Random Search of Bags on NYC Subways: Constitutional?

Most of the Big City Dope Peddlers come to the Poconos by bus from the Big Apple. Local judges have thrown out several busts on grounds that the searches were random and unreasonable.

Evidently NYC detectives have greater latitude to search suspicious looking travelers.

Since the busts were disallowed, the local police ask for permission to search from all kinds of people.

The 4th amendment to the constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

____________________


NEW YORK -- Police will begin conducting random searches of packages and backpacks carried by people entering city subways, Mayor Michael Bloomberg announced Thursday after a new series of bomb attacks in London.

Authorities said the system for the checks is still being developed, but the plan is for passengers carrying bags to be selected at random before they have passed through turnstiles.

Police Commissioner Raymond Kelly promised that officers would not engage in racial profiling, and that passengers will be free to "turn around and leave" rather than consent to a search. . . .

Authorities said there is also a possibility that checks will be conducted of some bus and train passengers.

http://www.wnbc.com/news/4753242/detail.html

I am just wondering...is this constitutional? How?

Since neither this Court's automobile search decisions nor its administrative inspection decisions provide any support for the constitutionality of the stop and search in the present case, we are left simply with the statute that purports to authorize automobiles to be stopped and searched, without a warrant and "within a reasonable distance from any external boundary of the United States." It is clear, of course, that no Act of Congress can authorize a violation of the Constitution. But under familiar principles of constitutional adjudication, our duty is to construe the statute, if possible, in a manner consistent with the Fourth Amendment. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (Brandeis, J., concurring).

It is undoubtedly within the power of the Federal Government to exclude aliens from the country. Chae Chan Ping v. United States, 130 U.S. 581, 603 -604. It is also without doubt that this power can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders. As the Court stated in Carroll v. United States: "Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in." 267 U.S., at 154 . See also Boyd v. United States, 116 U.S. 616 .

Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. For [413 U.S. 266, 273] example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search. 4

But the search of the petitioner's automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border, 5 was of a wholly different sort. In the absence of probable cause or consent, that search violated the petitioner's Fourth Amendment right to be free of "unreasonable searches and seizures."

It is not enough to argue, as does the Government, that the problem of deterring unlawful entry by aliens across long expanses of national boundaries is a serious one. The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards. It [413 U.S. 266, 274] is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials:


"These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government." Brinegar v. United States, 338 U.S. 160, 180 (Jackson, J., dissenting).

The Court that decided Carroll v. United States, supra, sat during a period in our history when the Nation was confronted with a law enforcement problem of no small magnitude - the enforcement of the Prohibition laws. But that Court resisted the pressure of official expedience against the guarantee of the Fourth Amendment. Mr. Chief Justice Taft's opinion for the Court distinguished between searches at the border and in the interior, and clearly controls the case at bar:

"It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is [413 U.S. 266, 275] known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise." 267 U.S., at 153 -154.

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." This inestimable right of [392 U.S. 1, 9] personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,

"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

We have recently held that "the Fourth Amendment protects people, not places," Katz v. United States, 389 U.S. 347, 351 (1967), and wherever an individual may harbor a reasonable "expectation of privacy," id., at 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U.S. 206, 222 (1960). . . .

We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, see, e. g., Katz v. United States, 389 U.S. 347 (1967); Beck v. Ohio, 379 U.S. 89, 96 (1964); Chapman v. United States, 365 U.S. 610 (1961), or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances, see, e. g., Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); cf. Preston v. United States, 376 U.S. 364, 367 -368 (1964). But we deal here with an entire rubric of police conduct - necessarily swift action predicated upon the on-the-spot observations of the officer on the beat - which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures. 17

. . . Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174 -176 (1949); Stacey v. Emery, 97 U.S. 642, 645 (1878). 23 And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. . . .

The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had [392 U.S. 1, 30] felt weapons, and then he merely reached for and removed the guns. He never did invade Katz' person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.

