CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, April 22, 2014

Saldana on Counterterrorism Roadblocks

Matt Saldaña has posted Counterterrorism Roadblocks: Constitutional Under the Fourth Amendment? (Ohio North University Law Review, Forthcoming) on SSRN. Here is the abstract:

In the wake of the 2013 Boston Marathon bombings, this Article considers the constitutionality of a counterterrorism roadblock "set up to thwart an imminent terrorist attack." It explores the unique line of cases permitting suspicionless, warrantless seizures of vehicles and their occupants at highway checkpoints (i.e. roadblocks) whose “primary purpose” is something other than “detect[ing] evidence of ordinary criminal wrongdoing.” Under this line of cases, the requirement, under the Fourth Amendment, that police officers develop probable cause — or, in limited situations, individualized suspicion — prior to effecting a seizure, is abandoned, so long as the seizure is “reasonable.” This reasoning, contained in the 2000 case City of Indianapolis v. Edmond, is distinct from, though related to, the so-called “special needs” doctrine. 

While writing for the Court in Edmond, Justice Sandra Day O’Connor suggested in dictum that “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.”

O’Connor’s dictum is the closest the Supreme Court has come to deciding the constitutionality of counterterrorism roadblocks. Since its appearance more than a decade ago, several circuit courts and two Supreme Court Justices have noted it favorably. This Article contends that a ruling upholding an “appropriately tailored” counterterrorism roadblock would fit neatly within the already established line of roadblock cases, which — along with related exceptions to Fourth Amendment requirements, in other contexts, under the special needs doctrine — has already done the work of expanding the power of police and other government officials to conduct suspicionless searches and seizures in service of public safety and at the expense of individual liberties.

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