Fourth Amendment Lessons from the Highway and the Subway: A Principled Approach to Suspicionless Searches

The threat of future terrorist attacks has sped the proliferation of random, suspicionless searches and seizures, such as those now made of New York City subway riders. Courts assess the legality of such searches with an inherently flawed balancing test developed to assess searches and seizures made without probable cause. Although scholars and Justices alike have decried the resort to balancing individual interests against the government\u27s need to search, no alternative framework has been proposed. This Article proposes a more principled, objective inquiry for determining when suspicionless searches can be made. To eliminate the need for balancing, this Article advances two propositions to remedy fundamental problems pervading Fourth Amendment jurisprudence. The first proposition is that the Amendment\u27s protection should not vary according to expectations of privacy determined by judges. The generally unquestioned premise that the Fourth Amendment protects an ill-defined right to privacy should yield to the recognition that the Amendment protects abstract privacy by protecting concrete property. The second proposition is that the general requirement of probable cause for searches and seizures must always be enforced according to the term\u27s specific meaning. Although use the term loosely in other contexts, inadvertently creating conditions that permit general searches and seizures of the sort the Framers meant to stop. This Article concludes by applying these propositions to advance a principled framework for evaluating the constitutionality of suspicionless searches