Searching for terrorists: Why public safety is not a special need

Duke Law Journal

Volumn 59, Issue 5, 2010, Pages 843-927

  Simmons, Ric ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 77954847856     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (339)

1. Throughout this Article, the word "terrorism" will be used to denote the use or threat of violence with the intent to intimidate, usually for ideological or political purposes.
2. See AMERICAN HERITAGE DICTIONARY 1854 (3d ed. 1992).
3. See, e.g., Ricardo J. Bascuas, Fourth Amendment Lessons from the Highway and the Subway: A Principled Approach to Suspicionless Searches, 38 RUTGERS L.J. 719, 722 (2007).
4. (Stating that the New York City subway searches are "uncontroversial" and that the case for such searches is "relatively easy to make").
5. Richard C. Worf, The Case for Rational Basis Review of General Suspicionless Searches and Seizures, 23 TOURO L. REV. 93, 131-37 (2007).
6. (Arguing that suspicionless searches should be seen as reasonable and thus constitutional if they have been approved by a representative legislative body, because the legislative process will correct any overreaching by law enforcement).
7. But see Anthony C. Coveny, When the Immovable Object Meets the Unstoppable Force: Search and Seizure in the Age of Terrorism, 31 AM. J. TRIAL ADVOC. 329, 384 (2007).
8. (Criticizing the holdings in antiterrorism search cases and noting that "whenever a bright line rule is replaced by a balancing test, civil liberties are likely to lose").
9. See, e.g., Ronald M. Gould & Simon Stern, Catastrophic Threats and the Fourth Amendment, 77 S. CAL. L. REV. 777, 777 (2004).
10. (Asserting that "traditional Fourth Amendment search-and-seizure doctrine was fine for an age of flintlocks," but that "large-scale searches undertaken to prevent horrific potential harms may be constitutionally sound").
11. But see John T. Parry, Terrorism and the New Criminal Process, 15 WM. & MARY BILL RTS. J. 765, 834-35 (2007).
12. (Concluding that "the war on terror has generated extraordinary criminal processes applicable to people suspected of terrorism" and that the costs of this change are significant, including that "state power over all of us-over our bodies, our mobility, our words and actions, and of course our lives-continues to increase").
13. Chandler v. Miller, 520 U.S. 305, 309 (1997) (declaring unconstitutional a Georgia law that conditioned one's candidacy for state office on passing a drug test).
14. The Ninth Circuit, for example, breaks these cases down into three categories that are "not necessarily mutually-exclusive" : searches at "exempted areas" (such as international borders, prisons, airports, and entrances to government buildings), "administrative" searches, and "special needs" searches. United States v. Kincade, 379 F.3d 813, 822-23 (9th Cir. 2004). Professor Schulhofer, meanwhile, distinguishes the "administrative" searches and the "internal governance" searches (such as those that occur in schools and public workplaces) from the mandatory drug testing laws that are actually intended to deter and punish the use of illegal drugs.
15. See Stephen J. Schulhofer, On the Fourth Amendment Rights of the Law-Abiding Public, 1989 SUP. CT. REV. 87, 162-63.
16. Camara v. Mun. Court, 387 U.S. 523, 537 (1967) (asserting the reasonableness of code-enforcement inspections).
17. For example, in 1857 a group of Mormons in Utah declared themselves to be in open rebellion against the United States and slaughtered 120 settlers on their way to California.
18. See Eugene E. Campbell, Governmental Beginnings, in UTAH'S HISTORY 153, 165-71 (Richard D. Poll et al. eds., 1989).
19. The late-nineteenth century saw a number of violent acts committed during labor disputes or by anarchists attempting to topple the United States government.
20. See, e.g., Nicholas von Hoffman, To Kill Everyman; A New Chapter in American Terrorism, WASH. POST, Oct. 15, 1995, at B3.
21. (Describing the changing targets of terrorist attacks). And racial violence perpetrated by groups such as the Ku Klux Klan caused many deaths in the early-to-mid-twentieth century. However horrible these terrorists' actions were, in sheer number they did not compare to the widespread bombings of public buildings in the late 1960s. See infra notes 8-9 and accompanying text.
22. See Thomas R. Brooks, Editorial, The Radical Underground Surfaces with a Bang, N.Y. TIMES, Mar. 15, 1970, (Magazine), at 171.
23. See also Michael Taylor, '70s in the Bay Area-Era of Radical Violence, S.F. CHRON., Jan. 24, 2007, at A1.
24. See FBI, History of the FBI: Vietnam War Era: 1960s-1970s, http://www.fbi.gov/libref/historic/history/vietnam.htm (last visited Dec. 22, 2009).
25. (Describing violence in opposition to the Vietnam War).
26. See generally The American Century, 1960-1969, WASH. TIMES, Aug. 30, 1999, at A10.
27. (Detailing the major political and social events of the 1960s).
28. United States v. Davis, 482 F.2d 893, 898 (9th Cir. 1973), abrogated by United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc). The high number of hijackings continued into the next decade: twenty-five in 1970, twenty-five in 1971, and twenty-six in 1972. The numbers finally dropped to single digits for most of the rest of the 1970s, and dropped to zero by the 1990s.
29. See OFFICE OF CIVIL AVIATION SEC., FED. AVIATION ADMIN., U.S. DEP'T OF TRANSP., CRIMINAL ACTS AGAINST CIVIL AVIATION 75 (2000).
30. See Eric Pace, Disclosure Is Made by Amman Radio, N.Y. TIMES, Sept. 27, 1970, at A1. The four planes were all destroyed on September 12, 1970.
31. See also Cynthia R. Fagan, Iraq's Oil for Terror; $72 Million to Palestinians, N.Y. POST, Oct. 17, 2004, at 13.
32. Downing v. Kunzig, 454 F.2d 1230, 1231 (6th Cir. 1972). The Government Services Administration (GSA) order stated: "[B]ecause of the recent outburst of bombings and other acts of violence, effective at once, at all entrances to federal property under the charge and control of GSA, where there are guards on duty, all packages shall be inspected for bombs or other potentially harmful devices. Admittance should be denied to anyone who refuses to voluntarily submit packages for examination.".
33. Davis, 482 F.2d at 899-900.
34. See Davis, 482 F.2d at 900-02 (noting a February 1 rule requiring air carriers to implement a screening system, an August 1 directive requiring airlines to search the baggage and screen or search the person of passengers meeting a particular profile, and a December 1 order requiring searches of all carry-on items and screening of all passengers).
35. In 2002, federal law enforcement agents replaced private airline employees as screeners.
36. Federal Screeners Just One Component of Air Safety Net, USA TODAY, Nov. 19, 2002, at 20A.
37. Downing, 454 F.2d at 1232-33.
38. The court also held that the searches were not very intrusive, stating that inspection of bags and packages was a "very minimal type of interference with personal freedom," which was reasonable given the government's need to protect itself against the "ruthless forces bent upon its destruction.".
39. See McMorris v. Alioto, 567 F.2d 897, 901 (9th Cir. 1978).
40. Legal commentators at the time expressed some concern that the government was overreacting, even given this background of violence.
41. See, e.g., Kenneth L. Jesmore, The Courthouse Search, 21 UCLA L. REV. 797, 825 (1974).
42. (" [Courthouse searches] are seldom founded upon an adequate correlation between the scope of the search procedures and the necessity for their implementation....An ongoing emergency-a current, serious threat of violence-may provide the justification necessary. ... [but t]he threat, of course, can be neither stale nor insignificant, and the intrusion must be limited according to the severity of the emergency."). The Supreme Court did not rule on any case regarding courthouse bombings or hijackings. However, in United States v. United States District Court, 407 U.S. 297 (1972), the Court acknowledged the heightened danger of terrorism in a case in which the government wiretapped a suspected terrorist. The Court noted that "threats and acts of sabotage against the Government exist in sufficient number to justify investigative powers with respect to them. The covertness and complexity of potential unlawful conduct against the Government and the necessary dependency of many conspirators upon the telephone make electronic surveillance an effective investigatory instrument in certain circumstances.".
