The Case for Searches on Public Transportation (2005)

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3 THE CASE FOR SEARCHES ON PUBLIC TRANSPORTATION By Jocelyn Waite Attorney Reno, Nevada I. INTRODUCTION A. Statement of the Problem Due to increased concerns about security, transit agencies—of their own volition or at the request of fed- eral, state, or local governments—may seek to institute search procedures analogous to those done in airports to ensure that explosives, biological weapons, etc., do not enter the transit system. While security screenings are routine in airports, they have to date been rare in the transit environment.1 Given their open nature, their high volume of traffic, and the type of trips taken on them, transit systems present a very different security environment than airports. These differences give rise to significant legal questions concerning how to struc- ture constitutional search policies. 1. Purpose Developing a security screening procedure requires some basic determinations about the scope of the proce- dure: to search people or just packages, to conduct ran- domized searches or to search based on some sort of profile, to search at the entrances to facilities or within facilities, to search on transit vehicles, to search on the entire system or at selected stations, or to search as a routine matter or only during certain threat levels. These questions arise in both a legal context and an operational context. This paper addresses the former. The paper is meant to provide transit authorities a solid foundation for conducting more specific research and analyzing the legal viability of a specific type of search policy: one focused on security screening. From a legal standpoint, structuring such a search policy requires determining under what conditions it is constitutional to conduct the searches. It also requires determining what to do when individualized suspicion arises— particularly what to do in the event contraband of any type is uncovered and how to determine when the screening turns into a stop. The purpose of this paper is to review the legal authority that will illuminate those first instance questions rather than those relating to individualized suspicion.2 1 The Massachusetts Bay Transportation Authority (MBTA) instituted a search policy during the 2004 Democratic Conven- tion. Ferry operators have also instituted search policies in order to comply with the Federal Maritime Transportation Security Act of 2002, See II.K., Transit Searches, infra this report. 2 In this context, individualized suspicion means a suspicion based on a reasonable belief that a particular person is actu- 2. Focus The balance of the Introduction presents the histori- cal background and context for the possible need for transit authorities to conduct searches and briefly ad- dresses the legal background and context: basic Fourth Amendment3 requirements, particularly the warrant and individualized suspicion requirements, and the exceptions to those requirements. However, the primary focus for legal analysis of security screening is on the exceptions to the warrant and individualized suspicion requirements. Therefore, the main body of the paper discusses the categories of warrantless searches that provide likely legal models for analyzing transit searches,4 most notably cases involving airport security screening and other types of entry screening. After re- viewing the applicable legal authority, the paper pre- sents matters to consider in structuring transit search procedures. 3. Scope The paper will address, or reference, the major fed- eral cases relevant to such an analysis, as well as state authority that advances or differs from the federal cases.5 As with all such reviews, however, the paper ally carrying—as opposed to fitting the profile of someone deemed likely to be carrying—a prohibited item. 3 Challenges to search requirements can also be framed in terms of First and Fifth Amendment issues. See plaintiff’s briefs in Gilmore v. Ashcroft, 2004 WL 603530 (N.D. Cal.), posted at www.papersplease.org/gilmore/legal.html. However, the primary framework for the most analogous cases, those involving airport security and government building entry searches, has been search and seizure under the Fourth Amendment (and corresponding state constitutional provi- sions). This report will be limited to exploring that area of the law. 4 Throughout the report, the term “transit search,” unless otherwise indicated, is meant to refer to a search conducted for security screening purposes, and based upon an administrative procedure, whether randomized or targeted, not upon the indi- vidualized suspicion of the individual officer conducting the search. “Transit search” and “transit screening” may be used interchangeably. 5 The Fourth Amendment is a mandatory minimum for the states, and some states provide a greater degree of protection. Cooper v. Cal., 386 U.S. 58, 62 (1967); Sibron v. N.Y., 392 U.S. 40, 60–61 (1968); Or. v. Haas, 420 U.S. 714, 719 (1975). See Gannon v. State, 704 A.2d 272, 276 (Del. 1998). Many state constitutions provide bases for providing greater protection than the Fourth Amendment. JENNIFER FRIESEN, STATE CONSTITUTIONAL LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS AND DEFENSES, § 1-3(b), at 1-9-1-10 (3d ed. 2000). The paper

4 provides a starting point for, not the final word on, legal evaluation of a specific policy in a given jurisdiction, particularly in terms of state cases. The paper does not cover all cases for any one jurisdiction. In evaluating the legality of search policy in a specific jurisdiction, further research in this changing—and extremely fact- dependent—area of law is advisable. It is beyond the scope of this paper to render a legal opinion or recommend a specific search policy. However, the paper will raise questions that transit authorities may wish to examine in crafting their own policies. A major issue for transit agencies is how to conduct searches effectively without interfering with service. This is an operational question. Practical issues6 con- nected with search policies are beyond the scope of this paper, as are issues surrounding legal liability for offi- cials involved,7 tort claims generally,8 exclusion of evi- dence turned up by searches,9 removal statutes, and other issues relating to choice of venue. reviews state constitutions and, to a lesser extent, state cases. See III., State Constitutional Issues, infra this report. 6 Another practical obstacle to transit searches is lack of manpower. For example, the Bay Area Rapid Transit (BART) police, according to the BART police chief, don’t have the man- power to conduct searches. Fred Bayles, Searches Unlikely on Transit Rails: Agencies Lack Funds to Follow Boston’s Lead, USA TODAY, June 16, 2004, at 3A. Posted at www.usatoday.com/usatonline/20040615/6286387s.htm. 7 For example, given the difficulty of determining whether a given search comports with the Fourth Amendment, it is possi- ble for the officer who conducted a search that is ultimately ruled unconstitutional to receive qualified immunity. See An- derson v. Creighton, 483 U.S. 635, 644 (1987). Also, where the state of law is unclear (or emerging) courts may decline to award damages. See, e.g., State v. Gunwall, 720 P.2d 808, 817 (Wash. 1986). A number of the cases cited in the article do discuss the issue of qualified immunity, e.g., Norwood v. Bain, 143 F.3d 843 (4th Cir. 1998). 8 See generally NATIONAL MATERIALS ADVISORY BOARD, AIRLINE PASSENGER SECURITY SCREENING: NEW TECHNOLOGIES AND IMPLEMENTATION ISSUES 39–41 (1996) (brief discussion about possible tort actions for personal inju- ries and privacy violations), posted at htp://books.nap.edu/ books/0309054397/html/1.html.l; MARK MCNULTY, TREATMENT OF PRIVACY ISSUES IN THE PUBLIC TRANSPORTATION INDUSTRY (TCRP Legal Research Digest No. 14, 2000). 9 See generally Jeffrey Haningan Kuras et al., Thirty-First Annual Review of Criminal Procedure: I. Investigation and Police Practices: Warrantless Searches and Seizures, 90 GEO. L.J. 1130 (2002); Christopher Mebane, Note: Rediscovering the Foundation of the Special Needs Exception to the Fourth Amendment in Ferguson v. City of Charleston, 40 HOUS. L. REV. 177, 203–10 (2003) (discussion of pretext issues). See also Robert D. Dodson, Ten Years of Randomized Jurisprudence: Amending the Special Needs Doctrine, 51 S.C. L. REV. 258, 287–88 (2000). See generally Francis M. Doherty, Admissibility of Evidence Not Related to Air Travel Security, Disclosed by Airport Security Procedures, 108 A.L.R. FED. 658. In addition, many of the cases cited in this paper contain discussions about 4. Historical Background/Context When a court reviews a transit security search, the dangers posed to transit systems will be relevant to the weight assigned to the government interest. Therefore, the background leading to the current environment in transit security is discussed below. (A) Increased Concern for Security on Public Tran- sit/Other Security Efforts to Date.—On March 20, 1995, the first large-scale terrorist use of a chemical weapon occurred when the Tokyo subway system suffered a sarin gas attack that killed more than 10 people and injured thousands.10 The attack caused transit agencies managing underground facilities to go on high alert.11 Consequently, there was heightened concern for secu- rity at the 1996 Atlanta Olympics. The Metropolitan Atlanta Rapid Transit Authority (MARTA) had person- nel check subway tracks, tunnels, and bridges to make sure they were clear.12 Worldwide there were more than 195 terrorist attacks on surface transportation systems between 1997 and 2000.13 While these earlier attacks had already raised con- cerns about transit security, the attacks in New York and Washington, D.C., on September 11, 2001, of course elevated the importance of transit security.14 In general, since September 11, 2001, transit agencies have taken actions to increase physical security, as well as making efforts to train employees about suspicious packages and behavior and to sensitize passengers to these is- the appropriateness of law enforcement procedure once indi- vidualized suspicion has been aroused. See, e.g., United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66 (2d Cir. 2002). 10 Cf., U.S. GENERAL ACCOUNTING OFFICE, MASS TRANSIT: CHALLENGES IN SECURING TRANSIT SYSTEMS, GAO-02-1075T, at 7 (2002) (killed 11, injured over 5,000); BRIAN MICHAEL JENKINS & LARRY N. GERSTEN, PROTECTING PUBLIC SURFACE TRANSPORTATION AGAINST TERRORISM AND SERIOUS CRIME: CONTINUING RESEARCH ON BEST SECURITY PRACTICES 49 (MTI Report 01-07, 2001) (killed 12, injured thousands). Jenkins and Gersten provide an in-depth look at the Tokyo attack, pp. 49– 65. 11 Testimony of William W. Millar, President, American Pub- lic Transportation Association before the Subcommittee on Emergency Preparedness, Science, and Technology of the House Homeland Security Committee, July 26, 2005, at 5. 12 William L. Waugh, Jr., Securing Mass Transit: A Chal- lenge for Homeland Security, 21 REVIEW OF POLICY RESEARCH 307, 313 (2004). 13 U.S. GENERAL ACCOUNTING OFFICE, supra note 10, at 7, MICHAEL JENKINS & LARRY N. GERSTEN, supra note 10, at 67– 99 (2001); FTA statistics: http://transitsafety.volpe.dot.gov /Security/Default.asp#FTA%92s%205POINT%20SECURITY% 20INITIATIVE. 14 U.S. GENERAL ACCOUNTING OFFICE, supra note 10, at 13– 14, citing steps taken by transit agencies since September 11, 2001, to enhance security. Conducting security screenings was not included in the list.

5 sues.15 For example, since the September 11, 2001, at- tacks, the Washington Metropolitan Area Transit Au- thority has removed items that could conceal bombs, such as trash bins, newspaper vending machines, and bicycle storage lockers, and has sought funding for high-tech surveillance equipment.16 Commuter and rapid rail operators have implemented additional measures pursuant to security directives issued by the Department of Homeland Security (DHS), described infra. On March 11, 2004, Madrid was attacked: ten bombs exploded on four crowded commuter trains during the morning rush hour, killing 191 people and wounding almost 2,000.17 Security concerns were raised further by this attack.18 And although there have been no attacks within the United States since September 11, 2001, there have been elevated threats against transit.19 Given this history, security concerns were acute during the 2004 presidential campaign. In Boston, site of the 2004 Democratic Convention, the security perimeter around the Fleet Center ordered by the Secret Service led to random passenger searches on the portions of the transit lines that run under the Center.20 However, in New York, site of the 2004 Republican Convention, de- spite heavy security concerns, the Secret Service did not close Penn Station, “the nation’s busiest rail hub, with 425,000 passengers a day moving through on subway and rail lines,”21 nor were passenger searches carried out. 15 See, e.g., FTA security initiatives, infra; U.S. GENERAL ACCOUNTING OFFICE, TRANSPORTATION SECURITY: POST- SEPTEMBER 11TH INITIATIVES AND LONG-TERM CHALLENGES. Statement of Gerald L. Dillingham, Director, Physical Infra- structure Issues, GAO-03-616T, at 2 (2003). See also “BART Launches Bold New Anti-Terrorism Awareness Campaign,” Aug. 9, 2005, www.bart.gov/news/press/news20050809.asp”; McGreevey Announces Increased Transit Security Measures, Governor Signs E.O. Deploying National Guard at Region’s Bridges, Tunnels, Railways, Mar. 20, 2003, www.state.nj.us/cgi-bin/governor/njnewsline/view_article_ archives.pl?id=1097; Ferry Gets Major Security Upgrade, Feb- ruary 11, 2005 (describing introduction of high-tech security features on Washington State ferry), posted at http://komotv.com/news/story.asp?ID=35238. 16 Waugh, supra note 12, at 313. 17 http://news.bbc.co.uk/1/hi/world/europe/3597885.stm. 18 See, e.g., Edward L. Lee II, Mass Transit Security In- creases After Madrid Attacks, May 15, 2004, www.iafc.org/archives/onscene_article.asp?section=morenews& id=316. 19 E.g., Feds Warn of Transit Terror Attacks, Apr. 3, 2004. Posted at www.foxnews.com/story/0,2933,115987,00.html; Susan Gilmore, FBI Reports No Immediate Threat of Terror Attacks on Washington State Ferries, THE SEATTLE TIMES, Oct. 14, 2004. 20 See II.K., Transit Searches, infra this report. 21 John Mintz, Security Intensifies for Political Conventions. Events in N.Y., Boston Seen as Terror Targets, WASH. POST, July 6, 2004, at A01. Posted at www.washingtonpost.com/ On July 7, 2005, four bombs were exploded in Lon- don: three on the underground system and one on a bus. Fifty people were killed, 700 injured.22 The DHS raised the threat level to orange for mass transit only. Increased security measures included deploying explo- sive-sniffing dogs and searching buses on the Washing- ton Metro system and conducting random searches on buses in Miami.23 (B) Impact of Transit System Attack; Inherent Diffi- culties in Screening Transit Passengers.—The United States has 6,000 public transportation agencies.24 Their mass transit facilities are clearly part of the nation’s critical infrastructure.25 In addition to loss of life and bodily injury,26 an attack on a mass transit system could cause significant economic disruption.27 In addition, the challenges of screening, let alone physically checking, the carry-on bags of everyone en- tering a transit system far exceed those at airports.28 As the General Accountability Office noted, “the open and accessible nature of these services makes it difficult to apply the kinds of security measures that can be ap- wpdyn/articles/A29636-2004Jul5.html. 22 Glenn Frankel and Fred Barbash, Death Toll From Lon- don Blasts Rises: 50 Killed in Attacks, 22 More in Critical Con- dition, WASH. POST, July 8, 2005. Posted at www.washingtonpost.com/wpdyn/content/article/2005/07/08/ AR2005070800139.html. 23 Lyndsey Layton and Steven Ginsberg, Patrols on Mass Transit Intensified but Scattered, WASH. POST, July 8, 2005, at A01. Posted at www.washingtonpost.com/wpdyn/content/ article/2005/07/07/AR2005070702278.html; Eric Lipton, Authorities Step Up Security on American Transit Systems, N.Y. TIMES, July 7, 2005. Posted at www.nytimes.com/2005/07 /08/politics/08security.html?th&emc=th. 24 The Subcommittee on Highways, Transit and Pipelines, Hearing on Public Transportation Security, www.house.gov/ transportation/highway/06-22-04/06-22-04memo.html. 25 See, e.g., JOHN MOTEFF, ET AL., Critical Infrastructures: What Makes an Infrastructure Critical? 4, 14, 15 (Congres- sional Research Service, The Library of Congress. Updated Jan. 29, 2003), posted at www.fas.org/irp/crs/RL31556.pdf. 26 For example, the Coast Guard estimates that almost 400 people would likely be killed if a large ferry were attacked, far exceeding the number of deaths likely to result from an air- plane crash. Eric Lipton, Trying to Keep Nation’s Ferries Safe From Terrorists. Coast Guard Studies Security Threats, Screen- ing Methods and Potential for Disaster, N.Y. TIMES, Mar. 20, 2005, at 12. 27 By definition, damage to critical infrastructure will result in damage to defense or economic security. MOTEFF ET AL., supra note 25, at CRS-2, CRS-4; Waugh, supra note 12, at 307. 28 BRIAN MICHAEL JENKINS (expert on counter-terrorism measures), MTI Report S-01-04, California Transportation Security Summits, March 28 and 29, 2002, at 33 (airport-level screening unlikely for rail transit). The limitations on screen- ing for commuter rail hold true for transit systems. Passenger screening was deemed impractical in the London and Tokyo subway systems. JENKINS & GERSTEN, supra note 10, at 20, 61.

6 plied at airports.”29 In addition to their open nature, the high volume of traffic on transit systems30 makes them both attractive targets for terrorists and impractical environments for deploying strategies like metal detec- tors.31 Moreover, security imperatives may clash with service imperatives: transit agencies compete for riders, making convenience an important factor. Any security measures that cause delays or otherwise cause incon- venience could push people away from transit and back into their cars.32 In addition, the lack of space within transit facilities may pose a problem. Unlike airports, transit facilities do not all have adequate space to ac- commodate lines of people waiting to clear security; crowding would not only deter riders but could create safety problems. (C) Legislative Action.33—Several laws were enacted in the last several sessions of Congress that deal with security issues, potentially affecting transit security. An even larger number of bills were introduced but not 29 U.S. GENERAL ACCOUNTING OFFICE, MAJOR MANAGEMENT CHALLENGES AND PROGRAM RISKS: DEPARTMENT OF TRANSPORTATION, GAO-03-108, at 14 (2003). 30 Every workday, transit systems nationwide carry more than 16 times the number of passengers as the nation’s air system. Testimony of Daniel Duff, Vice President— Government Affairs, American Public Transportation Associa- tion, Before the House Committee on Government Reform on the 9/11 Commission Recommendation, Aug. 3, 2004, at 2. See also THE 9/11 COMMISSION REPORT, FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES 391. Larger jurisdictions face even greater challenges. For example, New York’s Penn Station handles more than 1,600 people per minute via multiple access points during a typical rush hour; in 2002, 25 times more trips were taken on Washington, D.C.’s, Metrorail than the 7 million trips out of Washington’s Reagan National Airport. Statement of Robert Jamison, Deputy Administrator, Federal Transit Ad- ministration, U.S. Department of Transportation, Before the Committee on Commerce, Science, and Transportation, U.S. Senate, Hearing on the Rail Security, March 23, 2004, www.fta.dot.gov/news/testimony/14836_14839_ENG_HTML. htm. 31 U.S. GENERAL ACCOUNTING OFFICE, supra note 15, at 10; See also Waugh, supra note 12, at 309–10 (2004); FTA statis- tics: http://transitsafety.volpe.dot.gov/Security/Default. asp#FTA%92s%205-POINT%20SECURITY%20INITIATIVE. See also Andrew Zajac and Cam Simpson, Attacks a Reminder of Public Transit Perils in U.S., CHI. TRIB., July 8, 2005. Posted at www.chicagotribune.com/news/nationworld/ chi0507080201jul08,1,7491756.story?coll=chi- newsnationworld-hed. 32 U.S. GENERAL ACCOUNTING OFFICE, supra note 10, at 9. See Ferry Passenger Causes Security Scare, July 2, 2004 (de- scribing 20-minute delay when passenger coming from chemo- therapy triggered radioactivity detector), posted at www.kirotv.com/news/3485646/detail.html; Lipton, supra note 26, at 12. 33 Relevant provisions are set out in Appendix A. enacted that provided increased authority and funding for transit security measures. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001.34—Although the USA Patriot Act amends Title 18 to make a willful violent attack on a mass transportation system a felony, the Act does not appear to provide specific statutory authority for conducting transit searches. Aviation and Transportation Security Act of 2001 (ATSA).35—The ATSA created a new agency called the Transportation Security Administration (TSA) to con- duct airport screening and gave it regulatory authority over all transportation security, including transit secu- rity. According to the TSA, the agency has the authority to require transit screening, but has not exercised it.36 Homeland Security Act of 2002 (HSA).37—The HSA established a Directorate of Border and Transportation Security and transferred the TSA to the DHS. The HSA does not create any new authority over transportation security. The HSA does not appear to directly address screening for transit systems.38 Federal Maritime Transportation Security Act of 2002 (MTSA).39—The Coast Guard is responsible for administration of the MTSA, which mandates security measures for vessels and port facilities, including pas- senger ferries and facilities.40 The MTSA mandates 34 Pub. L. No. 107–56, Oct. 26, 2001. 35 Pub. L. No. 107–71, Nov. 19, 2001. 36 Asa Hutchinson, then the Homeland Security Depart- ment's Undersecretary for Border and Transportation Security, “said the department has the legal authority to require sta- tions throughout the country to implement screening systems, but has no plans to do so at this time. He said it is not feasible to impose the intense screening regime used at the nation's airports on the country's thousands of transit stations.” Chris Strohm, TSA Searches for Solutions to Shore Up Rail Security, May 4, 2004, www.govexec.com/ story_page.cfm?articleid=28386&printerfriendlyVers=1&. 37 Pub. L. No. 107–296, Nov. 25, 2002. See Appendix A for text of relevant provisions. 38 Cf. § 1710. “Railroad Safety to Include Railroad Security,” amending 49 U.S.C. 20105 (See Appendix A for text of relevant provisions). 39 Pub. L. No. 107-295, Nov. 13, 2002. See also Department of Homeland Security, Coast Guard, Final Rule, Vessel Security, Fed. Reg. 68, No. 204, 60483 Oct. 22, 2003; Department of Homeland Security, Coast Guard, Final Rule, Facility Security, Fed. Reg. 68, No. 204, 60515 Oct. 22, 2003. 40 The Coast Guard describes the MTSA as follows: “[The MTSA] requires vessels and port facilities to conduct vulner- ability assessments and develop security plans that may in- clude passenger, vehicle and baggage screening procedures; security patrols; establishing restricted areas; personnel identi- fication procedures; access control measures; and/or installa- tion of surveillance equipment.” Maritime Transportation Se- curity Act of 2002, Source: G-IPA/G-MP, www.uscg.mil/hq/ g-cp/comrel/factfile/Factcards/MTSA2002.htm.

