Catastrophic Threats and the Fourth Amendment

Simon Stern

University of Toronto - Faculty of Law

Ronald M. Gould

United States Court of Appeals - Ninth District

Southern California Law Review, Vol. 77, No. 4, 2004

The traditional Fourth Amendment search-and-seizure doctrine was fine for an age of flintlocks, and maybe even for an age of automatic weapons. In the past, ordinary crime, even heinous crime, almost always had a limited impact. But one must wonder whether our traditional constitutional doctrine, without more, is up to the task of governing all searches and seizures in an age of weapons of mass destruction and potential terrorism. This Article explores this question and concludes that traditional doctrine falls short in an age of threats unprecedented in their potential for harm.

We propose that, because of the potential harms posed by catastrophic threats, courts should corne to recognize that a fresh look at the probable cause standard is necessary. We contend that, if properly conducted, largescale searches undertaken to prevent horrific potential harms may be constitutionally sound even when the search of each particular location does not satisfy the traditional probable-cause requirement that such search have a "fair probability" or a "substantial chance" of yielding the object sought. As we discuss at more length below, established Fourth Amendment doctrine requires "individualized suspicion" for each person or place to besearched. We argue, however, that even where that element is lacking, the government's search for a weapon of mass destruction may be permissible if the Supreme Court's "special needs" exception to the probable-cause requirement is extended. Specifically, such a search should be permissible if (1) the search is justified by special needs that go beyond routine police functions; (2) the search program is reasonably designed to be as effective as is practical with the aim of preventing or minimizing harm to the public; (3) the procedure will give law enforcement constrained discretion in executing the search, and the search is not discriminatory in application; and (4) weighing the total circumstances, the balance between the governmental and societal need to search, weighed against the infringed-upon privacy of individuals, favors search.

Number of Pages in PDF File: 58

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Date posted: May 23, 2008  

Suggested Citation

Stern, Simon and Gould, Ronald M., Catastrophic Threats and the Fourth Amendment. Southern California Law Review, Vol. 77, No. 4, 2004. Available at SSRN: https://ssrn.com/abstract=1133104

Contact Information

Simon Stern (Contact Author)
University of Toronto - Faculty of Law ( email )
78 Queen's Park
Toronto, Ontario M5S 2C5
HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/simon-stern

Ronald M. Gould
United States Court of Appeals - Ninth District ( email )
United States
Feedback to SSRN

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