The important questions we need to ask and to answer in the perilous times in which we live is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that respects our constitutional history. The Fourth Amendment applies to every search and seizure (including arrests) made by American law enforcement authorities or their agents. But the Fourth Amendment does and must apply as well in a way that includes unblindered sensitivity to and awareness of the context in which the law enforcement activities in question arise. Indeed, it must apply in this way if we are to be able to respond appropriately and effectively to the threats that now imperil us.
'A Flame of Fire': The Fourth Amendment in Perilous Times,
Mississippi Law Journal
Available at: https://scholarship.law.pitt.edu/fac_articles/230