3 THE CASE FOR SEARCHES ON PUBLIC TRANSPORTATION By Jocelyn Waite Attorney Reno, Nevada 2. Focus I. INTRODUCTION The balance of the Introduction presents the histori- cal background and context for the possible need for A. Statement of the Problem transit authorities to conduct searches and briefly ad- dresses the legal background and context: basic Fourth Due to increased concerns about security, transit Amendment3 requirements, particularly the warrant agencies—of their own volition or at the request of fed- and individualized suspicion requirements, and the eral, state, or local governments—may seek to institute exceptions to those requirements. However, the primary search procedures analogous to those done in airports to focus for legal analysis of security screening is on the ensure that explosives, biological weapons, etc., do not exceptions to the warrant and individualized suspicion enter the transit system. While security screenings are requirements. Therefore, the main body of the paper routine in airports, they have to date been rare in the discusses the categories of warrantless searches that 1 transit environment. Given their open nature, their provide likely legal models for analyzing transit high volume of traffic, and the type of trips taken on searches,4 most notably cases involving airport security them, transit systems present a very different security screening and other types of entry screening. After re- environment than airports. These differences give rise viewing the applicable legal authority, the paper pre- to significant legal questions concerning how to struc- sents matters to consider in structuring transit search ture constitutional search policies. procedures. 1. Purpose 3. Scope Developing a security screening procedure requires The paper will address, or reference, the major fed- some basic determinations about the scope of the proce- eral cases relevant to such an analysis, as well as state dure: to search people or just packages, to conduct ran- authority that advances or differs from the federal domized searches or to search based on some sort of cases.5 As with all such reviews, however, the paper profile, to search at the entrances to facilities or within facilities, to search on transit vehicles, to search on the ally carrying—as opposed to fitting the profile of someone entire system or at selected stations, or to search as a deemed likely to be carrying—a prohibited item. routine matter or only during certain threat levels. 3 Challenges to search requirements can also be framed in These questions arise in both a legal context and an terms of First and Fifth Amendment issues. See plaintiff’s operational context. This paper addresses the former. briefs in Gilmore v. Ashcroft, 2004 WL 603530 (N.D. Cal.), The paper is meant to provide transit authorities a solid posted at www.papersplease.org/gilmore/legal.html. However, foundation for conducting more specific research and the primary framework for the most analogous cases, those analyzing the legal viability of a specific type of search involving airport security and government building entry policy: one focused on security screening. From a legal searches, has been search and seizure under the Fourth standpoint, structuring such a search policy requires Amendment (and corresponding state constitutional provi- determining under what conditions it is constitutional sions). This report will be limited to exploring that area of the to conduct the searches. It also requires determining law. what to do when individualized suspicion arises— 4 Throughout the report, the term “transit search,” unless particularly what to do in the event contraband of any otherwise indicated, is meant to refer to a search conducted for type is uncovered and how to determine when the security screening purposes, and based upon an administrative screening turns into a stop. The purpose of this paper is procedure, whether randomized or targeted, not upon the indi- to review the legal authority that will illuminate those vidualized suspicion of the individual officer conducting the first instance questions rather than those relating to 2 search. “Transit search” and “transit screening” may be used individualized suspicion. interchangeably. 5 The Fourth Amendment is a mandatory minimum for the 1 The Massachusetts Bay Transportation Authority (MBTA) states, and some states provide a greater degree of protection. instituted a search policy during the 2004 Democratic Conven- Cooper v. Cal., 386 U.S. 58, 62 (1967); Sibron v. N.Y., 392 U.S. tion. Ferry operators have also instituted search policies in 40, 60–61 (1968); Or. v. Haas, 420 U.S. 714, 719 (1975). See order to comply with the Federal Maritime Transportation Gannon v. State, 704 A.2d 272, 276 (Del. 1998). Many state Security Act of 2002, See II.K., Transit Searches, infra this constitutions provide bases for providing greater protection report. than the Fourth Amendment. JENNIFER FRIESEN, STATE 2 In this context, individualized suspicion means a suspicion CONSTITUTIONAL LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS