Suspicionless Subway Baggage Searches: 4th Amendment—2d Circuit Court of Appeals

On July 21, 2005, “the New York City Police Department … announced the Container Inspection Program …. The NYPD designed the Program chiefly to deter terrorists from carrying concealed explosives onto the subway system and, to a lesser extent, to uncover any such attempt. Pursuant to the Program, the NYPD establishes daily inspection checkpoints at selected subway facilities. A "checkpoint" consists of a group of uniformed police officers standing at a folding table near the row of turnstiles disgorging onto the train platform. At the table, officers search the bags of a portion of subway riders entering the station.”^[1] At each checkpoint, the assigned officers “give notice of the searches and make clear that they are voluntary,” but each person “wishing to enter the station [is informed that he is] subject to a container search and those wishing to avoid the search must leave the station.”^[2] Declining the search “is not by itself a basis for arrest,” but a person who declines the search “and later attempts to reenter the subway system with the uninspected container” can be arrested.^[3]

The search is conducted without discretion. In other words, the supervising sergeant establishes a “selection rate, such as every fifth or tenth person,” and once a person is selected to be searched, the officers “limit their search as to scope, method, and duration.”^[4]

The “scope” criteria are that officers may search “only those containers large enough to carry an explosive device,” which means that wallets and small purses are not searched.^[5] Furthermore, “once they identify a container of eligible size, they must limit their inspection ‘to what is minimally necessary to ensure that the … item does not contain an explosive device.’”^[6] If contraband is found incidentally (as opposed to intentionally) the individual may be arrested.^[7]

The “method” criterion involves asking “the passenger to open his bag and manipulate his possessions himself so that the officer may determine, on a purely visual basis, if the bag contains an explosive device”; if necessary, the officer may open the container and manipulate its contents himself.^[8]

The “duration” criterion has been established such that the “officers must conduct the inspection for no ‘longer than necessary to ensure that the individual is not carrying an explosive device,’” and thus, “a typical inspection lasts for a matter of seconds.”^[9]

Plaintiffs sued to halt the inspections, but the District Court, during a bench trial, ruled that “the searches were ‘narrowly tailored and only minimally intruded upon privacy interests,’” and were therefore, “on balance,” Constitutional.^[10]

The Court of Appeals, citing the Supreme Court, notes that “the concept of reasonableness is the ‘touchstone of the constitutionality of a governmental search.’”^[11] Reasonableness, however, “depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.”^[12] Generally, a search is unreasonable unless it is “supported ‘by a warrant issued upon probable cause.’”^[13] However, as we have mentioned a number of times before, there are plenty of warrantless searches and seizures which have been upheld by the Supreme Court of the United States.

The Second Court of Appeals concluded that the Program served a special need, and then “determine[d] whether the search is reasonable and thus constitutional.”^[14] It determined that the government interest is immediate and substantial because of the “’enormous dangers to life and property from terrorists’ bombing the subway.”^[15] A specific, extant threat is unnecessary to establish “immediate and substantial” in the Court’s eyes.^[16] The Court did acknowledge that a subway rider does have an expectation of privacy in his containers, but “the kind of search at issue here minimally intrudes upon that interest.”^[17] Thus, the District Court’s judgment was affirmed.^[18]

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[1] MacWade v. Kelly, No. 05-6754-cv, at 5 (2d Cir. 2006).
[2] Id. at 6.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 6-7.
[8] Id. at 7.
[9] Id.
[10] Id. at 11.
[11] Id. (citing Bd. Of Educ. V. Earls, 536 U.S. 822, 828 (2002).).
[12] Id. (citing Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602, 619 (1989).).
[13] Id. (citing Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989).).
[14] Id. at 18.
[15] Id.
[16] Id.
[17] Id. at 20.
[18] Id. at 25.