A Stitch in Haste

WTF?!?

Police questioned passengers aboard an Amtrak train that was detained at Newark Penn Station for more than an hour Thursday morning, checking the identification of each passenger.

Over a cell phone from a passenger on board the train, an unidentified railroad or police worker could be overheard telling passengers, "This is an unusual situation."

Dan Stessel, a spokesman for Amtrak, said there was "an active police investigation. Until it's wrapped up, we can't comment on it."
...
The train was permitted to leave the station at 9:30 a.m. Taylor said no explanation was given to passengers, but an announcement was made thanking them for their patience.

Taylor said transit police officers came down the aisle of each car, asking to see the identification of each passenger on board and checking the information with small hand-held computer devices.

Police also searched overhead luggage compartments with a metal wand, and at least one police dog was brought aboard the train.

Police were not allowing anyone on or off the train, and the nearby platform was cordoned off with yellow police tape, she said. A woman who was addressing passengers aboard the train said anyone with a medical condition who needed to get off the train should speak to authorities.

Stessel would not say if the train or its passengers were considered to be in any danger.

Some "back of the envelope" thoughts:

There are two distinct concerns: the mass detention, bag searches and use of alert dogs (Fourth Amendment issues) and the mass reviewing of IDs (a Fifth Amendment issue).

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The only two explanations I can see for the mass detention are exigent circumstances (e.g., a bomb) or a fugitive hunt. But the police behavior is consistent with neither:

• If it was a case of exigent circumstances (which would probably be sufficient to justify wanding and dog sniffing the bags), then that still doesn't explain why people were not allowed to leave (recall that the train was parked at a station). Indeed, the first thing you'd want to do is get the innocent away from the danger, right?

• If it was a manhunt, then why the inspection of overhead compartments and police dogs? Wouldn't the ID sweep be sufficient? (Indeed, would the ID sweep even be necessary -- wouldn't a simple walk-through be sufficient?)

As for the mass ID review: Even after the controversial Hiibel decision, there is still a constitutional right not to carry ID at all times (a right one voluntarily waives in certain reasonable circumstances, such as commercial flying). As far as I know, there is no requirement that a passenger on a train be required to carry ID at all.

And even if there is: Let's say I'm a completely innocent passenger on that train and, when prompted, I either cannot, or refuse to, provide ID? Remember: There is no probable cause, or "Terry-stop" reasonable suspicion, to detain me at all, even if there may be a basis for detaining the train. Without specific evidence against a specific passenger, there is no basis for demanding ID of that passenger.  That principle survived Hiibel, which held that police could demand identity information (not necessarily an "official" ID), when the police have reasonable suspicion that the suspect is wanted. Not the case here.

Also: Details are sketchy regarding the dog searches, but one of the last unsettled areas of Fourth Amendment jurisprudence is whether a dog sniff of a person's body, without reasonable suspicion, constitutes an unreasonable search.  This exact hypothetical -- passengers on a bus or train, in tight quarters, detained without individualized suspicion, not allowed to leave, being subjected to a dog going up and down the aisle in close proximity -- is exactly what constitutional experts have expressed uncertainty about. 

It appears the police activity was local, at least initially, (although the FBI later acknowledged sending two agents after the fact).  Whoever conducted the detention has some serious explaining to do.

UPDATE #1: Here is what Amtrak's website says about ID:

Effective immediately, Amtrak is implementing several new security measures for the benefit of our passengers.  Consequently, passengers will be required to produce valid photo identification when purchasing tickets or checking baggage. All passengers, 18 years or older, should be sure to carry a driver's license, passport or other photo identification when making a purchase.

Might just be a case of bad writing, but it says "when purchasing tickets" not "when traveling." And even if they did mean "when traveling," that still doesn't mean that passengers agree in advance to waive their Fifth Amendment rights, as clarified by Hiibel, not to produce ID to police without individualized suspicion.

UPDATE #2: It now appears that this whole questionable episode was the result of a crank note:

An Amtrak passenger found a threatening note on board Thursday, and the train was detained for more than an hour as police checked passenger identifications and searched luggage racks.

The Washington-to-New York train was declared safe and allowed to continue its morning route.

Amtrak spokesman Dan Stessel said he did not know the exact contents of the note, which a passenger found attached to a mirror in the cafe car's restroom.

The passenger alerted the train crew, and police boarded at the next scheduled stop, Newark Penn Station, to perform the search, Stessel said.

"The passenger did exactly the right thing," Stessel said.

The note will analyzed at a crime laboratory, he said.

I don't disagree that the passenger did the right thing -- my problem is with what the police did.

How exactly does demanding ID of every passenger, in a constitutionally suspect manner, help in any way to determine which jackhole put up the threatening note?  And what exactly were the "handheld devices" they were using?

Stopping the train, searching it for explosives or whatever, that's fine of course.  Maybe even the alert dog could be considered reasonable under the circumstances (I'm skeptical).  But I still see a pretty flagrant constitutional violation in the ID sweep.

It remains to be seen whether there will be any fallout from the incident.