RANDOM BAG CHECKS AT SUBWAY ENTRANCES ARE CONSTITUTIONAL

For the past year or so, when entering the New York City subway system, passengers have been asked to submit to a random, warrantless, and suspicionless bag search by police officers. Several riders who submitted to these searches--and others who refused to do so--filed a federal lawsuit claiming that the process and procedure were constitutionally violative. After a two-day bench trial, the United States District Court for the Southern District of New York could not discern a violation and dismissed the case with prejudice. On Friday, in a twenty-five page decision, the United States Court of Appeals for the Second Circuit agreed with the District Court.
With 468 stations, and 26 interconnected train lines, the New York City subway serves over 4.7 million passengers per day. According to security experts, this expansive network makes our transportation system a "prime target" for a terrorist attack. On July 21, 2005, in response to incidents that occurred internationally--such as on trains in Madrid and Moscow--and after several foiled bomb-related incidents here at home, the New York City Police Department launched the "Container Inspection Program." In an effort to deter individuals from carrying concealed explosives, checkpoints are established at entrances to seemingly random locations throughout the subway system. A group of police officers will typically stand at a table in the vicinity of the turnstiles and will randomly search the bags of riders entering the station. The process is voluntary and those who do not wish to submit to a search are free to leave the station (but will not be permitted to board the train at that location).
Interestingly, officers exercise "virtually no discretion in determining whom to search." A supervisor establishes the selection rate based on a variety of factors (such as passenger volume) and officers inspect packages at that predetermined number. Once an individual is selected and agrees to a search, officers are required to limit the "scope, method and duration" of their investigation. For example, since officers may only look into those containers which are large enough to transport an explosive device, wallets and small purses are off limits. Additionally, officers are not permitted to look for "contraband," they may not read any printed or written material, nor may they ask any personal information. From start to finish, the process typically takes "a matter of seconds."
While acknowledging that citizens may not be subject to "unreasonable search and seizures," given the "'enormous dangers to life and property from terrorists' bombing the subway," and the "minimally intrusive" nature of the police activity, the appellate court found the program reasonable and constitutional. As the Court observed:

Although a subway rider enjoys a full privacy expectation in the contents of his baggage, the kind of search at issue here minimally intrudes upon that interest. Several uncontested facts establish that the Program is narrowly tailored to achieve its purpose: (1) passengers receive notice of the searches and may decline to be searched so long as they leave the subway...; (2) police search only those containers capable of concealing explosives, inspect eligible containers only to determine whether they contain explosives, inspect the containers visually unless it is necessary to manipulate their contents, and do not read printed or written material or request personal information...; (3) a typical search lasts only for a matter of seconds...; (4) uniformed personnel conduct the searches out in the open, which reduces the fear and stigma that removal to a hidden area can cause...; and (5) police exercise no discretion in selecting whom to search, but rather employ a formula that ensures they do not arbitrarily exercise their authority.... Although defendants need not employ "the least intrusive means,"...to serve the state interest, it appears they have approximated that model. Given the narrow tailoring that the Program achieves, this factor weighs strongly in favor of defendants, as the District Court properly concluded.