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Searching for Terrorists: Why Public Safety is Not a Special Need

85 Pages Posted: 10 Jun 2010 Last revised: 29 Jul 2010

Ric Simmons

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: June 9, 2009

Abstract

This Article critically examines the courts’ application of the “special needs” exception to Fourth Amendment searches that are designed to prevent terrorist attacks. It concludes that the special needs doctrine cannot justify these search regimes, and offers a proposal to ensure that these searches comport with the Constitution.

In the wake of the terrorist attacks of September 11th, local police across the country instituted blanket searches devoid of individualized suspicion at various venues - political protests, sporting events, subway platforms, and public ferries - all in an attempt to prevent further terrorist attacks. When evaluating these searches, courts have relied upon the special needs doctrine, which allows the government to conduct a suspicionless search as long as the search serves a special need distinct from the goals of law enforcement. Over the past eight years, courts have struggled to determine whether and how the special needs doctrine applies to these anti-terrorism searches, and their struggles have produced inconsistent results.

The Article first reviews the history of anti-terrorism searches, which can be roughly divided into three different time periods. In the early 1970’s, in response to an epidemic of hijackings and bombings of public buildings, the government instituted a regime of suspicionless searches at airports and public buildings - earches which are still with us today. During the second period, as the imminent danger of these terrorist actions abated, courts continued to uphold the searches, and suspicionless searches spread to other contexts far removed from the terrorist threat. Finally, in the third era, which began in 2001 and continues to the present day, the government aggressively expanded its use of anti-terrorism searches, creating a new set of challenges for courts attempting to evaluate their constitutionality.

The Article then explains why anti-terrorism searches cannot be justified under the special needs doctrine, and indeed why - in their current form - these searches cannot be justified under any Fourth Amendment doctrine. It then proposes a solution: suspicionless searches to prevent terrorism should be permitted, but only if the fruits of the search cannot be used in a subsequent criminal prosecution. Although the solution at first seems controversial, it represents a reasonable balance between the need to protect the country from terrorist attacks and the need to draw a principled distinction between special needs searches and general searches.

Keywords: terrorism, special needs, Fourth Amendment, search and seizure, suspicionless searches

Suggested Citation

Simmons, Ric, Searching for Terrorists: Why Public Safety is Not a Special Need (June 9, 2009). Duke Law Journal, Vol. 59, No. 843, 2010. Available at SSRN: https://ssrn.com/abstract=1622843

Ric Simmons (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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