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Subway Searches: Which Exception to the Warrant and Probable Cause Requirements Applies to Suspicionless Searches of Mass Transit Passengers to Prevent Terrorism?

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Subway Searches: Which Exception to the Warrant and Probable Cause Requirements Applies to Suspicionless Searches of Mass Transit Passengers to Prevent Terrorism? Fordham Law Review Volume 74 Issue 6 Article 8 2006 Subway Searches: Which Exception to the Warrant and Probable Cause Requirements Applies to Suspicionless Searches of Mass Transit Passengers To Prevent Terrorism? Charles J. Keeley III Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Charles J. Keeley III, Subway Searches: Which Exception to the Warrant and Probable Cause Requirements Applies to Suspicionless Searches of Mass Transit Passengers To Prevent Terrorism?, 74 Fordham L. Rev. 3231 (2006). Available at: https://ir.lawnet.fordham.edu/flr/vol74/iss6/8 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Subway Searches: Which Exception to the Warrant and Probable Cause Requirements Applies to Suspicionless Searches of Mass Transit Passengers To Prevent Terrorism? Cover Page Footnote J.D. Candidate, 2007, Fordham University School of Law. I would like to thank Professor Daniel Richman for his guidance and invaluable insight. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol74/iss6/8 SUBWAY SEARCHES: WHICH EXCEPTION TO THE WARRANT AND PROBABLE CAUSE REQUIREMENTS APPLIES TO SUSPICIONLESS SEARCHES OF MASS TRANSIT PASSENGERS TO PREVENT TERRORISM? CharlesJ. Keeley III* INTRODUCTION The Fourth Amendment has become increasingly important in recent years. Modem technology continues to expand the government's capacity to collect information about its citizens to a degree that must have been unfathomable to the Amendment's authors. The courts have a vital role to play in assuring that increasing surveillance by all levels of government does not unreasonably encroach upon privacy. In an age of terrorism, however, the courts must also take caution not to unduly restrict the ability of citizens, acting through their government, to protect themselves against catastrophic attack. 1 The high ridership and economic importance of urban mass transit systems make them prime targets for terrorists. Designed to be highly accessible, the systems are difficult to secure and, in recent years, have proven vulnerable to terrorist attacks. 2 In response to bombings of foreign subway and commuter rail systems by international terrorists, U.S. cities and transit system operators have implemented security programs subjecting passengers to random and suspicionless searches by police. 3 Suspicionless searches depart from the traditional Fourth Amendment requirements that searches be based upon probable cause and preauthorized by a warrant. The U.S. Supreme Court has never reviewed the routine, suspicionless search of passengers conducted to prevent a terrorist attack on * J.D. Candidate, 2007, Fordham University School of Law. I would like to thank Professor Daniel Richman for his guidance and invaluable insight. 1. Ronald Jay Allen et al., Criminal Procedure: Investigation and Right to Counsel 334 (2005). 2. U.S. Gen. Accounting Office, GAO Reports GAO-05-851, Passenger Rail Security: Enhanced Federal Leadership Needed to Prioritize and Guide Security Efforts 10 (2005), available at http://www.gao.gov/new.items/d05851.pdf [hereinafter Passenger Rail Security]. 3. See MacWade v. Kelly, No. 05CIV6921, 2005 WL 3338573, at *1 (S.D.N.Y. Dec. 7, 2005); American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04- 11652, 2004 WL 1682859, at *2 (D. Mass. July 28, 2004). 3231 3232 FORDHAMLA W REVIEW [Vol. 74 urban mass transit systems. Lower courts have long upheld analogous searches at airports to prevent air piracy, deeming such searches "reasonable" after balancing the competing government and privacy interests.4 Yet these courts have never reached consensus on which exception justifies departure from the warrant and probable cause requirements. 5 While the Supreme Court has shown approval of suspicionless airport searches, 6 it has never reviewed an airport search case to clarify which exception applies. 7 The Supreme Court has recognized the validity of suspicionless searches in three circumstances: administrative inspections, roadblock checkpoints conducted by law enforcement officials, and searches that serve "special needs." 