Borrowing Balance, How to Keep the Special Needs Exception Truly Special: Why a Comprehensive Approach to Evidence Admissibility Is Needed in Response to the Expansion of Suspicionless Intrusions

55 Pages Posted: 9 May 2014

Date Written: February 24, 2014


Recognizing the inevitable expansion of the government’s use of the Fourth Amendment’s special needs exception to support suspicionless searches in counter-terrorism operations, this article argues that adoption of an evidentiary rule based on Military Rule of Evidence 313 is the best method to enforce the proper balance between necessary national security and individual liberties. After an extensive normative analysis of the foundations of the Supreme Court’s special needs jurisprudence, which includes not only “special needs” cases, but also traffic checkpoint and administrative search cases, I examine post 9-11 cases in both the US and Britain under section 44 of its Anti-Terrorism Act. The three lines of cases that support searches in the absence of particularlzed suspicion, as well as the British experience with section 44 searches, show that a core concern is unbridled discretion of the government agents performing the search.

While subjective intent on the part of these agents is irrelevant when probable cause is required to justify a search, a key concern in the special needs, vehicle checkpoint, and administrative inspections cases is the concern that these searches, because of the very lack of any particularized suspicion, are particularly susceptible to misuse, subterfuge, or pretext by the government. This weakness potentially eviscerates the protections of the Fourth Amendment. Because of this, Courts should be particularly concerned at ferreting out instances or programs designed to achieve illegitimate ends or which involve means prohibited by the Constitution such as profiling based on race, ethnicity, or religion. Under the current ad hoc approach, identification of programmatic purpose at the appropriate level can prove as difficult as the evaluation of an individual police officer’s subjective intent. Both remain core judicial tasks under the Fourth Amendment’s special needs exception.

A federal rule akin to Military Rule of Evidence 313, which uses the mechanism of shifting presumptions that shift the burden of persuasion to the government to disprove subterfuge at a high evidentiary level — that of clear and convincing evidence — can prove a valuable tool in the evaluation of special needs searches. Even under the special needs exception in the US, unbridled discretion is constitutionally suspect. By restoring the principled cabining of police discretion by courts through use of objective evidentiary tests, the evils of unchecked police discretion can be curtailed. I argue that the creation of an analogue Federal Rule of Evidence would serve multiple purposes. First, it provides a means for defense counsel to attack suspected subterfuge searches, legitimizing the inquiry and providing a rule under which a motion to exclude can be made, and discovery sought. Secondly, its high evidentiary burden provides incentives to the police to ensure that “special needs” searches can be justified both at their inception, and in implementation when challenged in court. Enactment of a federal rule of evidence akin to Military Rule of Evidence 313, restricting police discretion, thus contributes to the achievement of a long-term constitutionally supportable balance between national security and liberty, and recognizes that the personal autonomy and liberty protected by the Fourth Amendment is both an individual and societal good.

Keywords: Special Needs Exception, Fourth Amendment, Constitutional Law, National Security, Discretion, Rules of Evidence

Suggested Citation

Brenner-Beck, Dru, Borrowing Balance, How to Keep the Special Needs Exception Truly Special: Why a Comprehensive Approach to Evidence Admissibility Is Needed in Response to the Expansion of Suspicionless Intrusions (February 24, 2014). South Texas Law Review, Vol. 56, No. 1, 2014. Available at SSRN:

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