The Second Circuit upholds random suspicionless NYC subway searches in MacWade v. Kelly, 460 F.3d 260 (2d Cir. August 11, 2006) (free link at ca2.uscourts.gov, recent decisions, MacWade). See NY Times article and AP article on Findlaw.
Remember, the program was instituted right after the London subway bombings, and the Second Circuit’s opinion comes 48 hours after British police break up a conspiracy to bomb airliners bound for the U.S. from London.
We consider whether the government may employ random, suspicionless container searches in order to safeguard mass transportation facilities from terrorist attack. The precise issue before us is whether one such search regime, implemented on the New York City subway system, satisfies the special needs exception to the Fourth Amendment’s usual requirement of individualized suspicion. We hold that it does.
Plaintiffs timely appealed, raising three claims: (1) the special needs doctrine applies only in scenarios where the subject of a search possesses a diminished expectation of privacy, and because subway riders enjoy a full expectation of privacy in their bags, the District Court erred in applying the special needs exception here; (2) the District Court erred in finding that the search program serves a “special need” in the first instance; and (3) even if the search program serves a special need, the District Court erred in balancing the relevant factors because (a) the searches are intrusive; (b) there is no immediate terrorist threat; and (c) the City’s evidence fails as a matter of law to establish that the Program is effective.
As set forth more fully below, we hold that the special needs doctrine may apply where, as here, the subject of a search possesses a full privacy expectation. Further, we hold that preventing a terrorist attack on the subway is a “special” need within the meaning of the doctrine. Finally, we hold that the search program is reasonable because it serves a paramount government interest and, under the circumstances, is narrowly tailored and sufficiently effective.
After finding the “special needs” exception applies, the court applies it to the facts:
Having concluded that the Program serves a special need, we next balance the factors set forth above to determine whether the search is reasonable and thus constitutional.
(i) The government interest is immediate and substantial
Given the “enormous dangers to life and property from terrorists” bombing the subway, “we need not labor the point with respect to need . . . .” United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974). As they must, plaintiffs concede that the interest in preventing such an attack is “paramount” but contend that the lack of “any specific threat to the subway system” weakens that interest by depriving it of immediacy. Plaintiffs again overstate the relevance of a specific, extant threat.
The Supreme Court, citing Edwards as “a leading case,” noted that no express threat or special imminence is required before we may accord great weight to the government’s interest in staving off considerable harm. See Von Raab, 489 U.S. at 675 n. 3 (noting that “a demonstration of danger as to any particular airport or airline” is not required since “[i]t is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from spreading”). All that is required is that the “risk to public safety [be] substantial and real” instead of merely “symbolic.” Chandler v. Miller, 520 U.S. 305, 322-23 (1997) (“[W]here the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’ – for example, searches now routine at airports and at entrances to courts and other official buildings.”); see also Bd. of Educ. v. Earls, 536 U.S. 822, 835-36 (2002) (noting that “the need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy” and that the school district need not await a “particularized or pervasive drug problem before . . . conduct[ing] suspicionless drug testing”).
Pursuant to this standard, the threat in this case is sufficiently immediate. In light of the thwarted plots to bomb New York City’s subway system, its continued desirability as a target, and the recent bombings of public transportation systems in Madrid, Moscow, and London, the risk to public safety is substantial and real. Cf. Hartwell, 436 F.3d at 179 (“[T]here can be no doubt that preventing terrorist attacks on airplanes is of paramount importance.”); Marquez, 410 F.3d at 618 (“It is hard to overestimate the need to search air travelers for weapons and explosives before they are allowed to board the aircraft. As illustrated over the last three decades, the potential damage and destruction from air terrorism is horrifically enormous.”). The District Court did not err in according this factor substantial weight in support of constitutionality.
