I've been ticked off about the current policy of random bag searches in the New York subway lately -- it is ridiculous and utterly ineffective.  It's illegal, too.  The policy is "security theater", not security.  (N.B.:  The policy has been in effect for three weeks now, but I only actually saw a search for the first time yesterday morning...and dammit, wouldn't you know that would be the day that I didn't bring my bag to work.  So I can't report on the searches first-hand, sorry.)

See, policies like this should be enacted based on reason and facts, not on fear.  And if you apply reason to the situation -- which the MTA seems unwilling to do -- the random bag search policy doesn't help anything...and may actually make us less safe.

As currently devised, the random bag searches work like this:  checkpoints are set up outside the turnstiles, and cops are (supposedly) pulling people with large bags or backpacks at random and asking them to consent to a search.  (Apparently they're doing it on a numerical basis with little clicker-counters: every 11th, or 15th, or x person gets chosen.)  The police have also said that they are not searching people with small bags, nor are they searching womens' pocketbooks.  If you're chosen to be searched, you have the right not to consent (and it's not entirely clear if police officers are informing you of this right), but if you don't consent, they will not let you enter the subway system.  If you try to enter anyway, you are subject to arrest, but if you leave, they will not follow you.

So:  Imagine that you are a terrorist, you have a bomb, and you want to detonate it someplace where there are lots of people, like Times Square.  You enter a subway station, bomb in hand.  Several scenarios could result, none of which will actually stop a terrorist:

1. You put your bomb in a backpack or large bag.  You are part of the 85-90% of people who are not randomly chosen, or you are at a subway station that is not searching people.  You are not stopped, nor are you searched.  You enter the subway system, ride to your destination and explode your bomb.
2. You put your bomb in a belt, a coat, a hollowed-out book, a small bag, or a woman's purse.  You are not stopped, nor are you searched.  You enter the subway system, ride to your destination, and explode your bomb.
3. You are stopped and asked if you will consent to a search.  You decline, leave the subway station, go to the next subway station a few blocks away, ride to your destination, and explode your bomb.
4. You are stopped and asked if you will consent to a search.  You explode your bomb right there at the security checkpoint.

How is this policy making us safer?  I've raised this question to lots of people, and the response I get most often (which is also the response I see most often in the press) is that the random bag searches make people feel safer.

But that's not good enough for me.  I don't want to just feel safer while riding the subways; I actually want to be safer.  I want my fellow riders to be watchful, keeping an eye out for abandoned bags, suspicious packages, and odd behavior.  (Well, perhaps scratch that last one.  This is the New York subway we're talking about, after all.)  I don't want the other people on my train to think to themselves "Well, I saw them search that one swarthy guy with the big bag.  I'm safe."  Anything that waters down that response is by definition making us less safe than we'd be otherwise.

Now, let's move on to the question of the subway searches' legality.  Or lack thereof, because I can't find a legal justification for them.  (By the way, the NYPD has said that these are truly random searches, and that they are not engaging in ethnic or racial profiling.  I'd like to believe them, but I have my doubts.)

As a reminder, let me just quote the Fourth Amendment to the U.S. Constitution, the supreme law of the land:

The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by an Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

These searches are being done without warrants, and with no probable cause as required by the Fourth Amendment.  To hear the NYPD tell it, if they're stopping you, they're searching you.

These searches would not be Terry stops, which require "reasonable suspicion" that a crime is in progress or imminent, or that the officer's life is in danger.  And from what I can tell of Fourth Amendment jurisprudence, searches require "individualized suspicion" and not random stops.  In Stauber v. New York, a federal judge prohibited police from conducting blanket searches of protestors' bags at the Republican National Convention in New York last year, absent a "showing of both a specific threat to public safety and an indication of how blanket searches could reduce that threat."

The closest legal parallel that I can think of to the current searches would be checkpoints on highways -- sobriety checks and the like -- under Michigan Dept. of State Police v. Sitz, they are covered by a "special law enforcement need for greater flexibility."  I see also that Boston police randomly searched bags on their subway, the T, during the Democratic National Convention last year, but those searches were confined to trains actually going underneath the Fleet Center, where the convention was being held, and that they only lasted for the duration of the convention.  Conversely, these NYPD searches in New York are everywhere in the system, and certainly seem to be open-ended and here to stay.

Also:  persons selected for search are allowed to refuse (it's not clear if cops are telling people that, though; it's always good to know your rights), but then they won't be allowed entrance into the subway system.  (The MTA's official rules for the subway say nothing that I can see about reserving the right to refuse service, and they're a governmental entity.)  Can a public entity refuse to admit you if you're not breaking any of their rules and hold a valid ticket or other fare media?  The NYPD has said that those attempting to enter the system after being denied admittance are subject to arrest.  On what charge?

And:  Are police searching bags just enough to verify for themselves that the person in question isn't carrying weapons or bombs?  The NYPD has said that if evidence of other illegal activity turns up, persons are subject to arrest.  So if they find pot in your bag, you're going to jail.  How closely will they search?  It's a slippery slope here, but it's not far from making you, say, prove that all the MP3s on your iPod are legally acquired.  Or that the software on your laptop isn't pirated.  Or that the prescription drugs you're carrying with you are your own.  See, if we have police stopping and searching anyone, anywhere, for no reason and without a warrant, we've lost quite a few of the important civil liberties that we as Americans have fought for decades to protect.  (To this end, the NYCLU -- the New York chapter of the ACLU -- filed a lawsuit against the city and NYPD two weeks ago.  In other news, I joined the NYCLU the same day.)

Warrantless searches without probable cause violate our Fourth Amendment rights, and dilute the protections that America offers its citizens.  Actually, scratch that.  How about:  Warrantless searches without probable cause violate our Fourth Amendment rights, and dilute the protections that Americans have, and that our citizen-owned-government ("of, by, and for the people", right?) guarantees.  They are illegal, not to mention staggeringly ineffective.  And for those reasons, I will courteously refuse to be searched, as is my right. 

We live in a free country.  Let's start treating it that way.

Comments

[Valerie]

I like the searches. And I like seeing police officers is practically every station I've been since the searches started. It makes me feel safer.

[Vidiot]

But as I said above, actually being safer is more important to me than just some nebulous feeling of safety. I think it's great that watchful cops are patrolling the subway system with increased vigor. But I honestly don't see how the searches can help stop a terrorist, so they're a misapplication of resources. Can you think of a scenario?

(And, as I also noted above, they're illegal.)