Petitioner was seated four or five rows from the back of the bus. As Agent Cantu inspected the luggage in the compartment above petitioner's seat, he squeezed a green canvas bag and noticed that it contained a "brick-like" object. Petitioner admitted that the bag was his and agreed to allow Agent Cantu to open it.1 Upon opening the bag, Agent Cantu discovered a "brick" of methamphetamine. The brick had been wrapped in duct tape until it was oval-shaped and then rolled in a pair of pants. . . .

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... ." A traveler's personal luggage is clearly an "effect" protected by the Amendment. See United States v. Place, 462 U. S. 696, 707 (1983). Indeed, it is undisputed here that petitioner possessed a privacy interest in his bag. . . .

Physically invasive inspection is simply more intrusive than purely visual inspection. For example, in Terry v. Ohio, 392 U. S. 1, 17-18 (1968), we stated that a "careful [tactile] exploration of the outer surfaces of a person's clothing all over his or her body" is a "serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and is not to be undertaken lightly." Although Agent Cantu did not "frisk" petitioner's person, he did conduct a probing tactile examination of petitioner's carry-on luggage. Obviously, petitioner's bag was not part of his person. But travelers are particularly concerned about their carry-on luggage; they generally use it to transport personal items that, for whatever reason, they prefer to keep close at hand.

In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. . . .

. . . the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment. 19 We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972). 20 Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765). 21

The right to travel at home and abroad is an important aspect of liberty of which a citizen cannot be deprived without due process of law. Kent v. Dulles, 357 U.S. 116 , followed. Congress could have chosen less drastic means of achieving the national security objective without such sweeping abridgment of liberty.

In 1958 in Kent v. Dulles, 357 U.S. 116, 127 , this Court declared that the right to travel abroad is "an important aspect of the citizen's `liberty'" guaranteed in the Due Process Clause of the Fifth Amendment. The Court stated that:


"The right to travel is a part of the `liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, . . . may be as close to the heart of the [378 U.S. 500, 506] individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values." 5 Id., at 125-126.

In Kent, however, the Court concluded that Congress had not conferred authority upon the Secretary of State to deny passports because of alleged Communist beliefs and associations. Therefore, although the decision protected the constitutional right to travel, the Court did not examine "the extent to which it can be curtailed." Id., at 127. . . .

Although previous cases have not involved the constitutionality of statutory restrictions upon the right to travel [378 U.S. 500, 508] abroad, there are well-established principles by which to test whether the restrictions here imposed are consistent with the liberty guaranteed in the Fifth Amendment. It is a familiar and basic principle, recently reaffirmed in NAACP v. Alabama, 377 U.S. 288, 307 , that "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."

. . . .

"[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose."

. . .

That Congress under the Constitution has power to safeguard our Nation's security is obvious and unarguable. Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 -160. As we said in Mendoza-Martinez, "while the Constitution protects against invasions of individual rights, it is not a suicide pact." Id., at 160. At the same time the Constitution requires that the powers of government "must be so exercised as not, in attaining a permissible end, unduly to infringe" a constitutionally protected freedom. Cantwell v. Connecticut, supra, at 304. . . .

It is relevant to note that less than a month after the decision in Kent v. Dulles, supra, President Eisenhower sent a message to Congress stating that: "Any limitations on the right to travel can only be tolerated in terms of overriding requirements of our national security, and must be subject to substantive and procedural guaranties." Message from the President - Issuance of Passports, H. Doc. No. 417, 85th Cong., 2d Sess.; 104 Cong. Rec. 13046. The legislation which the President proposed did not make membership in a Communist organization, without more, a disqualification for obtaining a passport. S. 4110, H. R. 13318, 85th Cong., 2d Sess. Irrespective of views as to the validity of this or other such proposals, they demonstrate the conviction of the Executive Branch that our national security can be adequately protected by means which, when compared with 6, are more discriminately tailored to the constitutional liberties of individuals. . . .

The prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe. . . .

