The Boston Bombing Searches and the Fourth Amendment

by Amanda Levendowski

The aftermath of the Boston Marathon Bombing has raised a lot of questions about Fourth and Fifth Amendment rights among non-lawyers. Over at Slate, journalists are posting about interrogations of suspects with life-threatening injuries and how, exactly, Miranda does or doesn’t apply to Tsarnaev (see, e.g., the public safety exception).

Kevin Cole of the University of San Diego School of Law also discussed the searches on Slate in the context of the exigent circumstances exception to the usual probable cause and warrant requirements. But I’m not convinced that exigency alone would justify the searches…

Most exigency cases involve the destruction of evidence or law enforcement in “hot pursuit” of a suspect, rather than a methodical search for a known individual. In Indianapolis v. Edmond, the Supreme Court noted that the Fourth Amendment could likely accommodate a special needs exception to its usual strictures to “thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.” That was dicta, though, not binding precedent.

It isn’t likely that these searches would see a challenge, though. As professor Orin Kerr points out over on the Volokh Conspiracy, the suspect wouldn’t have standing to challenge a search of someone else’s home, and the novelty of these facts makes it likely that the officers would be protected by qualified immunity anyway. From a practical perspective, that  novelty is what makes these searches feel so unobjectionable — who could argue that these searches are grounded in a legitimate, pressing concern for public safety?

Maybe someone with something to hide: under the plain view doctrine, (almost) anything that law enforcement spotted during the searches would be fair game in a legal proceeding.

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