Slippery Slope of Suspicionless Searches: the “Special Needs Exception” and 10th Anniversary of MacWade

November 19th, 2016

By Shaun Prunotto 

In response to commuter train bombings in Madrid (2004) and London (2005), the NYPD implemented a policy involving random, suspicionless searches of bags and packages brought into the NYC subways. The New York Civil Liberties Union (NYCLU) immediately challenged this policy, describing it as “unprecedented, unlawful,” and “unlikely to have any meaningful deterrent effect on terrorist activity.”Despite the organization’s best efforts, search checkpoints persist with the court’s blessing. Ten years out from the decision to allow subway checkpoints, and with subway ridership at its peak since 1948, record numbers of New Yorkers are vulnerable to subway searches.

Photo by Colon Muchler via Creative Commons

Photo by Colon Muchler via Creative Commons

The Fourth Amendment generally requires that there be an individualized suspicion of wrongdoing before an individual can be searched.  The Second Circuit, however, upheld the policy of allowing warrantless searches of carry-on baggage in airports, finding that it furthered a “special need” (prevention of airplane hijacking) beyond a general interest in law enforcement. The “special needs exception,” has been expanded over the past forty-two years, and liberally applied to circumvent the requirement that an officer have some specific suspicion as to an individual before they may conduct a search. As a result, the protections once afforded by the Fourth Amendment have been diminished, especially in urban settings where public transportation is integral to daily living.

Searches in a variety of circumstances have been upheld under the “special needs exception,” including the drug testing of student-athletes in public schools and the limited searches of public courthouse visitors.  The Supreme Court upheld suspicionless highway sobriety checkpoints after finding that such stops were reasonable because the increasing number of alcohol-related deaths and injuries outweighed the small degree of intrusion upon individual motorists.  The Court emphasized the program’s advancement of the state’s interest, since testimony indicated that between 1 and 1.5% of drivers stopped were ultimately arrested for drunk driving.

The Second Circuit determined, in MacWade v. Kelly, that the NYPD policy’s purpose qualifies as a special need to prevent subway bombings. The Second Circuit relied on the notion that the policy is reasonably effective in deterring and detecting a terrorist attack on the subway system, and opined that the decision of which “reasonable alternative law enforcement techniques should be employed” is best left to politically accountable officials and counter-terrorism experts.

But whether the policy is “reasonably effective” is questionable.  If a would-be bomber encounters a search checkpoint, and is then selected for a search by the formula that allows police no discretion, the bomber would  have the opportunity to decline the search and leave the station. Refusing the search and to leave the station leads to arrest.

In the ten years since MacWade, similar policies have been adopted in the public transit systems of Washington D.C., Boston and Chicago.  According to D.C.’s Metro Transit Police’s policy, “if a customer refuses to allow his bag to be tested for explosives he is not allowed to board buses or trains with the bag.” The Metro police said they’d uphold their duty to enforce local laws, including arresting transit patrons found with contraband other than explosives during a search.

Notably, there has been no evidence that these policies are effective in either detecting or deterring terrorism.  After 18-months of searching in D.C., there had been zero arrests in connection with bag checks, and the ACLU had labeled the policy as “security theater.”  There have been no reports of explosives found by the NYPD’s bag checks, and while a few terrorist plots targeting NYC’s subway system post-9/11 have been disrupted, these random searches are not to thank.