Since this case involves a personal liberty protected by the Bill of Rights, we believe that the proper approach to legislation curtailing that liberty must be that adopted by this Court in NAACP v. Button, 371 U.S. 415 , and Thornhill v. Alabama, 310 U.S. 88. . . .

For essentially the same reasons this Court had concluded that the constitutionality of the statute in Thornhill v. Alabama should be judged on its face:

"An accused, after arrest and conviction under such a statute [on its face unconstitutionally abridging freedom of speech], does not have to sustain the burden of demonstrating that the State could not constitutionally have written a different and specific statute covering his activities as disclosed by the charge and the evidence introduced against him." 310 U.S., at 98 . 15

Similarly, since freedom of travel is a constitutional liberty closely related to rights of free speech and association, we believe that appellants in this case should not be required to assume the burden of demonstrating that Congress could not have written a statute constitutionally prohibiting their travel.

It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not [271 U.S. 583, 594] unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.

Constitutional or not it would be criminal if everything possible was not done to thwart a terrorist attack. Up to and including profiling.

Does Ma Barker ring a bell? Not to suggest that she was a terrorist, only that age and sex does not matter. Terrorism knows no bounds so age is not a factor. Sad but true.

You can legally search either everyone, or random people on a set criteria (e.g., every 20 people). You can't do discretionary searches (e.g., young arab males).

I think it is. If you were on a subway and someone had a bomb, the random check may save your life.

If you have nothing to hide, you shouldn't be pissed. I think that the "one bad apple spoils the bushel" rule applies here. One bad (or 2 whatever) does something artocious and now we all have to pay for it.

Consent to search seems implicit in buying an airline ticket. I guess it's going to pass the test.

They can leave the public subway area and go to another subway entrance where he might NOT be subjected to a random search. This is NONSENSE, plain and simple.

Ticomaya wrote:

You can legally search either everyone, or random people on a set criteria (e.g., every 20 people). You can't do discretionary searches (e.g., young arab males).

Not true. When applying a constitutional analysis, there is a difference between SEARCHES and SEIZURES.

You are failing to distinquish between checkpoint stops (temporary seizures) for a legitimate government purpose, i.e. sobriety checkpoints, and SEARCHES.


Take a look at CITY OF INDIANAPOLIS et al. v. EDMOND et al. and DELAWARE v. PROUSE, 440 U.S. 648 (1979).

RANDOM searches of citizens are not allowed. "Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."

Officials wouldn't immediately say how frequently the checks would occur. The checks are scheduled to be in place by rush hour on Friday morning.

Just a teeny thread drift if I may but I have to ask:

Debra_Law posted:

Quote:

RANDOM searches of citizens are not allowed. "Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."

My reading of this is that the probable cause the police officer develops is subjective, that is, it's in his or her mind and as indicated it's based on their experience, knowledge, training, etc (I assume). First question - does the court determine probable cause based on the officer's subjective experiences in the matter?

From there - I have read about the need for "articulation" by the officer to prove probable cause. So second question - is this "articulation" necessary to explain to the court the reasoning for the development of probable cause?

In my jurisdiction police are subjected to an objective standard not a subjective one. Police must have a "reasonable cause to suspect" which would, if the same facts were observed by a non-police officer (a "reasonable person" not a hyper-suspicious one), create the same suspicion. If not then it might (the court has discretion to admit or exclude) see the evidence ruled inadmissible.

Tell me somone please: what's the point in searching
the handbag of an old lady, while you can buy machine guns around the corner quite freely?

Just a teeny thread drift if I may but I have to ask:

Debra_Law posted:

Quote:

RANDOM searches of citizens are not allowed. "Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."

My reading of this is that the probable cause the police officer develops is subjective, that is, it's in his or her mind and as indicated it's based on their experience, knowledge, training, etc (I assume). First question - does the court determine probable cause based on the officer's subjective experiences in the matter?

From there - I have read about the need for "articulation" by the officer to prove probable cause. So second question - is this "articulation" necessary to explain to the court the reasoning for the development of probable cause?