based on a reasonable belief that a particular person is actu- AND DEFENSES, § 1-3(b), at 1-9-1-10 (3d ed. 2000). The paper 4 provides a starting point for, not the final word on, legal 4. Historical Background/Context evaluation of a specific policy in a given jurisdiction, When a court reviews a transit security search, the particularly in terms of state cases. The paper does not dangers posed to transit systems will be relevant to the cover all cases for any one jurisdiction. In evaluating weight assigned to the government interest. Therefore, the legality of search policy in a specific jurisdiction, the background leading to the current environment in further research in this changing—and extremely fact- transit security is discussed below. dependent—area of law is advisable. (A) Increased Concern for Security on Public Tran- It is beyond the scope of this paper to render a legal sit/Other Security Efforts to Date.—On March 20, 1995, opinion or recommend a specific search policy. However, the first large-scale terrorist use of a chemical weapon the paper will raise questions that transit authorities occurred when the Tokyo subway system suffered a may wish to examine in crafting their own policies. sarin gas attack that killed more than 10 people and A major issue for transit agencies is how to conduct injured thousands.10 The attack caused transit agencies searches effectively without interfering with service. 11 6 managing underground facilities to go on high alert. This is an operational question. Practical issues con- Consequently, there was heightened concern for secu- nected with search policies are beyond the scope of this rity at the 1996 Atlanta Olympics. The Metropolitan paper, as are issues surrounding legal liability for offi- Atlanta Rapid Transit Authority (MARTA) had person- cials involved,7 tort claims generally,8 exclusion of evi- 9 nel check subway tracks, tunnels, and bridges to make dence turned up by searches, removal statutes, and sure they were clear.12 Worldwide there were more than other issues relating to choice of venue. 195 terrorist attacks on surface transportation systems 13 between 1997 and 2000. reviews state constitutions and, to a lesser extent, state cases. While these earlier attacks had already raised con- See III., State Constitutional Issues, infra this report. cerns about transit security, the attacks in New York 6 Another practical obstacle to transit searches is lack of and Washington, D.C., on September 11, 2001, of course 14 manpower. For example, the Bay Area Rapid Transit (BART) elevated the importance of transit security. In general, police, according to the BART police chief, don’t have the man- since September 11, 2001, transit agencies have taken power to conduct searches. Fred Bayles, Searches Unlikely on actions to increase physical security, as well as making Transit Rails: Agencies Lack Funds to Follow Boston’s Lead, efforts to train employees about suspicious packages USA TODAY, June 16, 2004, at 3A. Posted at and behavior and to sensitize passengers to these is- www.usatoday.com/usatonline/20040615/6286387s.htm. 7 For example, given the difficulty of determining whether a given search comports with the Fourth Amendment, it is possi- ble for the officer who conducted a search that is ultimately the appropriateness of law enforcement procedure once indi- ruled unconstitutional to receive qualified immunity. See An- vidualized suspicion has been aroused. See, e.g., United States derson v. Creighton, 483 U.S. 635, 644 (1987). Also, where the v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66 (2d state of law is unclear (or emerging) courts may decline to Cir. 2002). 10 award damages. See, e.g., State v. Gunwall, 720 P.2d 808, 817 Cf., U.S. GENERAL ACCOUNTING OFFICE, MASS TRANSIT: (Wash. 1986). A number of the cases cited in the article do CHALLENGES IN SECURING TRANSIT SYSTEMS, GAO-02-1075T, discuss the issue of qualified immunity, e.g., Norwood v. Bain, at 7 (2002) (killed 11, injured over 5,000); BRIAN MICHAEL 143 F.3d 843 (4th Cir. 1998). JENKINS & LARRY N. GERSTEN, PROTECTING PUBLIC SURFACE 8 See generally NATIONAL MATERIALS ADVISORY BOARD, TRANSPORTATION AGAINST TERRORISM AND SERIOUS CRIME: AIRLINE PASSENGER SECURITY SCREENING: NEW CONTINUING RESEARCH ON BEST SECURITY PRACTICES 49 (MTI TECHNOLOGIES AND IMPLEMENTATION ISSUES 39–41 (1996) Report 01-07, 2001) (killed 12, injured thousands). Jenkins and (brief discussion about possible tort actions for personal inju- Gersten provide an in-depth look at the Tokyo attack, pp. 49– ries and privacy violations), posted at htp://books.nap.edu/ 65. 11 books/0309054397/html/1.html.l; MARK MCNULTY, TREATMENT Testimony of William W. Millar, President, American Pub- OF PRIVACY ISSUES IN THE PUBLIC TRANSPORTATION INDUSTRY lic Transportation Association before the Subcommittee on (TCRP Legal Research Digest No. 14, 2000). Emergency Preparedness, Science, and Technology of the 9 See generally Jeffrey Haningan Kuras et al., Thirty-First House Homeland Security Committee, July 26, 2005, at 5.