The Supreme Court's "special needs" decisions have it about right; broad deference to government searches is proper in the contexts in which the Court has granted it. That is because of three important features those contexts share. In each, there is a relationship between the relevant government agent and the target search that exists independent of the search. And in each, the government has options that it might well exercise if searching is forbidden--options that are not regulated by Fourth Amendment law. Finally, these options well make innocent search targets worse off than they would be with the searches. These features suggest a different model for Fourth Amendment protection. It has become conventional to analogize Fourth Amendment law to torts, and especially to negligence doctrine. The right model for the "special needs" cases, however, is not torts but contracts. The question to ask is this: what search rule would the government and innocent targets adopt if they were to negotiate the rule in advance? A negotiated search rule would reflect the parties' understanding of the whole relationship, and their mutual awareness that the government often has alternatives to searching.
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