40 Creighton Law Review 419 (2007)
Copyright statement: Creighton University Law Review, “What Can You Say, Where Can You Say It, and to Whom?: A Guide to Understanding and Preventing Unlawful Sexual Harassment.” published in Vol. 25, Issue 3 (1991-1992, pp. 827-854, reprinted with permission. Copyright 8 1992 by Creighton University.
This Article contends the Supreme Court's use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas or activities, the Court has taken the indirect route of applying the primary purpose test, a test that is difficult to apply and will enjoy no more success than it did when proposed as a limit on pretextual activity by the government in other settings. The Court-and citizens and law enforcement officials-would be better served by focusing on the privacy interest infringed upon by the government activity and whether the government scheme includes appropriate safeguards against arbitrary actions by government officials rather than the "primary purpose" of the scheme.
Butterfoss, Edwin J., "A Suspicionless Search and Seizure Quagmire: The Supreme Court Revives the Pretext Doctrine and Creates Another Fine Fourth Amendment Mess" (2007). Faculty Scholarship. 335.