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Monday, December 05, 2005
Subway Searches Upheld -- But at What Cost?
As Daniel Solove documents over at Concurring Opinions, Judge Berman of the U.S. District Court for the Southern District of New York issued a lengthy ruling on Friday upholding the constitutionality of the New York City MTA's policy of random searches for explosives on the NYC subways. What's always been fascinating to me about this issue is that, even among self-identifying "liberal New Yorkers," there's no consensus about whether such searches are "right" (and, to a lesser degree, constitutional). [To be fair, my "data" is only my own survey of my friends and family, but I was surprised at the range of opinion...]
That being said, Daniel eloquently summarizes one major problem with Judge Berman's ruling -- the problem with extending such significant deference to law enforcement officials in an area where they have no incentive to balance the public's privacy interest.
My concern runs down a different path -- the decision rest largely on application of the Supreme Court's "special needs" doctrine, as enunciated and clarified in the trilogy of City of Indianapolis v. Edmond, Ferguson v. City of Charleston, and Illinois v. Lidster. As Judge Berman writes, "[t]he special need addressed by the [searches] is the need to reduce (deter and detect) the risk of a terrorist attack on the subways. It is not 'to detect evidence of ordinary criminal wrongdoing.'" [Slip op. at 34 (quoting Edmond). If this is correct, and if this statement is faithful to the Supreme Court's case law on the subject, when won't terrorism be a "special need" sufficient to overcome virtually any privacy interest, and to justify virtually any mass public search program at least ostensibly premised on "defending against terrorist attacks"?
My friend and classmate Jon Kravis argued in an insightful comment in the June 2003 Yale Law Journal, that "special needs," although explained in Edmond and Ferguson (Jon didn't have the benefit of Lidster) as an evidentiary question, should really be understood as an administrative question, and that, under Edmond and Ferguson:
the special needs doctrine would likely apply when (1) the search is administered by non-law-enforcement officials; (2) the delay necessary to obtain a warrant would result in the loss of evidence or otherwise frustrate the purpose of the search; or (3) the context in which the search is conducted necessarily requires randomness, for example because of the sheer number of searches involved.
I think Jon is right-on in re-evaluating the cases, especially by attempting to conform "special needs" to the rest of the Court's Fourth Amendment jurisprudence. What Jon's piece doesn't answer (understandably, since it wasn't the target) is whether searches falling into these categories, especially (3), should be presumptively constitutional by virtue of their administrative nature. But that has to be the question going forward, especially in light of Judge Berman's opinion.
Reasonable people can (and should) disagree over whether the subway searches actually deter terrorism, and therefore serve their stated rationale. Reasonable people can (and should) even disagree about whether the searches are necessary (and even "right"), leaving aside whether they are constitutional. But it seems pretty clear that there is a very dangerous and very slippery slope here -- if abstract terrorism concerns are, as Judge Berman holds, a "special need" justifying mass public searches, then terrorism, to the extent that it hasn't already, may quickly become the ultimate counterweight to any Fourth Amendment reasonableness inquiry, rendering many of that provision's fundamental privacy protections meaningless, both inside and outside the home. After all, when won't the government's interest in defending the nation be "compelling," the purpose of the search be "non-law-enforcement related," and the (however remote) suspected danger the search is designed to ward against be so potentially catastrophic?
Maybe it's a good thing, in today's world. Maybe it isn't. But whether we like it or not, we should see it for what it is.
Posted by Steve Vladeck on December 5, 2005 at 11:52 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink
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There's been something unreal since 9/11 about these kind of discussions. By Spring 2002 I realized from visiting West Coast friends that people far from the Twin Towers thought about defense against terrorism in a rather casual, abstract way. Hate to say it, but one more large attack on us will moot these discussions for a lifetime.
Posted by: Rodger Lodger | Dec 12, 2005 12:16:20 PM
'Special Needs' Doctrine Supports City's Subway Searches
Last summer, police began random searches of packages carried by people entering New York City subways. Generally, police may not stop or search anyone without reasonable suspicion. Do these random searches violate the Fourth Amendment?
Up until now, U.S.-based terrorists must have slept better knowing that the Fourth Amendment usually requires individualized suspicion as a prerequisite to any search or seizure. The Fourth Amendment is enforced through the exclusionary rule, which forbids use of illegally seized evidence in criminal cases.
The Fourth Amendment mediates the inherent conflict between the right of an individual to be free from governmental interference and the need of government to ensure the safety of its citizens. But to fight terrorism, must we now give up this freedom in order to save it?
The quantum of individual suspicion required for most searches and seizures comes in two forms. The first is "probable cause," which is necessary for arrests or the issuance of a search warrant. The other, less demanding standard is that of "reasonable suspicion," which will justify a temporary detention or a pat-down frisk for weapons. Reasonable suspicion is formed by specific articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity. Officers are encouraged to draw upon their own specialized training and experience in assessing the "totality of the circumstances." United States v. Arvizu 534 U.S. 266 (2002)
The courts have already been confronted with a variety of circumstances in which police believed they could stop and search people on a random basis.