7 screening of vehicles on ferries, which may include physical searches.41 (D) Federal Agencies.—Unlike aviation, which has pervasive federal involvement, transit operations are a local responsibility, as are transit security operations.42 Thus, it is not surprising to discover that there is a lack of nationwide mass transit security programs.43 None- theless, federal agencies have a significant effect on transit security efforts. TSA.—Although the TSA has responsibility for secu- rity in all modes of transportation under the ATSA, including regulatory authority over transit security, it has primarily focused on aviation.44 The President’s National Strategy for Homeland Security does not out- line the TSA role in transit security.45 However, under Homeland Security Presidential Directive-7, TSA will be responsible for developing the Sector Specific Plan (SSP) for Transportation under the DHS’s National Critical Infrastructure Protection Plan.46 Although the Department of Transportation (DOT) and the DHS signed a memorandum of understanding about han- dling transportation security issues in September 2004,47 the balance of specific roles between TSA and the Federal Transit Administration (FTA) still needs to be worked out.48 TSA has done some work with passen- ger rail to test explosive-detection technology49 and has certified explosive-detection canine teams for transit agencies.50 41 See “A Statement to Our Passengers on Ferry Security,” Sept. 30, 2004, www.wsdot.wa.gov/ferries/ commuter_updates/index.cfm?fuseaction=press_releases_ content&press_release_id=245; Security at Washington State Ferries, www.wsdot.wa.gov/ferries/security/. 42 U.S. GENERAL ACCOUNTING OFFICE, supra note 10, at 6. 43 Waugh, supra note 12, at 309. 44 U.S. GENERAL ACCOUNTING OFFICE, MASS TRANSIT: FEDERAL ACTION COULD HELP TRANSIT AGENCIES ADDRESS SECURITY CHALLENGES, GAO-03-263, at 24 (2002). 45 Id. at 25. 46 The SSP “delineates roles and responsibilities among transportation stakeholders and provides a ‘roadmap’ for iden- tifying critical infrastructure and key resources, assessing vulnerabilities, prioritizing assets, and implementing protec- tion measures.” Testimony of then Under Secretary Asa Hut- chinson before the Commerce, Science, and Transportation Committee, Aug. 16, 2004. Posted at www.dhs.gov/ dhspublic/display?theme=45&content=3943&print=true. 47 www.dot.gov/affairs/shanesp050405.htm. 48 United States: Public Transportation Security Needs & Enhancements Outlined at Congressional Hearing. Statement issued by US House Committee on Transportation and Infra- structure on June 22, 2004, www.cargosecurityinternational. com/channeldetail.asp?cid=15&caid=2846. 49 TSA Begins Third Phase of Rail Security Experiment: Pilot Marks First Ever Passenger and Baggage Explosives Screening in a Moving Railcar, July 15, 2004. Posted at www.dhs.gov/dhspublic/display?theme=20&content=3842. 50 MARTA Adds Canine Team for Airport Station Security, Aug. 18, 2003, www.progressiverailroading.com/transitnews/ DHS.—The DHS, the TSA’s parent agency, has ini- tiatives to improve transit security targeting three ar- eas: threat response support, public awareness and par- ticipation, and future technological innovations. These efforts include the development of a rapid deployment mass transit K-9 program and a pilot program to test the feasibility of screening luggage and carry-on bags for explosives at rail stations and aboard trains.51 Ac- cording to DHS, “the lessons learned from the pilot could allow transit operators to deploy targeted screen- ing in high threat areas or in response to specific intel- ligence.”52 DHS has also funded transit security grants.53 Following the Madrid bombing, the DHS advised transit agencies to upgrade security. The mandatory measures included using canine explosive teams to screen passenger baggage, terminals, and trains as needed and ensuring that security levels are consistent with threat levels established by DHS.54 In the months preceding the 2004 Democratic Convention, DHS issued three Directives/Bulletins relating to threats to mass transit systems.55 Following the July 7, 2005, attack on the London transit system, DHS raised the threat level to high for the mass transit portion of the transporta- tion sector.56 FTA.—The FTA is precluded by statute from regulat- ing transit agency safety and security operations.57 However, the FTA can encourage safety and security article.asp?id=2623. 51 Chris Strohm, Debate Rises Over Funding for Public Transportation Security, April 5, 2004, www.govexec.com/ story_page.cfm?articleid=28147&printerfriendlyVers=1&. 52 Fact Sheet: Rail and Transit Security Initiatives, www.dhs.gov/dhspublic/interapp/press_release/press_release_0 376.xml. 53 In fiscal years 2003 and 2004, the DHS Office for Domestic Preparedness provided $65 million and $50 million, respec- tively, for transit security grants for planning, training, secu- rity exercises and drills, equipment acquisition, management, and administration, www.house.gov/transportation/highways/ 06-22-04/06-22-04memo.html. 54 Department of Homeland Security Announces New Meas- ures to Expand Security for Rail Passengers. New Directives Call for Immediate Action from Commuter, Transit and Inter- city Rail, www.dhs.gov/dhspublic/display?content=3572. 55 American-Arab Anti-discrimination Comm. et al. v. Mass. Bay Trans. Auth., Civil Action No. 04-11652-GAO (D. Mass), July 28, 2004, Opposition of Defendant MBTA to Plaintiffs’ Motion for a Preliminary Injunction, at 2. 56 Transcript from Secretary Michael Chertoff Press Briefing on the London Bombings, July 7, 2005, www.dhs.gov/ dhspublic/interapp/press_release/press_release_0700.xml. 57 The FTA is, however, required to issue regulations stating the requirements for complying with the fixed guideway safety mandates under 49 U.S.C. § 5330 and requiring post-accident testing under 49 U.S.C. § 5331.

8 measures through its grant programs58 and has initi- ated nonregulatory activities.59 Much of the FTA’s ef- forts (other than increases in funding of security meas- ures) have been geared toward assessments of emergency response capability and training to enhance that capability, as well as intelligence and information sharing.60 The agency’s position is that security force deployment is a local agency decision.61 The threat level response for a red alert does include searching “all suit- cases, briefcases, packages, etc., brought into the facil- ity,”62 but this appears to refer to facilities for transit employees, not transit stations. There have not been any FTA efforts to provide training for conducting pas- senger security searches. However, FTA guidance on problem identification63 could be used in structuring a targeted screening policy. Coast Guard.—The Coast Guard is responsible for regulating security on commuter ferries under the MTSA, supra. Since July of 2004, large ferry operators have been required to screen certain percentages of vehicles and passengers. The percentage varies accord- 58 U.S. GENERAL ACCOUNTING OFFICE, supra note 10, at 15, nn. 12–15, citing 49 U.S.C. § 5324(c), 49 U.S.C. § 5327(c)(2), 49 U.S.C. § 5307(d)(1)(J)(i) and (ii). 59 Transit security initiatives are described at http://transit- safety.volpe.dot.gov/Security/Default.asp. These include the Transit Watch program, which, inter alia, trains transit sys- tems to make public announcements reminding passengers to take their carry-ons and report any suspicious packages, http://transit-safety.volpe.dot.gov/security/TransitWatch/ Default.asp. According to the House Subcommittee on High- ways, Transit, and Pipelines of the Committee on Transporta- tion and Infrastructure, following September 11, 2001, FTA has: performed vulnerability assessments of the 37 largest transit systems; provided grant funds for emergency drills; held 18 regional emergency preparedness forums; developed an employee awareness training program that trained 46,000 employees; funded the Intelligence Sharing and Analysis Cen- ter (ISAC) for transit, which is managed by the American Pub- lic Transportation Association; and developed chemical and biological protocols and guidelines for the industry. www.house.gov/transportation/highway/06-22-04/06-22- 04memo.html. 60 See generally TRANSIT SECURITY NEWSLETTER (FTA Office of Safety and Security), Issue No. 35, March 2003. Posted at http://transit-safety.volpe.dot.gov/Security/Newsletter.asp; U.S. GENERAL ACCOUNTING OFFICE, supra note 10, at 16–17. 61 Federal Transit Administration, Transit Threat Level Re- sponse Recommendation, http://transit-safety.volpe.dot.gov/ security/SecurityInitiatives/ThreatLevel/. 62 Measure 102, http://transit-safety.volpe.dot.gov/Security/ SecurityInitiatives/ThreatLevel/default.asp. 63 FTA has worked to provide training for transit employees to know how to identify and react to “unusual packages, suspi- cious substances, and people who are acting suspiciously.” Office of Safety and Security, supra note 60, at 1. Posted at http://transit-safety.volpe.dot.gov/Security/Newsletter.asp. ing to DHS alert levels. The Coast Guard does not re- quire a specific screening method.64 B. Legal Background: Traditional Fourth Amendment Considerations The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no War- rants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.65 The amendment applies to the states through the due process clause of the Fourteenth Amendment.66 The basic purpose of the amendment is to “safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”67 The Fourth Amendment does this by imposing a standard of rea- sonableness (“the touchstone of the Fourth Amend- ment”68) on the exercise of discretion by government officials.69 Actually applying the amendment to a particular set of facts has proved difficult.70 However, the following elements must be considered in determining the appli- cability of the Fourth Amendment: What is protected: The Supreme Court has held that Fourth Amendment protection is not limited to the home or other secure places.71 Government action: A wholly private search is not covered by the Fourth Amendment,72 but a search car- 64 Lipton, supra note 26, at 12. 65 U.S. CONST. amend. IV. 66 Mapp v. Ohio, 367 U.S. 643, 655 (1961). 67 Camara v. Municipal Court, 387 U.S. 523, 528 (1967). 68 E.g., Fla. v. Jimeno, 500 U.S. 248, 250 (1991), citing Katz v. United States, 389 U.S. 347, 360 (1967). 69 Del. v. Prouse, 440 U.S. 648, 653–54 (1979). 70 The Camara Court noted that: “Though there has been general agreement as to the fundamental purpose of the Fourth Amendment, translation of the abstract prohibition against ‘unreasonable searches and seizures’ into workable guidelines for the decision of particular cases is a difficult task which has for many years divided the members of this Court.” 387 U.S. at 528. 71 389 U.S. at 351. 72 Burdeau v. McDowell, 256 U.S. 465 (1921); United States v. Jacobsen, 466 U.S. 109, 113 (1984); United States v. Mithun, 933 F.2d 632, 634 (8th Cir. 1991) (subsequent warrantless search by government agent, provided it goes no further than initial private search, does not violate Fourth Amendment), cert. denied, 502 U.S. 869. Airport searches conducted solely for the benefit of the carrier are not covered by the Fourth Amendment. Gold v. United States, 378 F.2d 588, 591 (9th Cir. 1967). A private party acting with a legitimate independent motivation will not be subject to the Fourth Amendment. United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981); United States v. Howard, 752 F.2d 220, 227 (6th Cir.), cert. denied, sub nom. Shelton v. United States, 472 U.S. 1029 (1985).

9 ried out by a private party at government suggestion or requirement is subject to the amendment.73 Search or seizure: The Fourth Amendment only ap- plies to government conduct that actually amounts to a search or seizure.74 A seizure occurs when a person’s liberty is restrained, either through physical force or a show of authority.75 Actions short of arrest and full- blown search incident to arrest can be characterized as search and seizure for purposes of the Fourth Amend- ment.76 73 256 U.S. at 475; Coolidge v. N.H., 403 U.S. 443, 487 (1971); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989), citing 466 U.S. at 113–14. As early as 1973, govern- ment involvement in the then privately-operated airport screening program was held to be significant enough to bring the screenings under the Fourth Amendment. United States v. Davis, 482 F.2d 893, 904 (1973). The Court went on to note that the government’s role in the airport search program is and has been a dominant one. But even if the government’s involvement at some point in the period could be characterized accurately as mere “encouragement,” or as “peripheral, or…one of several co- operative forces leading to the [alleged] constitutional violation,” (citation omitted), that involvement would nevertheless be “sig- nificant” for purposes of the Fourth Amendment. Constitutional limitations on governmental action would be severely undercut if the government were allowed to actively encourage conduct by “private” persons or entities that is prohibited to the govern- ment itself. Id. See also United States v. Doe, 61 F.3d 107, 109, n.3 (1st Cir. 1995). 74 United States v. Attson, 900 F.2d 1427 (9th Cir. 1990) (Fourth Amendment only applies to government conduct rea- sonably characterized as search or seizure; conduct with inde- pendent reason unrelated to government law enforcement or administrative functions not search or seizure). 75 United States v. Mendenhall, 446 U.S. 544, 554 (1980). Some courts have required that there be not only a show of authority such that a reasonable person in the surrounding circumstances would not believe he was free to leave, but a yielding to that show of authority. E.g. Cal. v. Hodari D., 499 U.S. 621, 624–29 (1991); United States v. Santamaria- Hernandez, 968 F.2d 980, 983 (9th Cir. 1992). However, the Fourth Amendment is not implicated if an official merely ap- proaches an individual on the street or in another public place or asks an individual if he is willing to answer some questions and does so if he is willing to listen. Fla. v. Royer, 460 U.S. 491, 497 (1983). See also Fla. v. Bostick, 501 U.S. 429 (1991). 76 Terry v. Ohio, 392 U.S. 1, 16–19 (1968). A brief detention short of arrest may constitute a seizure. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). See II.A., Search and Seizure on Less Than Probable Cause, infra this report. In addition, the Court has held that a violation of the Fourth Amendment need not be based on a physical intrusion. 389 U.S. at 353. The rejection of the Olmstead requirement— Olmstead v. United States, 277 U.S. 438 (1928)—of physical intrusion opened the door to findings that other non-physical intrusions such as metal detectors could be deemed searches for purposes of the Fourth Amendment. See II.I., Airport Secu- rity Searches, infra, this report. Reasonable expectation: The Fourth Amendment only attaches when the person searched has reasonable ex- pectation of privacy.77 The expectation of privacy can- not, however, be rendered unreasonable by government edict.78 Applying these elements to the circumstances of a transit search, transit agencies can be expected to have to meet the requirements of the Fourth Amendment in conducting transit searches. 1. Warrant79 and Individualized Suspicion Requirements The Supreme Court has consistently held that “searches conducted outside the judicial process, with- out prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well- delineated exceptions.”80 The Court has found a warrant to be critical in safeguarding individual liberty, particu- larly from arbitrary exercises of discretion.81 In addition 77 389 U.S. at 361 (Harlan, J., concurring). Rawlings v. Ky., 448 U.S. 98 (1980); Hudson v. Palmer, 468 U.S. 517, 526 (1984). Justice Harlan, in his concurring opinion in Katz v. United States, suggested a two-part analysis for determining that a person has a reasonable expectation of privacy: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” 389 U.S. at 361 (Harlan, J., concurring). This test has been generally adopted. Cal. v. Ciraolo, 476 U.S. 207, 211 (1986). See also 482 F.2d 905. However, Justice Harlan’s test did not reach the question of how to determine that an expectation of privacy has been rec- ognized as reasonable, or, conversely, that an intrusion has been recognized as reasonable. 78 The court subsequently suggested that a mere government pronouncement reducing Fourth Amendment rights would not reasonably reduce Fourth Amendment rights. Smith v. Md., 442 U.S. 735, 740 n.5 (1979). The Ninth Circuit has since held that merely repeating a government intrusion numerous times does not make it one that society is prepared to recognize as reasonable. 482 F.2d 905. Accord 287 F.3d 81: “[T]he mere fact that airline passengers know that they must subject their per- sonal effects to reasonable security searches does not mean that they are automatically consenting to unreasonable ones.” 79 It is beyond the scope of this report to discuss the require- ments for a valid warrant. See generally 2 W.R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 4 (4th ed. 2004). 80 403 U.S. 454–55 (internal quotations and citations omit- ted). 81 The Court has termed the procedure of the antecedent jus- tification of the warrant requirement central to the Fourth Amendment. 389 U.S. at 359. The warrant requirement pro- tects several important interests: it limits the discretion of the official who has an interest in conducting the search; it pre- vents hindsight from coloring the evaluation of the reasonable- ness of the search; and in the administrative context it pro- vides assurance that the search is required under the municipal code involved, sets forth the lawful limits of the search, and provides notice that the inspecting official is acting

10 to generally requiring a warrant, the Court has held that a search or seizure is ordinarily unreasonable in the absence of individualized suspicion.82 However, despite the per se rule concerning war- rants, the Court has held that although probable cause and the warrant requirement weigh on the reasonable- ness of a search, there are “certain limited circum- stances” in which neither are required.83 The Court has under proper authorization. S.D. v. Opperman, 428 U.S. 364, 382–84 (1976) (Powell, J. concurring). Justice Powell argued that where the interests that a search warrant protects are not at issue, it may be permissible to conduct a search without a warrant. One of the dangers to be avoided by the warrant re- quirement is the limit on the discretion of the official carrying out the search. See 387 U.S. 532–33. The safeguards afforded by an objective assessment of probable cause are thought to be weakened if applied after the fact. Beck v. Ohio, 379 U.S. 89, 96 (1964). Even in the case of an administrative search not requiring probable cause of a violation of law, see II.G., Admin- istrative Searches in General, infra this report, a warrant af- fords important safeguards. In disagreeing that the protections of an administrative warrant were outweighed by the adminis- trative burdens, the Supreme Court noted: The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Con- stitution, is authorized by statute, and is pursuant to an admin- istrative plan containing specific neutral criteria. Also, a war- rant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed. Marshall v. Barlow’s, Inc., 436 U.S. 307, 323 (1978) (cita- tions omitted). 82 City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000), cit- ing Chandler v. Miller, 520 U. S. 305, 308 (1997). The Court has held that probable cause exists “where the facts and cir- cumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] suffi- cient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Draper v. United States, 358 U.S. 307, 313 (1959) (citation and internal quotations omitted). 83 N.J. v. T.L.O., 469 U.S. 325, 341 (1985). One of the key questions about reasonableness under the Fourth Amendment arises from the question of whether to read Warrant Clause and Reasonableness Clause together or separately. For exam- ple, Justice Stevens has argued that there are certain catego- ries of searches that can only be evaluated under the first clause, because they cannot meet the probable cause require- ment of the second clause, and therefore would be by definition unreasonable if required to meet the warrant clause. 436 U.S. 325–26 (Stevens, J. dissenting). Justice Stevens further argued that the Warrant Clause does not apply to routine regulatory inspections. Id. at 329. The argument has been made that the two clauses should certainly be read separately, as the original concern was not warrantless searches, but overly broad war- rants; warrantless searches should be judged on their reason- ableness. See United States v. Edwards, 498 F.2d 496, 498 (2d Cir. 1974). emphasized that the underlying purpose of the warrant requirement is to ensure that a search of private prop- erty is supported by “a reasonable governmental inter- est. But reasonableness is still the ultimate standard.”84 2. Exceptions to Warrant and Individualized Suspicion Requirements85 The Court has recognized that there are numerous legitimate government interests that would be thwarted by always requiring a warrant and individualized sus- picion. Thus, despite the formulation that as a general matter a search must be supported by a warrant sup- ported by probable cause, the Supreme Court has long since taken the position that under certain circum- stances a search may be reasonable absent a warrant, probable cause, or even individualized suspicion.86 Due According to at least one prominent commentator on the Fourth Amendment, the drafting of the amendment has caused a lot of confusion: “Can a search or seizure with a warrant or probable cause still be unreasonable? Or, perhaps more impor- tant, can a search or seizure without a warrant be reasonable even in the absence of probable cause?” 4 LAFAVE, supra note 79, § 9.1(d), at 275–76. See also Mebane, supra note 9, at 187, n.76. The Supreme Court has certainly answered the second ques- tion in the affirmative, at least in non-criminal cases. See 489 U.S. at 624 (1989). The Court has suggested that probable cause is married to the warrant clause, so that when a warrant is not required, neither is probable cause. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). 84 387 U.S. 539. See also 403 U.S. 509 (Black, J., concurring and dissenting): “[T]he Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only ‘unreasonable searches and seizures.’ The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circum- stances.” The Court will consider the context in which a search takes place and balance “the need to search against the invasion which the search entails” to determine the reasonableness of the search. 469 U.S. 337, citing 387 U.S. 536–37. The Court has suggested a three-part test for balancing the government interest in the intrusion against the privacy interest at stake: Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the sei- zure, the degree to which the seizure advances the public inter- est, and the severity of the interference with individual liberty. Brown v. Tex., 443 U.S. 47, 50–51 (1979). See 440 U.S. 654– 55. 85 Some have suggested that the exceptions to the require- ments for a warrant issued upon probable cause have unduly proliferated. See, e.g., David E. Steinberg, The Rise of War- rantless Auto Searches: The Need for a Reasonableness Inquiry, 27 SEARCH AND SEIZURE LAW REPORT 33 (May 2000) (“Instead of assessing whether a particular search falls into one of the numerous arbitrary exceptions to the warrant requirement, litigation should focus on whether a particular search is rea- sonable under the circumstances.”) (emphasis added). 86 See 489 U.S. 665.

