislative or constitutional enactment; it is only official action with respect to that type of privilege or immunity that is constrained by the provision. In this case, there is no law that creates or regulates a privilege or immunity to be free from license plate scrutiny.”
Id. at 364 (footnote omitted). That is an intriguing and interesting argument, but it cannot possibly be correct. The concurrence’s unsupported assertion to the contrary notwithstanding, id. at 363 n 1, the term “privilege or immunity’ *371under Article I, section 20, does not have one meaning with respect to class-based discrimination and a different meaning with respect to systemless treatment of individuals. The text does not permit such a reading: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” Nor does the concurrence suggest anything in the context, history, or case law that would support such a distinction.
Thus, the necessary implication of the concurrence’s interpretation of Article I, section 20, is that the section is simply not implicated in either of its aspects unless the privilege or immunity at stake is a statutory or constitutional entitlement. If that is true, then the officer in this case could freely run the license plates of only African-American drivers, because, in the concurrence’s words, “there is no law that creates or regulates a privilege or immunity to be free from license plate scrutiny.” By the concurrence’s logic, nothing would prevent a district attorney who admits that he or she is driven by racial animus from selectively prosecuting an African-American arrestee but not a white one, because there is no law that creates a privilege or immunity for arrested persons to be free from prosecution. A state agency director presented with more qualified applicants than positions could hire only white people because there is no law that entitles a qualified applicant to a scarce employment opportunity. In sum, the concurrence fails to account for the fact that the public sphere is replete with advantages and disabilities that are not created by constitution, statute, rule, or policy, but that nonetheless cannot be distributed invidiously or ad hoc.
The state’s second argument is equally unavailing. That argument depends on the following proposition:
“The very nature of police work is highly subjective and discretionary and involves a never-ending series of individualized, nuanced, fact-based choices as to whether and how to pursue an investigation and how to prioritize limited time and resources. A police officer’s decision to conduct an investigation is a discretionary decision ‘based on a vast array of subjective, individualized assessments’ and will *372result in like individuals being treated differently particularly given that law enforcement agencies have finite resources. Some people will be subject to a police investigation and some similarly situated people will not.
“* * * * *
“Defendant’s position would subject an extremely broad range of police actions to Article I, section 20 review. Every time a police officer takes any action that could be perceived as ‘burdening’ a person, the person would have a potential Article I, section 20, challenge to that action. For example, a defendant could raise an Article I, section 20, challenge to an officer’s decision to approach him on the street to engage in mere conversation and ask for consent to search even though courts have pointedly refrained from subjecting those types of decisions to judicial review. See [State v.] Holmes, 311 Or [400,] 410[, 813 P2d 28 (1991).]”
There are several problems with this argument. First, it cannot survive — at least in this court — in light of Supreme Court precedent: “Whenever a person is denied some advantage to which he or she would be entitled but for a choice made by a government authority, Article I, section 20, requires that the government decision to offer or deny the advantage be made ‘by permissible criteria and consistently applied.’ ” Bruner, 299 Or at 268-69 (emphasis added). Indeed, the state’s argument is nearly indistinguishable from the dissenting opinion in Freeland, in which Justice Jones, joined by no other justice, makes the same policy argument. Freeland, 295 Or at 389-92 (Jones, J., dissenting). The only difference between Justice Jones’s unsuccessful argument and the state’s argument here is that Freeland concerned prosecutorial discretion regarding charging procedures, and the present case involves the discretion of police officers regarding the initiation of a criminal investigation. If anything, police discretion should be more constrained than prosecutors’ discretion, because it is more frequent, more consequential, and more invisible.
Second, contrary to the state’s presumption, Article I, section 20, does not prohibit a police officer from making “individualized, nuanced, [and] fact-based choices as to whether and how to pursue an investigation and how to prioritize limited time and resources.” (Emphasis added.) Article I, section *37320, prohibits police officers from making choices that are based on either no facts (that is, haphazard or ad hoc choices) or on impermissible facts (for example, race).
Third, Holmes and other cases permitting police officers to initiate contact with citizens are not relevant to Article I, section 20, analysis. Requiring consistently applied standards for police-citizen encounters does not limit police officers’ ability to have such encounters. It limits their ability to make haphazard, ad hoc, or invidiously discriminatory decisions about whom to have encounters with. Thus, for example, if an officer without any suspicion chooses to engage a citizen in mere conversation and has a reason for doing so, that encounter is lawful unless the reason itself is impermissible — for example, that the person looks Middle Eastern or Hispanic.
Finally, it must be emphasized that Article I, section 20, does not deprive state actors of their ability to exercise discretion.
“Discretion to choose a policy is not incompatible with consistency in practice. As one major study of prosecutorial discretion put it:
“ ‘That there should be consistent and evenhanded treatment of individuals within the framework of our legal system is such a commonly accepted notion that it hardly merits discussion and analysis * * *.’
“ ‘In its most elementary form, consistent and even handed treatment means that individuals in like circumstances will be treated alike * * *.’
“Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L Rev 1, 4 (1971). The challenge for the prosecutor, Professor Abrams continues, ‘is to articulate the factors taken into account by him, sometimes intuitively, in exercising his discretion.’ Id. Or, as Justice Tanzer wrote in another connection while on the Court of Appeals: ‘We recognize the wide discretion vested in the commission * * *, but that discretion is not unbridled. It is discretion to make policies for even application, not discretion to treat each case on an ad hoc basis.’ Sun Ray Dairy v. OLCC, 16 Or App 63, 72, 517 P2d 289 (1973).”
*374Freeland, 295 Or at 377 (footnote omitted). For all of the foregoing reasons, I am not persuaded by the state’s arguments.
The lead opinion, perhaps recognizing the weaknesses in the state’s arguments, offers one of its own. According to the lead opinion, the decision to run defendant’s plates was based on facts:
“[T]he deputy was able to see defendant’s front license plate and was able to make out defendant’s physical characteristics, which would have allowed him to compare the driver to the registered owner. Under those circumstances, the result was that defendant’s license plates were run as part of the deputy’s normal activity of investigating for stolen vehicles. In the course of that activity, any driver who happened to be coming out of the parking lot at that moment would have been subject to the same scrutiny. There was nothing arbitrary or whimsical about the deputy’s decision to run defendant’s license plates.”
Davis, 237 Or App at 360-61 (emphasis in original). The first problem with this argument is that the state never made it to the trial court and makes it on appeal only insofar as it uses the term “fact-based” without ever asserting that the deputy’s decision in the present case was fact-based or even mentioning any of the facts on which the lead opinion relies.
The second problem is more significant. Although the deputy testified that he observed defendant’s face and license plate, that he noticed the truck was “a later model pickup,” and that the events occurred at a particular intersection, he never testified or in any way implied that any of those facts were criteria that he applies when deciding when to run a license plate. Indeed, he never even testified that those facts played any role in his decision to execute the investigation in this case. To the contrary, he testified on both direct and cross-examination that his decision to investigate defendant was not based on criteria or standards. It was “random.” When asked, “So you just saw him driving and you thought you would run his license plate?,” he responded, “Yes, Ma’am.”
Thus, neither the witness, the state, nor the lead opinion presents any reason to conclude, nor any evidence from which we could infer, that the officer’s decision to *375initiate a criminal investigation of defendant was guided by criteria, policy, or system. The only evidence in the record establishes the exact opposite: that the decision was standardless and ad hoc. The witness’s testimony affirmatively proves that fact, and to assert that the testimony proves or implies the contrary fact — that the decision was based on some criteria consistently applied — is, not to mince words, incomprehensible.
“To allay misapprehension, perhaps a further comment is in order "Freeland, 295 Or at 382. The misapprehension here may be that the precedent governing this case, and this case itself, call into question the legitimacy of some governmental functions that are universally accepted yet appear to run afoul of Article I, section 20, because they, like Bartlett’s choice to run defendant’s license, involve the random conferral or denial of privileges. Most obvious are various lotteries, including the official State Lottery. As the state points out, however, there is a difference between “random” and “arbitrary,” or, more precisely, between “random” and “haphazard.” A truly random distribution of privileges or immunities cannot sensibly be called systemless, haphazard, or ad hoc. Those terms all connote, and Article I, section 20, prohibits, distributions that permit absolutely unconstrained discretion. A legitimate lottery or truly random distribution system incorporates safeguards to prevent the exercise of discretion. Thus, for example, a system under which police officers run license plates of every fifth vehicle, or the first vehicle that an officer not otherwise occupied observes on the hour, or any other system under which an individual state actor’s freedom to exercise discretion is constrained by criteria that he or she does not control, would not violate Article I, section 20. Under such systems, every similarly situated citizen would be guaranteed to have access to the privilege or immunity on equal terms — “on the same terms, * * * equally.” The record in this case discloses that no such system was in play. For that reason, I partially dissent.2
*376Armstrong and Ortega, JJ., and Breithaupt, J. pro tempore, join this dissent.If the state successfully defeats an individual-based Article I, section 20, claim by demonstrating that the state actor applied the law systematically, then, of course, that system must itself pass muster under a traditional, class-based analysis. Thus, for example, if a person contends that police officers stopped him on *368a purely ad hoc basis, and the state demonstrates that, in fact, the officer stopped the person because the person was speeding, the state will prevail because imposing the burden on the class of persons who are suspected of speeding does not offend Article I, section 20. On the other hand, if the state defeats the accusation of ad hoc administration of the traffic laws by demonstrating that the officer had a policy or practice of stopping Hispanics, that policy would itself be unlawful under the more traditional, class-based Article I, section 20, analysis. Clark, 291 Or at 239-40 (“[W]hen wholly standardless application of a general law to individual cases is avoided by formal or informal criteria, these criteria in turn must pass muster under ‘classification’ analysis.”).
There is perhaps one situation in which a police officer may necessarily and therefore lawfully engage in an arbitrary exercise of discretion: when the officer is presented simultaneously with two or more persons, each of whom is identically violating a law and both cannot be apprehended or investigated. The classic example is two cars running the same stop light at the same time. In such a situation, the only way the police officer could avoid an arbitrary choice would be to *376apprehend or investigate neither. This case does not present that hypothetical problem.