One of the worst side-effects of terrorist acts is the resulting threat to our civil liberties. From our infancy as a nation, we have always prided ourselves in our commitment to placing freedom over fear. That’s why Hobbes’ theory lost. It’s also why we must be vigilant in the wake of violent tragedy about our rights.
I don’t have any first-hand accounts of it yet, but the official word is that police may conduct random bag / package checks of passengers on the subway (known as the ‘T’ here in Boston). The Globe isn’t particularly specific about the manner of the searches except to say that, at some stations, all bags were being searched. How long or detailed the searches were is not clear. Whether passengers were given any prior notice is also unclear. It begs the question: is this lawful?
To begin to answer that question, we need to understand what the baseline, status quo is. Generally speaking, the Fourth Amendment to the United States Constitution and Article XIV of the Massachusetts Declaration of Rights prohibit warrantless searches and seizures. Without getting off on a long tangent full of caselaw citations, police normally may not randomly stop you and conduct a search of your bag or belongings—that violates both state and federal law.
But law enforcement would argue this is not normal. Instead, they would argue these random bag checks fall under what is termed the “special needs” or “administrative search” doctrine. Turning attention to the law in Massachusetts is important here because it varies a little bit from cases in other jurisdictions.
Nine years ago, the Massachusetts Supreme Judicial Court handed down its opinion in Commonwealth v. Carkhuff, 441 Mass. 122 (2004). In Carkhuff, the defendant was arrested about one month after 9/11 for operating a motor vehicle under the influence of alcohol when he was stopped by State Police near Cobble Mountain Reservoir. Federal authorities had previously informed state authorities about a “credible threat” to an unspecified Massachusetts target and state law enforcement decided to increase security at potential targets such as the reservoir. To guard the reservoir, the State Police decided to implement a policy of stopping all people traveling alongside the reservoir and inquire about why they were there. Further, State Police were to search any tanker truck or box truck including locked items inside. These searches were to be uniform and conducted without regard to suspicion of particularized criminal activity. One of the individuals stopped as part of this policy exhibited signs of drunkenness and was subsequently arrested for operating under the influence. See id. at 123-24.
The defendant moved, prior to trial, to have the stop and all resulting evidence suppressed because the police had no specific, articulable facts providing reasonable suspicion that the defendant was engaged in any criminal activity. The prosecution responded by asserting the “special needs” doctrine and analogizing the stops as akin to screenings at the entrances of court houses or at airports. The trial court suppressed the search and the Commonwealth appealed. See id. at 122-23.
Upholding the trial court’s ruling, the SJC focused in on two factors: (1) is the search “part of a scheme that has as its purpose something ‘other than the gathering of evidence for criminal prosecutions’”? and, (2) was the search “ reasonable’ in the sense that it ‘must be limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it’”? See id. at 127. The SJC found the first factor satisfied but questioned whether the second factor had been met. In particular, the lack of any warnings, notices, or other signs warning people of the possibility that they could be stopped was problematic. “As such, persons who did not wish an encounter with the police had no opportunity to turn back and use an alternative route away from the reservoir.” Id. at 129. Further remarking that posting notice “would not have compromised the government’s objectives[,]” the court found the procedure unreasonable and affirmed the trial court. Id. at 130.
What does this mean for random bag checks on the T? We can tell from looking at Carkhuff that there are some important differences between its facts and the nature of random bag checks on a subway system. The biggest difference is that of notice. The Carkhuff court did not speak at too much length about the broader applicability of its opinion but it did have this to say: “When, as part of an administrative search, the police seek to stop, question, and potentially to search persons as to whom they have no articulable suspicion of wrongdoing, they must take all reasonable steps to reduce the intrusiveness of that encounter.” Id.
The SJC’s opinion in Carkhuff remains the law at the state level. Federally, things are even murkier. In 2006, a federal case in the Second Circuit dealt with an almost identical random bag check policy. In MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006), a class of New York City Subway riders sued the New York Police Department under 42 U.S.C. § 1983 for violation of their civil rights after their belongings were subject to random search. See id. at 263. Under the NYPD’s “Container Inspection Program,” officers would set up search stations at the turnstyles of selected subway stations. People were warned via megaphone that by entering the station they would be potentially subjecting themselves to a search and those wishing to avoid a search would have to leave. Declining to be searched did not subject individuals to arrest but they were not allowed to enter the station. A supervising officer establishes a selection rate (e.g. every fifth person) and officers would select people for inspection according to the rate. The inspection itself was designed to be as minimal as necessary to ensure an item didn’t contain an explosive device. See id. at 264-65. The Second Circuit Court of Appeals dismissed the lawsuit challenging the search program after considering several criteria aimed at investigating the reasonableness of the random screening. Id. at 275.
Some important points need to be made about the MacWade case. First and foremost, it is not binding law here in Massachusetts. The Second Circuit’s jurisdiction spans New York, Connecticut, and Vermont. Massachusetts is located in the First Circuit, which has not had a case similar to MacWade. Indeed, a search of the cases citing MacWade reveals only one from the First Circuit and that one does not deal with random bag checks—the citation is for a broader legal principle. Similarly, no state cases in Massachusetts cite to MacWade either. Nor has the U.S. Supreme Court heard any case dealing with this sort of program. So, while MacWade remains the “go-to” case regarding random bag checks on the subway, it is only persuasive authority in Massachusetts and no state or federal court is required to follow it.
All of this points to a frustrating reality: the law in Massachusetts is silent on the permissibility of random bag checks on the T. Based on Carkhuff, we know only that any such program needs be designed to minimize the intrusiveness of the search policy. Thus, the manner that law enforcement officers are conducting these bags probably matters a lot. Perhaps the single most important question is whether they are giving sufficient warnings to passengers about the possibility of a search. The warning needs to allow passengers uninterested in consenting to search an opportunity to leave. I don’t have those sorts of facts right now. Thankfully, as of this writing, I have not been requested to submit to such a search nor have I observed one. My reading of the law suggests that such a random bag check policy probably violates state law unless it is carefully tailored to be as minimally invasive as possible and riders are afforded ample opportunity to leave rather than be searched.
Now as to how you should handle being asked to submit to such a search? I’m not going to give you legal advice but I will lend some common sense. Honestly, if police will allow you to leave that is probably the most sensible thing to do. If that is not an option for one reason or another, I would just remind you that there is more than one way to vindicate yourself when your constitutional rights have been violated. You don’t need to be arrested and charged with a crime to litigate your issue—there is always the federal lawsuit under § 1983 for violation of constitutional rights. So don’t get yourself arrested. If police order you to open a bag for inspection, make it clear that you’re not consenting but don’t get confrontational. Gather the information you might need if you pursue a lawsuit at a later point but remain respectful.
Reading over the Boston Globe’s article, I find myself alarmed at the quotes of individuals who felt ‘comfort’ by the heightened police presence. Personally, I find it disturbing. One of the truly great things about this country is that we don’t tolerate giving up personal liberty in exchange for marginally better safety. With all of the armed officers and National Guard members roaming around Boston, its starting to look like a police state. And that means the terrorist(s) won. The proper response here is to go about life as if there is no increased threat in a show that we won’t be terrorized into changing our way of life. I am greatly dismayed to see people of this great city highlighting the police state as a source of comfort. It is anything but. It is a disturbing recognition of terrorism’s success. I only hope that in the days to come, we reduce our police presence and go about our lives as they used to be.