11 to the circumstances in which they would occur— warrant/individualized suspicion being impracticable and arguably defeating the purpose of the searches— transit searches would have to be justified under an exception to the warrant and individualized suspicion requirements. The Court has recognized that the governmental in- terest in conducting a warrantless search is at its strongest when “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.”87 And although the Court has usually required “some quantum of individualized suspicion,”88 it has dispensed with the requirement in certain limited cir- cumstances “where the privacy interests implicated by the search are minimal, and where an important gov- ernmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion.”89 The Court has found that the probable- cause standard “is peculiarly related to criminal inves- tigations”90 and therefore “unhelpful in analyzing the reasonableness of routine administrative functions.”91 Accordingly, the Supreme Court has approved searches for a variety of administrative purposes with- out particularized suspicion of misconduct.92 In the exception cases the Court looks to reasonable- ness as a standard for conducting the search, judged by balancing the intrusion on Fourth Amendment inter- ests against the search’s promotion of legitimate gov- ernment interest.93 The factors to be considered are the nature of the privacy interest intruded upon, the char- acter of the intrusion, and the nature and immediacy of the governmental interest and the efficacy of the search in meeting it.94 In some situations the balance of inter- est may require relying on safeguards other than indi- vidualized suspicion to ensure that the reasonable ex- 87 489 U.S. 623, citing 387 U.S. 533. 88 United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976). 89 See 489 U.S. 624. 90 Colo. v. Bertine, 479 U.S. 367, 371 (1987), quoting 428 U.S. 370, n.5. 91 489 U.S. 668 (1989) (citations omitted). 92 Types of searches approved included the inspection of “closely regulated” businesses, the inspection of fire-damaged premises to determine the cause of the fire, and searches to ensure compliance with city housing codes. 531 U.S. 37. The Supreme Court has “upheld suspicionless searches and sei- zures to conduct drug testing of railroad personnel involved in train accidents; to conduct random drug testing of federal cus- toms officers who carry arms or are involved in drug interdic- tion; and to maintain automobile checkpoints looking for illegal immigrants and contraband, and drunk drivers.” 515 U.S. 653– 54 (citations omitted). 93 515 U.S. 652. “The basic concern of the fourth amendment is reasonableness, [citation omitted] and reasonableness de- pends on the circumstances.” Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 480 (5th Cir. 1982). 94 515 U.S. 654, 658, 660. pectation of privacy is not subject to the discretion of the searching official.95 The review of Fourth Amendment cases is fact- dependent.96 Likewise, the determination of whether an exception to the warrant requirement applies is nor- mally case-specific: “There is no hard and fast rule which will provide a ready solution of problems arising from search and seizure on every occasion, but each case must be decided on its own facts.”97 Where an ad- ministrative search is under review, the court will con- sider legislative facts—those applicable to a class of cases.98 3. Relevance of Warrantless and/or Suspicionless Search Cases As of July 2005 there appears to have been only two district court decisions reviewing a policy by a transit authority to conduct random searches.99 While these cases provide possible conceptual frameworks for ana- lyzing the constitutionality of a policy of searching transit passengers, this is clearly a developing body of law. For some time to come, it will be necessary to look at more established exceptions to the requirements of warrant and individualized suspicion to evaluate tran- sit searches. II. SPECIFIC WARRANTLESS SEARCH CATEGORIES Cases involving entry to vulnerable facilities, in par- ticular airport screening cases, may be among the most relevant to transit screening.100 However, overarching Fourth Amendment principles emerge from cases in other categories as well that would apply to possible transit screening policies.101 Therefore, this paper will 95 See 440 U.S. 654–55. 96 “[W]hether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case….” 386 U.S. 59; 392 U.S. 30 (“Each case of this sort will, of course, have to be decided on its own facts.”); Ohio v. Robinette, 519 U.S. 33, 39 (1996) (stating that the Court has “consistently eschewed bright-line rules” in favor of fact-specific inquiry into reasonableness). 97 United States v. Moreno, 475 F.2d 44, 47, n.2 (5th Cir. 1973), cert. denied, 414 U.S. 840 (1973), citing 392 U.S. 30. See also 403 U.S. 509–10 (Black, J., concurring and dissenting): “The test of reasonableness [of a seizure] cannot be fixed by per se rules; each case must be decided on its own facts.” See also Kuras et al., supra note 9, at 1203. 98 United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir. 1989). See II.G., Administrative Searches in General, infra this report. 99 See II.K., Transit Searches, infra this report. 100 Id. 101 See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (seizure and based on drug profile), citing 469 U.S. 337–42 (school search) for the proposition that rea- sonableness depends upon “all of the circumstances surround- ing the search or seizure and the nature of the search or sei- zure itself.” See also 515 U.S. 675 (special needs), citing, inter

12 examine the categories that present the most analogous factual situations, as well as review Fourth Amendment principles likely to be applied in assessing the constitu- tionality of transit screening. The cases that appear most apposite—those involving entry security screen- ing—will be discussed in more detail than the others. In many instances, material not directly applicable to transit searches will be included in footnotes. The cate- gories used are those most commonly employed by courts and commentators. There is some overlap be- tween categories, however: Cases may be put into more than one category.102 And, as discussed infra, a court may decline to precisely categorize a case, relying in- stead on a general reasonableness/balancing analysis. At the end of each section there is a brief summary of the principles that are important in the context of tran- sit searches. A. Search and Seizure on Less than Probable Cause (Stop and Frisk) The “stop and frisk” cases are relevant to transit searches because they establish that a seizure short of arrest and a limited search—both of which would occur in a transit screening—are subject to the Fourth Amendment103 and may occur on less than probable cause.104 Many of these cases are most relevant to tran- sit searches based on suspicious behavior—a topic be- yond the scope of this paper.105 However, these cases also set forth principles that would apply to the evalua- tion of any transit search policy: 1) the use of a balanc- ing test to determine the reasonableness of a search;106 2) the requirement that the scope of a warrantless search be closely related to and justified by the circum- stances that made initiating the search permissible;107 and the requirement that the stop not be arbitrary, i.e., that it either be based on specific objective facts or be pursuant to a plan with explicit, neutral limitations on the officers’ conduct.108 In addition, the Court’s holdings on roving patrol searches are relevant to determining where transit searches may take place. alia, 428 U.S. 543 (search and seizure on less than probable cause). 102 For example, Torbet v. United Airlines, 298 F.3d 1087 (9th Cir. 2002) may be considered an administrative search case, a consent case, and/or an airline search case. 103 392 U.S. 1, 16–18. 104 Id. at 20. 105 In addition to 392 U.S. 1, seminal stop and frisk cases in- clude Pa. v. Mimms, 434 U.S. 106 (1977); 443 U.S. 47; and 460 U.S. 491. 106 392 U.S. 20–21. 107 392 U.S. 19; 460 U.S. 500. 108 443 U.S. 51 (arrest of pedestrian for refusing to provide identification, without specific objective facts indicating in- volvement in criminal activity, violated Fourth Amendment). 1. Federal Courts109 The Supreme Court first ruled on the constitutional- ity of a “stop and frisk,”—that is, a seizure short of ar- rest and a limited search—on grounds not supported by probable cause, in Terry v. Ohio.110 The Court held that whenever a police officer restrains an individual’s abil- ity to walk away, the person has been seized under the Fourth Amendment, and that an exploration of even the outside of the person’s clothing is a search under the Fourth Amendment.111 The Court then created an ex- ception to the probable cause rule: “certain seizures are justifiable under the Fourth Amendment if there is ar- ticulable suspicion that a person has committed or is about to commit a crime.”112 The Court applied the principles of Terry to roving- patrol stops on less than reasonable suspicion, holding that it is not reasonable under the Fourth Amendment to make such stops on a random basis.113 The Court ap- plied the same rationale to find that random traffic stops to check license and registration could not be made without individualized suspicion.114 However, the Court specifically reserved from its holding in Delaware v. Prouse traffic spot checks that involve less intrusion or do not involve unbridled exercise of discretion, citing as an example a roadblock that stops all traffic.115 109 It is beyond the scope of this report to consider the myriad opinions relating to Terry in the context of criminal cases. The focus is on the application of Terry’s principles to situations that are relevant to security screenings. For a discussion of arguable departures from Terry’s reasonable suspicion stan- dard, see J. Michael Hughes, Criminal Procedure: United States v. Holt: The Exception to the Exception That Swallows the Rule, 55 OKLA. L. REV. 699, 701 (2002). 110 392 U.S. 1. A stop based on an officer’s reasonable suspi- cion that criminal activity is ongoing is known as a Terry stop. E.g., Beverly A. Ginn, Chief’s Counsel: Stop-and-Identify Laws, THE POLICE CHIEF, Sept. 2004. Posted at http://policechiefmagazine.org, archived issues. 111 392 U.S. 16–18. 112 460 U.S. 498, citing 392 U.S. 1 and 422 U.S. 881–82. 113 Id. at 882–83. The Court applied the same rationale to roving-patrol stops to inquire about citizenship. Id. at 884. The Court had already held that probable cause is required for a roving border patrol to conduct a search for illegal aliens (ab- sent consent). Almeida-Sanchez v. United States, 413 U.S. 266 (1973). 114 440 U.S. 663. In this case, “random” meant utterly at the discretion of the officer conducting the stops, as opposed to subject to a plan calling for stops at specified intervals, not based on suspicion. The Court found that the incremental in- crease in traffic safety brought about by the discretionary stops was not great enough to justify the intrusion involved. Id. at 659. 115 Id. at 663. Justices Blackmun and Powell, concurring, noted that traffic checks that are also not purely random, but not 100 percent roadblocks, such as a traffic check that stops every 10th vehicle, should also be included in the reservation in the Court’s holding. 440 U.S. 663–64. Note that Justice

13 The Court has noted that the general goal of crime prevention is not sufficient to allow stops that are nei- ther grounded in reasonable suspicion nor based on objective criteria.116 A number of courts have construed Terry in the con- text of airport searches.117 When airplane hijacking be- came a major concern in the 1970s, detection relied heavily upon hijacker profiling and traditional policing, and screening of carry-on luggage was not universal.118 Given the reliance on individualized suspicion, Terry was an appropriate precedent, even though the ration- ale for the airport search did not stem from ordinary law enforcement.119 However, Terry’s rationale does not extend to airport security screenings of all passengers, because such screenings are not based on individualized suspicion and are not justified by the need to protect an individual officer or others nearby. Extending the ra- tionale would result in an intrusion upon privacy ex- ceeding the need for the search.120 2. States New York relies on a four-tiered common-law test for police encounters short of an arrest.121 3. Summary of Important Principles The warrant procedure must be deemed impractical. The officer must have articulable suspicion about the commission of a crime. The court will balance the public interest and the individual right to be free from arbi- trary interference from law enforcement. The search must be based on specific objective facts or neutral lim- its on its execution. The scope of the search must be confined by the circumstances justifying the search. B. Search and Seizure Without Individualized Suspicion (Fixed Checkpoints)122 Transit searches may be considered a type of fixed checkpoint. Fixed checkpoints, which have been used to Blackmun used the term “random” to refer to arbitrary stops by a police officer. 116 443 U.S. 52. 117 475 F.2d 47, citing United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972); United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Epperson, 454 F.2d 769 (4th Cir. 1972); United States v. Lindsey, 451 F.2d 701 (3d Cir. 1971). 118 475 F.2d 49, n.6. 119 Id. at 50; 464 F.2d 674. 120 482 F.2d 907. See also 5 LAFAVE § 10.6(c), at n.56. 121 People v. Hollman, 590 N.E.2d 204 (N.Y. 1992); People v. DeBour, 352 N.E.2d 562 (N.Y. 1976). 122 It is important to distinguish between border checkpoints and other checkpoints, such as police roadblocks for license and registration checks, as “the Fourth Amendment is weakened in the context of border searches.” United States v. Bulacan, 156 F.3d 963, 972–73 (9th Cir. 1998), citing 473 U.S. 531 (holding that a 16-hour detention based on reasonable suspicion is not unreasonable because it occurred at the international border, “where the Fourth Amendment balance of interests leans heav- ily to the Government”). screen for traffic violations, illegal immigration, and drunk driving, are clearly seizures and thus subject to the Fourth Amendment.123 The parallel between fixed checkpoints and the airport hijacker detection system (a type of checkpoint for passengers) has already been drawn.124 One might consider that transit screening procedures would perform the same function as airport security screening systems, and thus apply the holdings in the fixed checkpoint cases to transit screening pro- grams. Although not dispositive, these cases provide guidance in balancing the public interest against the individuals’ Fourth Amendment interests.125 Factors deemed significant in these cases, such as the impracti- cality of requiring reasonable suspicion (let alone a warrant), substantial government need, and the re- duced intrusiveness of a public search subject to neutral criteria, may prove particularly relevant in evaluating transit screening procedures.126 1. Federal Courts127 An early instance of suspicionless questioning arose in United States v. Martinez-Fuerte,128 in which the Court noted the substantial public interest at stake;129 the impracticality of requiring reasonable suspicion;130 and the minimal nature of the privacy intrusion. In particular the Court noted that motorists have notice of the location of fixed checkpoints and that the fixed checkpoints are not subject to the discretion of the offi- cial in the field, whether in location or determination of who to stop.131 Citing administrative search cases, the Court held that it was appropriate to allow stops and 123 428 U.S. 556. 124 4 LAFAVE § 10.6(c), at 298. 125 See 440 U.S. 656–57. 126 This analogy would hold true for transit searches con- ducted at the entry to a transit facility. Should the searches be made by officers moving in the transit system, the more appro- priate analogy might be to the border patrol cases, such as 422 U.S. at 884. In that case, the Supreme Court held that roving patrols with the goal of locating illegal aliens were unconstitu- tional in the absence of individualized suspicion. Id. at 882–83. See II.K., Transit Searches, infra this report. 127 Cases involving checkpoints set up at the entrance to spe- cial events are discussed at II.J, Area Entry Searches, infra this report. 128 428 U.S. 543. Justices Brennan and Marshall, dissenting, called this case part of the “continuing evisceration of Fourth Amendment protections against unreasonable searches and seizures.” Id. at 567. 129 Id. at 556. See also 413 U.S. 279 (Powell, J., concurring) (noting that searches at border checkpoints are incidental to the protection of the border). This point may have gained in- tensity in view of current events. See Douglas Jehl, U.S. Aides Cite Worry on Qaeda Infiltration from Mexicos, N.Y. TIMES, Feb. 17, 2005. Posted at www.nytimes.com/2005/ 02/17/international/americas/17intel.html?th. 130 428 U.S. 557. 131 Id. at 559.

14 questioning at “reasonably located checkpoints” without individualized suspicion.132 However, the Court declined to extend the warrant requirement to the fixed checkpoints at issue.133 The Court found that in the context of the border check- point, a warrant requirement would make little contri- bution to the interests identified in Camara, supra.134 Finally the Court found that Fourth Amendment inter- ests would be protected at checkpoints through “appro- priate limitations on the scope of the stop.”135 The Court found that its rationale in Martinez-Fuerte did not apply to traffic stops conducted at random by an officer to check licenses and registrations,136 finding that on the record before it, discretionary spot checks were not sufficiently productive to justify the Fourth Amendment intrusion.137 The Court also applied the rationale of Martinez- Fuerte in Sitz,138 supra, a case involving a sobriety checkpoint. The Court rejected Sitz’s argument that its decision in Von Raab,139 supra, required a finding of special governmental need beyond the normal need for law enforcement before a balancing analysis was ap- propriate, applying instead the standards enunciated in Martinez-Fuerte and Brown v. Texas.140 Accordingly, the Court’s analysis in Sitz focused on the significance of the state interest (magnitude undisputed) and the na- ture of the intrusion (minimal as to duration and inten- sity; conducted pursuant to guidelines and requiring all vehicles to stop), which was slight from both an objec- tive perspective and subjective perspective.141 The de- gree of effectiveness of the checkpoint in Sitz appeared to exceed that shown in the Martinez-Fuerte checkpoint, and therefore was sufficient.142 132 Id. at 560–62. 133 Id. at 564–65. 134 The “visible manifestations” of official authority at a checkpoint provide the same assurances as a warrant as to the requirement of the inspection, the lawful limits of the search, and the propriety of the field officer’s actions. The factors that affect the reasonableness of the checkpoint are not susceptible to being distorted through hindsight and are subject to post- stop review. The decision as to who to seize is an administra- tive one of higher ranking officials, owed deference, not that of the officer in the field. Id. at 565–66. 135 Id. at 566–67. The Court reserved the question of the con- stitutionality of state and local officials stopping motorists to check vehicle documentation. Id. at 560, n.14. 136 440 U.S. 648. 137 Id. at 659. 138 496 U.S. 444. 139 489 U.S. 656. See II.H., Special Needs, infra this report. 140 443 U.S. 51. (Fourth Amendment requires either seizure be based on specific, objective facts indicating society’s legiti- mate interests require seizure of particular individual, or sei- zure be carried out pursuant to a plan embodying explicit, neu- tral limitations on conduct of individual officers). 141 496 U.S. 449–50, 451–53. 142 Id. at 455. Even Justice Stevens, dissenting, noted that he had no objection to airline passenger and public building screening by metal detectors. Moreover, he observed that: [p]ermanent, non discretionary checkpoints could be used to control serious dangers at other publicly operated fa- cilities. Because concealed weapons obviously represent one such substantial threat to public safety, I would sup- pose that all subway passengers could be required to pass through metal detectors, so long as the detectors were permanent and every passenger was subjected to the same search.143 In Edmond,144 supra, the Court refused to extend the rationale of Martinez-Fuerte and Sitz to a highway checkpoint program whose primary purpose was dis- covering and interdicting drugs. The Court distin- guished Martinez-Fuerte (difficulty of containing illegal immigration at border, impracticality of employing par- ticularized suspicion to detect cars carrying illegal im- migrants, longstanding concern for integrity of the bor- der) and Sitz (obvious connection between imperative of highway safety and law enforcement practice, gravity of problem, magnitude of State interest in getting drunk drivers off the road). It also noted that in Prouse the Court had suggested that roadblocks such as the one in Sitz would be constitutional and would have a purpose apart from general crime investigation.145 In contrast, the Indianapolis checkpoint was primarily aimed at catching drug offenders, which serves a general interest of crime control, and was therefore unconstitutional.146 The Court did note that there could be circumstances in which a checkpoint that would ordinarily be crime con- trol might be constitutionally permissible, such as “an appropriately tailored roadblock set up to thwart an imminent terrorist attack.”147 The Court specifically excluded from its holding “searches at places like air- ports and government buildings, where the need for such measures to ensure public safety can be particu- larly acute.”148 State license checkpoints have passed constitutional muster in a number of circuits.149 143 Id. at 473–74. 144 531 U.S. 32. 145 Id. at 38–40. 146 Id. at 41–42. The Court also noted that “purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue.” Id. at 47. 147 Id. at 44. The Court subsequently held that Edmond did not apply to a checkpoint where police stopped cars to ask for information about a hit-and-run accident. Illinois v. Lidster, 540 U.S. 419, 423–26 (2004). 148 531 U.S. 47–48. 149 United States v. Davis, 270 F.3d 977, 980 (D.C. Cir. 2001); United States v. Brugal, 209 F.3d 353, 357 (4th Cir. 2000); United States v. Galindo-Gonzales, 142 F.3d 1217, 1222 (10th Cir. 1998); United States v. Trevino, 60 F.3d 333, 335–36 (7th Cir. 1995); Merrett v. Moore, 58 F.3d 1547, 1551 & n.3 (11th Cir. 1995).

