A Suspicionless Search and Seizure Quagmire: the Supreme Court Revives the Pretext Doctrine and Creates Another Fine Fourth Amendment Mess

Publication year2022


Creighton Law Review

Vol. 40



It has been said that one thing that unifies liberal and conservative commentators on the jurisprudence of the United States Supreme Court is "virtual unanimity, transcending normal ideological dispute, that the Court simply has made a mess of search and seizure law."(fn1) The Court's decisions in the area of suspicionless searches and seizures amply support that proposition.(fn2)

To believe the pronouncements of the United States Supreme Court, "lawful suspicionless searches and seizures" should be almost an oxymoron. Time and again the Court has declared as a basic tenet of Fourth Amendment jurisprudence that "a search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing"(fn3) and on at least two occasions has stuck down a suspicionless search scheme because it did not "fit within the closely guarded category of constitutionally permissible suspicionless searches [and seizures]."(fn4) But the notion that only a single "category" of permissible suspicionless searches and seizures exists and that the category is "closely guarded" is a fantasy.(fn5)

Although many discussions of suspicionless searches begin with the Court's decision in New Jersey v. T.L.O.(fn6) and focus on the "special needs" doctrine that finds its genesis in that case, the Court's suspicionless search jurisprudence begins much earlier and extends far beyond government activity serving "special needs." The door to suspicionless searches and seizures under the Fourth Amendment was opened in the landmark case of Camara v. Municipal Court of San Francisco,(fn7) when the Court for the first time(fn8) authorized a search without a showing of individualized suspicion.(fn9) Since opening the door in Camara, the Court has upheld suspicionless searches in numerous contexts, creating several categories of constitutionally permissible suspicionless searches.(fn10)

Although even after Camara the general rule ostensibly remained that a search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing, the corollary that such suspicion is not an "irreducible" component of reasonableness(fn11) more often carried the day.(fn12) For thirty years, the Court upheld virtually every government scheme of suspicionless searches and seizures that came before it,(fn13) belying the Court's description of the category as a "closely guarded" exception to the general rule that individualized suspicion is required to undertake a search or seizure.(fn14) Despite the Court's description of the category of permissible suspicionless searches and seizures as "closely guarded," the Court has never defined a discrete category(fn15) and has failed to identify precisely the characteristics that qualify government searches for treatment outside the ordinary rule requiring individualized suspicion. Instead, the Court at times has spoken of "regulatory" or "administrative" searches, at other times has invoked the "special needs" label, and on still other occasions has upheld suspicionless seizures at "checkpoints" and "inventory searches," apparently treating them as sui generis. Most recently, the Court upheld a suspicionless search scheme under its "general Fourth Amendment approach."(fn16) For each new category - or "subcategory" if the Court insists there is only one "closely guarded category" - the Court created, it invoked different standards by which to assess the constitutionality of the search. Over the years, the "category" of suspicionless searches became a jurisprudential mess, with the only consistent theme being that suspicionless search schemes were regularly upheld as lawful.

A particularly confusing aspect of the Court's suspicionless search and seizure analysis over the years has been the relevance of a "noncriminal" or "non-law enforcement" purpose motivating the search. In several early suspicionless search and seizure cases, the presence of a law enforcement purpose seemed unimportant in the Court's assessment of the permissibility of the government scheme.(fn17) In other cases, the Court ruled that such a purpose was relevant only if it was the "sole" purpose motivating the scheme.(fn18) More recently, the Court imposed a new "primary purpose" test to strike down government schemes to conduct suspicionless searches or seizures.(fn19) While this new restriction on suspicionless searches and seizures should be a welcomed change from the apparently limitless(fn20) reach of these government schemes suggested by the Court's early decisions, celebrating the new test as an effective limit on suspicionless searches and seizures would be premature. Although the Court claimed to have imposed the test to "prevent such intrusions from becoming a routine part of American life,"(fn21) the new test is unlikely to reduce significantly the suspicionless searches to which citizens are subjected. Instead, the new test only adds to the jurisprudential "mess" in this area,(fn22) creating nothing less than a suspicionless search quagmire.

An initial difficulty with the primary purpose test is ambiguity about the precise purpose the Court finds improper.(fn23) In various cases, the Court has expressed concern over, or suggested a different outcome for, searches motivated by a "law enforcement purpose,"(fn24) "general crime control purposes,"(fn25) "a general interest in crime control,"(fn26) an "intent to aid law enforcement efforts,"(fn27) a "purely investigatory purpose,"(fn28) an "investigatory police motive,"(fn29) a "purpose . . . to detect evidence of ordinary criminal wrongdoing,"(fn30) "ordinary needs of law enforcement,"(fn31) the "normal need for law enforcement,"(fn32) a "general interest in law enforcement,"(fn33) a purpose to "discover evidence of criminal wrongdoing,"(fn34) a purpose "to obtain[] evidence of . . . violation[s] of the penal laws,"(fn35) and searches "in any way related to the conduct of criminal investigations."(fn36)

Even if the Court were to unambiguously define the purpose it considers improper, another weakness of the primary purpose test as a limit on suspicionless search schemes by the government is that it apparently applies only to certain "subcategories" of suspicionless searches. If that is the case, the Court can avoid the new limitation by upholding suspicionless search schemes utilizing a "subcategory" not limited by the "primary purpose" test.(fn37) Even if the test is broadly applied, because the test restricts only schemes where the primary purpose is improper, it is open to manipulation by the government. Unless the Court is willing to scrutinize carefully the government's true motivation in "mixed motive" schemes,(fn38) governments will be free to accomplish their improper objective by articulating a primary purpose that passes muster.(fn39) If the Court is willing to engage in close scrutiny of the government purpose, it will face the charge that it has revived the pretext doctrine that it appeared to bury in Whren v. United States.(fn40) Although the Court continues to declare irrelevant the subjective motivations of an individual officer acting with probable cause, the new primary purpose test raises the issue of "institutional pretext"(fn41) that, while perhaps different from the pretext deemed irrelevant in Whren, nevertheless requires the Court to embark on an exploration of the motivations of the government actors who devise and implement the schemes in question, something the Court has resisted doing in the past and has labeled unworkable.(fn42)

By injecting a "primary purpose" test into the analysis of these government schemes, the Court has injected significant uncertainty into the area of suspicionless searches without clearly identifying its goal in adopting the new test - it is not clear what "evil" the Court is attempting to protect against. More fundamentally, if the Court is successful in policing suspicionless searches and seizures with a criminal purpose, citizens will remain subject to "non-criminal" suspicionless search and seizure schemes. The Court's new test is based on the flawed notion that searches for "non-criminal" purposes are somehow less intrusive, an assumption the Court historically has rejected and which the present Court failed to satisfactorily explain or justify.

This Article contends the Court's use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas or activities, the Court has taken the indirect route of applying the primary purpose test, a test that is difficult to apply and will enjoy no more success than it did when proposed as a limit on pretextual activity by the government in other settings. The Court - and...

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