School Children and Parolees: Not So Special Anymore

The Fourth Amendment special needs exception may be one of the Court’s most puzzling doctrines. Since its origin, the Court has struggled to define its limits and its place in the Court’s suspicionless search and seizure jurisprudence. At times the Court has suggested that the exception is the only route to upholding a search or seizure in the absence of individualized suspicion, while at other times it has stated that it is just one of a limited number of exceptions to the requirement of individualized suspicion. Historically, while the application of the special needs exception has been unpredictable, one thing was clear: once the Court found a “special need,” the search in question was upheld. More recently, the Court has struck down several suspicionless search schemes because, in the Court’s view, they were implemented with the primary purpose of ordinary crime control. However, just as some limits have appeared to rein in suspicionless and/or special needs searches, the Court seems ready to jettison the exception in favor of what it refers to as “a general Fourth Amendment analysis.” This Article, written as part of the National Center for Justice and the Rule of Law annual Fourth Amendment symposium on Children and the Fourth Amendment, analyzes the current state of the special needs exception created in New Jersey v. T.L.O. The Article begins with a detailed discussion of the Court’s suspicionless search jurisprudence and explains how T.L.O., and specifically Justice Blackmun’s concurrence, shaped the Court’s jurisprudence. The Article then reviews two recent parolee/probationer cases as well as the Court’s most recent school search case, Safford Unified School District No. 1 v. Redding, and argues that these cases suggest that after decades of ambiguity, confusion, and even explicit contradiction, the Court appears to have given up in its attempts to define the special needs exception and instead has turned to the even less well defined “general Fourth Amendment analysis” to analyze suspicionless searches and seizures. Most troubling, the Court may have done so as a means to avoid the few limits, particularly the “primary purpose” test, recently imposed on special needs searches. The Article warns that while civil libertarians used to, and still do, lament the “standardlessness” and permissiveness of the special needs exception, they may be wishing for the good old days once they see where the “general Fourth Amendment analysis” path leads

Bright Line Breaking Point: Embracing Justice Scalia’s Call for the Supreme Court To Abandon an Unreasonable Approach to Fourth Amendment Search and Seizure Law

In Thornton v. United States, the United States Supreme Court applied the bright-line rule of New York v. Belton to uphold the search of containers in the passenger compartment of a car when the arresting officer made initial contact with the suspect alter the suspect had parked his car and started walking away. Justice Scalia concurred in the judgment but criticized the majority for relying on the bright-line rule of Belton to uphold the search, stating that the Court’s effort to apply the Belton rule stretched that doctrine beyond its breaking point. Justice Scalia found the search in Thornton lawful by applying a more general reasonableness test. He stated he would limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. Virtually every commentator who has written on Thornton has characterized Justice Scalia’s approach as “more honest and built on firmer ground than Belton but nevertheless, has rejected the approach, typically over a concern that it authorizes a search of an automobile on less than probable cause. This article argues that Justice Scalia’s approach in Thornton should be embraced by commentators who seek greater protection for citizens as they travel the streets and highways in their vehicles. It explores the potential for applying the reasonableness test as envisioned by Justice Scalia to limit the various bright-line rules the Court has authorized over the years. Among other advantages, such an approach would limit racial profiling and other pretextual searches, thereby providing citizens protection from one of the greatest current threats to individual liberties

Bright Line Breaking Point: Embracing Justice Scalia’s Call for the Supreme Court To Abandon an Unreasonable Approach to Fourth Amendment Search and Seizure Law