43. However, the Court ultimately ruled against the prosecutor, concluding that "the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance.".
44. See, e.g., United States v. Edwards, 498 F.2d 496, 499-501 (2d Cir. 1974) (holding that the warrantless preboarding search of an airline passenger's beach bag was reasonable when the passenger was given sufficient notice that she was free to avoid the search by leaving the line); United States v. Albarado, 495 F.2d 799, 806 (2d Cir. 1974) (" [T]he use of a magnetometer is a reasonable search despite the small number of weapons detected in the course of a large number of searches. The absolutely minimal invasion in all respects of a passenger's privacy weighed against the great threat to hundreds of persons if a hijacker is able to proceed to the plane undetected is determinative of the reasonableness of the search."); United States v. Cyzewski, 484 F.2d 509, 512 (5th Cir. 1973) (" [C]ourts have consistently held airport security measures constitutionally justified as a limited and relatively insignificant intrusion of privacy balanced against the need to protect aircraft and its passengers."); United States v. Davis, 482 F.2d 893, 910-11 (9th Cir. 1973) (holding that preboarding screening of passengers and carry-on items for weapons or explosives is reasonable so long as the passenger can choose to avoid the search by not boarding the aircraft), abrogated by United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc); United States v. Skipwith, 482 F.2d 1272, 1276 (5th Cir. 1973) (" [R]easonableness does not require that officers search only those passengers who meet a profile or. .. who otherwise appear suspicious."); United States v. Slocum, 464 F.2d 1180, 1182 (3d Cir. 1972) (concluding that, because of the potential serious dangers of aircraft hijackings, the use of a magnetometer to screen airline passengers is justified by a reasonable governmental interest); United States v. Bell, 464 F.2d 667, 673 (2d Cir. 1972) (" In view of the magnitude of the crime sought to be prevented[and] the exigencies of time which clearly precluded the obtaining of a warrant, the use of the magnetometer is. .. a reasonable precaution."); United States v. Epperson, 454 F.2d 769, 771 (4th Cir. 1972) (asserting that magnetometer searches are justified by the minimal invasion of personal privacy and overwhelming governmental interest in preventing air piracy).
45. Davis, 482 F.2d at 910 (footnote omitted). The Ninth Circuit also held that these searches have an element of implied consent: "[A]irport screening searches are valid only if they recognize the right of a person to avoid search by electing not to board the aircraft.".
46. The consent justification for these searches has recently been questioned by some courts. See infra notes 316-20 and accompanying text.
47. Davis, 482 F.2d at 910.
48. Skipwith, 482 F.2d at 1279.
49. Collier v. Miller, 414 F. Supp. 1357, 1362 (S.D. Tex. 1976).
50. See, e.g., Downing v. Kunzig, 454 F.2d 1230, 1233 (6th Cir. 1972).
51. See, e.g., Skipwith, 482 F.2d at 1275.
52. See, e.g., Singleton v. Comm'r, 606 F.2d 50, 52 (3d Cir. 1979) (" By electing to proceed and board the aircraft, with advance notice of the search requirement, [the passenger] impliedly consented to the search."); Davis, 482 F.2d at 910-11. The implied-consent justification was recently rejected by the Ninth Circuit. See United States v. Aukai, 497 F.3d 955, 960-61 (9th Cir. 2007) (en banc). For a critique of the implied-consent justification, see infra Part V.C.
53. U.S. CONST. amend. IV.
54. (Explaining that the "warrant preference" interpretation, with certain exceptions, requires that searches and seizures be made under a warrant and with probable cause, whereas the "general reasonableness" interpretation requires only that searches and seizures be reasonable in the context of the particular case). Most scholars today focus on the "unreasonable" language, arguing for a broad balancing test in determining whether or not a given search is constitutional.
55. See, e.g., Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 ST. JOHN'S L. REV. 1097, 1118, 1120-25 (1998).
56. (Discussing different factors that may help to determine whether or not a search is reasonable, including: the scope and intrusiveness of the search, the weight of the governmental interest at issue, and the identity of the subject being searched).
57. See, e.g., Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 667 (1989) (" Even where it is reasonable to dispense with the warrant requirement in the particular circumstances, a search ordinarily must be based on probable cause.").
58. See Terry v. Ohio, 392 U.S. 1, 23-24, 28-31 (1968) (holding that a police officer's limited search of three men for weapons was reasonable because the men's unusual conduct gave the officer reasonable ground to believe, in light of his experience, that the search was necessary to prevent harm to himself and others).
59. See United States v. Robinson, 414 U.S. 218, 234 (1973); Weeks v. United States, 232 U.S. 383, 395-96 (1914) (affirming the principle that evidence found incidental to the execution of a legal search warrant is admissible at trial when material and properly offered in evidence because this evidence was not the product of an unreasonable search and seizure).
60. For searches incident to arrest, no further amount of individualized suspicion is required after the arrest is made-but of course the arrest itself is not legal unless the police have some amount of individualized suspicion against the suspect, and if they do not, the subsequent search incident to the arrest is invalid. See Chimel v. California, 395 U.S. 752, 762-63 (1969).
61. Of course, the most common form of search used by law enforcement is the consent search, which does not require any amount of individualized suspicion-but does require the suspect to agree to be searched. See United States v. Miller, 20 F.3d 926, 930 (8th Cir. 1994) (" [P]olice officers may search an area, even without probable cause or a warrant, if someone with adequate authority has consented to the search...."); United States v. Morris, 910 F. Supp. 1428, 1446 (N.D. Iowa 1995) (explaining that for a consensual search to be valid, the consent must be voluntary, must not have been "tainted by any other Fourth Amendment violation," and must not exceed the "reasonable scope" of the consent).
62. See Carroll v. United States, 267 U.S. 132, 154 (1925) (" Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.").
63. Camara v. Mun. Court, 387 U.S. 523 (1967).
64. (Overruling Frank v. Maryland, 359 U.S. 360 (1959), which held that a health inspector could enter a home even without first obtaining a warrant).
65. The Court also noted that these types of suspicionless inspections had been traditionally accepted by the courts and by the general public.
66. Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978).
67. Collonade Catering Corp. v. United States, 397 U.S. 72, 77 (1970).
68. United States v. Biswell, 406 U.S. 311, 317 (1972).
69. Donovan v. Dewey, 452 U.S. 594, 606 (1981).
70. See, e.g., Biswell, 406 U.S. at 315-16.
71. See, e.g., People v. Trusty, 516 P.2d 423, 424 (Colo. 1973).
72. See, e.g., People v. Sullivan, 272 N.E.2d 464, 466 (N.Y. 1971).
73. South Dakota v. Opperman, 428 U.S. 364, 378 (1976). Opperman merely confirmed the overwhelming conclusion of the lower courts; prior to the case, almost every state and circuit court that considered the question had held that inventory searches were permissible. Some lower courts had held that an inventory search was not technically a search under the Fourth Amendment, whereas some had concluded-as the Supreme Court ultimately did-that inventory searches were reasonable under the Fourth Amendment.
74. Accord Colorado v. Bertine, 479 U.S. 367, 376 (1987).
75. As noted above, some courts did not apply any doctrine at all; they merely conducted a reasonableness balancing test. Some courts analogized these searches to border searches, whereas other courts applied the doctrine of implied consent.
