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The legality of random subway searches

GapersBlock today notes the spirited discussion we're having on the constitutionality of random searches of passengers on transit systems.

GapersBlock also notes the Slate's Explainer Friday looked at the same topic. Some of its conclusions:

"The Fourth Amendment protects people from "unreasonable searches or seizures." As a general rule, the government can't search your baggage without a reason to believe you're a criminal. But according to legal precedent, a random search is acceptable if it fulfills special needs like public safety. If New York's subway screenings are challenged in court, the city's lawyers could argue that the program's primary purpose is to protect the city from terrorism.

"Unless a judge agrees that they fulfill a special need, the screenings will be on shaky legal ground. In 2000, the Supreme Court ruled that a roadblock used to screen drivers for drug crimes was unconstitutional, since its primary purpose was to apprehend drug traffickers. On the other hand, roadblocks that screen for drunk drivers have been deemed OK, since they promote highway safety. (The court did say in the 2000 ruling that "a roadblock set up to thwart an imminent terrorist attack" would almost certainly be constitutional.)"

This is uncharted territory. It will be interesting to see if a challenge is made to the New York initiative.


Ahh, Gapers Block. Among the most overrated blogs I know. Alas, that's completely secondary.

In any case, the primary responsibility of a government is to provide for the security of its citizens. This is always of the mantra of strict libertarians. That's why a strict libertarians should loathe the roadblock to find drugs but approve of the roadblock to stop a terrorist.

I think there are two dimensions here: (a) intent of a search, and (b) threat to security. Obviously the *intent* of the MTA is to screen for explosives and weapons, not to find pirated CDs in people's bags. So (a) is met. People will argue (b), but given the situation in London in the past two weeks, it's going to be really damn hard to say that there isn't a threat to NYC too.

Therefore, it's in the fundamental interest of security that bag screening be done in NYC. And it does not meet the "unreasonable search and seizure" protection set out in the 4th Amendment.

The key to random searches is this: the evidence obtained will not
hold up in court. Say you have something illegal in your bag (maybe
drugs). If the cops find this via a random search, that evidence
against you can't be admitted in court.

The worst they can do is stop you from boarding the train (before you
pay). Anything else is strictly unconstitutional and will be shot
down in about 30 seconds.

I believe Boston did something like this on their T system and flat
out said that they were only looking for weapons (etc) that would
endanger passengers... they wouldn't stop you for other contraband.

If the CTA does instate random searches, I have formulated the
following plans to create chaos :)

1) Bring a bag on the train with an alarm clock and some random wires
sticking out of it. Maybe plug the wires into some orange play-doh
for good measure :)

2) When I'm asked if I'll submit to a search, I'll refuse and walk
away. I'll then hand my bag to an accomplice who will then run
through the turnstiles (thanks, Chicago Card Plus) and get on the
train. Bagless, I will not have to be searched and I will reclaim
my bag from my accomplice.

Anyway, this "security" doesn't protect anyone. If you want to kill a
bunch of people on the L, here's what to do:

1) Have two of your closest friends pretend to be homeless weirdos.
At the peak of afternoon rush hour, have one friend jump on the
tracks at Harrison and another at Grand, stopping trains into the
loop in both directions. Wait 15 minutes.

2) Jump over the turnstiles with your suitcase nuke or other weapon of
choice, run down the stairs at Jackson or Lake (if you have three
other friends, go for all four downtown stations), and immediately
set off your explosives.

My point here is that you aren't going to stop terrorists. They'll
always outsmart you :) The thing that the CTA needs to stop is the
"petty crimes" like random stabbings, people going to the bathroom on
the trains/platforms, etc. This is what would make the CTA more
desirable for everyone. If they need to claim "anti-terrorism" to get
money, fine, but you have to realize that it's just a charade to make
you think you're safe. (Like those "highly trained" dogs that delay
the trains every morning.)

LOL. The conclusion of your comment is that the CTA needs to stop "petty crimes?" Sorry, you didn't build to that conclusion very well.

As to your "fool the CTA" scenario #1: that's kind of like saying you're going to fool BankOne by walking in with a fake AK-47. I mean, hey, it's fake, right? Can't be illegal!

Anyway, arguing with all of your scenarios is silly. The purpose of these searches is not to seize evidence that can be tried in court. It's to prevent acts of terrorism, i.e. war, against the U.S. Your context is completely flawed.

Can you provide any proof that this has any chance in hell of being anything other than an annoyance and an infringement on our rights?

"Those that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

(Benjamin Franklin)

Regarding my comment about play-doh with wires in it, let me add this: I'm an EE major at UIC. My classes require that I build electronics projects and bring them to lab for the TA to test. How can Officer Jones know that my electronics project isn't a bomb? Should he just take my word? Should I be arrested for attempting to take public transportation (which my University subsidizes) to school?

