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[T] People v. Ventura5/6/2004
es. Some of the practices, such as the examination of the effects of persons entering the country from abroad, have been followed for many years and have rather strong historical credentials, while others, such as the airport hijacker detection screening process, are rather recent innovations undertaken in an effort to respond to new problems. However, they all have this in common: it is generally assumed that the problems to which they are addressed could not be adequately dealt with under the usual Fourth Amendment restraints and that consequently the practices must be judged by somewhat different standards."
"A theoretical basis for doing precisely this did not clearly emerge until the Supreme Court's decision in Camara v. Municipal Court. In the course of holding that unconsented safety inspections and housing could be conducted pursuant to a warrant issued upon less than the usual quantum of probable cause, the Court declared that 'there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.' Under this balancing theory, the Court continued, it is necessary to consider (i) whether the practice at issue has 'a long history of judicial and public acceptance,' (ii) whether the practice is essential to achieve 'acceptable results,' and (iii) whether the practice involves 'a relatively limited invasion of * * * privacy.' Assessing those factors, the Court in Camara held that inspection warrants could issue pursuant to 'reasonable legislative or administrative standards' even without case-by-case probable cause. That is, searches of the kind at issue could occur so long as procedures were followed to ensure against the arbitrary selection of those to be subjected to them."
"This branch of Camara is exceedingly important because of the fact that the Court gave express recognition to the balancing theory, which permitted the Court on that and later occasions to view the Fourth Amendment as something other than a rigid standard, requiring precisely the same quantum of evidence in all cases. But it is unfortunate that the Court in Camara did not apply this balancing approach with more precision and care. For one thing, the Court's reliance upon a 'long history of judicial and public acceptance' is vulnerable from the point of view of both accuracy and cogency. As to the longstanding judicial acceptance, the fact is that housing inspection cases reached the courts only in recent years and in small numbers and that these cases typically focused upon the warrant issue rather than the question of what grounds were needed to conduct an inspection. As for the longstanding public acceptance, the continued operation of these inspection programs may show only a 'history of acquiescence.' Because that is so and also because similar or greater evidence of judicial and public acceptance of long-used procedures has not deterred the Court from finding those procedures constitutionally defective, the first factor listed in Camara is deserving of little if any weight.
"As for the second factor, the Court unfortunately begins with the assertion that 'the public interest demands that all dangerous conditions be prevented or abated,' which ties in with the Court's earlier emphasis upon the need for 'universal compliance' with housing code standards. But one might just as logically contend that there is a need for universal compliance with the criminal law and that the public interest demands that all dangerous offenders be convicted and punished so that Camara-style warrants would also be permissible for that purpose as well. The fact of the matter is, as four members of the Camara majority had earlier stated: 'Health inspec
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