Hastings Constitutional Law Quarterly
Removing laws to pursue the lawbreaker may be well intentioned, but the result is that society is susceptible to the evils those laws protect against. The traditional Fourth Amendment safeguards--probable cause and warrants--have been abandoned due to the development of a reasonableness standard because of the presence of “special needs” that were used to justify searches. The adoption of this alternative approach to Fourth Amendment interpretation was signalled by the truly landmark case of Terry v. Ohio.
By adopting the “reasonableness” analysis, the Supreme Court altered the impact of the exclusionary rule without directly modifying the rule. After Griffin v. Wisconsin, the Court was always careful to balance the interests to determine whether the search was reasonable, but once special needs were found, the balance inevitably tipped in favor of reasonableness. The judiciary is the only branch capable of consistently aspirational decisionmaking. The Constitution does not except Fourth Amendment prohibitions from application in cases of important governmental need, like law enforcement; it speaks directly only to protecting “the right of the people to be secure.” Surely the Framers did not intend for the nation's highest court to engage in the kind of ad hoc balancing that the search for reasonableness requires. Even if the Supreme Court wished to facilitate the detection and prosecution of crime, it has a higher purpose to safeguard the constitutional protections of those not within the criminal justice system, those not before the trial court accused of crime.
Gerald S. Reamey, When “Special Needs” Meet Probable Cause: Denying The Devil Benefit Of Law, 19 Hastings Const. L.Q. 295 (1992).