15 The Fifth Circuit has held that a search at a check- point within a military installation is reasonable with- out probable cause, with the additional security reasons the military may have weighing even more strongly on the reasonableness of the search than in the case of a normal license and registration checkpoint.150 The Court rejected the defendant’s assertion that stopping every sixth car was ineffective, asserting that it was a rea- sonable deterrent measure.151 2. States According to the National Highway Traffic Safety Administration (NHTSA), sobriety checkpoints are legal in 39 states and the District of Columbia and are banned or restricted in Alaska, Idaho, Louisiana, Michigan, Minnesota, Oregon, Rhode Island, Texas, Wisconsin, Washington, and Wyoming.152 New York has 150 United States v. Green, 293 F.3d 855, 861 (5th Cir. 2002). 151 Id. at 862. 152 Saturation Patrols and Sobriety Checkpoints: State Case Law Summary, at http://www.nhtsa.dot.gov/people/injury/ alcohol/SobrietyCheck/caselaw.html. Cases upholding check- points include: Miller v. State, 373 So. 2d 1004 (Miss. 1979) (upholding checkpoint that checked licenses of everyone driv- ing as authorized under Prouse); State v. Deskins, 673 P.2d 1174 (Kan. 1983); State v. Baldwin, 475 A.2d 522 (N.H. 1984); State v. Cloukey, 486 A.2d 143 (Me. 1985) (holding that a checkpoint need not be approved by supervisory personnel); Ingersoll v. Palmer, 743 P.2d 1299 (Cal. 1987); State v. Record, 548 A.2d 422 (Vt. 1988); Simmons v. Commonwealth, 371 S.E.2d 7 (Va. 1988) (holding that, if traffic checkpoint survives Fourth Amendment scrutiny, it is constitutional under Article I, § 10 of Virginia’s Constitution), rev'd on other grounds, 380 S.E.2d 656 (Va. 1989); People v. Rister, 803 P.2d 483 (Colo. 1990); Davis v. Kan. Dept. of Revenue, 843 P.2d 260 (Kan. 1992); State v. Davis, 464 S.E.2d 598, 601 (W. Va. 1995) (stressing that “every vehicle approaching the roadblock was stopped”); State v. Bates, 902 P.2d 1060 (N.M. Ct. App. 1995); Commonwealth v. Yastrop, 768 A.2d 318 (Pa. 2001). Cases invalidating roadblocks or citing to cases that do so: State v. Koppel, 499 A.2d 977 (N.H. 1985); Nelson v. Lane County, 743 P.2d 692 (Or. 1987) (checkpoints unconstitutional under Article 1, Section 9, Oregon Constitution, in absence of specific statu- tory authority); City of Seattle v. Mesiani, 755 P.2d 775 (Wash. 1988) (specific roadblock unconstitutional under Article 1, Sec- tion 7, Washington Constitution; unnecessary to reach Fourth Amendment issue); Pimental v. Department of Transp., 561 A.2d 1348 (R.I. 1989) (sobriety roadblocks or checkpoints estab- lished to apprehend drunk drivers that operate without prob- able cause or reasonable suspicion violate the Rhode Island Constitution); Sitz v. Dept. of State Police, 506 N.W.2d 209 (Mich. 1993); State v. Sanchez, 856 S.W.2d 166, 170 (Tex. Ct. App. 1993); Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183 (Minn. 1994) (Article 1, Section 10 of the Minnesota Constitu- tion requires greater evidence that checkpoint advances public interest than is required under Fourth Amendment analysis: checkpoint set up in area with high incidence of accidents and drunk driving violations, stopping every fourth car, less than 2- minute delay, held unconstitutional). upheld even roving checkpoints if made pursuant to a uniform, non-arbitrary plan.153 On the other hand, some states not considered by NHTSA to restrict or ban roadblocks have held them to be unconstitutional under certain circumstances.154 The Supreme Judicial Court of Massachusetts has created a sui generis exception to Article XIV of the Massachusetts Constitution for roadblocks, which the court construes narrowly. The court has found both roadblocks to interdict drugs and other contraband155 and security-justified roadblocks to violate Article XIV. In the latter instance, the court applied the principles of Rodriguez to the constitutionality of a roadblock set up to provide heightened security around the Cobble Mountain Reservoir, rejecting the Commonwealth’s argument that constitutionality should be judged by balancing the need to thwart a terrorist attack against the minimal intrusion of the stop.156 3. Summary of Important Principles It must be impractical to require reasonable suspi- cion. The checkpoint cannot be aimed at general law enforcement. The court will balance the intrusion on the individual—both in objective (duration of seizure, intensity of investigation) and subjective (potential for generating fear and surprise) terms—against the gov- ernmental interest (compared with interests that have been upheld) and the extent to which the program can reasonably be said to advance that interest157 and the standard is reasonably effective. The assessment of ef- fectiveness, however, is not meant to give courts discre- tion in choosing among reasonably effective law en- forcement techniques. The search must be carried out under a plan with explicit, neutral limitations on offi- cers’ discretion. 153 People v. Scott, 63 N.Y.2d 518 (1984) (upheld under Fourth Amendment suspicionless stops of vehicles to conduct sobriety checks at checkpoints under written guidelines). 154 State v. Henderson, 756 P.2d 1057 (Idaho 1988) (although checkpoints might be allowed with prior judicial authorization under legislative authority, warrantless roadblock at issue unconstitutional under Article 1, Section 17, of Idaho Constitu- tion); State v. Blackburn, 620 N.E.2d 319 (Ohio Mun. Ct. 1993) (Article 1, Section 14 of Ohio Constitution prohibits use of roadblocks in absence of a substantial justification for not us- ing other, less intrusive methods of law enforcement). 155 Commonwealth v. Rodriguez, 722 N.E.2d 429, 434–35 (Mass. 2000). 156 Commonwealth v. Carkhuff, 804 N.E.2d 317, 319–20 (Mass. 2004). Since the court found the roadblock did not meet the constitutional requirements of a roadblock, it analyzed the stop under another theory. See II.J. Area Entry Searches, infra this report. 157 Compare 440 U.S. 648 (results not sufficiently productive), with 496 U.S. 444 (empirical data showed effectiveness).

16 C. Consent158 Consent is clearly an exception to the requirement that searches be conducted pursuant to a warrant is- sued upon probable cause.159 Transit systems may seek to rely on this theory in supporting the legality of tran- sit searches. The argument would be that entering the system is voluntary, so that proceeding into the system constitutes consent to a search. The countervailing ar- gument would be that a passenger may have no other realistic travel alternative to transit, for example, for getting to work, and therefore cannot be said to have consented to the search merely by entering the system. Therefore, an understanding of the factors that have been considered dispositive in proving consent should prove useful in evaluating potential screening policies. This is particularly true since courts that reject the consent rationale may nonetheless look to factors that would be argued as constituting consent as indicia of reasonableness.160 1. Federal Courts Schneckloth,161supra, is considered one of the seminal cases on the requirements of consent under the Fourth Amendment. In resolving a conflict in standards be- tween the Ninth Circuit and the California state courts, the Supreme Court held that the voluntariness of con- sent to search is a question of fact to be determined from “the totality of all the circumstances,” and that knowledge of the right to refuse consent is merely one factor to consider.162 Therefore, although the govern- ment does have the burden of establishing that consent to a search was voluntary, it need not, in order to meet that burden, establish that the person searched knew 158 These cases clearly illustrate the point that Fourth Amendment determinations are extremely fact-dependent, as in case after case the majority and minority disagree not on the standard at issue but on whether the facts support a finding of consent. E.g., United States v. Drayton, 536 U.S. 194 (2002) (majority finds police did nothing to suggest to passengers that they were barred from leaving bus or otherwise terminating their encounters with police, while dissent finds it clear that under the circumstances passengers would not have felt free to not comply with police requests). 159 Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); 4 LAFAVE § 8.1. Many of the consent cases involve a criminal defendant alleged by the government to have consented to a search by police that turned up incriminating evidence, with the issue being whether there had been genuine consent. A number of the cases involve defendants who were approached by police for questioning because they fit a drug courier profile. Generally these cases involve a challenge to a particular search, not an entire search regime. It should be noted that failure to grant consent cannot be used to establish probable cause to search. Graves v. City of Coeur D’Alene, 339 F.3d 828, 842 (9th Cir. 2003). 160 See II.I., Airport Security Searches, infra this report. 161 412 U.S. 218. 162 Id. at 227; United States v. Lopez-Pages, 767 F.2d 776, 779 (11th Cir. 1985). that he had the right to refuse the search.163 In order to give valid consent, however, the situation must be such that a reasonable person would feel free to leave.164 The cases contain a number of limitations on the con- cept of consent. For example, the government may not condition the exercise of one constitutional right upon the waiver of another.165 Moreover, consent to one type of search does not constitute a consent to all searches. When a person consents to a search, the scope of the consent governs the scope of the search. The standard for measuring scope is one of objective reasonableness: “what would the typical reasonable person have under- 163 412 U.S. 218 at 248–49; 519 U.S. 33; 536 U.S. 194 (princi- ple applies to both search and seizure). The Court remanded Robinette to the state court for further proceedings consistent with its holding that the Fourth Amendment did not require officer making traffic stop to tell a motorist after writing ticket that he is free to go before seeking consent to conduct a search. The Ohio Supreme Court found that such notice is not required under the Ohio Constitution, but that under a totality of the circumstances analysis, consent to search had not been freely given, thus affirming its own original disposition. State v. Robinette, 685 N.E.2d 762 (1997). More than one commentator has suggested that the Su- preme Court has held voluntary for legal purposes behavior that was not voluntary in any real sense of the word. See Tracey Maclin, Voluntary Interviews and Airport Searches of Middle Eastern Men: the Fourth Amendment in a Time of Ter- ror, 31 SEARCH AND SEIZURE LAW REPORT 73 (Nov. 2004). The ACLU has argued that ferry searches cannot be considered voluntary if the alternative is not to ride the ferry. Andrew Garber, Vehicle Searches at Washington Ferries Trouble Ameri- can Civil Liberties Union, THE SEATTLE TIMES, June 8, 2002. 164 See 460 U.S. at 502. The Court applied the standard it had enunciated in Mendenhall, 446 U.S. at 554, for determin- ing whether a seizure had occurred. In the case of a police re- quest to search made on a bus, the Court, reasoning that a bus passenger may not feel free to leave for reasons that have noth- ing to do with the police presence, modified the “free to leave” standard in the case of a bus encounter to whether a reason- able person would feel free to decline the police request. 501 U.S. 436–37. In dicta the Court noted that the “reasonable person” test presupposes an innocent person. Id. at 438. Where consent is given during the course of an unlawful sei- zure, the ensuing search is also unlawful. 460 U.S. 491; 501 U.S. 433–34. 165 W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 664–65 (1981), citing Frost v. Railroad Comm’n, 271 U.S. 583 (1925) (striking down unconstitutional condition on use of public highways); See Blackburn v. Snow, 771 F.2d 556, 567– 68 (1st Cir. 1985) (visits to prison conditioned on unconstitu- tional strip search of visitor); Armstrong v. N.Y. State Com- missioner of Correction, 545 F. Supp. 728, 731 (N.D.N.Y. 1982) (continued employment as prison guards conditioned on uncon- stitutional strip searches); Gaioni v. Folmar, 460 F. Supp. 10, 13 (M.D. Ala. 1978) (access to civic center conditioned on con- sent to unconstitutional searches).

17 stood by the exchange between the officer and the sus- pect?”166 Courts have expressed reservations about implied consent, particularly based on generic notice: a vague warning makes it difficult to establish the scope of the search purportedly consented to. Consequently, a num- ber of courts have balanced six elements in determining consent: notice; voluntary conduct; whether the search was justified by a “vital interest”; whether it was rea- sonably effective in securing the interests at stake; whether it was only as intrusive as necessary to further the interests justifying the search; and whether it cur- tailed, to some extent, unbridled discretion in the searching officers. Under this analysis, notice and vol- untary conduct are necessary, but not sufficient, to es- tablish consent.167 Given that these “other indicia of reasonableness” have a bearing on the consent issue, where the need to search is not as vital as in the case of people boarding airplanes (or if the search is too intru- sive for the security concerns at issue), courts have of- ten declined to uphold searches based on implied con- sent.168 Despite the vital need for the search, the courts have differed as to whether there is implied consent to air- port screening. Courts have upheld these searches on the implied consent theory,169 with some requiring that a person have the option of leaving the security area rather than submitting to the search in order for the proceeding to constitute implied consent.170 A number of courts have held that once the airport screening process begins, there is implied consent to a further search,171 or that deciding to board a plane where signs warn of a 166 500 U.S. 248, 251. 167 McGann v. N.E. Ill. Regional Commuter R.R., 8 F.3d 1174, 1179–82 (7th Cir. 1993). See also Serpas v. Schmidt, 827 F.2d 23, 30 (7th Cir. 1987), cert. denied, 485 U.S. 904 (1988). 168 8 F.3d 1181. See also Jeffers v. Heavrin, 932 F.2d 1160, 1163 (6th Cir. 1991), cert. denied, 502 U.S. 1059 (1992). It has been argued that the “fiction of implied consent” undermines fundamental Fourth Amendment principles. 5 LAFAVE, supra note 79, § 10.6(g), at 308–09. 169 United States v. Mather, 465 F.2d 1035 (5th Cir. 1972); United States v. Doran, 482 F.2d 929 (9th Cir. 1973); United States v. DeAngelo, 584 F.2d 46 (4th Cir. 1978). See II.I., Air- port Security Searches, infra this report. Commentators have strongly criticized the implied consent theory. E.g., 4 LAFAVE, supra note 79, § 8.2(l), at 123–24. 170 See United States v. Miner, 484 F.2d 1075 (9th Cir. 1973). The Ninth Circuit has also found that there may be implied consent to search at the entrance of a closed military base. See II.J., Area Entry Searches, infra this report. 171 E.g., United States v. Pulido-Baquerizo, 800 F.2d 899, 901, 902 (9th Cir. 1986); 298 F.3d 1087. But see United States v. Albarado, 495 F.2d 799, 807–08 (2d Cir. 1974), asserting that prospective passenger can turn and leave after setting off magnetometer, and that that furthers deterrent aspect of search scheme. See II.I., Airport Security Searches infra this report. search constitutes consent to search.172 However, courts have also reiterated that the scope of the search cannot exceed the scope of the consent.173 Many courts have questioned the real voluntariness of consent to search in order to board a plane.174 For example, the Seventh Circuit noted: These measures [sobriety checkpoints, administrative in- spection searches, and use of metal detectors and x-ray machines at airports and government buildings], more- over, usually make only limited inroads into privacy, be- cause a person can avoid being searched or seized by avoiding the regulated activity, though we hesitate to put much weight on this point; people are unlikely to feel they can afford to “ground” themselves in order to avoid air- port searches.175 Notwithstanding its holding in Miner, supra, the Ninth Circuit has suggested that implied consent in the context of airport security searches is questionable, given that “many passengers have no reasonable alter- native to traveling by airplane.”176 The Second and Fourth Circuits have also expressed doubts on this question.177 A reservation about not really having an alternative to the form of transportation could also be expressed concerning commuters on mass transit sys- tems. 2. States A number of states have increased burdens of proof to establish consent. For example, Mississippi,178 New Jer- sey,179 and Washington180 have held that the subject of a 172 482 F.2d 913. See II.I., Airport Security Searches, infra this report. 173 E.g., 873 F.2d 1247–48 (verbal consent to search carry-on luggage at airport valid but limited to search for weapons and explosives, not currency). The Court also questioned the volun- tariness of airport searches, as many travelers have no realis- tic alternative to flying. The Court further stated that “a com- pelling state interest must exist before the government can burden the constitutional right to travel, airport searches can- not be justified by consent alone.” 873 F.2d 1248, n.8. 174 See generally 5 LAFAVE, supra note 79, § 10.6(g). 175 Edmond v. Goldsmith, 183 F.3d 659, 664 (7th Cir. 1999), aff’d sub. nom, City of Indianapolis v. Edmond, 531 U.S. 32 (2000). 176 873 F.2d 1248, n.8. 177 United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973) (compelling the defendant to choose between exercising Fourth Amendment rights and his right to travel constitutes coercion), 495 F.2d 806–07 (requiring passenger to choose between flying to destination and exercising constitutional right to refuse search is often subtle form of coercion). See also United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973) (attendant cir- cumstances establish only “acquiescence to apparent lawful authority”). 178 Graves v. State, 708 So. 2d 858 (Miss. 1997). 179 State v. Johnson, 346 A.2d 66, 68 (N.J. 1975). 180 State v. Ferrier, 960 P.2d 927 (Wash. 1998) (requiring po- lice to advise occupants they can refuse entry for consent to be

18 search must know of the right to refuse in order for con- sent to be voluntary. Similarly, Arkansas has held that the burden of proving consent is not met by showing only acquiescence to a claim of lawful authority.181 Ha- waii has held that in order for consent to a warrantless search to be voluntary, it “must be unequivocal, specific and intelligently given, [and] uncontaminated by any duress or coercion[.]”182 Consequently, Hawaii has held that consent that is the inherent product of coercion— i.e., where the person searched does not know there is a right to object—cannot justify an otherwise invalid search.183 Both Georgia and Indiana have questioned the ability of implied consent statutes to restrict Fourth Amend- ment rights.184 Massachusetts has held that notice to searches at a courthouse made the searches consensual, noting that the voluntary nature of the searches reached the intru- siveness of the searches.185 A Texas court has held that placing a bag on the x- ray conveyor belt at a courthouse constitutes sufficient consent to a search of that magnitude.186 3. Summary of Important Principles The government has the burden of proving consent. Consent may be implied—courts have split in airport cases about whether to infer consent from the search procedure itself. Consent must be voluntary. Voluntari- ness will be judged under totality of circumstances: Would a reasonable person feel free to leave or other- wise cease the procedure? Consent should not be condi- tioned on a waiver of another constitutional right. Knowledge of the right to refuse consent is only one factor under federal law; some states require knowledge of the right to refuse. The scope of consent governs the scope of the search. Consent to search for one purpose is not necessarily consent to search for all purposes. The degree of intrusiveness affects the reasonableness of the search. valid; state has burden of proving consent; holding may apply to searches of homes only). 181 Holmes v. State, 65 S.W.3d 860, 865 (Ark. 2002). 182 Erickson v. State, 507 P.2d 508, 515 (Alaska 1973) (foot- note omitted) (quoting Rosenthall v. Henderson, 389 F.2d 514, 516 (6th Cir. 1968)). 183 Nakamoto v. Fasi, 635 P.2d 946, 951 (Haw. 1981). Note that the court contrasted the relative lack of danger in the stadium context, where it found the search unreasonable, to the “magnitude and pervasiveness” of dangers that airport and courtroom searches, which it implicitly recognized as reason- able, are meant to avert. Id. at 953. 184 Hannoy v. State, 789 N.E.2d 977 (Ind. Ct. App. 2003); Cooper v. State, 587 S.E.2d 605 (Ga. 2003). 185 Commonwealth v. Harris, 421 N.E.2d 447 (Mass. 1981). This case illustrates the overlapping nature of the categories of warrantless searches, and the flexibility inherent in the analy- sis. 186 State v. Kurth, 981 S.W.2d 410, 414–15 (Tex. App. San Antonio 1998). D. Profiling (Border, Drug, Hijacker)187 The general parameters for profiling are relevant to formulating a transit screening policy, whether a ran- domized stop policy (which would require that no profil- ing of any kind be used) or a policy that targets certain individuals or packages (which would require that only profiling reasonably related to the threat at hand be used). This is an area, however, where state law may differ substantially from federal law, as discussed infra. Profiling can distinguish by behavior (e.g., buying one-way airline ticket); combination of behavior and appearance (e.g., wearing large loose overcoat in weather not calling for overcoat); or appearance alone (e.g., apparent racial or ethnic identity). Singling out particular types of clothing (that is clothing that could conceal weapons or explosives) or particular sizes of packages (those that could conceal weapons or explo- sives) could be deemed profiling, and could be used to target security screening. However, the term “profiling” most commonly calls to mind racial or ethnic profiling, which has given rise to considerable controversy.188 It 187 Some judges have expressed concern that airport searches based on hijacking profiles were turning up far more illegal drugs than the weapons that were ostensibly the targets of the searches. See United States v. Legato, 480 F.2d 408, 414 (5th Cir. 1973) (Goldberg, J., specially concurring), cert. denied, 414 U.S. 979 (1973); United States v. Cyzewski, 484 F.2d 509, 515– 16 (5th Cir. 1973) (Thornberry, J., dissenting), cert. denied, 415 U.S. 902 (1974). However, one commentator has suggested that since air hijacking and drug courier profiling have come into use, the only objections have been in law review articles and dissenting opinions. Jonathan Lewis Miller, Search and Sei- zure of Air Passengers and Pilots: The Fourth Amendment Takes Flight, 22 TRANSP. L.J. 199, 209–11 (1994). 188 See, e.g., R. Spencer Macdonald, Notes & Comments: Ra- tional Profiling in America's Airports, 17 B.Y.U. J. PUB. L. 113 (2002); Christine Willmsen, Profiling Evident in Citizen Re- ports, SEATTLE TIMES, Oct. 10, 2004, posted at http://seattletimes.nwsource.com/html/localnews/2002058973_ profile10m.html. Numerous law review articles address the equal protection issues posed by racial profiling. See, e.g., Albert W. Alschuler, Racial Profiling and the Constitution. 2002 U. CHI. LEGAL F. 163. It is beyond the scope of this report to do so. However, an understanding of a few basic Equal Protection Clause princi- ples is important to assessing whether a nonrandomized secu- rity screening policy will be upheld. The Supreme Court has held that “all laws that classify citizens on the basis of race…are constitutionally suspect and must be strictly scruti- nized.” Hunt v. Cromartie, 526 U.S. 541, 546 (1999). However, several circuit courts have held that so long as race is only one factor in a decision, the inclusion of race need not be subject to strict scrutiny. Alschuler, supra, at 178, n.55–57, citing United States v. Travis, 62 F.3d 170 (6th Cir. 1995), United States v. Weaver, 966 F.2d 391, 394 n.2 (8th Cir. 1992), cert. denied, 506 U.S. 1040 (1992); United States v. Lacy, 2000 U.S. App. LEXIS 31195, at *3 (9th Cir. 2000) (unpublished); United States v. Cuevas-Ceja, 58 F. Supp. 2d 1175, 1184 (D. Or. 1999); and State v. Dean, 543 P.2d 425, 427 (Ariz. 1975) (upholding the

