April 2011 | Special Edition: Dealing with Disasters - Emergency Preparedness
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Metro Bag Searches: Inconvenient or Unconstitutional?

By Sabra Jafarzadeh, J.D. and Megan Timmins, J.D.

Ten bombs, detonated by cell phones, exploded on four commuter trains in Madrid during rush hour in March 2004. The blasts killed 191 people and injured over 1,8001. The following year, four suicide bombers struck London's public transportation system, killing 52 people and injuring more than 770 passengers. The attacks targeted three underground trains and a double-decker bus during morning rush hour2. In July 2006, a series of bombs exploded on Mumbai's busy railway system killing at least 190 people and injuring over 7003. These attacks have given rise to extra security measures on public transportation systems in several jurisdictions within the U.S., including random bag searches at New York, Boston and Washington, D.C. subway stations.

Prompted by the London bombings in July 2005, the New York Police Department (NYPD) established a policy of inspecting passenger's carry-on bags, hoping that the measure would thwart attempts to carry explosives onto trains4. Checkpoints are established at several stations at a time and passengers are identified at random using a predetermined selection rate, such as every 10th individual5. Once selected, officers explain the purpose, scope, method, and duration of the container search to the passenger6. Afterward, the passenger is provided with an opportunity to decline the search7, and if they choose to do so are instructed to leave the station immediately8.

In October 2006, the Massachusetts Bay Transportation Authority (MBTA) followed suit by establishing a policy of conducting random bag inspections (the jurisdiction had similar measures in place temporarily during the Democratic National Convention in 2004)9. Like the New York program, the MBTA's bag inspection policy calls for officers to select passengers at random based on a pre-determined selection rate. However, searches conducted by the MBTA are typically less invasive than the NYPD's because officers utilize technology that tests for explosives by taking swabs of the bag's exterior10. In December 2010, the Washington Metropolitan Area Transit Authority (WMATA) in Washington, D.C. announced a metro subway system metro baggage inspection program similar to that of New York and Boston11. The Washington, D.C. program utilizes the same explosive testing technology as in Boston12.

The constitutionality of these programs has been called into question on grounds that they violate passengers' Fourth Amendment protection against warrantless searches. This issue has been addressed by the Second Circuit in the context of New York's program, and that decision provides a framework for assessing the constitutionality of Boston and Washington, D.C.'s programs.

Passengers challenged the constitutionality of New York's Container Inspection Program in August of 200513. After the District Court held that the Program met the special needs exception to the Fourth Amendment's requirement of individualized suspicion, Plaintiffs appealed to the Second Circuit14. In August of 2006, the Second Circuit affirmed the lower court's decision15.

The special needs exception allows for warrantless searches in exceptional circumstances where it furthers a special need beyond a general interest in law enforcement16. In addition to random subway searches, courts have utilized this exception to uphold the constitutionality of random airport searches and highway sobriety checkpoints17. In order to satisfy this exception, the search must be reasonable in light of a balancing of factors including: the weight and immediacy of the government interest; the nature of the privacy interest that will be compromised; the character of the intrusion that will be imposed; and the efficacy of the search in advancing the government's interest18.

On appeal, the Second Circuit began its analysis by expressly holding that a subject's expectation of privacy is a factor to be considered in determining reasonableness of the search, not a threshold consideration as Plaintiffs had argued19. Next, the Court determined that the Program served a special need by seeking out explosives to protect the subway system from terrorist attack20. The Court's finding recognized that the limited scope and voluntary nature of the Program focused on protecting the subway system from terrorist attacks, not general law enforcement21. The Court noted that this holding was in line with prior case law recognizing the government's special interest in preventing and discovering latent or hidden hazards that may threaten the safety of mass transportation systems22.

Finally, the Second Circuit affirmed the lower court's finding that the Program was reasonable23. The Court reasoned that the government has a substantial and immediate interest in implementing the Program in light of thwarted plots to bomb the subway system, its continued desirability as a terrorist target and recent subway bombings at other locations24. The Court likened the Program to those calling for routine searches at entrances to courts and other official buildings25. Furthermore, the Court held that while patrons had a full expectation of privacy in their bags, the Program was designed to be minimally intrusive26. Lastly, relying on expert testimony, the Court found that the Program was a reasonably effective means of protecting the subway system from terrorist attack27.

On March 4, 2011, the American Civil Liberties Union (ACLU) announced plans to file suit against the WAMATA on grounds that it was instituting unconstitutional bag searches28. Opponents of these programs, such as the ACLU, have criticized them as being unconstitutional, costly, and ineffective. They have further argued that complaints of racial profiling indicate that the systems in place are not truly random29. In addition, some argue that the costly programs only lead to a minimal increase in security because searches are only conducted at a small number of stations and patrons have the right to refuse inspection. However, the New York decision suggests that similar programs in metropolitan areas, including Boston and Washington, D.C., would be upheld in the face of such legal challenges. Both Boston and Washington, D.C. have geopolitical significance similar to that of New York, which makes them a desirable target for potential terrorist plots. The programs in Boston and Washington, D.C. also share three significant factors that were highlighted by the New York decision: the searches are conducted at random, in public settings, and with the opportunity for patrons to decline having their bags searched30. Authorities in Boston and Washington, D.C. have pointed to these similarities in defense of the constitutionality of their programs31.

