NCJ Number
112530
Journal
Judges' Journal Volume: 27 Issue: 3 Dated: (Summer 1988) Pages: 11-13,42-47
Date Published
1988
Length
9 pages
Annotation
Prior to 1968, a person could be seized or searched only when there was probable cause to believe that that particular person was involved in particular wrongdoing.
Abstract
Absent exigent circumstances, an assertion of individualized suspicion amounting to probable cause had to be made before an independent judicial officer and supported by evidence before a warrant was issued. In Terry vs. Ohio, the U.S. Supreme Court carved out a notable exception applicable to brief seizures and minimally intrusive searches. Terry excused the warrant and probable cause requirements, substituting reasonable suspicion for the latter. Since then, reasonable suspicion has begun to rival probable cause as the dominant search and seizure standards. It has been invoked to constitutionalize seizures lasting for minutes to hours and searches ranging from patdowns to strip searches and body cavity intrusions. Recently, in O'Connor vs. Ortega and in New Jersey vs. T.L.O., the Court departed from the precedent requiring the suspicion to be individualized by reserving judgment on the issue of particularity. While arguments put forth in favor of categorical, nonindividualized searches as a means for protecting such societal interests as a drug-free workplace, interdicting illicit drugs, or preventing the spread of acquired immunodeficiency syndrome (AIDS), the framers of the fourth amendment provided controls on unbridled discretion in the conduct of searches to protect the innocent while providing for the legitimate pursuit of the guilty. To excuse these controls is to sanction searches that are standardless in their inception and invariably justified after the fact. The growing demand for categorical, nonindividualized searches suggests a need to reexamine the balance between individual and societal interests. 43 notes.