19 should be noted that the use of racial classifications are not per se unconstitutional, but are subject to strict scrutiny to justify them.189 Use of profiling in hijacking prevention goes back to 1968, when the Federal Aviation Task Force included a hijacker profile as part of the first anti-hijacking sys- tem.190 In the early years of hijacker prevention efforts, in most airports only passengers who met the profile were subjected to magnetometer screening.191 In the wake of the crash of TWA Flight 800 in 1986, the Fed- eral Aviation Administration (FAA) began the Com- puter Assisted Passenger Screening (CAPS) program to identify potentially dangerous passengers and subject them to more intense screening. An even more inten- sive screening program, CAPS II, is scheduled for in- troduction.192 1. Federal Courts Drug Courier Profiling.—The Supreme Court has up- held a prolonged stop based on a drug courier profile193 and has held that the fact that the articulated facts supporting an officer’s reasonable suspicion are consis- tent with the description in a drug courier profile does stop of a Latino in a white neighborhood because he was out of place). Contrary cases are United States v. Laymon, 730 F. Supp. 332, 339 (D. Colo. 1990); Whitfield v. Board of County Comm’rs, 837 F. Supp. 338, 340, 344 (D. Colo. 1993); People v. Bower, 597 P.2d 115, 119 (Cal. 1979); State v. Kuhn, 517 A.2d 162, 165 (N.J. Super. Ct. 1986); and Lowery v. Va., 388 S.E.2d 265, 267 (Va. App. 1990) (declaring that a motorist’s race is not “a permissible factor in the decision to stop his vehicle”). See also Brown v. City of Oneonta, 221 F.3d 329 (2d Cir.) (conduct- ing street sweeps for black suspect did not employ racial classi- fication), petition for reh’g en banc denied, 239 F.3d 769 (2000), cert. denied, 122 S. Ct. 44 (2001). Although racial profiling has been defined in different ways, a reasonable meaning is “any law enforcement decision based at least in part on the belief that members of a particular racial group are more likely to commit the crime under investigation than are members of other groups.” R. Richard Banks, Racial Profiling and Antiter- rorism Efforts, 89 CORNELL L. REV. 1201, 1204, n.8 (2004). 189 Korematsu v. United States, 323 U.S. 214, 216 (1944). 190 Sanford L. Dow, Airport Security, Terrorism, and the Fourth Amendment: A Look Back and a Step Forward. 58 J. AIR L. & COM. 1149, 1160 (1993). 191 Addie S. Ries, Comment: America’s Anti-hijacking Cam- paign—Will It Conform to Our Constitution? 3 N.C. J.L. & TECH. 123, 132 n.25 (2001). For a period of time after magne- tometer screening became universal, hijacker profiling was abandoned. See 495 F.2d 799. 192 For a history of both CAPS systems and a discussion of the constitutionality of CAPS II, see Michael J. DeGrave, Note, Airline Passenger Profiling and the Fourth Amendment: Will CAPS II Be Cleared for Takeoff?, 10 B.U. J. SCI. & TECH. L. 125 (2004). 193 473 U.S. 531 (holding that a 16-hour detention based on reasonable suspicion is not unreasonable because it occurred at the international border “where the Fourth Amendment bal- ance of interests leans heavily to the Government”). not detract from their evidentiary value.194 It is of inter- est that both Montoya de Hernandez and Sokolow in- volved defendants who were detained in connection with international flights, and so had border overtones. Racial Profiling.—The Supreme Court upheld the former by United States Border Patrol agents making stops along the United States–Mexico border.195 The Court subsequently approved the use of ethnic classifi- cations as one factor in deciding which cars to refer to a secondary fixed checkpoint, stating “even if it be as- sumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitu- tional violation.”196 The Court has set forth a rule for proving selective prosecution that has been applied to cases involving searches: to be unconstitutional the prosecution must have a discriminatory effect and a discriminatory pur- pose. Discriminatory effect must be established by showing that similarly situated people of other races have not been prosecuted.197 In a much-discussed decision,198 the Court rejected Fourth Amendment challenges to pretext searches and 194 United States v. Sokolow, 490 U.S. 1, 7 (1989). Justice Brennan, dissenting, argued that “[r]eflexive reliance on a profile of drug courier characteristics runs a far greater risk than does ordinary, case-by-case police work of subjecting inno- cent individuals to unwarranted police harassment and deten- tion.” Id. at 13. 195 422 U.S. 873. The Court weighed the public interest against the individual’s personal security interest, id. at 878– 80, and held that in the case of an officer who has reasonable suspicion that a vehicle contains illegal aliens, the public in- terest in preventing illegal Mexican immigration outweighed the limited intrusion involved in the officer briefly stopping the vehicle and investigating the circumstances that aroused his suspicion. Id. at 881–82. The fact that the agents were policing the border was integral to the Court’s determination. Seth M. Haines, Comment: Rounding Up the Usual Suspects: The Rights of Arab Detainees in a Post-September 11 World, 57 ARK. L. REV. 105, 122, n.146 (2004). While Mexican ancestry was deemed a relevant factor in developing reasonable suspi- cion of illegal immigration, it was not deemed sufficient as the sole factor. 422 U.S. 885–86. The officers’ experience in enforc- ing immigration laws was arguably a factor in the Court’s find- ing on this point. Haines, supra, at 123. 196 428 U.S. 563 (footnote omitted). Justice Brennan, dissent- ing, stated: “Today we are told that secondary referrals may be based on criteria that would not sustain a roving-patrol stop, and specifically that such referrals may be based largely on Mexican ancestry….That law in this country should tolerate use of one’s ancestry as probative of possible criminal conduct is repugnant under any circumstances.” 428 U.S. 571, n.1. 197 United States v. Armstrong, 517 U.S. 456 (1996). 198 Whren v. United States, 517 U.S. 806 (1996). Numerous law review articles have been written challenging the assump- tions in Whren. See, e.g., David A. Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme Court and Pretextual Stops, 87 J. CRIM. L. & CRIMINOLOGY 544, 560 (1997) (arguing that the ruling in Whren that essentially ap-

20 seizures. The Court held that claims asserting a search was motivated by race will be decided not under the Fourth Amendment, but under equal protection.199 One of the bases for rejecting the Fourth Amendment argu- ment was that police enforcement practices vary from jurisdiction to jurisdiction, while application of the Fourth Amendment should not.200 This line of reasoning would not apply to an analysis of whether pretextual stops violate state constitution search and seizure pro- tections. Lower courts have come to different results depend- ing on whether racial identity is the sole factor in de- veloping reasonable suspicion or one of several fac- tors.201 The Ninth Circuit has distinguished Brignoni- Ponce and held that under the circumstances (lack of probative value of Hispanic appearance in area with large percentage of Hispanics), it was unconstitutional for the Border Patrol to take Hispanic appearance into account in deciding whether to stop someone for a sus- pected immigration violation.202 Hijacker Profiling.—The validity of hijacker profiles has generally been recognized without much analysis. 203 The use of such profiles has also generally been upheld to justify a stop and frisk,204 but not sufficient cause to search checked baggage or carry-on baggage outside of the passenger’s control.205 An officer’s experience in us- proves pretextual stops will have an imbalanced effect on non- whites); A Thirteenth Amendment Framework for Combating Racial Profiling, 39 HARV. C.R.-C.L. L. REV. 17, 31 (2004). (Whren places in doubt previous cases holding that stopping someone merely because of his ethnic background violates the Fourth Amendment). 199 517 U.S. 813. The Court rejected the claim that the Fourth Amendment requires consideration of whether “the officer’s conduct deviated materially from usual police prac- tices, so that a reasonable officer in the same circumstances would not have made the stop for the reasons given.” Id. at 813–14. 200 Id. at 815. 201 Cf. 966 F.2d 391 (officer had grounds for reasonable suspi- cion, only one of which was racial identity: no Fourth Amend- ment violation) and Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448 (9th Cir. 1994) (racial identity was sole factor, unconsti- tutional). 202 United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000) (en banc), cert. denied in Sanchez-Guillen v. United States, 531 U.S. 889 (2000). 203 E.g., United States v. Skipwith, 482 F.2d 1272, 1274–75 (5th Cir. 1973). See also 767 F.2d 778 (upholding Eastern Air- lines’ use of behavioral profile for searching passengers). 204 E.g., 464 F.2d 672 (fact that passenger met FAA’s profile of potential hijacker found to be legitimate factor in developing a reasonable suspicion that there was cause to stop and frisk passenger); United States v. Lopez, 328 F. Supp. 1077 (E.D.N.Y. 1971) (upheld Terry-type frisk of individual at air- port boarding gate on grounds of matching hijacker profile and activating magnetometer). 205 United States v. Allen, 349 F. Supp. 749, 752 (N.D. Cal. 1971) (fact that defendant matches several characteristics of ing a profile has been a factor in upholding its legiti- macy in developing a reasonable suspicion to search someone.206 2. States Racial Profiling.—Some states have addressed racial profiling via legislation. For example, California, Con- necticut, Oklahoma, and Rhode Island have enacted prohibitions against racial profiling.207 A number of state courts have found pretextual stops to be unconsti- tutional under their state constitutions, either because such stops violate the state constitution,208 or because the scope of the stop beyond the original reason was not supported by a reasonable articulation of suspicion that criminal activity was afoot.209 State courts have also suppressed evidence as a result of findings of racial profiling.210 3. Summary of Important Principles The Supreme Court has held that racial profiling is not a Fourth Amendment issue, but is subject to strict scrutiny. Racial profiling may be illegal under state law. The question has not really been decided as to whether meeting a hijacker profile is sufficient grounds for search in and of itself. hijacker profile does not constitute reasonable suspicion to search their luggage). 206 475 F.2d 50. 207 CAL. PENAL CODE § 13519.4 (West 2001); CONN. GEN. STAT. § 54-11 (West 2002); OKLA. STAT. ANN. tit. 22, § 34.3 (West 2001); R.I. GEN. LAWS § 31-21.2-3 (2004). Connecticut, Oklahoma, and Rhode Island all define racial profiling as “the detention, interdiction or other disparate treatment of an indi- vidual solely on the basis of the racial or ethnic status of such individual.” Alschuler, supra note 188, at 168, n.24. 208 State v. Soto, 734 A.2d 350, 360–61 (N.J. Super. Ct. Law Div. 1996) (relying on unrebutted statistical evidence, court found police had engaged in racial profiling that violated equal protection and due process clauses of New Jersey constitution); Washington v. Ladson, 979 P.2d 833, 838 (Wash. 1999) (force- fully rejected holding in Whren); State v. Sullivan III, 74 S.W.3d 215, 221 (Ark. 2002) (pretextual arrests, “arrests that would not have occurred but for an ulterior investigative mo- tive,” found invalid under Article 2, Section 15 of the Arkansas Constitution). 209 State v. Fort, 660 N.W.2d 415, 419 (Minn. 2003) (in order to expand search beyond original reason to stop, officer must have reasonable articulable suspicion or inform suspect he is free to refuse consent). The police officer’s failure to inform defendant that he could refuse consent was violation of Min- neapolis police procedure. 210 E.g., Commonwealth v. Gonsalves, 711 N.E.2d 108, 115– 16 (Mass. 1999) (Ireland, J., concurring) (supporting the sup- pression of evidence gathered as a result of racial profiling by police); State v. Donahue, 742 A.2d 775, 782 (Conn. 1999) (sup- pressing evidence gathered during investigatory stop, noting that the case raises the “insidious specter of ‘profiling’”); 734 A.2d 350.

21 E. Canine Sniff Generally, using a drug- or explosive-seeking dog to check luggage or vehicles is considered less intrusive than conducting a visual or physical search.211 There- fore, the viability of using explosive-sniffing dogs rather than other search methods has both legal and practical implications for transit agencies developing search pro- cedures. For example, in Seattle, the State Attorney General’s office was concerned that a plan to randomly search vehicles boarding ferries was unconstitutional under the Washington State Constitution, but believed that a plan to use explosive-sniffing dogs was not.212 1. Federal Courts The Supreme Court has held that the exposure of luggage in a public place to a trained canine is not a search within the meaning of the Fourth Amendment.213 In drawing this conclusion, the Court considered the fact that the canine sniff is less intrusive than a manual search by an officer both in manner (does not expose interior of luggage) and in what it reveals (contraband only).214 The case has been interpreted as suggesting that “the less intrusive an inspection, the more likely it is to be deemed constitutional.”215 The Court’s most recent review of a case involving a canine sniff was Illinois v. Caballes.216 Caballes involved a traffic stop, during which a second policeman walked a drug detection dog around the defendant’s car while the original officer wrote the speeding ticket. The dog sniff did not extend the duration of the stop. The Court noted that government conduct that only reveals con- traband “compromises no legitimate privacy interest,”217 211 See Raphael Lewis, T to Check Packages, Bags at Ran- dom, BOSTON GLOBE, June 8, 2004 (canine search does not require opening bag; without dog, bag opened for look inside). Posted at http://www.boston.com/news/local/massachusetts/ articles/2004/06/08/t_to_check_packages_bags_at_random? mode=PF. 212 Mike Carter, Washington State Ferries Scramble to Meet New Security Standards, KNIGHT RIDDER/TRIBUNE BUSINESS NEWS, July 2, 2004. “A dog on its worst day is better than vis- ual inspection on a good day.” Rep. Rick Larsen, quoted by Gilmore, supra note 19. The availability (or lack thereof) of trained explosive-sniffing dogs illustrates the impact of practi- cal limitations on legal issues. Use of canines may render searches less intrusive, but transit agencies need funds to sup- ply and train them. See, e.g., Gilmore, supra note 19. The plaintiffs in the Boston case, see I.K., Transit Searches, infra this report, cite to these cases, although the point was not picked up in the district court opinion. 213 United States v. Place, 462 U.S. 696, 707 (1983). 214 Id. at 707. 215 Anne Salzman Kurzweg, A Jurisprudence of “Squeezes”: Bond v. U.S. and Tactile Inspections of Luggage, 27 SEARCH AND SEIZURE L. REP. 73, 74 (Nov. 2000). 216 Illinois v. Caballes, 543 U.S. ___, 125 S. Ct. 834 (2005). 217 Id. at 837. Justice Souter, dissenting, remarked that the Court’s opinion would allow “suspicionless and indiscriminate and held that a dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.218 The majority did not address the use of canines to detect explosives; both Justices Souter and Ginsburg, dissenting from the majority opinion uphold- ing the canine sniff for drugs during a traffic stop, sug- gested that sniff searches for explosives would likely be justified because of the societal risk219 or under a special needs theory.220 The Court has not reached the question of whether a canine search of a person has greater Fourth Amend- ment implications than those it has already reviewed. By the time Caballes was decided, lower courts had already upheld canine sniffs in a variety of circum- stances, including sniffing checked luggage,221 vehicles in a motel parking lot,222 luggage in the luggage racks of a bus stopped for servicing,223 and, under certain cir- cumstances, exploratory sniffing of school lockers.224 While some courts have held that a canine sniff of peo- ple, as opposed to luggage, is a search,225 others have held even a canine sniff of people is not a search.226 sweeps of cars in parking garages and pedestrians on side- walks.” Id. at 839. 218 Id. at 837–38. 219 Id. at 843, n.7 (Justice Souter, dissenting). 220 Id. at 846, 847 (Justice Ginsburg, joined by Justice Souter, dissenting). 221 United States v. Goldstein, 635 F.2d 356 (5th Cir.), cert. denied, 452 U.S. 962 (1981) (sniffing by dogs of luggage checked in an airport not a search); United States v. Viera, 644 F.2d 509 (5th Cir.), cert. denied, 454 U.S. 867 (1981) (sniffing by dogs of luggage checked in a bus terminal not a search). 222 United States v. Ludwig, 10 F.3d 1523 (10th Cir. 1993). 223 United States v. Gant, 112 F.3d 239 (6th Cir. 1997); United States v. Harvey, 961 F.2d 1361 (8th Cir. 1992). 224 690 F.2d 473 (dog sniff of car and locker not a search). 225 Id. at 479 (under facts at issue (at very close range) dog search of children’s person is a search, reasonable suspicion required); B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1266–68 (9th Cir. 1999) (where a dog sniffs a person or luggage while it is being carried by a person, the intrusion is a search; random suspicionless dog sniff of person unreasonable under the circumstances). 226 United States v. Reyes, 349 F.3d 219 (5th Cir. 2003) (un- der circumstances, inadvertent non-contact dog sniff of passen- ger not a search); United States v. Williams, 356 F.3d 1268 (10th Cir. 2004) (defendant not seized where dog sniff occurred in open space under non-threatening circumstances); United States v. Jackson, 390 F.3d 393 (5th Cir. 2004) (Fact that bus passenger, on board when officers conducted a canine sniff of bus’s interior after giving passengers choice of remaining or disembarking during sniff, had to disembark to avoid encoun- ter with dog did not render encounter a seizure); Doe v. Ren- frow, 475 F. Supp. 1012 (N.D. Ind. 1979), op. adopted on this issue and rev’d on another issue, 631 F.2d 91 (7th Cir.) (per curiam) (exploratory dog sniff held not to be a search), cert. denied, 451 U.S. 1022 (1981).

22 Where a canine is brought in while another administra- tive activity is being conducted, the canine sniff cannot prolong the duration of the stop beyond the time that would be expected to accomplish the other activity.227 While canine sniffs are less intrusive than physical searches, the Fourth Amendment implications of their use will depend upon the particular facts of the case.228 2. States Most states have followed Place, holding that a ca- nine sniff, at least of property, is not a search under their state constitutions.229 However, a number of state courts have rejected the holding in Place in interpreting the state constitutions at issue, generally requiring rea- sonable suspicion for a canine sniff of property.230 Wash- ington reviews canine sniffs on a case-by-case basis.231 Colorado has held that a dog sniff for narcotics in con- nection with a traffic stop that is prolonged beyond its reasonable purpose to investigate for drugs requires reasonable suspicion of criminal activity.232 Pennsyl- vania requires probable cause for a canine sniff of a person.233 New York requires reasonable suspicion for a dog sniff of an apartment from a common hallway.234 227 United States v. Garcia-Garcia, 319 F.3d 726, 730 (5th Cir. 2003) (border patrol agents may only employ drug sniffing dog at immigration stop if it does not lengthen stop beyond time necessary to verify immigration status of vehicle’s pas- sengers). 228 See generally 1 LAFAVE, supra note 79, at § 2.2(g). 229 State v. Snitkin, 681 P.2d 980 (Haw. 1984); State v. Palicki, 646 N.E.2d 494 (Ohio Ct. App. 1994); State v. Scheetz, 950 P.2d 722 (Mont. 1997) (canine sniff of checked luggage); State v. Smith, 963 P.2d 642 (Or. 1998). 230 McGahan v. State, 807 P.2d 506, 510 (Alaska Ct. App. 1991); People v. Unruh, 713 P.2d 370, 381–82 (Colo. 1986); State v. Pellicci, 580 A.2d 710, 717 (N.H. 1990); People v. Dunn, 564 N.E.2d 1054, 1059 (N.Y. 1990), cert. denied. sub. nom, Dunn v. N.Y., 501 U.S. 1219 (1991); Commonwealth v. Johnston, 530 A.2d 74 (Pa. 1987); People v. Boylan, 854 P.2d 807 (Colo. 1993); State v. Ortiz, 600 N.W.2d 805 (Neb. 1999); State v. Tackitt, 67 P.3d 295 (Mont. 2003) (dog sniff of vehicle parked in public area requires reasonable suspicion; 950 P.2d 722 distinguished). See also State v. Wiegand, 645 N.W.2d 125 (Minn. 2002) (holding that dog sniff of car for drugs went be- yond permissible scope of traffic stop unless officer had devel- oped reasonable articulable suspicion for specific drug- related offense); People v. Cox, 782 N.E.2d 275 (Ill. 2002) (state consti- tution requires reasonable suspicion to call canine unit to scene of routine traffic stop; U.S. Supreme Court distinguished this case in Caballes, supra, on the basis of the length of the stop). Cf. State v. Waz, 692 A.2d 1217, 1220 (Conn. 1997) (because police had reasonable suspicion, court did not have to decide whether dog sniff is search under Connecticut constitution). 231 See State v. Young, 867 P.2d 593 (Wash. 1994). 232 People v. Haley, 41 P.3d 666, 672 (Colo. 2001) (rejecting argument that dog allows officer to expand own plain smell ability). 233 Commonwealth v. Martin, 626 A.2d 556 (Pa. 1993). 234 564 N.E.2d 1054. 3. Summary of Important Principles Canine sniffs are considered less intrusive than vis- ual or physical searches, and are usually subject to fewer restrictions. The Supreme Court does not con- sider a sniff of luggage in a public place to be a search. A sniff of packages is generally subject to less restric- tions than a sniff of people. F. Luggage Cases Since transit searches are likely to entail searching briefcases and similar items, the case law on luggage searches is relevant. Clearly the seizure of personal property can amount to a seizure of the person.235 Gen- erally the issue is the extent to which the person’s pos- sessory right in the property has been interfered with. These cases are also instructive because of the distinc- tions drawn between the intrusiveness of a brief visual inspection and a physical inspection. For example, Bond v. United States236 was cited by plaintiffs opposing tran- sit searches in Boston.237 1. Federal Courts The Supreme Court has held that not only does a per- son have a privacy interest in his luggage,238 but also a reasonable expectation that no one will touch that lug- gage in a probing manner.239 In Bond, supra, a border patrol agent checking immigration status squeezed the luggage in a bus’s luggage rack as he walked through the bus, thereby uncovering a suspiciously shaped ob- ject. In invalidating the subsequent search of Bond’s luggage, the Court noted: “Physically invasive inspec- tion is simply more intrusive than purely visual inspec- tion.”240 The 11th Circuit found that a 140-minute detention of the defendant's luggage without prompt examination by a detector dog exceeded the scope of a stop justifiable under Terry. In reaching that decision, the court exam- ined the time the defendant was detained, the severity of the disruption to his travel plans, how the luggage was seized, and whether the length of the seizure was unnecessarily extended by lack of police diligence.241 2. Summary of Important Principles An individual’s privacy interest in luggage has been recognized. It has been deemed reasonable to expect one’s luggage will not be touched in a probing manner. The reasonableness of a search or seizure of luggage is judged by the degree of intrusion and duration of intru- sion. 235 See United States v. Puglisi, 723 F.2d 779, 788 n.12 (11th Cir. 1984). 236 529 U.S. 334 (2000). 237 See III.K., Transit Searches, infra this report. 238 United States v. Ross, 456 U.S. 798, 822–23 (1982); 462 U.S. 707. 239 529 U.S. at 338. 240 Id. at 337. 241 723 F.2d 779.