76. See, e.g., United States v. Davis, 482 F.2d 893, 910 (9th Cir. 1973) (" In this and other relevant respects, the airport search program is indistinguishable, for Fourth Amendment purposes, from the warrantless screening inspection of air passengers and their luggage for plant pests and disease. .. ."), abrogated by United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc). Although the Supreme Court has never directly reviewed the constitutionality of suspicionless searches at public buildings or in airports, it has cited the circuit court cases with approval in dicta, implying that upholding these suspicionless searches is a proper application of the administrative search doctrine. See Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 675 n.3 (1989).
77. Davis, 482 F.2d at 910.
78. There were some exceptions. The Fuerzas Armadas de Liberación Nacional (FALN), a Puerto Rican Marxist terrorist group, carried out a number of bombings between 1974 and 1985. None of these incidents, however, provoked a national shift in law enforcement tactics.
79. See Oscar Avila, Ex-Puerto Rican Radicals Work to Keep Cause Alive, L.A. TIMES, Sept. 16, 2009, at A17.
80. Von Raab, 489 U.S. at 675 n.3 (citations omitted).
81. There was an attempted hijacking of a nonpassenger airplane in 1994, when a Federal Express employee attempted to hijack one of the company's planes.
82. See JEFFREY PRICE, PRACTICAL AVIATION SECURITY: PREDICTING AND PREVENTING FUTURE THREATS 67 (2009).
83. United States v. Skipwith, 482 F.2d 1272, 1279 (5th Cir. 1973).
84. The unquestioned acceptance of these searches by the general population is perhaps the most troubling aspect of permissible suspicionless searches. Not only does it mean that there is no political will to change-or even critically examine-the policy of suspicionless searches at airports and courthouses, but it could also ultimately mean that legally these procedures are no longer even considered to be searches at all. Under the test put forward in Katz v. United States, 389 U.S. 347 (1967), a government surveillance or detection procedure is not a search unless it violates the suspect's "reasonable expectation of privacy.".
85. If suspicionless searches at airports and courthouses are generally accepted by society, it could be argued that they no longer violate a "reasonable expectation of privacy" because it would be unreasonable to believe one had the right to board an airplane without being subjected to a search.
86. See Ric Simmons, From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century Technologies, 53 HASTINGS L.J. 1303, 1331-35 (2002).
87. Most importantly, the decades since the Vietnam War have not seen anything like the level of social unrest that was produced by the racial tensions and antiwar protests of that era.
88. United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005).
89. New York v. Burger, 482 U.S. 691 (1987).
90. See N.Y. VEH. & TRAF. LAW § 415-a5 (McKinney 1986).
91. The law allowed inspection by an agent of the Department of Motor Vehicles or by a police officer.
92. Burger, 482 U.S. at 694-95.
93. In applying the administrative search doctrine, the Supreme Court found that the defendant had a reduced expectation of privacy because he was in a closely regulated industry.
94. And because suspicionless searches were necessary to further a substantial interest of the state.
95. The Court also noted that the statute provided notice, which was a valid substitute for a warrant, and that it placed legitimate time, place, and scope restrictions on the searches.
96. New Jersey v. T.L.O., 469 U.S. 325 (1985).
97. (Powell, J., concurring).
98. (Blackmun, J., concurring).
99. (Majority opinion) (" The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.").
100. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987).
101. T.L.O., 469 U.S. at 341-42.
102. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).
103. One can conclude by inference that the "reduced expectation of privacy" of athletes was not one of the dispositive factors, because seven years later the Court approved suspicionless drug testing of all students involved in extracurricular activities. See Bd. of Educ. v. Earls, 536 U.S. 822, 825 (2002).
104. Suspicionless searches had also already been permitted in the context of automotive checkpoints. See infra notes 139-46 and accompanying text.
105. Acton, 515 U.S. at 661.
106. See infra notes 147-50 and accompanying text.
107. O'Connor v. Ortega, 480 U.S. 709 (1987).
108. (" In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable.").
109. (" Government agencies provide myriad services to the public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employee's desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons." (citations omitted)).
110. (" An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others-such as fellow employees, supervisors, consensual visitors, and the general public- may have frequent access to an individual's office.").
111. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 606 (1989).
112. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 660-61 (1989).
113. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602 (1989).
114. (Internal quotation marks omitted).
115. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).
116. See Skinner, 489 U.S. at 624; Von Raab, 489 U.S. at 672 n.2.
117. See Skinner, 489 U.S. at 627 (finding a diminished expectation of privacy due to the heavy regulation of the industry); Von Raab, 489 U.S. at 672 (ruling that customs agents should expect inquiries into their fitness to perform their job).
118. See Skinner, 489 U.S. at 623-24, 628 (noting that drug users sometimes show no outward signs giving rise to probable cause; further noting that private railway employers are not experts in the warrant requirements or the subtleties of the law on probable cause); Von Raab, 489 U.S. at 666-67 (holding that a warrant requirement would "divert valuable agency resources from the Service's primary mission").
119. The greater danger posed regarding drug use by schoolchildren, railway operators, and customs agents is an important factor: a few years later, the Court found there was no special need to justify a Georgia law that required drug testing of all candidates for elected office because the officials did not "perform high risk, safety-sensitive tasks." Chandler v. Miller, 520 U.S. 305, 321-22 (1997).
120. See Skinner, 489 U.S. at 621 n.5 (noting that although the results of the test could be turned over to law enforcement, there was no evidence that the public employer had ever done so, nor that it ever intended to do so); Von Raab, 489 U.S. at 666 (" Test results may not be used in a criminal prosecution of the employee without the employee's consent.").
121. Griffin v. Wisconsin, 483 U.S. 868 (1987).
122. (Noting that probationers and parolees "do not enjoy 'the absolute liberty to which every citizen is entitled, but only. .. conditional liberty properly dependent on observance of special [probation] restrictions'" (alterations in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972))).
123. See O'Connor v. Ortega, 480 U.S. 709, 720, 722 (1987); New Jersey v. T.L.O., 469 U.S. 325, 352-53 (1985).
124. Griffin, 483 U.S. at 878.
125. The Griffin Court also added another consideration, unique to the probationer context: that the ongoing, supervisory relationship between the probation officer and the probationer would provide extra information to the probation officer in deciding whether to conduct a search.
126. The latest product of this evolution is Samson v. California, 547 U.S. 843 (2006), discussed infra at note 133.
127. Nicholas v. Goord, 430 F.3d 652, 671 (2d Cir. 2005).
128. (Upholding DNA collection from certain convicted felons because "[a]lthough the DNA samples may eventually help law enforcement identify the perpetrator of a crime," they are not being used for evidence or investigations "at the time of collection"), overruled in part by Samson, 547 U.S. 843, as stated in United States v. Amerson, 483 F.3d 73, 79 n.5 (2007); Green v. Berge, 354 F.3d 675, 677, 679 (7th Cir. 2004) (upholding DNA collection from prisoners because "the government has a special need in obtaining identity DNA samples").
129. See, e.g., United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir. 2005) (upholding DNA sample of probationers as a reasonable search under the totality of the circumstances); Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir. 2005) (same for prisoners); Groceman v. Dep't of Justice, 354 F.3d 411, 413 (5th Cir. 2004) (per curiam) (probationers); United States v. Kincade, 379 F.3d 813, 839 (9th Cir. 2004) (en banc) (prisoners); Jones v. Murray, 962 F.2d 302, 307 (4th Cir. 1992) (same).
130. United States v. Knights, 534 U.S. 112 (2001).
131. In a case five years later, the Court similarly ignored the special needs test in upholding a California law that allowed parolees to be subject to suspicionless searches. Samson v. California, 547 U.S. 843, 846, 855 n.4 (2006).
132. See, e.g., United States v. Ramsey, 431 U.S. 606, 622 (1977); United States v. Seljan, 547 F.3d 993, 1008 (9th Cir. 2008) (en banc).
