Fourth Amendment Lessons from the Highway and the Subway: A Principled Approach to Suspicionless Searches
73 Pages Posted: 7 Nov 2006 Last revised: 22 Dec 2008
The threat of future terrorist attacks has sped the proliferation of random, suspicionless searches and seizures, such as those now made of New York subway riders. Courts assess the legality of such suspicionless searches with an inherently flawed balancing test developed for examining searches and seizures made with a lesser degree of suspicion than probable cause. Although scholars and justices alike have decried the resort to balancing individual interests against the government's need to search, no alternative framework has been proposed. This Article proposes a principled, objective inquiry for determining when searches and seizures without probable cause can be made. To eliminate the need for balancing, the Article advances two propositions to remedy fundamental problems pervading Fourth Amendment jurisprudence. The first proposition is that the Fourth Amendment's protection should not vary according to expectations of privacy determined by judges. The long-held and generally unquestioned premise that the Fourth Amendment protects an ill-defined right to privacy should yield to the recognition that the amendment protects abstract privacy by protecting concrete property. The second is that the general requirement of probable cause for searches and seizures must always be enforced according to the term's specific meaning. Although probable cause relates only and specifically to criminal conduct, courts often use the term loosely in non-criminal contexts, inadvertently creating conditions that permit searches and seizures of the very sort the Framers meant to stop. The Article concludes by applying these propositions to advance a principled framework for evaluating the constitutionality of suspicionless searches.
Keywords: Fourth Amendment, search, seizure
JEL Classification: K14, K42
Suggested Citation: Suggested Citation