The past two decades have seen a proliferation of special needs searches in response to various security threats, notably that of domestic and international terrorism. This development has aroused the concerns of many who see such trends as inimical to the fourth amendment requirements on privacy. The principal aim of the amendment is to enhance individual freedom by limiting government interference in individual affairs. This position was eloquently articulated by Justice Brandeis’ rather famous dissent in Olmstead v. United States that the ‘right to be left alone is the most valued by civilized men’.
Evidently, while the Supreme Court affirmed in Mincey v. Arizona, 437 U.S. 385, 1978 that the constitution expresses a clear preference for searches, seizures, and arrests that are grounded on a warrant, the courts have had huge difficulties striking the delicate balance between circumstances that justify a warrantless action and those that do not. In fact, the Supreme Court has infrequently considered this question and is yet to offer a clear basis for justified warrantless action.
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Certainly, the dilemma lies in responding to the social demand for protection and safeguarding one of our country’s most precious values. Special needs searches, however, offer a false solution. They are highly susceptible to abuse by law enforcement officials who do not meet the reasonable ground threshold. To this end, abuse becomes probable when such searches and seizures become, over time, part of everyday life. Therefore, if left undisturbed, there is a danger they will continue to justify alleged anti-terrorism searches in dozens of unrelated contexts, and consequently, courts shall be forced to approve them or come up with artificial case distinctions that create unpredictability and inconsistency. To ensure reasonable and realistic application and foster a degree of predictability, courts ought to separate the fruits of such searches from criminal prosecution. This puts an incentive on law enforcement to use them sparingly, and in so doing, reducing the frequency of their use.