133. United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008).
134. United States v. Robles, 45 F.3d 1, 5 (1st Cir. 1995).
135. United States v. Brignoni-Ponce, 422 U.S. 873, 883 (1975) (stating in dictum that law enforcement officers in border areas could pull over cars based on less than probable cause, but stating that there must be some individualized reasonable suspicion).
136. United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
137. See also United States v. Chadwick, 433 U.S. 1, 12 (1977) (claiming a "diminished expectation of privacy" with regard to vehicles).
138. Martinez-Fuente, 428 U.S. at 556.
139. Mich. Dep't of State Police v. Sitz, 496 U.S. 444 (1990).
140. The Court relied most prominently on Brown v. Texas, 443 U.S. 47 (1979). See Sitz, 496 U.S. at 448-50, 453-54.
141. Sitz, 496 U.S. at 449-52.
142. In fact, the antiterrorism searches provided some authority for this shift because a number of cases that expanded the scope of suspicionless searches cited the earlier courts' unanimous approval of airport and courthouse searches as evidence that public safety was a legitimate special need, distinct from general crime control. See, e.g., Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 675 n.3 (1989).
143. Sean Alfano, War Casualties Pass 9/11 Death Toll, CBS NEWS, Sept. 22, 2006, http://www.cbsnews.com/stories/2006/09/22/terror/main2035427.shtml.
144. Sean Clarke, Major Terrorist Attacks Since 9/11, GUARDIAN, Jul. 7, 2005, http://www.guardian.co.uk/world/2005/jul/07/terrorism.uk1.
145. Attack on London, GUARDIAN, July 7, 2005, http://www.guardian.co.uk/flash/0,1538819,00.html.
146. Terrorism did not even register as an election issue in 2000, but in 2002 it was seen as the second-most important challenge for the government to address.
147. See Economy Now the Most Important Issue for Americans by a Wide Margin, HARRIS INTERACTIVE, Sept. 24, 2008, http://www.harrisinteractive.com/harris_poll/index.asp?PID=951.
148. (Showing that, of people surveyed in 2002, 17 percent offered unprompted replies of "terrorism" as an election issue, making it the second most common unprompted answer).
149. There have been a series of threats and even fatalities since then, such as an individual who attempted to board a passenger airplane with a bomb in his shoe.
150. See Shoe Bomb Suspect to Remain in Custody, CNN.COM, Dec. 25, 2001, http://archives.cnn.com/2001/US/12/24/investigation.plane/index.html.
151. An unidentified person who sent Anthrax through the mail, see FBI, Amerithrax Investigation, http://www.fbi.gov/anthrax/amerithraxlinks.htm (last visited Jan. 3, 2010).
152. For an overview and analysis of many of these responses.
153. See, e.g., Cate Doty, Gore Criticizes Expanded Terrorism Law, N.Y. TIMES, Nov. 10, 2003, at A1.
154. (Criticizing expanded security measures).
155. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 635 (2006) (ruling that the Bush administration's tribunals trying enemy combatants held at Guantánamo Bay were unconstitutional).
156. Scott Shane, Mark Mazzetti & Helene Cooper, Obama Reverses Key Bush Security Policies, N.Y. TIMES, Jan. 22, 2009, at A1.
157. (" Mr. Obama signed executive orders closing the detention camp at Guantánamo Bay, Cuba, within a year; ending the Central Intelligence Agency's secret prisons; and requiring all interrogations to follow the noncoercive methods of the Army Field Manual.").
158. Commonwealth v. Carkhuff, 804 N.E.2d 317, 318 (Mass. 2004); see also infra Part III.A.1.
159. Bourgeois v. Peters, 387 F.3d 1303, 1306 (11th Cir. 2004); see also infra Part III.A.2.
160. State v. Seglen, 700 N.W.2d 702, 705 (N.D. 2005); see also infra Part III.A.3.
161. Johnston v. Tampa Sports Auth., 442 F. Supp. 2d 1257, 1259-60 (M.D. Fla. 2006), rev'd per curiam, 490 F.3d 820 (11th Cir. 2007), vacated and superseded on reh'g, 530 F.3d 1320 (11th Cir. 2008) (per curiam); see also infra Part III.A.3.
162. Carkhuff, 804 N.E.2d at 318.
163. The troopers also had orders to conduct a search of every truck that drove down the road.
164. The state also used analogies to cases upholding searches at the entrances to military bases. See, e.g., United States v. Miles, 480 F.2d 1217, 1219 (9th Cir. 1973) (per curiam).
165. Carkhuff, 804 N.E.2d at 320.
166. Bourgeois v. Peters, 387 F.3d 1303, 1306 (11th Cir. 2004). Fort Benning was the host of the Western Hemisphere Institute for Security Cooperation, otherwise known as the "School of the Americas," which trains military leaders from other Western Hemisphere countries in counterinsurgency tactics.
167. The protest group, known as the School of the Americas Watch (SAW), had conducted a peaceful protest of approximately 15,000 people every year for the thirteen years prior to the events in this case.
168. The search was essentially identical to an airport screening-every protester was required to walk through a metal detector, and if the detector indicated the presence of metal, the police would conduct a more thorough search of the protestor's person and possessions.
169. (Quoting Brief of Appellees at 13, Bourgeois, 387 F.3d 1303 (No. 02-16886), 2003 WL 23960109).
170. Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004).
171. (Quoting Reply Brief of Appellants at 4, Bourgeois, 387 F.3d 1303 (No. 02-16886), 2003 WL 23960108).
172. The Bourgeois court did note in the facts that the demonstrations had been peaceful for thirteen years, with no weapons ever found and no arrests for violence.
173. But it did not refer back to these facts during its legal analysis.
174. Stauber v. City of New York, Nos. 03 Civ. 9162, 03 Civ. 9163, 03 Civ. 9164, 2004 U.S. Dist. LEXIS 13350, at *3 (S.D.N.Y. July 19, 2004). The N.Y.P.D. also announced a number of other security measures, such as requiring demonstrators to assemble within "pens" that were made up of metal barricades and restricting access to the sites of the demonstration.
175. Stauber v. City of New York, Nos. 03 Civ. 9162, 03 Civ. 9163, 03 Civ. 9164, 2004 U.S. Dist. LEXIS 13350 (S.D.N.Y. July 19, 2004).
176. The court also noted other significant differences between airport searches and protestor searches: (1) the searches at airports involve (as a first step) only metal detectors, which are less intrusive than bag searches; (2) airport searches do not affect a person's constitutional right to expression; and (3) the police department gives no advance notice as to whether they will be searching at a particular demonstration.
177. State v. Seglen, 700 N.W.2d 702 (N.D. 2005).
178. One of the original justifications for the search was to prevent students from carrying animal carcasses into the arena and then throwing them on the ice during the game.
179. During the court case, however, the state argued for broader "security needs" that are "similar to airports and courthouses, especially in recent years.".
180. State v. Seglen, 700 N.W.2d 702 (N.D. 2005).
181. Johnston v. Tampa Sports Auth., 442 F. Supp. 2d 1257 (M.D. Fla. 2006), rev'd per curiam, 490 F.3d 820 (11th Cir. 2007), vacated and superseded on reh'g, 530 F.3d 1320 (11th Cir. 2008) (per curiam).
182. The judge in Johnston was worried about the slippery slope that would be created if no such principled distinction were drawn. Echoing Bourgeois, the court noted that allowing special needs to justify any antiterrorism suspicionless search would lead to searches at "virtually all professional sporting events, high school graduations, indoor and outdoor concerts, and parades.".
183. Am.-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652-GAO, 2004 WL 1682859 (D. Mass. July 28, 2004).
184. The searches consisted of a "visual search of the hand-carried items of all passengers.".
185. Cassidy v. Chertoff, 471 F.3d 67, 72 (2d Cir. 2006). These searches consisted of visual inspection of carry-on bags and of the trunks and interior of automobiles on the ferry.
186. Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. 2006).
