Monday, April 29, 2013
Geoffrey S. Corn (South Texas College of Law) has posted Terrorism, Tips, and the Touchstone of Reasonableness: Seeking a Balance between Threat Response and Privacy Dilution (Penn State Law Review, Vol. 118, 2012) on SSRN. Here is the abstract:
This article addresses the existing gap between the practical need to respond rapidly and decisively to anonymous tips of car bomb terrorist threats and the existing tests for compliance with the Fourth Amendment. More specifically, I explain how a search (or seizure) of an automobile identified as matching the description of an anonymous tip that it contains a car bomb would not be justified under any of the existing exceptions to the warrant requirement of the Fourth Amendment. I then argue that the threat associated with this tactic of choice for homegrown lone-wolf terrorists necessitates an adjustment of these existing standards for assessing the “reasonableness” of a police response to such an anonymous tip. However, because such an adjustment will dilute the existing framework that enables post-search judicial critique of police judgments, this adjustment poses an associated risk that police seeking to exploit my proposed “terrorist tip” exception to skirt the normal requirements of the Fourth Amendment will subject citizens to subterfuge searches.
In response to this risk, I propose that state legislatures consider adopting rules that limit the ability of the government to use evidence unrelated to the alleged terrorist threat to prosecute individuals whose automobiles are subjected to a terrorist responsive search. This proposal is based on the existing military rules that limit the admissibility of evidence against service-members that is discovered during command directed inspections. Like the military, the offer at trial of evidence discovered during a terrorist responsive search unrelated to the terrorist threat would trigger a presumption of inadmissibility. This presumption may be rebutted only if the prosecution can prove by clear and convincing evidence that the search was a genuine response to a tip of imminent terrorist attack. The presumptive inadmissibility rule will mitigate the risk of subterfuge searches by making it much more difficult for the prosecution to use evidence discovered during a terrorist tip responsive search unless the search itself confirms the reliability of the tip or unless the prosecution can establish the validity of the tip - even if the evidence ultimately discovered does not corroborate the tip. In so doing, it strikes a fair balance between the expanded response authority necessitated by the nature of terrorist car bomb threats, and the interests of privacy endangered by expanding police response authority.