8 In each circumstance, the warrant and probable cause requirements are excused and the validity of a search or seizure hangs in the Court's balancing of government and privacy interests. As municipalities have employed suspicionless search programs on urban mass transit systems to prevent terrorist attacks, 9 it remains unclear which exception the Court would apply. This Note will describe the various approaches that the Court could take in excusing the subway searches from the warrant and probable cause requirements. The Court might, as lower courts have done, deem the subway searches as fitting within the administrative search doctrine, the special needs doctrine, or the roadblock checkpoint exception. Still, the Court could characterize the searches as consensual, or even abandon the warrant and probable cause requirements in favor of a general reasonableness standard. This Note concludes that none of the eligible approaches can be used to justify the subway searches without injuring the consistency of search and seizure jurisprudence or undermining the protections of the Fourth Amendment. Therefore, this Note recommends that the Court adopt a sui generis exception for antiterrorism mass transit searches in order to enable communities to defend themselves from this unique threat. Part I discusses the role of individualized suspicion under the traditional warrant preference model and under the competing general reasonableness standard. Part I will also describe the contexts in which the Court has permitted suspicionless searches or seizures. Part II outlines the ways in which the Court might analyze subway searches and evaluates these approaches. Part III argues that the adoption of a sui generis exception best maintains the consistency of Fourth Amendment law. Finally, this Note concludes that the political process adequately safeguards privacy when a 4. See infra Part I.C. 1. 5. See infra notes 332-35 and accompanying text. 6. See infra Part I.C.2. 7. See 5 Wayne R. LaFave, Search and Seizure § 10.6(c), at 291 n.58 (4th ed. 2004). 8. City of Indianapolis v. Edmond, 531 U.S. 32, 37-38 (2000). 9. See infra Part I.D. 2006] SUBWAY SEARCHES 3233 search program equally affects a majority of a community and cedes no discretion to officials in selecting whom to search. I. SUSPICIONLESS SEARCHES AND THE FOURTH AMENDMENT Part I.A. 1 will briefly describe the debate stemming from ambiguity in the Fourth Amendment's text over whether all searches and seizures must comply with the warrant procedure in order to be reasonable. It will then describe the warrant preference rule: the Court's traditional interpretation that all searches and seizures are subject to the warrant procedure's strictures unless a recognized exception applies. Part I.A.2 will establish that passengers possess a recognized privacy interest in luggage and that this interest entitles them to the protections of the Fourth Amendment. In Part I.A.3, this Note will discuss how requiring individualized suspicion before a search or seizure protects privacy and limits the arbitrary use of discretion of government officials in selecting individuals for search. Part I.A.4 will describe the Court's introduction of a reasonableness balancing test into Fourth Amendment analysis as an alternative to the warrant preference rule, highlighting the role of individualized suspicion in this competing model. A. The Fourth Amendment 1. Original Intent and the Warrant Preference Rule The Fourth Amendment, made binding on the states through the Fourteenth Amendment,' 0 states 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, 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. 1 The relationship between the Amendment's two clauses is not clear from the text. One interpretation, the warrant preference model, defines the reasonableness of a search or seizure by whether it complies with the warrant procedure. 12 Under this view, a search or seizure is unreasonable unless authorized by a warrant satisfying the Warrant Clause's probable cause, oath, and particular description requirements. 13 A competing interpretation treats the two clauses as independent. Only searches and seizures authorized by a warrant must satisfy the Warrant Clause's 10. Mapp v. Ohio, 367 U.S. 643, 650 (1961). 11. U.S. Const. amend. IV. 12. Thomas K. Clancy, The Fourth Amendment's Concept of Reasonableness, 2004 Utah L. Rev. 977, 993. 13. Id. 3234 FORDHAMLA W REVIEW [Vol. 74 requirements; all others must simply be "reasonable."' 14 A third view maintains that "unreasonable searches and seizures" refers only to those conducted pursuant to the general warrants issued by Great Britain in the years leading up to the founding era. 15 Under this theory, the framers did not intend for the Amendment to regulate warrantless searches and seizures, which were governed by common law.16 The ambiguity in the Amendment's
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