187. (Quoting Implementation of National Maritime Security Initiatives, 68 Fed. Reg. 39,246 (July 1, 2003) (codified at 33 C.F.R. pt. 101)).
188. MacWade v. Kelly, 460 F.3d 260, 264 (2d Cir. 2006). Although the times and locations of the checkpoints are meant to "appear random, undefined, and unpredictable," they are actually based on a "sophisticated host of criteria, such as fluctuations in passenger volume and threat level, overlapping coverage provided by [the N.Y.P.D.'s] other counter-terrorism initiatives, and available manpower.".
189. MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006).
190. (Quoting Nicholas v. Goord, 430 F.3d 652, 663 (2d Cir. 2005)).
191. Bourgeois v. Peters, 387 F.3d 1303, 1311 (11th Cir. 2004).
192. MacWade, 460 F.3d at 272 (quoting Chandler v. Miller, 520 U.S. 305, 322-23 (1997)).
193. Throughout this debate, the Supreme Court has never directly reviewed a single antiterrorism suspicionless search case. As noted above, it has implicitly approved of the "first wave" of suspicionless searches in dicta-as well as the application of the special needs doctrine to those searches-in three separate cases. See City of Indianapolis v. Edmond, 531 U.S. 32, 47-48 (2000) (" Our holding. .. does not affect the validity of border searches or searches at places like airports and government buildings, where the need for such measures to ensure public safety can be particularly acute."); Chandler, 520 U.S. at 323 (" [W]here the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as 'reasonable'-for example, searches now routine at airports and at entrances to courts and other official buildings."); Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 675 n.3 (1989) (" [W]e would not suppose that. .. the government would be precluded from conducting [searches at airports] absent a demonstration of danger as to any particular airport or airline."). And although these cases were all decided before September 11, 2001, the broad language used points toward an approval of the second wave of antiterrorism searches: for example, the Von Raab Court stated that even if there were no demonstration of risk or danger, "[i]t is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from spreading to the particular context." Von Raab, 489 U.S. at 675 n.3. The Second Circuit relied upon this broad language in upholding ferry searches in Cassidy v. Chertoff, 471 F.3d 67, 83 (2d Cir. 2006), and subway searches in MacWade, 460 F.3d at 272.
194. City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
195. Ferguson v. City of Charleston, 532 U.S. 67 (2001).
196. Edmond, 531 U.S. at 34.
197. (Quoting United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)).
198. (Quoting Delaware v. Prouse, 440 U.S. 648, 659 n.18 (1979)).
199. The dissent also pointed out that the distinction made by the majority was "not at all obvious.".
200. (Rehnquist, C.J., dissenting).
201. The definition of "general crime control" was further refined in Illinois v. Lidster, 540 U.S. 419 (2004), in which the Court upheld the use of a suspicionless vehicular checkpoint to ask drivers for information about a recent hit and run that had occurred at the same location.
202. Although the Court conceded that the Lidster checkpoint, like the invalid Edmond checkpoint, was designed to meet the "general interest in crime control," the Court held there was a distinction between determining whether the motorist in the car had committed a crime (as in Edmond) and asking the motorist for information about a crime that was probably committed by someone else.
203. Ferguson v. City of Charleston, 532 U.S. 67, 70-71 (2001).
204. (" The stark and unique fact that characterizes this case is that [this program] was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and that could be admissible in subsequent criminal prosecutions.").
205. Most recently, the Court's newfound reluctance to allow suspicionless searches could be implied from Arizona v. Gant, 129 S. Ct. 1710 (2009). Although Gant is not a suspicionless search case because it covers searches of a suspect's car after he or she has been arrested, it includes language that supports the need for probable cause or a warrant.
206. (" Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis. For these reasons, we are unpersuaded by the State's arguments that a broad reading of Belton would meaningfully further law enforcement interests and justify a substantial intrusion on individuals' privacy.").
207. See generally Edwin J. Butterfoss, A Suspicionless Search and Seizure Quagmire: The Supreme Court Revives the Pretext Doctrine and Creates Another Fine Fourth Amendment Mess, 40 CREIGHTON L. REV. 419 (2007).
208. (" [T]he 'category' of suspicionless searches [has become] a jurisprudential mess, with the only consistent theme being that suspicionless search schemes [have been] regularly upheld as lawful.").
209. See United States v. Knights, 534 U.S. 112, 116 (2001).
210. The Supreme Court has held that government surveillance does not constitute a "search" within the meaning of the Fourth Amendment unless the surveillance infringes upon an individual's "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Thus, if an individual does not have a reasonable expectation of privacy in a certain context-for example, if he is conducting an activity in a public place, or if he is in prison-then the government can watch his actions without violating his reasonable expectation of privacy and thus not violate the Fourth Amendment.
211. Knights, 534 U.S. at 119.
212. Camara v. Mun. Court, 387 U.S. 523, 537 (1967).
213. New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring).
214. City of Indianapolis v. Edmond, 531 U.S. 32, 43 (2000).
215. See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 563 (1985) (Brennan, J., dissenting) (" [The Fourth Amendment safeguards] should govern border searches when carried out for purposes of criminal investigation.").
216. Camara, 387 U.S. at 530.
217. See New York v. Burger, 482 U.S. 691, 708-10 (1987). Burger belongs in the third category of suspicionless search cases because the search was upheld based on the defendant's reduced expectation of privacy.
218. See, e.g., MacWade v. Kelly, 460 F.3d 260, 273 (2d Cir. 2006).
219. Bourgeois v. Peters, 387 F.3d 1303, 1312-13 (11th Cir. 2004).
220. There is, perhaps, a distinction between trying to prevent crime and trying to detect crime. If a government activity is only meant to prevent crime, the individualized suspicion requirements of the Fourth Amendment should not apply. For example, installing a window made of bulletproof glass at all post office counters is a method of preventing crimes-there is surely no need to demonstrate individualized suspicion for every customer who approaches the window. It could be argued that suspicionless antiterrorism searches should be analogized to these bulletproof glass windows-if a government agent searched everyone who entered the post office, for example, the search would only be intended to prevent crimes, and so there would be no need to demonstrate any individualized suspicion. The problem with making this distinction is that in practice the suspicionless antiterrorist searches are used both to prevent and detect crime-and ultimately to punish the criminal as well. If the search recovers a weapon, the subject of the search is arrested and the weapon is used as evidence in a subsequent prosecution. The only way to ensure that the suspicionless searches are truly only being used to prevent a crime would be to preclude the government from using any fruits of the search in a subsequent prosecution. See infra Part VI.B.
221. United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973), abrogated by United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc).
222. Once this terminology had become enshrined in precedent, it was perpetuated by later generations of cases. The Ninth Circuit recently upheld an airport search as an administrative search, quoting this same language from the Davis case. United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (en banc).
223. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 666 (1989). The Court also notes that customs employees have a diminished expectation of privacy.
224. But this was not the primary reason that the searches were found constitutional.
225. Colorado v. Bertine, 479 U.S. 367, 369-71 (1987).
226. United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 (1976).
227. Camara v. Mun. Court, 387 U.S. 523, 534-36 (1967).
228. Von Raab, 489 U.S. at 668.
229. MacWade v. Kelly, 460 F.3d 260, 270-71 (2d Cir. 2006) (first alteration in original) (citations omitted).
230. For a discussion of how to reconcile these searches with the Fourth Amendment, see infra Part VI.
231. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 828 (2002).
232. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619 (1989) (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)).