(ii) A subway rider has a full expectation of privacy in his containers
Although not a dispositive, threshold consideration, the nature of the privacy interest compromised by the search remains an important balancing factor. Whether an expectation of privacy exists for Fourth Amendment purposes depends upon two questions. “First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy . . . .” Bond v. United States, 529 U.S. 334, 338 (2000). “Second, we inquire whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.” Id. (internal quotation marks omitted). As to the first question, a person carrying items in a closed, opaque bag has manifested his subjective expectation of privacy by keeping his belongings from plain view and indicating “that, for whatever reason, [he] prefer[s] to keep [them] close at hand.” Id. Further, the Supreme Court has recognized as objectively reasonable a bus rider’s expectation that his bag will not be felt “in an exploratory manner” from the outside, id. at 338-39, let alone opened and its contents visually inspected or physically manipulated. See generally New Jersey v. T.L.O., 469 U.S. 325, 338 (1985) (“[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.” (internal quotation marks omitted)). Accordingly, a subway rider who keeps his bags on his person possesses an undiminished expectation of privacy therein. We therefore weigh this factor in favor of plaintiffs.
(iii) The search is minimally intrusive
Although a subway rider enjoys a full privacy expectation in the contents of his baggage, the kind of search at issue here minimally intrudes upon that interest. Several uncontested facts establish that the Program is narrowly tailored to achieve its purpose: (1) passengers receive notice of the searches and may decline to be searched so long as they leave the subway, see Hartwell, 436 F.3d at 180-81; Marquez, 410 F.3d at 617-18; Edwards, 498 F.2d at 500; (2) police search only those containers capable of concealing explosives, inspect eligible containers only to determine whether they contain explosives, inspect the containers visually unless it is necessary to manipulate their contents, and do not read printed or written material or request personalinformation, see Marquez, 410 F.3d at 617; (3) a typical search lasts only for a matter of seconds, see Illinois v. Lidster, 540 U.S. 419, 427 (2004); (4) uniformed personnel conduct the searches out in the open, which reduces the fear and stigma that removal to a hidden area can cause, see United States v. Martinez-Fuerte, 428 U.S. 543, 558 (1976); Hartwell, 436 F.3d at 180; and (5) police exercise no discretion in selecting whom to search, but rather employ a formula that ensures they do not arbitrarily exercise their authority, see Von Raab, 489 U.S. at 667; United States v. Green, 293 F.3d 855, 860 (5th Cir. 2002). Although defendants need not employ “the least intrusive means,” Earls, 536 U.S. at 837, to serve the state interest, it appears they have approximated that model. Given the narrow tailoring that the Program achieves, this factor weighs strongly in favor of defendants, as the District Court properly concluded.
(iv) The Program is reasonably effective
In considering the “degree to which the seizure advances the public interest,” we must remember not to wrest “from politically accountable officials . . . the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger.” Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 453-54 (1990) (internal quotation marks omitted). That decision is best left to those with “a unique understanding of, and responsibility for, limited public resources, including a finite number of police officers.” Id. at 454. Accordingly, we ought not conduct a “searching examination of effectiveness.” Id. at 454 (internal quotation marks omitted); see also Hartwell, 436 F.3d at 179-80 n. 9 (recognizing the court’s limited role in gauging efficacy). Instead, we need only determine whether the Program is “a reasonably effective means of addressing” the government interest in deterring and detecting a terrorist attack on the subway system. Earls, 536 U.S. at 837; Maxwell v. City of New York, 102 F.3d 664, 667 (2d Cir. 1996).
The District Court credited the expert testimony of Sheehan, Cohen, and Clarke concerning the Program’s deterrent effect. Plaintiffs neither contest their expertise nor directly attack the substance of their testimony. Instead, plaintiffs claim that the Program can have no meaningful deterrent effect because the NYPD employs too few checkpoints. In support of that claim, plaintiffs rely upon various statistical manipulations of the sealed checkpoint data. We will not peruse, parse, or extrapolate four months’ worth of data in an attempt to divine how many checkpoints the City ought to deploy in the exercise of its day-to-day police power. Counter-terrorism experts and politically accountable officials have undertaken the delicate and esoteric task of deciding how best to marshal their available resources in light of the conditions prevailing on any given day. We will not – and may not – second-guess the minutiae of their considered decisions. Sitz, 496 U.S. at 453.
