Ric Simmons

Abstract

In the wake of the terrorist attacks of September 11, 2001, local police across the country instituted blanket searches without individualized suspicion at various venues-including political protests, sporting events, subway platforms, and public ferries-all in an attempt to prevent further terrorist attacks. When evaluating these searches, courts rely upon the special needs doctrine, which allows the government to conduct a suspicionless search as long as the search serves a special need distinct from the goals of law enforcement. Over the past eight years, courts have struggled to determine whether and how the special needs doctrine applies to these searches, and these struggles have produced inconsistent results. This Article first reviews the history of antiterrorism searches, which can be roughly divided into three different time periods. In the early 1970s, 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 continue to this day. During the second period, the imminent danger of these terrorist actions abated, but courts continued to reject challenges to 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 has aggressively expanded its use of antiterrorism searches, and courts face a new set of challenges in evaluating their constitutionality. This Article then explains why antiterrorism 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.

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