233. See, e.g., United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974).
234. MacWade, 460 F.3d at 268-69 (citations omitted).
235. See Bourgeois v. Peters, 387 F.3d 1303, 1311-12 (11th Cir. 2004).
236. Johnston v. Tampa Sports Auth., 442 F. Supp. 2d 1257, 1266 (M.D. Fla. 2006), rev'd per curiam, 490 F.3d 820 (11th Cir. 2007), vacated and superseded on reh'g, 530 F.3d 1320 (11th Cir. 2008) (per curiam); Stauber v. City of New York, Nos. 03 Civ. 9162, 03 Civ. 9163, 03 Civ. 9164, 2004 U.S. Dist. LEXIS 13350, at *93 (S.D.N.Y. July 19, 2004); see also Bourgeois, 387 F.3d at 1311; State v. Seglen, 700 N.W.2d 702, 707-08 (N.D. 2005).
237. Johnston, 442 F. Supp. 2d at 1266-69; Seglen, 700 N.W.2d at 708.
238. Johnston, 442 F. Supp. 2d at 1269 (quoting Downing v. Kunzig, 454 F.2d 1230, 1231-32 (6th Cir. 1972)).
239. (Citing MacWade v. Kelly, 460 F.3d 260, 272 (2d Cir. 2006)).
240. This rule means that a judge must somehow determine at what point the ever-present "background threat" of terrorism becomes a "substantial and real" threat. If a terrorist group issues a statement that it will attack a sports arena sometime in the next year, does that make the threat to all sports arenas substantial and real? What if it named a city but no date? Would it matter if the terrorist group had been known to have successfully committed terrorist acts in the past? In short, how could a judge intelligently determine the probability of such a threat, and what is the probability threshold for "substantial and real" ?.
241. In Von Raab, the Court noted that in fifteen years, 9.5 billion people and ten billion pieces of luggage had undergone a suspicionless search, and only forty-two thousand firearms had been detected. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 675 n.3 (1989). Thus, every suspicionless search that occurred had a .00042 percent chance of detecting a firearm.
242. See, e.g., United States v. Yang, 286 F.3d 940, 944 n.1 (7th Cir. 2002) (" [T]he events of September 11, 2001, only emphasize the heightened need to conduct searches at this nation's international airports.").
243. In a recent article, Anthony Coveny described the current balancing test for suspicionless searches as a mathematical formula, in which PC stands for public concern, E is a percentage that represents the efficacy of the searches, and LI stands for the level of intrusion of the search. If PC x E > LI, the search should be allowed, but if PC x E< LI, then the search is unreasonable and hence unconstitutional.
244. When public concern is preventing terrorism, PC is essentially infinite. Coveny quotes the Second Circuit statement that "the government interest in preventing a terrorist attack on the subway was 'of the very highest order.'".
245. (Quoting MacWade, 460 F.3d at 267). Other courts use similar language when applying the balancing test. See, e.g., United States v. Hartwell, 436 F.3d 174, 179 (3d Cir. 2006) (" [T]here can be no doubt that preventing terrorist attacks on airplanes is of paramount importance."); United States v. Marquez, 410 F.3d 612, 618 (9th Cir. 2005) (" It is hard to overestimate the need to search air travelers for weapons and explosives. .. ."). Therefore, "as long as the effectiveness measure is anything but zero, the level of intrusiveness is near immaterial.".
246. And if PC is not set to infinity, how should it be calculated in evaluating the reasonableness of most antiterrorist searches?.
247. See generally Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503 (2007).
248. (Discussing why courts have not adopted a test for reasonableness).
249. Bourgeois v. Peters, 387 F.3d 1303, 1313 (11th Cir. 2004) (quoting Chimel v. California, 395 U.S. 752, 765 (1969)).
250. A number of commentators have also recognized this problem. Professor Ricardo Bascuas notes that using a balancing test to determine what is "reasonable" is not even "a legal inquiry or test" because it is not a process of discerning general rules or principles and applying them evenhandedly to specific disputes as they arise. Rather, balancing is for judges, as Justice Scalia put it, "a regrettable concession of defeat-an acknowledgement that we have passed the point where 'law,' properly speaking, has any further application." The vagueness of the term "reasonable" makes not only the outcome but the very criteria of the "test" unpredictable.
251. (Quoting Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1181 (1989)).
252. Professor Thomas Clancy, writing in 1995-well before the second wave of antiterrorism searches began-warned against suspicionless "checkpoints and detectors. .. at stadiums, in schools, and at other public gatherings," all justified by a "totally subjective reasonableness analysis.".
253. Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEM. L. REV. 483, 624-25, 627 (1995) (footnotes omitted).
254. Clancy argues that there must be a "return to the central importance given to individualized suspicion by the framers," though he does not explain how this will apply to airport searches.
255. Bascuas proposes his own test for antiterrorism searches, which this Article discusses infra at notes 335-38 and accompanying text. Indeed, the vague nature of the term "reasonableness" was evident in the Supreme Court's most recent school search case, in which a schoolgirl was strip-searched on suspicion that she was carrying illegal prescription drugs. Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2641-43 (2009). Whether it was reasonable for school officials to conduct such an intrusive search to combat the possession and distribution of drugs in school comes down to little more than the personal opinion of the judge or judges hearing the case. In Safford United School District No. 1 v. Redding, 129 S. Ct. 2633 (2009), the trial judge found the search to be reasonable, a three-judge appellate panel agreed, an en banc panel split sharply on the question, and the Supreme Court finally ruled that the search was unreasonable.
256. Political process theory focuses on ambiguous terms in the Constitution, such as due process, equal protection, or unreasonable searches and seizures.
257. (" If mass terror strikes, it might be disastrous to apply old precedents to determine what constitutes a reasonable general search or seizure.").
258. MacWade v. Kelly, 460 F.3d 260, 274 (2d Cir. 2006).
259. Even the strongest proponents of political process theory concede that the Fourth Amendment has "remained largely invulnerable to political process theory.".
260. (Noting Akhil Amar's acknowledgment that political process theory has had little influence on Fourth Amendment jurisprudence).
261. Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 758-59 (1994).
262. See, e.g., Sara Kornblatt, Note, Are Emerging Technologies in Airport Passenger Screening Reasonable Under the Fourth Amendment?, 41 LOY. L.A.L. REV. 385, 404-05 (2007).
263. (" There are metal detectors at courthouses, schools, and stadiums. While some may find magnetometers at these types of locations annoying, society in general has allowed their use without an uproar that Fourth Amendment rights are being violated." (footnote omitted)).
264. There is even an argument that once a threat has receded, courts are more likely than voters to revisit the restrictions on liberty that they put into place. Professor William Stuntz has noted that the twentieth century saw a pattern in the way the Supreme Court interpreted the Fourth Amendment: "Crime fell in the 1940s and 1950s; Fourth Amendment rights expanded in the 1960s. Crime rose sharply in the 1960s; Fourth Amendment protection receded in the 1970s and 1980s. Crime fell again in the 1990s, and by the end of that decade Fourth Amendment rights were once again expanding."
265. William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2155 (2002). Thus, it is not that courts are unresponsive to the changing world, but that they are merely slower to respond-both for institutional reasons, and because they are applying fixed principles of law, which legislatures do not do. This deliberateness is probably a virtue when courts are considering alterations to the scope of Fourth Amendment protections.
266. See, e.g., United States v. Miller, 20 F.3d 926, 930 (1994) (" [W]e note that police officers may search an area, even without probable cause or a warrant, if someone with adequate authority has consented to the search. .. .").
267. United States v. Davis, 482 F.2d 893 (9th Cir. 1973), abrogated by United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc).
268. United States v. Hartwell, 436 F.3d 174, 180-81 (3d Cir. 2006).
269. Am.-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652-GAO, 2004 WL 1682859, at *3 (D. Mass. July 28, 2004).
270. Johnston v. Tampa Sports Auth., 442 F. Supp. 2d 1257, 1271-72 (M.D. Fla. 2006), rev'd per curiam, 490 F.3d 820 (11th Cir. 2007), vacated and superseded on reh'g, 530 F.3d 1320 (11th Cir. 2008) (per curiam).
