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Indiana Law Journal

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This article looks at consequence, with a particular focus on the threatened use of a WMD, to begin a discussion on a new doctrinal solution to the hypothetical. As background, Part I takes a look at cardinal Fourth Amendment principles and rules, as well as the many exceptions to the warrant, probable cause and particularity requirements that the Supreme Court has recognized. Part I also discusses minimization, a well-established privacy enhancing mechanism that normally serves as a back-end check on the government’s conduct, to determine whether it can serve as a front-end substitute for the Fourth Amendment’s particularity requirement. Based on publicly available information, Part II briefly explores the differences between chemical, biological, radiological, and nuclear WMDs, and the different consequences that can be reasonably anticipated from their respective use. Identifying these differences is critical to understanding how the significant definitional issues identified in Part III might affect the implementation of any new doctrinal solution. Part IV then looks at these issues through what I have elsewhere described as the “Fourth Amendment’s protective lens” and proposes that we use a probability-consequence matrix as an analytical framework to solve the “no-win” scenario. Finally, Part V seeks to lay out a path forward so that the Congress can consider and enact sensible legislation that will enable us to identify the limited circumstances in which consequence should be considered a factor in a Fourth Amendment calculus, particularly when a terrorist threatens to use a WMD.



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