Academic journal article Texas Journal on Civil Liberties & Civil Rights

The Special Needs Doctrine, Terrorism, and Reasonableness

Academic journal article Texas Journal on Civil Liberties & Civil Rights

The Special Needs Doctrine, Terrorism, and Reasonableness

Article excerpt

I. INTRODUCTION.............................................................................36

II. THE SPECIAL NEEDS DOCTRINE...................................................37

III. SUSPICIONLESS ADMINISTRATIVE SEARCHES..............................39

A. Closely Regulated Businesses..............................................40

B. Checkpoint Searches.............................................................41

IV. PUBLIC SAFETY............................................................................43

V. THE GATHERING OF FOREIGN INTELLIGENCE..............................47

A. The Federal Intelligence Surveillance Act............................48

B. The Foreign Intelligence Exception......................................50

C. When Might the Gathering of Foreign Intelligence Fit Within the Special Needs Doctrine?.....................................54

VI. CONCLUSION................................................................................57

These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual^] and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.1

I. INTRODUCTION

The last decade and a half has seen the rise of motivated and mobilized terrorists across the globe.* 2 3 In order to protect citizens and to prevent future terrorist attacks, law enforcement agencies and the intelligence community in the United States are constantly monitoring communications and searching for those with plans to attack the U.S. The search for terrorists, both through the use of electronic surveillance and through physical searches, implicates the Fourth Amendment of the United States Constitution. The Fourth Amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.4

The constitutionality of a search conducted by a governmental actor turns on whether the search is reasonable in light of the circumstances in which it is conducted.5 A search supported by probable cause and the issuance of a warrant is presumed to be reasonable and generally constitutional.6 One of the exceptions to the probable cause standard for searches is when "special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable."7

This paper will discuss the special needs doctrine and the ways in which the doctrine applies to searches conducted in response to the threat of terrorism. First, this paper will discuss the special needs doctrine and three contexts in which the doctrine justifies searches lacking probable cause. These three proposed special needs are administrative searches, public safety, and foreign intelligence collection. The analysis will look at each of these special needs in tum and apply that specific situation to anti-terrorism searches. This application of the doctrine will be used to determine if and when terrorism can be a special need such that anti-/ terrorism searches can be conducted absent probable cause. Next, the paper will argue that under the Fourth Amendment, as interpreted by the U.S. Supreme Court, searches justified by terrorism are only reasonable, and therefore constitutional, in certain limited contexts.

II. THE SPECIAL NEEDS DOCTRINE

The special needs doctrine evolved from the language of the Fourth Amendment, which determines that searches must be reasonable in order to be constitutional. …

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