271. MacWade v. Kelly, 460 F.3d 260, 273, 275 (2d Cir. 2006). The Second Circuit never used implied consent as a legal justification for the search; instead it applied the fact that individuals could choose to walk away as evidence that the search was "minimally intrusive.".
272. Which is one of the three factors of the reasonableness balancing test for the special needs doctrine.
273. There is a recent Ninth Circuit case that appears to hold that the constitutionality of these searches does not depend on consent, but in reality it only specifies the type of consent that is required. See United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (en banc). In United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc), the defendant voluntarily subjected himself to a metal detector and a secondary screening at the airport, but when he was directed to empty his pockets, he refused, telling the TSA officials that he no longer wished to board the plane and asking to leave the airport.
274. This request was refused, and a subsequent search of the defendant revealed several baggies of methamphetamine and a glass pipe.
275. The Ninth Circuit relied on the administrative search doctrine to uphold the search, and went out of its way to note that the constitutionality of the search did not depend on the defendant's consent; thus, the defendant could not revoke his consent and tell the officers that he no longer wished to fly.
276. But a few sentences later it noted that "all that is required [for the search to be constitutional] is the passenger's election to attempt entry into the secured area of an airport.".
277. Thus, for all its strong language about consent not being a necessary element, it appears that the Aukai case simply specifies what kind of consent is required, without abolishing a consent requirement altogether. Once individuals choose to undertake an activity (and thus implicitly agree to a search), there comes a point at which they cannot back out of the activity and withdraw their consent. In other words, this holding is not inconsistent with a theory that would justify all suspicionless antiterrorism searches using implied consent.
278. For a recent discussion of these issues, see generally Bethany A. Gulley, Case Note, United States v. Aukai, 497 F.3d 955 (9th Cir. 2007), 31 U. ARK. LITTLE ROCK L. REV. 515 (2009).
279. See, e.g., Adams v. James, 784 F.2d 1077, 1080 (11th Cir. 1986) (" The doctrine of unconstitutional conditions prohibits terminating [prisoner] benefits, though not classified as entitlements, if the termination is based on motivations that other constitutional provisions proscribe."); Bertrand v. United States, 467 F.2d 901, 902 (5th Cir. 1972) (per curiam) (ordering resentencing because "[t]he effect of the trial judge's questioning [of the defendant] was to impose an unconstitutional condition on the petitioner's Fifth Amendment rights: he could go into the details of the other offense. .. that might constitute a confession or he could exercise his right to be silent and receive a long sentence"); Boykins v. Fairfield Bd. of Educ., 399 F.2d 11, 13 (5th Cir. 1968) (" The plaintiffs [were] admitted to the school system, but had been denied the opportunity to transfer from a Negro to a white school. Once the plaintiffs had been admitted to the school system, they had a constitutional right to a desegregated education, and have standing to enforce that right-free of any unconstitutional condition precedent." (quoting Bossier Parish Sch. Bd. v. Lemon, 370 F.2d 847, 851 (5th Cir. 1967))).
280. Johnston, 442 F. Supp. 2d at 1271; accord Bourgeois v. Peters, 387 F.3d 1303, 1324-25 (11th Cir. 2004).
281. Burgess v. Lowery, 201 F.3d 942, 947 (7th Cir. 2000).
282. Johnston, 442 F. Supp. 2d at 1271; Nakamoto v. Fasi, 64 Haw. 17, 22-26 (1981).
283. The Supreme Court has perhaps provided a preview of how they would interpret the doctrine of unconstitutional conditions in its "reasonable expectation of privacy" jurisprudence. In Smith v. Maryland, 442 U.S. 735 (1979), the Court held that an individual has no reasonable expectation of privacy in the telephone numbers he calls, because he "voluntarily" communicates these numbers to the telephone company when he dials them.
284. According to Smith's reasoning, the only way to maintain a reasonable expectation of privacy in telephone numbers is to not use the telephone at all. A similar analysis applied to the doctrine of unconstitutional conditions would invariably result in findings of implied consent for almost every activity.
285. See Charles J. Keeley III, Note, Subway Searches: Which Exception to the Warrant and Probable Cause Requirements Applies to Suspicionless Searches of Mass Transit Passengers to Prevent Terrorism?, 74 FORDHAM L. REV. 3231, 3287-91 (2006).
286. (Arguing for a sui generis approach to mass transit searches).
287. (" [T]he 'war on terror' has accelerated the development of a new criminal process and. .. this new process has increasingly displaced traditional methods of investigating, prosecuting, and punishing people who have engaged in conduct that is subject to criminal penalties. .. .").
288. City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000).
289. (Analyzing the implications of this statement).
290. In re Sealed Case, 310 F.3d 717, 745-46 (FISA Ct. Rev. 2002).
291. The Gould & Stern test is only one of many proposed tests that ultimately rely on the reasonableness of the search. For example, Professor Edwin Butterfoss proposes a test first developed by Scott Sundby twenty years ago-divide searches into two categories: "initiatory intrusions" and "responsive intrusions.".
292. (Quoting Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 MINN. L. REV. 383, 418-21 (1988)).
293. Responsive intrusions would be covered by the full range of Fourth Amendment protections whereas initiatory intrusions would be subject to a balancing test based on the subject's reasonable expectation of privacy, the level of intrusion, and the magnitude of the government interest.
294. The concept of precluding any evidence found that is not related to the danger which justifies the search is an intriguing one. Justice Scalia suggested this idea at one point in the context of Terry stops, saying that it is supported by "the theory that half a constitutional guarantee is better than none." Minnesota v. Dickerson, 508 U.S. 366, 382 (1993) (Scalia, J., concurring) (" If I were of the view that Terry was (insofar as the power to 'frisk' is concerned) incorrectly decided, I might-even if I felt bound to adhere to that case-vote to exclude the evidence incidentally discovered. .. ."). But ultimately this "half a constitutional guarantee" is insufficient in the context of antiterrorism searches because it still allows the government to conduct suspicionless searches and use the weapons that are recovered in a subsequent criminal prosecution, thus bypassing the individualized suspicion requirements of the Fourth Amendment.
295. MacWade v. Kelly, 460 F.3d 260, 264 (2d Cir. 2006).
296. The reasonableness test will apply even if law enforcement tries to rely on implied consent to justify its searches, due to the doctrine of unconstitutional conditions.
297. See Brown v. Bd. of Educ., 394 U.S. 294, 299 (1955) (" Full implementation of these constitutional principles may require solution of varied local school problems.").
298. See Miranda v. Arizona, 384 U.S. 436, 492 (1966) (holding a criminal defendant's confession to police inadmissible without a "knowing and intelligent waiver" of Fifth Amendment rights).
299. Miranda v. Arizona, 384 U.S. 436 (1966).
300. (White, J., dissenting). Justice White continued rather dramatically: In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined.
301. See, e.g., RICHARD A. LEO & GEORGE CONNER THOMAS, THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING 56 (1998).
302. Professor Stuntz argues that the current system, which allows police to conduct suspicionless antiterrorism searches in some contexts and promises to allow them in many more as time goes on, represents a "healthy bribe" to the police to prevent them from engaging in more intrusive and discriminatory searches.
303. Atwater v. City of Lago Vista, 532 U.S. 318 (2001).
304. Whren v. United States, 517 U.S. 806 (1996).
305. Given this existing broad authority, Stuntz argues that allowing an even greater range of suspicionless searches and more carefully regulating the manner in which they are carried out would be preferable.
306. Under the state action doctrine, the Fourth Amendment would be implicated as long as these searches were required by the government, as has been the case since the early 1970s. Thus, the government would have to abolish the requirement and allow airlines to take responsibility for their own passengers' safety. Consumers may or may not find this to be a welcome development; private security guards may be more or less abusive-or more or less effective-than government personnel.