Furthermore, since the court's review of the New York bag inspection program, technology has advanced such that explosives may be detected through less invasive measures. Both Washington, D.C. and Boston utilize these newer technologies. Officers take swabs from bag zippers and handles and scan then using ionization technology to identify potential explosives32. By using this technology, authorities significantly limit the number of items that are subject to full scale search.

While these searches may be inconvenient for some passengers, based on the precedent set in the Second Circuit, it stands to reason that the Boston and Washington, D.C. policies are constitutional. Although privacy concerns have been raised, the Boston and Washington, D.C. programs are arguably less invasive than the one upheld in the Second Circuit, and the legal reasoning for upholding New York's policy is equally applicable in Boston and Washington, D.C.

1 Pike, John. Madrid Train Bombing. Global Security. July 13, 2005. http://www.globalsecurity.org/security/ops/madrid.htm. Accessed  February 24, 2011.
2 7 July Bombings Overview. BBC. http://news.bbc.co.uk/2/shared/spl/hi/uk/05/london_blasts/what_happened/html/. Accessed February 24, 2011.
3 Rai S, Sengupta S. Series of Bombs Explode on 7 Trains in India, Killing Scores. N.Y. Times. July 12, 2006. Available at http://www.nytimes.com/2006/07/12/world/asia/12india.html?_r=1. Accessed March 9, 2011.
4 MacWade v. Kelly, 460 F.3d 260, 264 (2d Cir. 2006).
5 Id.
6 Id.
7 Id. at 265.
8 Id.
9 MBTA Security Inspections. Massachusetts Bay Transportation Authority. http://www.mbta.com/transitpolice/default.asp?id=19050. Accessed  February 24, 2011.
10 Id.
11 Metro Transit Police to step up system security. Washington Metropolitan Area Transit Authority. December 16, 2010. http://www.wmata.com/about_metro/news/PressReleaseDetail.cfm?ReleaseID=4776. Accessed February 24, 2011.
12 Id.
13 MacWade v. Kelly, 2005 WL 3338573 (S.D.N.Y. Dec. 7, 2005).
14 MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006).
15 Id.
16 Id. at 267-269.
17 Id. at 268.
18 Id. at 268-269.
19 MacWade v. Kelly, 460 F.3d 260, 269 (2d Cir. 2006).
20 Id. at 27-271.
21 Id.
22 Id.
23 Id. at 271-275.
24 MacWade v. Kelly, 460 F.3d 260, 271-272 (2d Cir. 2006).
25 Id.
26 Id. at 273.
27 Id. at 273-275.
28 ACLU-NCA Launches Campaign against Metro Bag Searches. ACLU-NCA. February 18, 2011. http://aclu-nca.org/news/aclu-nca-launches-campaign-against-metro-bag-searches. Accessed March 11, 2011.
29 NYCLU Sues New York City Over Subway Bag Search Policy. ACLU. August 4, 2005. http://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/nyclu-sues-new-york-city-over-subw. Accessed March 14, 2011.
30 See Id. at 273.
31 See MBTA Security Inspections. Massachusetts Bay Transportation Authority. http://mbta.com/transitpolice/default.asp?id=19050; Metro Transit Police to begin bag inspection program. Washington Metropolitan Area Transit Authority. October 27, 2008 http://www.wmata.com/about_metro/news/PressReleaseDetail.cfm?ReleaseID=2324. Accessed March 11, 2011.
32 Id.

About the AuthorS

R. Sabra Jafarzadeh is a Law and Policy Analyst at the Center for Health and Homeland Security. In this capacity, she counsels the City of Annapolis Office of Emergency Mangement on emergency preparedness issues. R. Sabra is responsible for developing the agency's Strategic Plan, as well as various weather related emergency response plans. In addition, she coordinates multi-departmental efforts, such as sheltering for the homeless during extreme cold weather events. Furthermore, R. Sabra serves as the agency's representative to the Urban Area Security Initiative (UASI) Planners Sub-Committee and Vulnerable Population Group. Her emergency preparedness training and certification includes: ICS 100, 200, 300, 400, 700, 800, and ICS/EOC Interface. R. Sabra is a licensed attorney admitted to practice in Maryland, U.S. District Court for the District of Maryland and the U.S. Court of Appeals, Fourth Circuit. She has experience handling anti-discrimination, equal opportunity, and health law matters. She also served as a Law Clerk to the Honorable Charles B. Day of the U.S. District Court for Maryland. R. Sabra is a graduate of the University of Maryland School of Law and the University of Virginia College of Arts and Sciences.

Megan Timmins, Senior Law & Policy Analyst, joined CHHS in September 2007. Ms. Timmins pursued her law degree at the University of Maryland School of Law and graduated in 2007. She is admitted to practice law in Maryland. During law school, she served as a member of the Moot Court Executive Board, completed an Asper Fellowship at the Maryland Office of the Attorney General, studied comparative law in Aberdeen, Scotland, and worked as a law clerk for Rosenberg, Martin, Greenberg, LLP in Baltimore. In addition, Ms. Timmins graduated magna cum laude from St. Mary's College of Maryland in 2004, with a BA in Economics. As part of her work at CHHS, Ms. Timmins helped write a Continuity of Operations plan for the University of Maryland's Baltimore Campus, aided in fatality management planning for the state of Maryland, and assisted in planning for the 56th Presidential Inauguration. Ms. Timmins is also an instructor on the DHS COOP team and is working on a regional catastrophic preparedness initiative.

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