In Thornton v. United States, the United States Supreme Court applied the bright-line rule of New York v. Belton to uphold the search of containers in the passenger compartment of a car when the arresting officer made initial contact with the suspect alter the suspect had parked his car and started walking away. Justice Scalia concurred in the judgment but criticized the majority for relying on the bright-line rule of Belton to uphold the search, stating that the Court’s effort to apply the Belton rule stretched that doctrine beyond its breaking point. Justice Scalia found the search in Thornton lawful by applying a more general reasonableness test. He stated he would limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. Virtually every commentator who has written on Thornton has characterized Justice Scalia’s approach as “more honest and built on firmer ground than Belton but nevertheless, has rejected the approach, typically over a concern that it authorizes a search of an automobile on less than probable cause. This article argues that Justice Scalia’s approach in Thornton should be embraced by commentators who seek greater protection for citizens as they travel the streets and highways in their vehicles. It explores the potential for applying the reasonableness test as envisioned by Justice Scalia to limit the various bright-line rules the Court has authorized over the years. Among other advantages, such an approach would limit racial profiling and other pretextual searches, thereby providing citizens protection from one of the greatest current threats to individual liberties

Solving the Pretext Puzzle: The Importance of Ulterior Motives and Fabrications in the Supreme Court\u27s Fourth Amendment Pretext Doctrine

This Article first analyzes the debate between Professors John M. Burkoff and James B. Haddad over the current state of Supreme Court jurisprudence on the pretext issue. It shows that the Supreme Court\u27s definition of pretext is broader than the definition of pretext used by these commentators. The Supreme Court\u27s definition includes both legal and fabricated pretexts. In a legal pretext, the government offers a justification that is not the true reason for the police activity, but that, if the motivation of the officer is not considered, legally justifies the activity. In a fabricated pretext, the government offers a justification that is not the true reason for the police activity and, in fact, is legally insufficient because it is not supported by the facts. This Article argues that although fabricated pretexts should be struck down on a case-by-case basis, a pretext doctrine that strikes down legal pretexts on a case-by-case basis based on the motivation of the officer is misguided. This Article demonstrates that the true evil of the pretext case is the virtually unlimited authority of police officers to arrest and search based on minor offenses. Thus, an approach that declares legal pretexts constitutional but re-examines the underlying authority of police officers to arrest and search based on a minor offense, offers the better solution to the pretext problem.\u27\u2

Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins

This Article proposes that the Mendenhall-Royer standard, as presently interpreted, should be discarded because it is unworkable and fails to strike the appropriate balance between the liberty interests of citizens and the interest of the state in combatting crime. The test is unworkable because the outcomes of cases turn on subtle factual distinctions unrelated to an individual\u27s actual freedom to end an encounter with a police officer, making it difficult for police officers to apply the standard in the field and adjust their conduct accordingly. Moreover, the standard provides insufficient protection for an individual\u27s rights by failing to consider the purpose of the encounter. Next, the Article will examine the cases in which the Supreme Court has used the Mendenhall-Royer test. These cases serve as further illustrations both of the difficulty in applying the test and of the lack of guidance the Supreme Court has provided. The Article then will explore the results of this lack of guidance by examining the confusion lower courts are experiencing in deciding cases using the Mendenhall-Royer standard. Finally, the Article will examine possible alternatives to the Mendenhall-Royer test. It will show that some of these alternatives have been rejected without careful consideration, by overstating the perceived drawbacks to such tests and placing unfounded confidence in the courts\u27 ability to modify\u27 the Mendenhall-Royer test to yield appropriate results. The Article concludes that a per se rule based on the purpose for which a police officer initiates the encounter, although rejected by courts and commentators, is necessary. Such a test provides the appropriate balance between the liberty interest of citizens and the crime fighting interest of the state and is justified by experience with the Mendenhall-Royer test

