Section 9.28 Special Needs: In General

• Library: Criminal Practice 2012 Supp

3. (§9.28) Special Needs: In General

At least in modern times, the Fourth Amendment has been thought to focus primarily on restraint or control of police behavior. The Fourth Amendment speaks in terms of probable cause, and this has been construed to require probable cause that a crime has been committed or that evidence or fruits of crime will be found at a location to be searched. See §9.13, supra. Exclusionary rule analysis too has focused in recent years almost exclusively on deterrence of police misconduct. See §9.38, infra. It has been fear of overzealous investigation and prosecution of crime that has motivated much of the Court’s Fourth Amendment analysis. Thus, the core of the Fourth Amendment has been control of the police, and the central requirements of the Fourth Amendment, a warrant and probable cause, have been most faithfully required when police investigatory functions have been involved.

Since cases like Terry v. Ohio, 392 U.S. 1 (1968), and Camara v. Municipal Court of City & County of San Francisco, 387 U.S. 523 (1967), however, the Court has recognized the applicability of the Fourth Amendment to other types of government activity, but it has used a balancing test, rather than strict warrant and probable cause analysis, to determine what degree of protection is required. In these cases, courts have identified “special needs . . . beyond the normal need for law enforcement” that justify intrusion with less than a warrant and probable cause. Griffin v. Wis., 483 U.S. 868, 873 (1987) (quoting N.J. v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring)). Balancing the nature and...