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The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other “special need,” excusing non-law enforcement searches and seizures from the warrant and probable cause requirements. The Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not those that threaten important non-criminal constitutional rights.

Child protection investigations illustrate the problem: Millions of times each year, state child protection authorities search families’ homes, and seize children for interviews about alleged maltreatment. Only a minority of these investigations involve an investigation of suspected crimes, so most fall on the “special needs” side of the line. This result undervalues the consequences of child protection investigations on children – a severe infringement of their right to family integrity – and on parents, who can suffer the loss of their children and the stigma of a child abuse or neglect charge.

This article proposes a new approach to the special needs doctrine: the doctrine should distinguish between searches and seizures that implicate fundamental constitutional rights and those that do not. It breaks new ground in identifying a theoretical value to such a bright line – it gives governments incentives to interfere with liberty less by seeking alternative means to achieve their goals. To realize this value most effectively, the line must be drawn to value all fundamental constitutional rights, not only those connected to the criminal justice system. In child protection, it would push states to choose less liberty-infringing models of providing assistance to vulnerable families – which the empirical record shows would serve children and the child protection system’s goals more effectively.


Copyright © Tulane Law Review, 2012. Reprinted with permission.

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