Part-Time Legal Education: It‘s Not Your Parents’ Old Oldsmobile

When I am asked to name my accomplishments as dean,\u27 the one that often piques the listener\u27s interest is starting a weekend law program. Their reaction usually is along the lines of, A weekend law program? That\u27s different. But depending on to whom I am talking, that uniform response needs to be interpreted based on the tone of voice, facial expression, and other body language of the listener If I happen to be talking to a faculty member from another school, the translation is, I hope my dean doesn\u27t get a crazy idea like that and make me work on weekends. The translation if I am talking with a dean from a similarly situated law school is, Does it generate significant revenue 9 And how on earth did you get the faculty to agree to work on weekends and the ABA to approve the program. If the dean I am talking with is from an elite law school, the translation is more along the lines of, And you pretend to be a real law school? Practicing attorneys react along the same lines as deans. Lawyers at large, traditional law firms (who likely graduated from an elite law school) think much like their dean. If I happen to be talking to a lawyer who graduated from an evening program, they immediately start analyzing whether weekends would have been a better alternative than the evening program they attended. These varied reactions illustrate the range of issues raised by the prospect of starting a weekend law program. The weekend program at Hamline is one of the main initiatives identified with my time as dean. As we prepare to welcome our third class of weekend law students this fall, I feel comfortable that more credit than blame has come my way as the result of proposing and implementing the weekend program.2 While it would be an exaggeration to call the program an unqualified success, it certainly has been a success. In this brief essay, I will explore why a law school might want to start a weekend law program and some of the philosophic, strategic and practical issues a school will face in doing so

Solving the Pretext Puzzle: The Importance of Ulterior Motives and Fabrications in the Supreme Court\u27s Fourth Amendment Pretext Doctrine

This Article first analyzes the debate between Professors John M. Burkoff and James B. Haddad over the current state of Supreme Court jurisprudence on the pretext issue. It shows that the Supreme Court\u27s definition of pretext is broader than the definition of pretext used by these commentators. The Supreme Court\u27s definition includes both legal and fabricated pretexts. In a legal pretext, the government offers a justification that is not the true reason for the police activity, but that, if the motivation of the officer is not considered, legally justifies the activity. In a fabricated pretext, the government offers a justification that is not the true reason for the police activity and, in fact, is legally insufficient because it is not supported by the facts. This Article argues that although fabricated pretexts should be struck down on a case-by-case basis, a pretext doctrine that strikes down legal pretexts on a case-by-case basis based on the motivation of the officer is misguided. This Article demonstrates that the true evil of the pretext case is the virtually unlimited authority of police officers to arrest and search based on minor offenses. Thus, an approach that declares legal pretexts constitutional but re-examines the underlying authority of police officers to arrest and search based on a minor offense, offers the better solution to the pretext problem.\u27\u2

Part-Time Legal Education: It‘s Not Your Parents’ Old Oldsmobile

When I am asked to name my accomplishments as dean,\u27 the one that often piques the listener\u27s interest is starting a weekend law program. Their reaction usually is along the lines of, A weekend law program? That\u27s different. But depending on to whom I am talking, that uniform response needs to be interpreted based on the tone of voice, facial expression, and other body language of the listener If I happen to be talking to a faculty member from another school, the translation is, I hope my dean doesn\u27t get a crazy idea like that and make me work on weekends. The translation if I am talking with a dean from a similarly situated law school is, Does it generate significant revenue 9 And how on earth did you get the faculty to agree to work on weekends and the ABA to approve the program. If the dean I am talking with is from an elite law school, the translation is more along the lines of, And you pretend to be a real law school? Practicing attorneys react along the same lines as deans. Lawyers at large, traditional law firms (who likely graduated from an elite law school) think much like their dean. If I happen to be talking to a lawyer who graduated from an evening program, they immediately start analyzing whether weekends would have been a better alternative than the evening program they attended. These varied reactions illustrate the range of issues raised by the prospect of starting a weekend law program. The weekend program at Hamline is one of the main initiatives identified with my time as dean. As we prepare to welcome our third class of weekend law students this fall, I feel comfortable that more credit than blame has come my way as the result of proposing and implementing the weekend program.2 While it would be an exaggeration to call the program an unqualified success, it certainly has been a success. In this brief essay, I will explore why a law school might want to start a weekend law program and some of the philosophic, strategic and practical issues a school will face in doing so