A Stitch in Haste

I can't be sure until I check my notes, but my first read on New York City's plan to conduct random searches of passengers' bags is that it's probably unconstitutional.

The Fourth Amendment protects against "unreasonable searches and seizures." Often the debate centers on whether a police action is even a search (e.g., dog sniffs). But obviously this plan entails "searching," so the next question is whether the search paradigm is "reasonable."

As I recall, the test for reasonableness is an objective, societal test — would ordinary people think they have an "expectation of privacy"? Well, for 100 years there have been no random searches on NYC's subways and buses, War on Terror notwithstanding, so I would conclude the answer is yes, there is a reasonable expectation of privacy on the subway with respect to one's packages.

Also, there is generally a requirement of "individualized suspicion" before a search may commence. We used to call that "probable cause" but we have since diluted that down to "reasonable suspicion" (i.e., the so-called "Terry stop"). Random searches are a clear no-no. See Delaware v. Prouse, 440 U.S. 648 (1979).

There are exceptions, at least with respect to vehicles on public roads. A checkpoint (e.g., for seatbelt checks or in a fugitive hunt) where everybody is stopped regardless, has been upheld (Illinois v. Lidster, No. 02-1060 (2004), but cf. Indianapolis v. Edmond, 531 U.S. 32 (2000), striking down a blanket checkpoint to search for contraband).

I believe that non-discretionary selection schemes (e.g., stop every third vehicle regardless) have also been upheld. The idea has been to strip the rank-and-file police of their ability to abuse discretion and target people (e.g., by race) under the cloak of "randomness."

The only example I can think of where purely random searches without individualized suspicion are permitted are for school lockers, but the rationale there is that the lockers are school property anyway.

So like I said, all routes seem to lead to unconstitutionality. But I'm doing this somewhat "back of the envelope" as we say on Wall Street. And I know I have some lawyers and studying-for-the-bar-exam law students out there, so I hope they'll correct any errors or omissions in my reasoning.

Other thoughts at As I Please, Pelican in Her Piety, Downtown Lad, JunkYardBlog, MartiniPundit, Insulted, Hit & Run.

UPDATE #1: I address the question of "consent searches" here. The New York Times, meanwhile, has a follow-up piece on the legal aspects of the new policy. The voices expressing doubt about the plan's constitutionality appear to be growing.

UPDATE #2: For those who saw this Slate article, it seems very clear to me that the "probation case," Griffin v. Wisconsin, 483 U.S. 868 (1987), cited as a legitimization of subway searches, is completely inapposite. Griffin held that the government can lawfully require, as a condition precedent to being granted probation, that the criminal agree to suspicionless searches of their residence during the term of the probation.

Law-abiding citizens seeking to ride the subway are not analogous to criminals on probation, who are not "giving up their freedom" but rather receiving new limited freedoms that they had already forfeited by being convicted. With subway searches there is a clear denial of previously established rights, so Griffin is totally inapplicable.

The rest of the article, meanwhile, seems reasonanably correct in its legal analysis and can be considered a good read for laypersons.