23 G. Administrative Searches in General The administrative search exception is relevant to transit searches because it is the foundation for the more specific exceptions that provide conceptual models for excepting transit searches from the warrant and individualized suspicion requirements. Certain charac- teristics of administrative searches are likely to be con- sidered by a court in assessing the reasonableness of a search policy, whether or not the court engages in an actual administrative search analysis. Those character- istics are: furthering administrative rather than crimi- nal purposes;242 creating an established procedure that limits discretion and sets the parameters for the searches;243 and limiting the intrusiveness of the search consistent with meeting the administrative need that justifies the search.244 Factors that have been held to minimize intrusive- ness, at least for searches at airports, courthouses, and 242 The essence of these [administrative search] decisions is that searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be per- missible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or per- son to be searched. 482 F.2d 908. However, revealing criminal evidence will not invalidate an otherwise proper administrative search, so long as looking for criminal evidence was not the purpose of the search. Cf. 873 F.2d 1240 (once a search is conducted for a criminal investigatory purpose, it can no longer be justified under an administrative search rationale); United States v. Smith, 643 F.2d 942, 944 (2d Cir.), cert. denied, 454 U.S. 875 (1981) (an airport search instigated by the DEA was constitu- tional so long as “‘there was an independent and adequate basis for the security search in its own right,’” quoting United States v. Scott, 406 F. Supp. 443, 445 (E.D. Mich. 1976)). While the formality of the regulatory scheme may be an is- sue in determining that a search falls under the administrative search exception, see 143 F.3d 853–54 (“the ad hoc search pro- cedure set up to deal with the perceived threat could not be considered a ‘regulatory scheme’ of the sort courts have consid- ered necessary to treating entry-area searches as a species of ‘administrative search’”), such schemes need not be based on regulations per se, 143 F.3d 853, n.6, citing school searches undertaken pursuant to “formally promulgated school board directives” as valid administrative searches. A district court has upheld as an administrative search regime a policy based on a transit agency’s police department directive. The decision did not contain any discussion of the adequacy of the authority for the regulatory scheme, rather focusing on the substantiality of the government interest at stake and the reasonableness under the circumstances of the privacy intrusion. See II.K., Transit Searches, infra this report. 243 156 F.3d 963. 244 See Mich. v. Clifford, 464 U.S. 287, 297–98 (1984) (as soon as cause of fire discovered, scope of search limited to area of discovery—further warrantless search in another portion of building unconstitutional without prior judicial determination of probable cause). other governmental buildings,245 are notice,246 limited scope, nondiscretionary application, and the existence of a written policy. It appears that while the existence of a statute or regulation would make it more likely that a search pol- icy would be upheld under an administrative search analysis, a policy that contained the characteristics of an administrative search could be upheld based on a reasonableness analysis whether or not it could claim the administrative search label.247 1. Federal Courts Camara v. Municipal Court248 was the first case in which the Supreme Court held that the warrant re- quirement did apply to civil searches. The Court recog- nized that a civil search may be less hostile than a criminal search, but rejected the notion that the Fourth Amendment interests were therefore peripheral.249 245 Administrative search cases that deal with these more specific exceptions are discussed primarily in sections II.I.– II.K, infra this report. 246 An administrative scheme can also be challenged on the basis that it does not provide adequate notice of its require- ments and therefore violates the Due Process Clause of the Fifth Amendment. This argument was raised by the plaintiff in 2004 WL 603530. There is a distinction between the require- ments of the administrative scheme, which must be clearly disclosed, and the manner in which the government will at- tempt to ensure that those requirements are not violated. See Dirksen v. Department of Health and Human Servs., 803 F.2d 1456, 1458 (9th Cir. 1986) (distinguishing between “law- enforcement materials, which involve enforcement methods, and administrative materials, which define violations of the laws”). A written copy of the requirements need not be made available. Hufford v. McEnaney, 249 F.3d 1142, 1151 (9th Cir. 2001) (due process requires “oral or written notice”). 247 See 495 F.2d 804, n.9. See also II.K. Transit Searches, in- fra this report. 248 387 U.S. 523. Camara involved a resident of San Fran- cisco who refused to allow a housing inspector to enter his resi- dence without a search warrant. Camara was arrested for re- peatedly refusing entry into his premises and challenged the constitutionality of the Housing Code and requested a writ of prohibition to the criminal court. Relying on Frank v. Md., 359 U.S. 360 (1959), the California courts denied the writ. 387 U.S. 525–27. 249 Id. at 530. In so ruling, the Court reversed Frank, 359 U.S. 360, in which the Court had held that warrantless civil searches were not unconstitutional. In Frank, Justice Frank- furter concluded that the Fourth Amendment relates primarily to searches that are part of a criminal investigation. See 5 LAFAVE, supra note 79, § 10.1(a), at 7. The Camara Court noted “the Frank opinion has generally been interpreted as carving out an additional exception to the rule that war- rantless searches are unreasonable under the Fourth Amend- ment.” 387 U.S. at 529. The Court then went on to say: “It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only

24 The Court reviewed, and rejected, the government’s other arguments for warrantless administrative searches: that the administrative procedure contained adequate safeguards and could not proceed under the warrant process (finding that the procedure contained too much discretion by the inspecting official to not be subject to the warrant requirement),250 and that the public interest required warrantless administrative searches (finding that the public interest could be ade- quately protected through inspections made under a warrant).251 The Court set forth an important standard: In assessing whether the public interest demands crea- tion of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.252 (emphasis added). when the individual is suspected of criminal behavior.” Id. at 530. 250 Id. at 531–33. 251 Id. at 533. 252 Id. at 533. The Court went on to hold, however, that prob- able cause for the administrative search in question was satis- fied by meeting reasonable legislative or administrative stan- dards with respect to an individual building, without having specific knowledge of the conditions of that individual building. Id. at 538. See v. City of Seattle, 387 U.S. 541 (1967), extended the holding in Camara to commercial structures not used as pri- vate residences. The See Court held that a warrant is required to compel administrative entry (through prosecution or physi- cal force) to portions of a commercial premise not open to the public. The Court left open the question of the constitutionality of regulatory inspections, to be resolved “on a case-by-case basis under the general Fourth Amendment standard of rea- sonableness.” Id. at 546. The Court recognized a regulated industries exception in Colonnade Corp. v. United States, 397 U.S. 72 (1970) (given the history of regulation of the liquor industry, Congress could have designed a regulatory scheme that would have justified a warrantless entry, but had not done so; forced entry and sei- zure without consent held unconstitutional), and applied it in United States v. Biswell, 406 U.S. 311 (1972) (warrantless search of locked storeroom as part of inspection procedure un- der Gun Control Act of 1968 held not violative of Fourth Amendment). In developing the “closely-regulated industry” exception, the Court set forth several important standards that came to be used in evaluating other types of administrative searches: A regulatory inspection system that provides for warrantless searches should be carefully limited as to time, place, and scope, and derives its legitimacy from a valid statute, not from consent to search. 406 U.S. 315. A statute that provides for regulatory inspections that further an “urgent federal interest” with minimal possibilities of abuse and threat to privacy may constitutionally authorize warrantless inspections. Id. at 317. In New York v. Burger,253 the Court applied the ad- ministrative search analysis to a situation involving penal sanctions. The Supreme Court reversed and set forth three criteria for a warrantless inspection to be deemed reasonable: 1) there must be a substantial gov- ernment interest underlying the regulatory scheme; 2) the warrantless inspection must be necessary to further the regulatory scheme; and 3) the regulatory statute must advise the property owner that the search is made pursuant to law and has a properly defined scope, and it must limit the inspecting officers’ discretion.254 Nei- While the Court was prepared to find an exception to the warrant clause for businesses long subject to close government supervision such as liquor and firearms—on the theory that businessmen in such industries had effectively consented to restrictions like searches—it at first declined to do so for busi- nesses not historically subject to government supervision. 436 U.S. 307 (holding unconstitutional warrantless search re- quirement under the Occupational Safety and Health Act of 1970). However, in declining to uphold warrantless searches for the Occupational Safety and Health Administration (OSHA) inspections, the Court noted that its holding did not affect other regulatory schemes: “The reasonableness of a war- rantless search, however, will depend upon the specific en- forcement needs and privacy guarantees of each statute.” Id. at 321. The Court distinguished Barlow’s in Donovan v. Dewey, 452 U.S. 594 (1981), in order to uphold warrantless searches under the Federal Mine Safety and Health Act of 1977. Id. at 606. The reasons for upholding the warrantless search scheme in Donovan were that there was a substantial federal interest; a warrant requirement would frustrate effective enforcement; and the inspection scheme provided a constitutionally ade- quate substitute for a warrant (frequency of inspections de- fined, compliance standards specifically set forth, forcible entry prohibited). Id. at 602–05. The Court also held that pervasive- ness and regularity are the factors for determining whether a regulatory search scheme is constitutional, and that longevity is only one factor in determining pervasiveness. Id. at 606. Justice Stevens, dissenting, had argued in Barlow’s, supra, that longevity should not be controlling. 436 U.S. 336–37. He had also rejected the implied consent rationale for allowing warrantless searches of closely regulated industries. Id. at 337–38. 253 482 U.S. 691 (1987). Burger involved the warrantless search of an automobile junkyard under N. Y. VEH. & TRAF. LAW § 415-a by members of the Auto Crimes Division of the New York City Police Department. The New York Court of Appeals found that 415-a did not meet the constitutional re- quirements for a comprehensive regulatory scheme, but was really a means of enforcing penal sanctions for possession of stolen property. Id. at 693–98. 254 Id. at 702–03. The Court also held that the government may address the same issue through both an administrative scheme and penal sanctions without violating the Fourth Amendment. Id. at 712–13. This case illustrates the fact- dependent nature of Fourth Amendment cases, in that the dissent agrees with the majority as to the appropriate standard to be applied, but argues that the facts do not support the

25 ther the discovery of criminal evidence nor the mere fact that police officers carry out the administrative search rendered the search unconstitutional.255 The Ninth Circuit, in reviewing one of the seminal airport search cases,256 followed Camara, supra, in bal- ancing the need to search against the intrusiveness of the search. The Davis court upheld the search after considering whether the administrative screening search was as limited in its intrusiveness as was consis- tent with satisfaction of the administrative need that justified it.257 Numerous courts have held that searching for explo- sives and weapons to avoid airplane hijackings258 or at- tacks within government facilities259 are sufficient gov- ernment interests to justify warrantless administrative searches. A building-entry search for narcotics has been held to be an insufficient basis for an administrative search.260 Discretion on the part of the officers conducting the search in deciding what to search for and how carefully to search may lead to invalidation of an administrative search. For example, the Ninth Circuit has held that where such broad discretion exists, the existence of a second impermissible motive extends the scope of the search beyond that of the administrative search.261 While the administrative search may not be enlarged for other purposes, unrelated contraband inadvertently discovered during such a search may be seized and in- troduced at trial.262 Courts have distinguished between types of searches in determining the reasonableness of the search; for Court’s ruling. 482 U.S. 718. In fact, the dissent argued that the majority opinion effectively overruled See, 387 U.S. 543. 482 U.S. 721. 255 Id. at 716, 717–18. 256 482 F.2d 893. See II.I., Airport Security Searches, infra this report. 257 482 F.2d 910. See also Western States Cattle Co., Inc. v. Edwards, 895 F.2d 438 (8th Cir. 1990) (courts must scrutinize whether administrative scheme represents substantial gov- ernment interest; whether warrantless inspection necessary to further regulatory interests; whether rules governing inspec- tion offer constitutionally adequate substitute for warrant requirement of Fourth Amendment). 258 See II.I., Airport Security Searches, infra this report. 259 See II.J., Area Entry Searches, infra this report. 260 156 F.3d 963 (finding intrusion of search for narcotics at government building entry was great, while threat was not, so that intrusiveness of search outweighed government’s need to conduct it). Id. at 973. 261 Id. at 970 (9th Cir. 1998); 873 F.2d 1247. In contrast, where warrantless inventory searches have been approved, it has been in part because of the lack of significant discretion in carrying out the inventories. 156 F.3d 970–71, citing Fla. v. Wells, 495 U.S. 1 (1990); United States v. Bowhay, 992 F.2d 229, 231 (9th Cir. 1993). 262 E.g., 482 F.2d 1277–78; 61 F.3d 110. See id. at 110–13 for a discussion of an impermissible additional search of contra- band seized during airport security search. example, finding magnetometer searches reasonable in circumstances where pat-down searches were not.263 2. States This has not been a frequently addressed question under state constitutions.264 However, Oregon has ar- ticulated its three-part test for assessing the reason- ableness of an administrative search: proper authoriza- tion (met so long as the search procedure is “promulgated pursuant to authority”); designed and systematically administered to limit the discretion of the officer administering the search; and scope reason- able in relation to its purpose.265 Other states have rec- ognized the importance of limiting the implementing officials’ discretion.266 3. Summary of Important Principles An administrative search must be conducted as part of a general regulatory scheme (although a regulation per se may not be necessary)267 that furthers an admin- istrative purpose, rather than furthering criminal in- vestigation. A warrant is not required where it would frustrate the governmental purpose behind the search. The search derives its legitimacy from governmental authorization, not consent to search. The court will bal- ance these factors: the need to search, which should promote a substantial governmental interest (e.g., search for explosives and weapons prior to boarding aircraft), against the invasion that the search entails. The scope of the search is limited to furthering the ad- ministrative need. At least some courts will invalidate such a search notwithstanding a legitimate government interest if there is also an impermissible motive. The search must have a nondiscretionary application. Both notice and methodology will affect the assessment of the intrusiveness of the search. H. Special Needs268 Special needs are those government interests that go “beyond the normal need for law enforcement”269 that 263 Wilkinson v. Forst, 832 F.2d 1330 (2d Cir. 1987). See II.J., Area Entry Searches, infra this report. 264 Friesen, supra note 5, § 11-16, at 11-116. 265 Weber v. Oakridge Sch. Dist. 76, 56 P.3d 504 (Or. App. 2002). Other states have recognized the importance of limiting the implementing officials’ discretion. 266 See 421 N.E.2d 447; State v. Jackson, 764 So. 2d 64 (La. 2000). 267 See II.K., Transit Searches, infra this report. 268 The Supreme Court has suggested that at least some ad- ministrative search cases are types of special needs cases. 482 U.S. 702; Griffin v. Wis., 483 U.S. 868, 873–74 (1987); 489 U.S. 619–20. Regardless of whether administrative searches are a subset of special needs cases or vice versa, a number of com- mentators have asserted that the Court’s reasoning in the spe- cial needs cases is confusing to say the least. See, e.g., George M. Dery III, A Deadly Cure: The Supreme Court’s Dangerous Medicine in Ferguson v. City of Charleston, 55 OKLA. L. REV. 373 (2002).

26 would be jeopardized by the individualized suspicion requirement.270 The Supreme Court has ruled that the special needs exception may justify a search without a warrant or probable cause.271 Whether special needs is an appropriate framework for evaluating a transit screening procedure is already in dispute,272 but it is possible that a court could con- sider deterrence of terrorism to be a substantial gov- ernment interest beyond the needs of law enforcement that would be frustrated by requiring individualized suspicion before carrying out searches. 1. Federal Courts The Supreme Court first recognized the special needs exception to the requirements of a warrant and prob- able cause in New Jersey v. T.L.O, in which the Court held that because in the school context a warrant would likely frustrate the government purpose behind the search, a warrant was not required.273 The special needs test is: “Only in those exceptional circumstances in which special needs, beyond the nor- mal need for law enforcement, make the warrant and probable-cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers.”274 The balancing of interests in special needs cases en- tails examining the individual privacy expectations and the governmental interest and balancing them to de- termine “whether it is impractical to require a warrant or some level of individualized suspicion in the particu- 269 483 U.S. 873 (Supervision of probationers is a special need that permits more intrusion on privacy than would be allowed for public at large; special needs of probation system make warrant requirement impracticable and justify lower standard than probable cause). Id. at 875–76. 270 Kuras et al., supra note 9, at 1202. 271 Id. 272 See II.K., Transit Searches, infra this report. 273 469 U.S. 340. The case involved the issue of the correct standard for assessing the legality of searches conducted by public school officials. The Court held that students do have a privacy interest cognizable under the Fourth Amendment, and that teachers and administrators have a substantial interest in maintaining discipline at school. The Court then held that the warrant requirement is unsuited to the school environment, and, because it would likely frustrate the government purpose behind the search, was not required. Id. at 340. The Court also held that a standard less than probable cause was appropriate. Id. at 341–42. 274 Id. at 351 (Blackmun, J., concurring). The majority opin- ion used the term “the special needs of the school environment” in a footnote describing the lower court opinions that had up- held allowing warrantless searches on less than probable cause. Id. at 332, n.2. However, it was Justice Blackmun’s concurring opinion that articulated the test that the Court has adopted for use for a “special needs” exception. Richard T. Smith, Comment: The Special Needs Doctrine After Ferguson v. City of Charleston, 32 U. BALT. L. REV. 265, 269 (2003). lar context.”275 The Court determines whether the cir- cumstances are such that “the privacy interests impli- cated by the search are minimal, and…an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion.”276 Courts have allowed special needs exceptions in a wide range of circumstances.277 The Supreme Court has rejected special needs claims where it found that the need asserted was not really special, but merely symbolic.278 Lack of concrete danger to be averted, failure to show the scheme is a credible means to deter the danger, and failure to show the in- trusion necessary to avert the danger are factors in finding a need to be symbolic rather than special. 279 A search based solely on a symbolic need must comply with the warrant requirement of the Fourth Amend- ment.280 The Court reserved from its holding in Chan- dler, supra, suspicionless searches in airports and at 275 489 U.S. 665–66. 276 489 U.S. 624. The balancing test has also been described as “(1) the nature of the privacy interest involved; (2) the char- acter of the intrusion; and (3) the ‘nature and immediacy’ of the government’s need for testing and the efficacy of the testing for meeting it.” Gonzalez v. Metro. Transp. Auth., 73 Fed. Appx. 986, 988 (9th Cir. 2003), cert. denied, 541 U.S. 974 (2004) (up- holding drug testing of transit employees). 277 The Supreme Court has permitted special needs excep- tions for work-related searches of employees’ desks and offices (O’Connor v. Ortega, 480 U.S. 709 (1987)); searches of proba- tioners’ homes (483 U.S. 873); and suspicionless drug testing in several different circumstances: testing of employees of the Customs Service who apply for positions directly involving interdiction of illegal drugs or positions requiring the agent to carry firearms (489 U.S. 656), testing of railroad employees involved in train accidents (489 U.S. 602), testing of student athletes in an effort to prevent the spread of drugs among the student population (515 U.S. 646), and testing of students who participate in competitive extracurricular activities (Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002)). The Earls holding may be consid- ered an extension of Vernonia in that the drug-testing policy at issue was neither a response to, nor targeted toward, a specific group of problematic students. Theodore et al. v. Delaware Valley Sch. Dist., 836 A.2d 76, 85 (Pa. 2003). Circuit Courts have made special needs exceptions for suspi- cionless drug testing (student athletes, school officials in safety-sensitive positions, EMT technicians, and firefighters); child abuse investigations; investigations of probationers; and requirements for convicted offenders to supply DNA samples. Kuras et al., supra note 9. The Ninth Circuit has upheld drug testing of transit employees with even infrequent safety- related responsibilities. 73 Fed. Appx. 986. 278 520 U.S. 305. Chandler involved a Georgia statute that required any candidate for state office to submit to a drug test. 279 Id. at 318–21. 280 Id. at 322. This point was argued by the plaintiffs in Cas- sidy v. Ridge, infra PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, at 12.