In Delaware v. Prouse, 440 U.S. 648 (1979), the high court disapproved random traffic stops made by Delaware Highway Patrol officers in an effort to apprehend unlicensed drivers and unsafe vehicles. No empirical evidence was presented in the lower courts demonstrating that such stops would be an effective means of promoting roadway safety. The court concluded that the random stops involved the "kind of standardless and unconstrained discretion [which] is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent."
A more recent example of the individual suspicion requirement is discussed in a case arising out of Indiana. In City of Indianapolis v Edmond, 531 U.S. 32 (2000), the court held that the Fourth Amendment was violated by a highway checkpoint program under which police, without individualized suspicion, stopped vehicles for the primary purpose of discovering and interdicting illegal narcotics. (Retiring Justice Sandra Day O'Connor wrote the majority opinion.) Although some would argue that our country is in a state of narcotic crisis, the court refused to allow these random searches.
In Ferguson v. City of Charleston, 532 U.S. 67 (2001), the court held that state hospital employees violated the Fourth Amendment when they took urine tests from maternity patients for the specific purpose of incriminating those patients who tested positive for illegal drugs. Again, O'Connor agreed these tests were unreasonable searches when undertaken without the informed consent of the patients. The courts are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue general crime-control ends.
Do these three cases spell doom for the New York subway search program? Not necessarily. The random subway searches do not appear to be a general criminal enforcement procedure. Their primary purpose is to deter terrorism. The "special needs" doctrine has been used to uphold certain suspicionless searches performed for reasons unrelated to ordinary law enforcement. It operates as an exception to the general rule that a search must be based on individualized suspicion of wrongdoing. Searches of persons on probation or parole fall into this category.
In such cases, the ultimate standard of the Fourth Amendment is that of reasonableness. Cady v. Dombrowski, 413 U.S. 433 (1973). The reasonableness of any particular search depends upon the facts and circumstances of that particular case. Chimel v. California, 395 U.S. 752 (1969).
As Judge Henry J. Friendly explained in a leading case upholding such airport boarding searches:
"When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air." United States v. Edwards, 498 F.2d 496 (2d Cir. 1974).
Some would argue that persons boarding common carriers have no reasonable expectation of privacy that society is prepared to accept, if they know in advance that they may be searched. But this argument has been rejected in cases examining the constitutionality of airport searches. See, e.g., United States v. Place 462 U.S. 696 (1983) ("We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment."). The government can't eliminate Fourth Amendment rights and protections merely by announcing its intention to search beforehand. The fact passengers have been told they must subject their personal effects to reasonable security searches does not mean that passengers are also consenting to unreasonable searches. Smith v. Maryland, 442 U.S. 735 (1979); United States v. Taborda, 635 F.2d 131 (2d Cir. 1980).
In Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court held that a police roadblock where all drivers were stopped in order to investigate for drunk driving did not violate the Fourth Amendment. The court determined that the state's interest in preventing drunk driving outweighed the intrusion of the stop upon individual motorists. In those circumstances, the balance of the state's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program.
Searches at our international borders are another context in which random searches have been upheld. A program to "stop and question" may be made in the absence of any individualized suspicion at reasonably located checkpoints. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The court also held that motorists could be referred for a secondary inspection "largely on the basis of apparent Mexican ancestry." The record in that case refuted, "any suggestion that the Border Patrol relies extensively on apparent Mexican ancestry standing alone in referring motorists to the secondary area."
Clearly, although consideration of ethnicity may be permissible under some circumstances, the absence of ethnic profiling makes any search program less susceptible to constitutional attack.
The American Civil Liberties Union is still challenging the constitutionality of these subway searches. In the press, the ACLU alleges the searches are not really random, describing them as "racial profiling." In court, however, they seek to bar "random searches," claiming they won't work if they are truly random and easily circumvented. The police may win this litigation if they adhere to several key components of reasonableness:
The search procedures should be set forth in writing beforehand. Officers must not be free to make up the rules as they go along. Unfettered discretion will be abused.
The resulting inconvenience to the millions of passengers must be kept to a minimum. It is not necessary or desirable that every package be searched. If lines become too long, the rules should provide measures to speed things up.
All consideration of ethnicity must be minimized. Terrorists can come from diverse backgrounds. All terrorists should be aware that they may be stopped, regardless of their appearance or lack of accent. When police do rely on ethnicity, it must be but one factor in a complete set of relevant circumstances establishing reasonable suspicion. Think about it. Any search based on ethnicity is never a random search.
Empirical evidence must be collected for presentation and scrutiny in the courts.
Contraband may be seized when it falls into "plain view." The possessors may be prosecuted in the criminal courts. But it must be clear that the searches are to be conducted primarily for passenger safety and not for general law enforcement purposes.
The legality of any random search program will be determined primarily by what police do in the subway, not in the courts. If police are mindful of the applicable constitutional limitations, their security measures will likely be seen as reasonable measures to combat a significant new threat to public safety. Randomly searching passengers who are not acting suspiciously means that more of us will be inconvenienced. But if that means that we all get to our destination safely, this "misery loves company" approach might be worth it.
Michael C. McMahon is chief deputy public defender, overseeing writs, appeals and training, in Ventura, California
Posted by: Michael McMahon | Dec 6, 2005 3:00:56 AM
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