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Unpublished Paper
Searching for Terrorists: Why "Public Safety" is not a Special Need
ExpressO (2009)
  • Ric Simmons
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. 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—searches 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.
Disciplines
Publication Date
March 20, 2009
Citation Information
Ric Simmons. "Searching for Terrorists: Why "Public Safety" is not a Special Need" ExpressO (2009)
Available at: http://works.bepress.com/ric_simmons/2/