27 entrances to courts and other public buildings, noting that they may be reasonable.281 The Supreme Court has also rejected special needs claims where it found the need was not really beyond the normal needs of law enforcement.282 Fourth Amendment protections against warrantless, suspi- cionless, nonconsensual searches have been required where law enforcement is pervasively involved in devel- oping and applying a search policy.283 Where there were no standard criteria for a search and no basis for pro- ceeding other than suspicion of criminal activity, or, since Ferguson, the immediate goal was related to law enforcement, lower courts have refused to apply the special needs doctrine to warrantless or suspicionless searches.284 Dicta in several special needs cases may prove par- ticularly relevant to assessing transit screening proce- dures. In reviewing the Federal Railroad Administra- tion’s (FRA) regulations for drug and alcohol testing, the Supreme Court remarked on the deterrent effect of the regulations.285 The Court also noted that the fact that the FRA had not used less intrusive means of pre- venting drug and alcohol use did not make the regula- tion unreasonable.286 In reviewing the Treasury Department’s drug-testing regulations, the Supreme Court rejected the argument that the testing scheme was not productive enough to justify its Fourth Amendment intrusion.287 The Court remarked: The mere circumstance that all but a few of the employ- ees tested are entirely innocent of wrongdoing does not impugn the program’s validity…. Where, as here, the pos- 281 520 U.S. 323. 282 Ferguson v. City of Charleston, 532 U.S. 67 (2001). Fergu- son involved a scheme to test expectant mothers for cocaine use and use the threat of law enforcement to force them into treatment. The Court found that the immediate goal of law enforcement and the pervasive involvement of the police in the policy took the scheme out of the realm of “special needs.” Id. at 84. 283 Id. at 85–86. 284 339 F.3d 845, n.22 (search of backpack of person attending political parade could not be justified under “special needs” jurisprudence where officers possessed unguided discretion: there was no specified criteria to carry out suspicionless bag searches, no organized methodology for systematically check- ing all individuals, and no checkpoints through which all peo- ple had to pass before entering the vicinity); United States v. Jones, 286 F.3d 1146, 1150–52 (9th Cir. 2002) (search con- ducted by federal agents invalidated as immediate goal was to secure documents relevant to criminal investigation admissible in criminal prosecution). 285 “While no procedure can identify all impaired employees with ease and perfect accuracy, the FRA regulations supply an effective means of deterring employees engaged in safety- sensitive tasks from using controlled substances or alcohol in the first place.” 489 U.S. 629 (1989). 286 Id. at 629, n.9. 287 489 U.S. 673. sible harm against which the Government seeks to guard is substantial, the need to prevent its occurrence fur- nishes an ample justification for reasonable searches cal- culated to advance the Government's goal.288 In support of its assertion as to possible harm, the Court cited three seminal circuit court cases involving airport searches289 as illustrating the reasonableness of searching innocent people in order to effectuate special governmental need.290 The Court suggested that given an observable national hijacking crisis, the government need not demonstrate specific danger at one airport to justify security screening there and observed that given the purpose of deterrence, “a low incidence of such con- duct, far from impugning the validity of the scheme for implementing this interest, is more logically viewed as a hallmark of success.”291 In dissenting from a case in which the Court upheld drug testing of student athletes, Justice O’Connor re- marked that the cases in which the Court had previ- ously held suspicionless searches to be reasonable in- volved “situations in which even one undetected instance of wrongdoing could have injurious conse- quences for a great number of people.”292 It was the dev- astating nature of even one undetected instance that made an individualized suspicion requirement imprac- tical. Although the decision predated the use of the phrase “special needs,” the Fifth Circuit has recognized “a judi- cially-recognized necessity to insure that the potential harms of air piracy are foiled.”293 2. States Several state courts have rejected special needs justi- fications for statutes that purport to allow warrantless blood-alcohol testing without probable cause.294 3. Summary of Important Principles The search must be grounded on a substantial gov- ernmental need such as protecting public safety or de- terring terrorism, rather than merely being a law en- forcement mechanism. The court will balance these factors: 1) the magnitude of the asserted need against 2) the privacy intrusion to determine 3) whether the gov- ernment interest asserted would be jeopardized by a requirement of individualized suspicion. The asserted need should be a response to concrete danger (can be aggregate danger), and deterrence is an acceptable pur- 288 Id. at 674–75. 289 498 F.2d 500; 482 F.2d 1275–76; 482 F.2d 907–12. 290 489 U.S. 675, n.3. 291 Id. at 675–76, n.3. 292 515 U.S. 675 (citations omitted). 293 482 F.2d 1275. 294 Commonwealth v. Kohl, 615 A.2d 308, 314 (Pa. 1992); King v. Ryan, 607 N.E.2d 154, 160 (Ill. 1992); McDuff v. State, 763 So. 2d 850 (Miss. 2000). Cf, State v. Roche, 681 A.2d 472 (Me. 1996) (upholding blood-alcohol test statute that makes test results admissible if there is independent probable cause to believe the driver was impaired).

28 pose. In assessing the privacy interest, the court will consider whether the privacy interests are minimal. Use of the least intrusive means is not required. In de- termining the third factor, the court will consider whether: one undetected instance would have serious consequences; the search is reasonably effective in re- sponding to the need; and means other than the suspi- cionless search would not reasonably meet the special need. I. Airport295 Security Searches296 Airport security searches provide a parallel to those that might be conducted in transit systems to deter a terrorist threat,297 and they provide useful guiding prin- ciples about the acceptable scope and purpose of such searches.298 In addition, some airport security searches have raised the issue of racial profiling,299 which could be an issue in transit security searches, particularly targeted searches. One district court has already found airport cases on point in reviewing the constitutionality of security screening conducted by a transit authority.300 Courts have consistently upheld warrantless airport security searches,301 but have not agreed upon the ra- 295 Cases involving airport searches outside of the security areas and involving searches aimed at drug smuggling or ille- gal immigration are not discussed in this section. 296 See generally James L. Buchwalter, Validity of Airport Se- curity Measures, 125 A.L.R. 5th 281. 297 See II.K., Transit Searches, infra this report. 298 See 14 A.L.R. FED. 286, cited by JOHN WESLEY HALL, 2 SEARCH AND SEIZURE § 32.9, n.96 (3d ed. 2000). 299 See, e.g., Complaint in Racial Profiling Lawsuit Against Transportation Security Administration, posted at http://www.aclufl.org/legislature_courts/legal_department/brief s_complaints/rajcoomarcomplaint.cfm; Simon Letter to Florida Officials Regarding Unconstitutional Profiling by U.S. Air Marshals, posted at www.aclufl.org/news_events/archive/2002/ rajcoomarletter092402.cfm. 300 See II.K., Transit Searches, infra this report. 301 E.g., 454 F.2d 771 (magnetometer search of all passengers boarding an airline is constitutional even absent a warrant, because “[t]he danger is so well known, the governmental in- terest so overwhelming, and the invasion of privacy so mini- mal”); 464 F.2d 667 (upholding use of magnetometer); 464 F.2d 1180 (magnetometer search of all passengers does not violate Fourth Amendment); 482 F.2d 1276 (“[W]e hold that those who actually present themselves for boarding on an air carrier…are subject to a search…unsupported [by] suspicion.”); 498 F.2d 496 (suspicionless search of all passengers by magnetometer is constitutional); United States v. Dalpiaz, 494 F.2d 374 (6th Cir. 1974). See also 61 F.3d 109–10 (dicta: warrantless and suspicionless searches of airline passengers is constitutional); United States v. Allman, 336 F.3d 555, 556 (7th Cir. 2003) (“[A]ll persons, with all their belongings, who travel by air are subject to search without a warrant.”). Airport searches held unconstitutional have generally not been related to security. E.g., 378 F.2d 588; United States v. Soriano, 482 F.2d 469 (5th Cir. 1973); and United States v. Garay and Torres, 477 F.2d 1306 (5th Cir. 1973). tionale for doing so.302 The rationales for excepting these searches from the warrant requirement have included: the administrative search exception;303 analogizing to border searches;304 reasonableness;305 implied consent;306 and analogizing to Terry.307 The reasonableness argu- ment is that the airport security search does not really fit within any recognized exception to the warrant re- quirement but should be judged on its reasonableness, since an airport search cannot as a practical matter be subject to the warrant requirement. Under this analy- sis, the standard for making the judgment as to reason- ableness is whether in the totality of the circumstances the search is reasonable: a passenger’s ability to choose not to fly in order to avoid the search is not construed as implied consent, but is a factor in evaluating reason- ableness.308 Courts have held that using a metal detector is a search under the Fourth Amendment,309 but a reason- able one,310 as they generally consider the nature of the 302 See United States v. Hartwell, 296 F. Supp. 2d 596, 602 (E.D. Pa. 2003); State v. Salit, 613 P.2d 245, 250 (Alaska 1980). Some cases, e.g., 475 F.2d 44, have included more than one rationale. 303 482 F.2d 908. But see 498 F.2d 498, n.5 [T]he principle that seems most nearly applicable to the air- port search is that recognized in Colonnade…and applied in…Biswell sustaining warrantless searches of records main- tained or products held by regulated industries. Such “adminis- trative searches,” conducted pursuant to a general regulatory scheme rather than an investigation to secure evidence of a crime, have regularly been upheld where the statutory proce- dures have been deemed reasonable….But since an attempt to fold airport searches under the rubric of this type of administra- tive search would entail the question of reasonableness, as well as the need for dealing with language in Almeida-Sanchez the issue of reasonableness may as well be faced directly. (citations omitted). 304 E.g., 475 F.2d 51 (5th Cir.); 480 F.2d 408; 482 F.2d 1272; 484 F.2d 509; 767 F.2d 776; United States v. Caminos, 770 F.2d 361 (3d Cir. 1985). 305 482 F.2d 1275 (5th Cir. 1973); see also 495 F.2d 805 (con- sidering need for the search, “inefficiency” of search, and intru- sion on privacy interests); United States v. Herzbrun, 723 F.2d 773, 775 (11th Cir. 1984) (embracing tripartite analysis set forth in Skipwith). 306 See 723 F.2d 775–76. 307 454 F.2d 769 (danger of air piracy is so well known, gov- ernmental interest so overwhelming, and invasion of privacy so minimal, warrant requirement is excused by exigent national circumstances). 308 495 F.2d 803–04, 808; 498 F.2d 501 (“in order to bring it- self within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to pro- ceed no further”). 309 454 F.2d 770; 495 F.2d 799; 484 F.2d 509; 464 F.2d 1180; 464 F.2d 673. 310 454 F.2d 769; 495 F.2d 806 (use of a magnetometer is a reasonable search despite small number of weapons detected in course of large number of searches).

29 privacy intrusion to be minimal.311 In fact, use of the magnetometer has often been key to the constitutional- ity of the search,312 as is staying within the scope of the search.313 Thus, a narrowly defined search for guns and explosives is constitutionally justified by the need for air traffic safety, but generalized law enforcement searches of all passengers as a condition for boarding commercial aircraft would be unconstitutional.314 The governmental need justifying airport security searches is generally recognized to be deterrence, rather than actual apprehension of terrorists.315 Requiring passen- gers to pass through metal detectors, submit to visual searches, and occasionally undergo physical searches has been found to fulfill the requirement that the search be reasonably effective.316 At least in the early cases, there was no consensus that the danger of hijack- ing alone was sufficient to justify a search.317 Generally 311 454 F.2d 771 (“the search for the sole purpose of discover- ing weapons and preventing air piracy, and not for the purpose of discovering weapons and precriminal events, fully justified the minimal invasion of personal privacy by magnetometer”); 800 F.2d 902 (“a visual inspection and limited hand search of luggage which is used for the purpose of detecting weapons or explosives, and not in order to uncover other types of contra- band, is a privacy intrusion we believe free society is willing to tolerate.”) In fact, the Fifth Circuit found that airport searches of passengers’ belongings are arguably less scandalous and embarrassing than other police searches because (1) the owner of the luggage searched must “voluntarily come to and enter the search area” and (2) the frequency of such searches makes the individual whose bags are examined feel that there is less of a stigma attached to the search. Thus, there is a difference between searching people in the general airport area and those ready to board plane. 482 F.2d 1275–76. 312 E.g., 454 F.2d 772 (search following magnetometer trigger justified by magnetometer information and limited in scope to initiating circumstances, therefore reasonable). Cf. 481 F.2d 723 (failure to subject bag to magnetometer before search fac- tor in finding search unreasonable). 313 See 481 F.2d 887 (search of small glassine envelope ex- ceeded scope of search for weapons or explosives). The Fifth Circuit has given wide latitude to determining the appropriate scope. See 484 F.2d 513–14 (security search may continue until security official is satisfied that no harm would come from allowing suspect identified by profile to board plane). 314 873 F.2d 1240. See also United States v. Maldonado- Espinosa, 767 F. Supp. 1176 (D. P.R. 1991) (airport x-ray searches enjoy administrative exception to warrant rule only so far as they are conducted to further compelling administrative purpose of keeping weapons and other items dangerous to flight off aircraft), aff’d, 968 F.2d 101, cert. denied, 507 U.S. 984. 315 E.g., 495 F.2d 804–05. 316 482 F.2d 1275. 317 Compare 475 F.2d 47 (dictum) (hijacking danger alone not sufficient to justify warrantless airport searches) with 464 F.2d 675 (Friendly, J., concurring) (in case of air piracy, danger alone meets the test of reasonableness, provided scope of courts have rejected the argument that airport security screenings unconstitutionally impinge on the right to travel.318 1. Statutory Authority TSA is required to inspect all checked baggage and screen passengers and carry-on luggage.319 Previously, the Air Transportation Security Act of 1974320 author- ized the FAA to conduct security screenings to prevent air piracy.321 The absence of similar statutory authority was not discussed by the district court that looked to airport cases in evaluating the constitutionality of a transit search policy.322 2. Federal Courts The Supreme Court has not directly ruled on the con- stitutionality of airport security screening procedures.323 However, the Court has referred to the reasonableness of airport security searches in other cases.324 The Court specifically excluded from its holding in Edmond, su- pra, “searches like airports and government buildings, where the need for such measures to ensure public safety can be particularly acute.”325 The Ninth Circuit reviewed airport screenings in United States v. Davis,326 one of the seminal airport cases. Davis involved a search that took place in 1971. The search consisted of an airline employee informing Davis at the gate that a routine security check was re- quired, reaching for Davis’s briefcase, and opening it. search is appropriately limited and passenger has notice of search in time to choose not to fly). 318 482 F.2d 912–13. 319 49 U.S.C. § 44901. The Transportation Security Admini- stration screens for “explosives, incendiaries, and weapons.” § 1540.5, 49 C.F.R. pt. 1540—Civil Aviation Security: General Rules. The implementing regulation provides: “No individual may enter a sterile area without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area under this subchapter.” 49 C.F.R. § 1540.107, Submission to screening and inspection. 320 Pub. L. No. 93-366, 88 Stat. 415 (1974), codified as amended in 49 U.S.C. App. §§ 1356, 1357, 1371, 1372, 1472, and 1516 (1982 & Supp. III 1985). 321 873 F.2d 1242. Airport security searches began in the wake of a series of airline hijackings in the late 1960s. 495 F.2d 803. All passengers and carry-on bags have been subject to magnetometer searches since 1973. See generally 4 LAFAVE, supra note 79 § 10.6(a). There was a flurry of airport search cases in the early 1970s when concerns about airline hijackers were inflamed. See 495 F.2d 801. 322 See II.K. Transit Searches, infra this report. 323 4 LAFAVE, supra note 79, § 10.6(c), at 291. 324 E.g., 489 U.S. 675 n.3; 520 U.S. 323. 325 531 U.S. 47–48. 326 482 F.2d 895–96 (searches not a per se violation of Fourth Amendment or constitutional right to travel, but must meet certain conditions, including obtaining the consent of the per- son to be searched).

30 The agent found a gun, which was soon determined to be loaded. A magistrate denied a motion to suppress based on implied consent, a ruling upheld by the dis- trict court, which also found no government involve- ment in the search.327 The Davis court ruled that the appropriate standards for reviewing airport searches were found in a series of administrative search cases.328 Applying those stan- dards, the court found that the purpose of the adminis- trative scheme in the airport screening was “not to de- tect weapons or explosives or to apprehend those who carry them, but to deter persons carrying such material from seeking to board at all.”329 The court found that the need to prevent hijackings was great and that pre-board screening of passengers and carry-on bags sufficient in scope to detect explosives or weapons was reasonably necessary to meet that need. Of note was the fact that the decision to screen was not subject to the discretion of the screening official and that a warrant requirement would only have frustrated the purpose of the search.330 Accordingly, the court held that the screening process was not unconstitutional, provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that pur- pose, and that potential passengers may avoid the search by electing not to fly.”331 In addition, the court examined the question of whether the administrative search scheme unreasona- bly interfered with the constitutional right to travel.332 The court noted that although the constitutional right to travel is not absolute, it cannot be conditioned upon giving up another constitutional right, absent a compel- ling state interest.333 Although the court did not explic- itly rule that the airport screening promoted a compel- ling state interest,334 it did find that its conclusions 327 Id. at 896. After discussion of the history of the anti- hijacking program, id. at 896–904, the court of appeals found sufficient government involvement to subject the search to the Fourth Amendment. Id. at 904. 328 Id. at 908, citing 406 U.S. 311; Wyman v. James, 400 U.S. 309 (1971); 387 U.S. 523; 387 U.S. 541; United States v. Schafer, 461 F.2d 856 (9th Cir. 1972); Downing v. Kunzig, 454 F.2d 1230 (6th Cir. 1972). 329 482 F.2d 908. 330 Id. at 910. 331 Id. at 913. The importance of limiting the scope of the se- curity screening is now well recognized. See, e.g., UNITED STATES ATTORNEYS’ BULLETIN 3 (Jan. 2004). 332 The right to travel by specific mode of transportation was also addressed in Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir.) (“travelers do not have a constitutional right to the most convenient form of travel”), cert. denied, 502 U.S. 907 (1991). 333 482 F.2d 912–13. 334 The court did later categorize its opinion in Davis as not- ing that the government interest in air traffic safety is compel- ling. 873 F.2d 1243. Other courts have held that the govern- ment interest in preventing hijackings is compelling, outweighing the limited intrusion of the security search. about the scheme’s constitutionality were consistent with the right to travel.335 Finally, the Davis court ex- amined the issue of consent. The court stated that as a matter of constitutional law, a prospective passenger who chooses to proceed to board a plane has either re- linquished his right to leave or elected to submit to a search, either of which constitutes consent for purposes of the Fourth Amendment, yet suggested that the al- ternatives must be clear before consent will be pre- sumed. In any event, on the particular facts of the case, i.e., that at the time that Davis attempted to board the screening procedure was not so well known, the court found that the government had not proved consent. The case was therefore remanded for reconsideration of the consent issue.336 The Fifth Circuit reviewed the issue of the proper standard for a search of a passenger at the boarding area in a much cited case, United States v. Skipwith.337 Skipwith did not involve a magnetometer search—the defendant was stopped at the boarding gate because he met the FAA hijacker profile and had no identification. The court reserved the question of whether meeting the hijacker profile in and of itself was sufficient grounds for a search.338 However, the court did not accept on its face the government’s argument that the danger of air piracy in and of itself justified the adoption of the bor- der standard of mere or unsupported suspicion, al- though it did acknowledge that the dangers of air pi- racy could be even greater than those at the border. Instead, the court set forth three factors that must be weighed to evaluate the constitutionality of an airport security search: the need for the search in terms of pos- sible public harm, the likelihood that the search proce- dure will be effective, and the degree and nature of the search’s intrusion into privacy interests.339 The court then noted the degree of dangers posed by piracy, citing back to its decision in Moreno, supra; the efficacy of standard airport search procedures (even though they had not been used in the instant case); and the lesser degree of offensiveness of airport security searches. The court found airport screenings less offensive because there is an “almost complete absence” of stigma; the person to be searched can avoid the search by not enter- ing the search area; and the searches are made under supervision and “not far from the scrutiny of the travel- ing public,” leading to the likelihood that the searches United States v. McKennon, 814 F.2d 1539, 1544 (11th Cir. 1987); 61 F.3d 109–10 (“[r]outine security searches at airport checkpoints pass constitutional muster because the compelling public interest in curbing air piracy generally outweighs their limited intrusiveness”) Accord, 832 F.2d 1339: “The key factor in the cases allowing such [airport and courtroom] searches was the perceived danger of violence, based upon the recent history at such locations, if firearms were brought into them.” 335 482 F.2d 912. 336 Id. at 913–15. 337 482 F.2d 1272. 338 Id. at 1274–75. 339 Id. at 1275.

