Academic journal article The William and Mary Bill of Rights Journal

"SACRIFICING THE END TO THE MEANS":[dagger] THE CONSTITUTIONALITY OF SUSPICIONLESS SUBWAY SEARCHES

Academic journal article The William and Mary Bill of Rights Journal

"SACRIFICING THE END TO THE MEANS":[dagger] THE CONSTITUTIONALITY OF SUSPICIONLESS SUBWAY SEARCHES

Article excerpt

INTRODUCTION

The New York City subway system began transporting passengers in 1904.1 Today the system operates 24 hours a day, carrying on average 4.9 million daily passengers across 26 subway routes to 468 stations.2 Undoubtedly, the subway is an integral component of New York City's culture and history, and an engine of its enormous economy.

It is also inherently difficult to secure. The subway transports a high volume of passengers in an enclosed space, has numerous access points, and does not require advance ticket purchase or passenger identification.3 In light of these vulnerabilities and because of its cultural and economic importance, it is patent that New York City's subway is a prime terrorist target. In fact, police have already thwarted several plots to plant explosives in the subway system.4

Thus far, New York City has protected its transit system from attack. Other cities, however, have not been so fortunate. In March 1995, religious extremists attacked the Tokyo subway system with nerve gas, killing 12 people and injuring 6,000.5 In 2004, terrorists detonated bombs aboard commuter trains in Moscow and Madrid, claiming approximately 230 lives and wounding more than 1,500.6 On July 7, 2005, bombs exploded on three subway trains and on a double-decker bus in London, killing 52 people and injuring more than 700.7 Two weeks later, a second series of four attempted detonations led to a partial evacuation of the London Underground.8 In that attack, the bombs' detonators failed to ignite the explosives and no one was injured.9 Most recently, in July 2006, terrorists detonated bombs aboard seven commuter trains in Mumbai, killing more than 200 people and wounding at least 800. 10

After terrorists attempted a second attack on London's subway system, New York City Mayor Michael E. Bloomberg authorized the New York City Police Department (NYPD) to begin random searches of backpacks and packages brought into the New York City transit system.11 Shortly after being implemented, the NYPD announced that it would enforce the container inspection program indefinitely.12

At security checkpoints in New York subways, police use a numerical formula to determine the frequency of passengers subject to inspection, such as one in every five to ten passengers carrying a bag.13 Selected passengers are asked to open their bags and manipulate the contents for a visual inspection before they go through the turnstiles.14 Those that do not consent to the inspection are not permitted to enter the transit system, but are allowed to leave without further questioning.15

Police may not search "wallets, purses or other containers that are too small" to hold explosives.16 They also may not intentionally look for other contraband, read any written material, or request a passenger's personal information.17 Inspections are typically accomplished in a matter of seconds.18

The public is notified of checkpoints by prominently displayed posters and announcements made at stations and on subway trains.19 Inspections take place daily, but given "available resources and the scope of the subway system, not all stations have inspections every day."20 To enhance the program's deterrent effect, the NYPD does not publicly disclose the number and location of stations where inspections occur each day, or the numerical frequency of inspections.21

On August 4, 2005, the New York Civil Liberties Union (NYCLU) filed a lawsuit against the City of New York and the Commissioner of the NYPD contending that suspicionless searches of subway riders violate the Fourth and Fourteenth Amendments.22 The NYCLU filed the lawsuit on behalf of five subway passengers, including the son of a retired police captain and a naturalized American citizen.23 The plaintiffs sought both declaratory and injunctive relief.24

In December 2005, after a two-day bench trial, U.S. District Court Judge Richard M. Berman found the container inspection program constitutional and dismissed the NYCLU' s complaint with prejudice. …

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