Academic journal article Harvard Law Review

Criminal Law - Fourth Amendment - Second Circuit Holds New York City Subway Searches Constitutional under Special Needs Doctrine

Academic journal article Harvard Law Review

Criminal Law - Fourth Amendment - Second Circuit Holds New York City Subway Searches Constitutional under Special Needs Doctrine

Article excerpt


Just over two decades ago, Justice Brennan lamented of the special needs doctrine that its "Rorschach-like 'balancing test' ... portends a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens." (1) Under the special needs doctrine--an exception to the Fourth Amendment's general prohibition against warrantless, suspicionless searches (2)--when a search serves a goal other than general law enforcement, a court may balance private and public interests to determine whether the search meets the constitutional requirement of reasonableness. (3) Though a finding of diminished privacy expectations has traditionally been a linchpin of special needs analysis, (4) the Supreme Court has suggested that the doctrine's requirements might be relaxed in the face of an impending terrorist attack. (5) Recently, in MacWade v. Kelly, (6) the Second Circuit upheld New York City's subway search program--a program designed to guard against possible terrorist attacks--under the special needs doctrine despite finding that the subjects of the program's searches enjoyed a full expectation of privacy. (7) In doing so, the court downgraded the role of privacy expectations in the special needs analysis, thereby expanding the scope of warrantless, suspicionless searches that may be found constitutional.

In the wake of a series of terrorist attacks on transportation systems in Spain, Russia, and the United Kingdom, New York City officials set out to protect the city's extensive subway system from terrorist threats. (8) In the summer of 2005, the New York City Police Department announced a subway search program "designed ... chiefly to deter terrorists from carrying concealed explosives onto the subway system and, to a lesser extent, to uncover any such attempt." (9) The police set up checkpoints at selected subway stations and systematically searched the bags of some subway riders. (10) The officers provided notice of the searches through large posters displayed near their search tables and used bullhorns to notify passengers that if they did not wish to be searched, they should leave the station. (11) The officers exercised virtually no discretion in executing searches, searching passengers according to a fixed search rate established anew each day by the supervising sergeant at each location. (12) Each search was limited in scope and duration "to what [was] minimally necessary to ensure that the item [did] not contain an explosive device." (13) Officers were not allowed to read any material inside the containers and were prohibited from searching for nonexplosive contraband. (14)

Approximately two weeks after the program commenced, Brendan MacWade and several other subway riders (15) filed a complaint against Commissioner of the New York City Police Department Raymond Kelly, as well as New York City. (16) Seeking both declaratory judgment and preliminary and permanent injunctive relief, they alleged that the search program violated the Fourth and Fourteenth Amendments to the United States Constitution. (17)

The United States District Court for the Southern District of New York denied the application for an injunction, finding the search program constitutional. (18) The district court concluded that the program served a special need: reducing the risk of a terrorist attack on the subway. (19) The court based its conclusion on the "vitally important" governmental interest in preventing a terrorist attack on the subway, the program's effectiveness in deterring an attack, and the "minimal intrusion" resulting from the searches. (20)

The Second Circuit affirmed. Before analyzing the facts of the search program, Judge Straub (21) examined the special needs doctrine and its development. …

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