To continue with possible scenerios that random searches won't stop:

* Complicated backpacks with multiple compartments. I "smuggled" a glass bottle (Frappucino :) onto Metra this way on July 3. They searched my bag but obviously didn't do a very good job... they must have felt something in my bag, but I told them it was an umbrella (and showed my umbrella to them). That was enough to convince them that I wasn't violating any rules. Are the CTA people going to be this careless when searching for bombs?

* An iPod filled with explosives. Take out your iPod's guts, sell them on eBay, and replace them with a shiny bomb that iNtegrates nicely with iTunes. Is the security guy going to check the inside of your iPod (or the battery / disc compartment of your laptop)? No.

My point is that a terrorist is not going to be deterred by these random searches. All they're going to do is inconvienience your commute.

Think of it this way: every minute that you're not being randomly searched is a minute you could be spending drinking coffee and posting to blogs! :)

If they inconvenience my commute, fine. It's time for our culture to accept that we're in the middle of a war--that people are actively trying to kill us--and that commuting to work takes a back seat to, well, living.

Of course bag-screening is not a foolproof method. The TSA procedures at the airport aren't foolproof either. Combating terrorism is about reducing the probability of success of terrorists--you can't flip a switch and eliminate the threat.

Second, it's about making a given target a harder target. You can argue that random bag searches fail to do that, but that's part of the intention here. The US gov't looks at possible targets here in a triage and devotes resources to protecting them. They're going to put a lot into protecting nuclear power plants, less into protecting a bus system. In this case, the government has shifted resources into defending the rail system. It is (arguably) a harder target now. So the terrorists will (arguably) look elsewhere.

As much as I hate to say this, there is no way to defend a public place against a terrorist attack. There are so many ways to do it and only one way to prevent it. (Everyone must be NUDe with no bags). Any responcible government would alow a person to defend themselves, but that aint gonna happen. So the power to search is just another ruse to errode the bill. Prove me wrong.

"So the power to search is just another ruse to errode the bill. Prove me wrong."

Uh, no, you have to provide proof and evidence for YOUR point of view and ridiculous overstatements. It's not our responsibility to disprove it.

I look at bag searches like a car alarm system: are there high-tech pros capable of getting past it? Yep. Are there a lot of amateur car thiefs who can't? Yep. Are there pros who won't want to risk failure and will move on to a different target or take a break altogether? You bet. And since we're talking about actual human lives here and not "cars," that makes these measures worth it, IMO.

Even most hard-core "libertarians" (I use the quotes because most of them I've run across are actually Republicans claiming to be libertarian) concede that government has a responsibility to protect public safety (even the black-helicopter types rarely call for the elimination of law enforcement). This is Public Safety 101. Riding public transit is not an inalienable right. In other words, our right to not be blown up or killed on our morning commute to work trumps your right to board without the "intrusion" of having your bag searched for weapons or explosives.

> It's time for our culture to accept that we're in the middle of a war--that people are actively trying to kill us

Who? Who is actively trying to kill us? I went to work today and NOBODY TRIED TO KILL ME! How could that be!?

It's people like you that are ruining our country. Random security checks dont' stop anything. How can I make this clear to you?


Remember 9/11? All the hijackers somehow got though security. And this wasn't random searching, everyone was searched. Should I really believe that random searches are going to have any effect on anything (other than lowering the CTA's ridership).

I'm all for security measures that work! That would be great. But these made-up inconvieniences are just that. Inconvenience masquerading as security is NO SECURITY AT ALL.

Flex Your Rights has released "The Citizen's Guide to Refusing New York Subway Searches."
The Guide was created in reference to New York policy, but our advice is equally applicable to random searches on any subway.
Check it out at www.flexyourrights.org/subway

Hey jrock: All those capital letters and profanity SCARED THE FUCK OUT OF ME AND REALLY PROVED YOUR POINT. No, really.

I hope I ruin our country for you. Go to Canada.

Regarding the subway searches, be sure and check out The Citizen's Guide to Refusing New York Subway Searches put out by the Flex Your Rights Foundation. It teaches subway riders exactly what they need to know in order to assert their rights when they encounter a subway search.

Oops, sorry for the duplicate info.

You have a point, tom, yelling accomplishes nothing.

Regarding "The Citizen's Guide to Refusing New York Subway Searches", I noticed that the terrorist authors also took a picture of a subway train! The horror! Terrorists!


Hey lets start using some profiling. Lets stop sear searching the fat white guy and the 90 year old white lady. I have to stop and take off my shoes , and ahh la la is skipping down the terminal with camel in tow no problems

According to a 12/02/05 NYT article


Police Commissioner Raymond W. Kelly said through a spokesman, "Common sense prevailed." in response to a ruling by Judge Berman approving the random bag searches by the NYPD. Mayor Bloomberg also supported the ruling.

Kelly, Bloomberg, and Berman all need a lesson in common sense. If a person with a bomb is stupid enough to continue walking past the police checkpoint *and* unlucky enough to be searched, he will simply refuse, exit the station, walk 6 blocks and enter the next station, where there is no police checkpoint.

This policy does nothing to increase security and at the same time cuts deeply into the skin of the New Yorker's privacy, not to mention our rights under the fourth amendment.

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