307. A surveillance procedure that can only detect the presence or absence of illegal activity is not considered a search under the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707 (1983) (concluding that luggage sniffing by narcotics detection dogs is not a search under the Fourth Amendment).
308. See Ferguson v. City of Charleston, 532 U.S. 67, 71-73 (2001).
309. MacWade v. Kelly, 460 F.3d 260, 270 (2d Cir. 2006).
310. See, e.g., United States v. Davis, 482 F.2d 893, 910-11 (9th Cir. 1973) (" To meet the test of reasonableness, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it. It follows that airport screening searches are valid only if they recognize the right of a person to avoid search by electing not to board the aircraft. It is difficult to see how the need to prevent weapons and explosives from being carried aboard the plane could justify the search of a person who had elected not to board." (footnotes omitted)), abrogated by United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc).
311. Professor Bascuas makes a similar, if more sophisticated argument by proposing to exclude any contraband that is "unrelated to the justification for suspicionless searches.".
312. This rule would ensure that antiterrorism searches are not used as pretexts for generalized crime-control searches, which is one of Bascuas's chief concerns.
313. But it does not go far enough because it does not address the fundamental hypocrisy of categorizing antiterrorism searches as special needs searches.
314. See Davis, 482 F.2d at 908.
315. Although the "fruit of the poisonous tree" doctrine would prevent law enforcement officials from using any evidence that was discovered as a direct result of the suspicionless search (for example, a confession resulting from the subsequent arrest), it would not preclude law enforcement from beginning to monitor the public activities of the suspect and gather evidence of any new crimes against him. See generally Wong Sun v. United States, 371 U.S. 471, 487-88 (1963) (describing operation of the "fruit of the poisonous" tree doctrine in the context of illegal police actions).
316. New York v. Quarles, 467 U.S. 649, 686 (1984) (Marshall, J., dissenting).
317. (Majority opinion). The Court employed reasoning quite similar to what is used to justify suspicionless antiterrorism searches in the Fourth Amendment context.
318. Noting that "we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.".
319. See, e.g., Chavez v. Martinez, 538 U.S. 760, 766 (2003) (reasoning that Fifth Amendment rights are not implicated when statements by a subject of a police investigation are not admitted in a criminal proceeding). Just as with suspicionless antiterrorism searches, the courts seem unwilling to apply this doctrine when there is a vague risk to public safety-even though the existence of a danger to public safety has no bearing on whether or not a statement is the result of a coercive interrogation.
320. (Noting that "interrogation issues. .. are litigated along two tracks," and using this as an example of how a "new criminal process" -more like war and less like crime control-" restricts the space in which constitutional rights operate to the courtroom alone").
321. The Fifth Amendment is also distinct from the Fourth Amendment in that the former provides a right and a remedy together-effectively stating that compelled testimony is inadmissible in a criminal proceeding. The Fourth Amendment provides a right but no remedy, which has led to courts creating the exclusionary rule.
322. See, e.g., Camara v. Mun. Court, 387 U.S. 523, 530 (1967) (" But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely 'peripheral.' It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." (quoting Frank v. Maryland, 359 U.S. 360, 367 (1959), overruled by Camara, 387 U.S. 523)).
323. See Whren v. United States, 517 U.S. 806, 813 (1996) (declining to analyze the subjective intent of police officers in the context of the Fourth Amendment).
324. Brooks Holland, The Road 'Round Edmond: Steering Through Primary Purposes and Crime Control Agenda, 111 PENN ST. L. REV. 293, 305 (2006).
325. Of course, it is somewhat easier to determine the purpose of a search if courts look to the programmatic purpose of the search, as opposed to the individual motive of the officer conducting the search, but by either definition any given search would probably have multiple purposes.
326. Compare City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000) (holding the Indianapolis drunk driving checkpoint system unconstitutional under the Fourth Amendment), with Illinois v. Lidster, 540 U.S. 419, 427-28 (2004) (upholding the constitutionality of police checkpoints used to ask motorists about a hit-and-run incident).
327. See H. Mitchell Caldwell, Fixing the Constable's Blunder: Can One Trial Judge in One County in One State Nudge a Nation Beyond the Exclusionary Rule?, 2006 BYU L. REV. 1, 1-2.
328. (Surveying criticism of the exclusionary rule).
329. Even if the exclusionary rule is eventually abolished by the Supreme Court, the rationale for excluding contraband recovered in special needs searches remains because the search can only be honestly termed "special needs" if the results of the search are not used against the suspect in a criminal trial.
330. Judge Friendly, for example, warned against unbridled searches if police were no longer concerned with the Fourth Amendment.
331. See Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 CAL. L. REV. 929, 949 (1965).
332. (Analyzing the relationship of the exclusionary rule to the Fourth Amendment).
333. It is true, of course, that individuals whose Fourth Amendment rights are violated have the right to bring a civil rights suit under 42 U.S.C. § 1983. See, e.g., Torbet v. United Airlines, 298 F.3d 1087, 1088 (9th Cir. 2002) (presenting factual background for a statutory claim of a Fourth Amendment rights violation). These lawsuits are rare, however, and are not the primary mechanism for enforcing the Fourth Amendment.
334. As noted above, Fifth Amendment jurisprudence already has a similar two-tier system: if the government agents want to use an individual's statements against him in a criminal trial, it must comply with Miranda and all the other Fifth Amendment requirements. If it has no intention of using the information at trial, it need not comply with Miranda-but it is not completely unregulated. See, e.g., Chavez v. Martinez, 538 U.S. 760, 773 (2003) (" Our views on the proper scope of the Fifth Amendment's Self-Incrimination Clause do not mean that police torture or other abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial; it simply means that the Fourteenth Amendment's Due Process Clause, rather than the Fifth Amendment's Self-Incrimination Clause, would govern the inquiry in those cases and provide relief in appropriate circumstances.").
335. Rochin v. California, 342 U.S. 165, 172, 174 (1952); see also Breithaupt v. Abram, 352 U.S. 432, 435 (1957) (holding that a blood test taken from a criminal defendant does not "shock the conscience"). It is true that the Supreme Court has said that if police action is covered by the Fourth Amendment, the Due Process Clause will not apply to the search. See, e.g., Graham v. Connor, 490 U.S. 386, 394-95 (1989) (" Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims."). A search that is truly a special needs search (in that the fruits of the search are not used in a subsequent prosecution), however, could be considered to be outside the scope of the Fourth Amendment and therefore covered by the Due Process Clause.
336. If this standard is too low, or if the threat of civil lawsuits is so weak that it is insufficient to deter abusive police behavior, there is nothing preventing cities, states, or the federal government from passing legislation to raise the standards, or make lawsuits easier to file, or to prohibit certain specific egregious practices.
337. (Discussing potential legislative or judicial responses to illegal police actions). Here is one place in which political process theory would predict intervention by the legislature, especially if the abusive practices were used during widespread, indiscriminate suspicionless searches (and if they were not, the subjects of the search could conceivably file an equal protection claim).
338. These types of searches are known as binary searches because they are designed to only tell a law enforcement officer whether or not illegal conduct is occurring, without other information about the suspect-essentially producing an output of either "yes" or "no." Examples of binary searches currently in widespread use by law enforcement are drug-sniffing dogs and narcotics field tests. These searches do not implicate the Fourth Amendment under the Katz standard because they do not violate a reasonable expectation of privacy. See United States v. Place, 462 U.S. 696, 707 (1983) (holding that an inspection by a narcotics dog trained to sniff contraband without opening passengers' luggage does not violate the passengers' Fourth Amendment rights).
339. For a further discussion of the legality of binary searches, see Ric Simmons, Technology-Enhanced Surveillance by Law Enforcement Officials, 60 N.Y.U. ANN. SURVEY AM. L. 711, 718-19 (2005).