Reply #12: This misses the point of "suspicionless search" US jurisprudence [View All]

[jberryhill]

It's really not a matter of being PC or some liberal fetish.

To do this is actually to lower the 4th Amendment bar.

Here's the deal:

As everyone has been screaming, we have a 4th Amendment which requires probable cause for a search. At a minimum, there must be a reasonable, articulable suspicion of a crime, in order to conduct a search.

Now, there is an entire category of "suspicionless search" called administrative search, which are things like sobriety checkpoints. Because of legal challenges to suspicionless search, certain rules - made by courts and not the TSA - have evolved.

Principal among these rules is that the search be neutrally administered.

Second, searches based on a normal reasonable suspicion standard can also be conducted.

However, is is the "behavioral pattern" search which causes a 4th Amendment problem. It is a suggestion that there should be some category of individually targeted search on something other than a reasonable suspicion that the target has committed a crime.

What is odd in this discussion is that some people are screaming "Fourth Amendment" while suggesting that the 4th is best served by searching fewer people on a targeted basis on the basis of a standard that the 4th Amendment doesn't itself support.

It's not some odd liberal fetish - it is a genuine Constitutional issue. The notion that we should further weaken the 4th in order to save it, is not a fully thought-through analysis.