31 will be more solicitous of Fourth Amendment rights than in more unsupervised, isolated circumstances.340 After the “tripartite weighing of the relevant factors,” the court did adopt the mere or unsupported suspicion standard for searching persons who have presented themselves for boarding.341 The court approvingly cited Judge Friendly’s statement: When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirat- ing or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hi- jacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.342 The court also found that the appropriate scope of an airport security search is that which will reveal any object or instrumentality that the person searched could reasonably have used to hijack the airplane to be boarded, and the court rejected the notion that the de- fendant had a right to halt the search once it had started.343 United States v. Albarado344 is a widely cited case re- viewing the appropriate standard for boarding area searches. The case involved a would-be passenger who was searched not because he met the hijacking profile (which was not in use), but because he activated the magnetometer. The Second Circuit noted that: airport security searches had become routine, but that courts had reacted differently; neither the magnetometer search nor a subsequent frisk fit into any of the tradi- tional exceptions to the warrant requirement, but seemed reasonable; and an airport search could not, as a practical matter, be subject to the warrant require- ment, and its reasonableness should be evaluated under a totality of the circumstances analysis.345 Accordingly, the court looked at the interest alleged to justify the intrusion. The governmental need justifying airport security searches was deterrence, rather than actual 340 Id. at 1275–76. 341 Id. at 1276. The mere suspicion standard has been re- jected in the Ninth Circuit. See United States v. Homburg, 546 F.2d 1350 (9th Cir. 1976) (Skipwith mere suspicion standard rejected; encounter upheld as valid Terry stop), cert. denied, 431 U.S. 940 (1977). 342 482 F.2d 1276, citing 464 F.2d 675 (Friendly, J., concur- ring) (footnote omitted). The Second Circuit subsequently did apply this test in 498 F.2d 500, over the protest of Judge Oakes’ concurring opinion. Id. at 501–02. 343 482 F.2d 1277. The Fourth Circuit has also held consent cannot be withdrawn once a search has started. See 584 F.2d 48. 344 495 F.2d 799. 345 Id. at 803–04. The court noted that the Davis decision, “while styling the airport search as “administrative,” placed no analytical significance on this label. Nor do we.” 495 F.2d 804, n.9. apprehension of terrorists.346 Although the court found the government need compelling, it found it also impor- tant to consider whether that need justifies searching all passengers. Given the inefficiency of the magne- tometer search, the court found that restricting the scope of the search is critical to preserving its constitu- tionality: “to be reasonable the search must be as lim- ited as possible commensurate with the performance of its functions.”347 The court found that the use of a mag- netometer is a reasonable search based on balancing the minimal invasion of privacy against the threat to hundreds of passengers posed by an armed hijacker.348 The court chose not to rely on consent, questioning the voluntariness of consent that rests on requiring the passenger to decline to fly in order to refuse the search.349 In considering the reasonableness of a frisk after the magnetometer is activated, the court looked to whether the search is as limited as necessary to un- cover its object: a weapon that could be used in a hijack- ing.350 The Second Circuit applied a reasonableness ration- ale again in United States v. Edwards, supra. Although Judge Friendly adopted his statement from Bell, supra, about the danger alone supplying reasonableness, the court went on to balance the government need against the privacy intrusion. The court emphasizes that notice of the ability to leave rather than submitting to a search is required for the search procedure to be rea- sonable. The Eleventh Circuit followed Skipwith, which it characterized as recognizing airport security check- points to be sui generis under the Fourth Amendment and as holding them to be “critical zones” for purposes of Fourth Amendment analysis.351 The Herzbrun court also characterized Skipwith as standing for the proposi- tion that people presenting themselves at a security checkpoint automatically consent to a search.352 In dis- cussing the facts of the case, the court noted the experi- ence of the two screeners who decided that further search was warranted.353 The Court in Davis did not reach the question of at what point in the boarding process a passenger may elect not to fly, thereby withdrawing consent.354 The Ninth Circuit subsequently decided that in order to avoid a search, the potential passenger must elect not 346 E.g., id. at 804–05. 347 Id. at 806. 348 Id., reaffirming 464 F.2d 667. 349 495 F.2d 806–07. 350 Id. at 807–10. See also 481 F.2d 886–87 (search must be confined to what would reasonably turn up weapons or explo- sives). The Albarado court found the magnetometer triggering the key factor in allowing even an appropriately limited frisk. 495 F.2d 808–10. 351 723 F.2d 775. 352 723 F.2d 776; 767 F.2d 779, citing 723 F.2d 776; 814 F.2d 1545. 353 723 F.2d 774, n.1. 354 800 F.2d 902.

32 to fly before putting his baggage on the x-ray conveyor belt,355 holding that a passenger who submits his lug- gage for x-ray in a secure boarding area impliedly con- sents to a visual inspection and hand search of that luggage if the x-ray is inconclusive in determining whether there are weapons or other dangerous objects in the luggage.356 The Northern District of California recently reaf- firmed the reasonableness of airport searches, as well as holding that the Constitution does not guarantee the right to travel by any particular form of transporta- tion.357 3. States A number of state courts have upheld these searches on the basis of consent.358 In fact, at least one court has held that a defendant did not have standing to chal- lenge his search because he did not have a reasonable expectation of privacy in the secure boarding area of the airport.359 However, many other courts have questioned the voluntariness of consent to search in this context, relying instead upon the administrative search excep- 355 Id. at 902; 298 F.3d 1089. Accord, 723 F.2d 776. 356 800 F.2d 901. The court noted the consistency of this ap- proach with that of other circuits ruling on anti-hijacking searches for weapons, citing 723 F.2d 776 (automatic consent to a hand search); United States v. Wehrli, 637 F.2d 408, 409– 10 (5th Cir.), cert. denied, 452 U.S. 942 (1981) (implied consent where x-ray inconclusive); 584 F.2d 47–48; United States v. Williams, 516 F.2d 11, 12 (2d Cir. 1975) (per curiam) (implied consent). The First Circuit followed 800 F.2d 899 on this point, 61 F.3d 110. See also 296 F. Supp. 2d 596 (pants kept setting magnetometer off, so passenger was taken for private screen- ing which produced drugs; whether he requested it or it was directed was of no consequence). 357 2004 WL 603530, at 5 (challenge to requirement that pas- senger provide government identification to board plane or submit to search dismissed: identification and search require- ments not a search for Fourth Amendment purposes or if search, was reasonable in that it was for limited purpose and could have been avoided by not flying). 358 E.g., Shapiro v. State, 390 So. 2d 344, 348 (Fla. 1980), cert. denied sub. nom, Shapiro v. Florida, 450 U.S. 982 (1981); People v. Brown, 113 A.D. 2d 893, 894, (N.Y. 1985) (deciding that prosecution need not demonstrate defendant's knowledge of a right to refuse x-ray search because, given the common awareness of such security measures in airports, logical con- clusion is that defendant voluntarily consented to such a search); People v. Heimel, 812 P.2d 1177 (Colo. 1991) (airport security screening procedures for potential passengers held constitutional as form of consensual regulatory search in fur- therance of a systematic program directed at ensuring the safety of persons and property traveling in air commerce); State v. Hanson, 34 P.3d 1 (Haw. 2001) (implied consent at airport based on notice and security measures in place; surren- der of effects at airport carries consent to search for contents that may pose danger to aircraft). See also Turner v. State, 132 S.W.3d 504 (Tex. App. Houston 2004). 359 Id. tion in upholding airport security searches.360 Under this analysis, notice does not give rise to implied con- sent, but is a factor in determining the reasonableness of the search.361 The advance notice of inspections af- forded airline passengers is significant because it avoids the embarrassment of a surprise search.362 Some courts have cited several reasons for upholding the search.363 4. Summary of Important Principles Rationales for upholding these searches include: ad- ministrative search, border search analogy, sui generis (reasonableness analysis/balancing test), and implied consent. There has not been a consensus that hijacking danger is sufficient in and of itself to justify the search. There is a statutory requirement for the search. Deter- rence is considered an appropriate purpose of the search. The impracticality of requiring a warrant is recognized. Although sometimes an issue in analysis, the right to travel has not been deemed violated by these searches. Regardless of the underlying theory, the court will generally balance these factors: the need to prevent hijackings/possible public harm against the intrusive- ness of the search. The scope of the search should be calibrated to the purpose of finding explosives or weap- ons. The court will consider both the efficacy of the search and the degree of intrusion. Passengers should be allowed to avoid the search by not boarding, al- though at some point the right to withdraw is with- drawn. Notice of that right may be considered an ele- ment of implied consent or may be considered an element of reasonableness. J. Area Entry Searches (Including Athletic Events, Courthouses/Public Buildings,364 and Military Areas) As the Fourth Circuit has noted, courts have differed as to the theory for justifying these searches. Some have relied upon the administrative search doctrine, 360 People v. Hyde, 524 P.2d 830 (Cal. 1974) (in evaluating administrative searches, advance notice to airline passengers significant, may avoid embarrassment and psychological dislo- cation of surprise search); Salit v. State, 613 P.2d 245, 250 (Alaska 1980). 361 Schaffer v. State, 988 P.2d 610, 615 (Alaska Ct. App. 1999). 362 524 P.2d 830. 363 390 So. 2d 344 (no reasonable expectation of privacy, so no Fourth Amendment violation; consent; reasonableness, citing 482 F.2d 1272). 364 See generally Russell J. Davis, Validity, Under Federal Constitution, of Search Conducted as Condition of Entering Public Building, 53 A.L.R. FED. 888; Jay M. Zitter, Searches and Seizures: Validity of Searches Conducted as Condition of Entering Public Premises—State Cases, 28 A.L.R. 4th 1250; Kenneth L. Jesmore, The Courthouse Search, 21 UCLA L. REV. 797 (1974).

33 others merely on balancing the interests at stake.365 A number of courts have grouped these cases together with airport cases as providing an analytical framework for any situation involving security screenings.366 These cases are analogous to transit screening in purpose (preventing attacks within the facilities) and in many cases location (the entrance); they provide a reasonable analytical framework for reviewing transit screening policies. 1. Federal Courts The Supreme Court has not directly addressed the constitutionality of these searches, but has indicated its acceptance in dicta.367 Courthouses/Public Buildings.—The Ninth Circuit, in upholding a search at the entrance to the superior courthouse,368 enunciated its standard for upholding warrantless, suspicionless searches at the entrance of sensitive facilities: the search must be clearly needed to protect vital government interest; the search must be no more intrusive than needed to protect against dan- ger to be avoided, but nonetheless reasonably effective; and the inspection must be conducted for a purpose other than gathering evidence for criminal prosecu- tions.369 The Sixth Circuit has also upheld courthouse entry searches,370 as has the Southern District of New York.371 The plaintiffs in Cassidy v. Ridge, infra, in con- trasting the searches under challenge, asserted that there is a legitimate need to conduct searches and iden- tity checks at courthouse entrances.372 Military Bases.—Circuit courts have held that there can be implied consent to search a vehicle entering a military base,373 but have differed as to whether consent is implied from the nature of a closed military base,374 or 365 143 F.3d at 851, n.5 (4th Cir. 1998). The Norwood court adopted Judge Friendly’s position that “the question under any theory ultimately turns on whether such searches are ‘reason- able’ under a traditional balancing analysis.” Id. 366 E.g., 804 N.E.2d at 320. Nonetheless, because of the unique nature of the airport environment (national danger, analogy to border), it is useful to discuss these entry cases separately. 367 E.g., 520 U.S. 323. 368 McMorris v. Alioto, 567 F.2d 897 (9th Cir. 1978). 369 Id. at 899. 370 454 F.2d 1230 (upholding courthouse-entry search for weapons and explosives conducted under General Services Administration (GSA) blanket search program). 371 Legal Aid Society v. Crosson, 784 F. Supp. 1127, 1131 (S.D.N.Y. 1992). 372 Cassidy v. Ridge, Civ. No. 1:04CV258 (Feb. 16, 2005, D. Vt.), PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, at 9. 373 United States v. Ellis, 547 F.2d 863, 866 (5th Cir. 1977); United States v. Jenkins, 986 F.2d 76 (4th Cir. 1993); Morgan v. United States, 323 F.3d 776, 782 (9th Cir. 2003). 374 547 F.2d 866; 986 F.2d 79. whether the existence of implied consent is a question of fact.375 Rock Concerts, Sporting Events, Demonstrations.— Federal courts asked to find an exception to the war- rant and probable cause requirement for searches going into these events, primarily based on the sensitive area exception, have declined to do so.376 Several lower courts have declined to uphold these searches on an implied consent basis.377 In Wilkinson v. Forst,378 the Second Circuit reviewed the constitutionality of searches conducted by Connecti- cut authorities at 16 Ku Klux Klan rallies held in Con- necticut from September 13, 1980, through April 29, 1984.379 Court injunctions were the basis for conducting the searches, but the decision whether or not to search was left to the discretion of the officers on the scene.380 The Second Circuit found first instance pat-down searches to be unreasonable in the context of prevent- ing demonstrators from bringing weapons into the ral- lies, but found magnetometer searches, followed by 375 323 F.3d 782. (Federal officers at the gate of a closed mili- tary base may not search an entering vehicle without probable cause, unless the driver impliedly consents to the search.) 376 143 F.3d 852–53, citing Wheaton v. Hagan, 435 F. Supp. 1134 (M.D.N.C. 1977) (holding airport-search exception not applicable to random drug and weapons searches of rock con- cert patrons at entrance to municipal auditorium: danger posed “substantially less”; procedure not as effective; intrusion greater because random and not preceded by electronic screen- ing); Collier v. Miller, 414 F. Supp. 1357 (S.D. Tex. 1976) (hold- ing airport exception not applicable to random searches for alcoholic beverages and containers of persons attending events at public stadium: risk of violence not equivalent; procedures not as effective; intrusion more substantial because of discre- tionary administration); 460 F. Supp. 10 (refused to extend exception to random entry searches for drugs and alcohol at civic center rock concert: danger not equivalent; intrusion greater because of discretionary administration; consent from advance notice not constitutionally inferable); Stroeber v. Commission Veteran’s Auditorium, 453 F. Supp. 926 (S.D. Iowa 1977) (holding random searches of persons attending rock concert at public auditorium not justified on Terry analogy: no individualized suspicion established before physical search conducted). 377 460 F. Supp. 14; 453 F. Supp. 933; 414 F. Supp. 1366. 378 832 F.2d 1330 (2d Cir. 1987). 379 Id. at 1332. 380 State and local authorities obtained—in advance of a planned Ku Klux Klan rally in Scotland, Connecticut—an in- junction banning firearms and other weapons within Scotland on the days of the rally. The injunction was enforced by setting up checkpoints leading to the vicinity of the rally; motorists and pedestrians were informed that they were subject to search only if they proceeded to the area of the rally. Id. at 1333. Two rallies then followed for which no injunctions were sought or searches conducted. Violence ensued. Id. at 1333–34. The State sought injunctions banning weapons in and around the remaining 13 rallies at issue in Wilkinson and authorizing searches of people attending the rallies. Id. at 1334.

34 frisks if the magnetometers indicate the presence of weapons, to be reasonable.381 In its analysis, the Court noted the relatively non-intrusive nature of magne- tometer searches, citing the description in Albarado, supra: The passing through a magnetometer has none of the in- dignities involved in…a frisk. The use of the device does not annoy, frighten or humiliate those who pass through it. Not even the activation of the alarm is cause for con- cern, because such a large number of persons may acti- vate it in so many ways. No stigma or suspicion is cast on one merely through the possession of some small metallic object. Nor is the magnetometer search done surrepti- tiously, without the knowledge of the person searched. Signs warn passengers of it, and the machine is obvious to the eye.382 The search regime that the court upheld in Wilkinson included notice that searches would take place and could be avoided by leaving the area, and a procedure of searching all individuals who did proceed into the area.383 The Fourth Circuit, in an opinion declining to extend the sensitive area exception to searches conducted at a checkpoint created at the entrance to a motorcycle rally, noted that under the checkpoint cases, actual searches would require individualized probable cause.384 The court emphasized that the search it found unconstitu- tional was not driven by “necessity for lack of any prac- tical alternative means for preventing violence.” The court found this to be a key factor in distinguishing the unconstitutional search from a constitutional sensitive entry search program for which “there literally was no other feasible alternative having any chance of suc- cess.”385 The court also considered the efficacy (or lack thereof) of the searches, as well as the fact that the offi- cers did not first search via magnetometer.386 The 11th Circuit recently considered the constitu- tionality of a proposal to require demonstrators at a planned protest against the School of the Americas to pass through a magnetometer, and to submit to possible subsequent physical search of their persons and belong- ings. The search was conducted at a checkpoint set up at a several block distance from the protest site, and was estimated to create a delay of between 90 minutes and 2 hours in reaching the protest site.387 The court 381 Id. at 1340. 382 Id., citing 495 F.2d 806. 383 Cf. 339 F.3d 845, n.22 (haphazard searches left entirely to officers’ discretion could not be justified under an exception to the requirement for individualized suspicion). 384 143 F.3d 851. 385 Id. at 854. The court noted that while it is not required that a search program be the least intrusive possible, the availability of alternatives is a factor to consider in evaluating the reasonableness of a search program. Id. at n.8. 386 Id. at 854. 387 Bourgeois v. Peters, 387 F.3d 1303, 1306–07 (11th Cir. 2004). The court noted that the magnetometer searches would have done little, if anything, to deter the lawless conduct the city asserted as one of the grounds for the searches. Id. at rejected the argument that the DHS’s threat level advi- sory of yellow justified the searches.388 The court also rejected the city’s special needs argument, finding the special need alleged to be too bound up in law enforce- ment purposes, and not falling within an established special needs exception.389 In addition, the court rejected the idea that it could conduct an “ad hoc analysis” of the reasonableness of the search.390 In evaluating First Amendment issues, the court stated that there was no voluntary consent to the searches because the govern- ment had conditioned the receipt of one benefit (exer- cise of First Amendment rights) upon waiver of another (exercise of Fourth Amendment rights). The court also noted the 11th Circuit’s opposition to this sort of uncon- stitutional condition.391 A district court in New York recently considered a Fourth Amendment challenge to a policy of the New York City police (NYPD) concerning bag searches at entry points to political demonstrations.392 The plaintiffs in the case argued that the applicable precedent was Wilkinson, supra. The defendants also argued that Wil- kinson was applicable, but that the challenged bag searches were like the magnetometer searches upheld in Wilkinson. They also argued that the bag searches should be constitutional under Edwards, supra.393 The Stauber court distinguished Edwards on five grounds: first, that the bag search there only took place after the magnetometer triggered; second, a bag search is not minimally intrusive; third, an airport search does not implicate constitutionally protected expression; fourth, the NYPD provided no advance notice of its intent to search and had no written policy concerning bag searches; and fifth (and most important), the evidence of a threat was overly vague—despite the fact that the Republican Convention might be considered a terrorist target—and there was no information suggesting that the bag search policy would address the kinds of threats 1306, n.2. This case illustrates the overlapping nature of classi- fications for cases involving exceptions to the Fourth Amend- ment warrant, probable cause, and individualized suspicion requirements, as the defendants proferred several theories to justify their search scheme. 388 Id. at 1312. The court also rejected the city’s argument that following the events of September 11, 2001, non- discriminatory, low-level magnetometer searches at large gatherings should be constitutional as a matter of law. Id. at 1311. 389 Id. at 1312–13. 390 Id. at 1313–16. There was no discussion of airport or sen- sitive area cases. 391 Id. at 1324–25. 392 2004 WL 1593870. This case may be of particular interest because, although it did not involve a transit search, it did touch on the issues of specificity of a terrorist threat and effi- cacy of a search procedure in reducing that threat required to uphold a suspicionless search program. This case was sited by the plaintiffs in Civ. No. 1:04CV258. (Plaintiff’s Memorandum at 14–15.) See II.K., Transit Searches, infra this report. 393 2004 WL 1593870 at 29–30.

35 that might occur at demonstrations.394 The court con- cluded that “defendants have not shown that the inva- sion of personal privacy entailed by the bag search pol- icy is justified by the general invocation of terrorist threats, without showing how searches will reduce the threat.”395 The court did note that bag searches could be appropriate if the threat to public safety met the stan- dards laid out in Wilkinson and Edwards.396 The NYPD was enjoined from: searching the bags of all demonstrators without individu- alized suspicion at particular demonstrations without the showing of both a specific threat to public safety and an indication of how blanket searches could reduce that threat. Less intrusive searches, such as those involving magnetometers, do not fall within the scope of the injunc- tion.397 2. States State courts have also generally upheld sensitive area entry searches on the same bases as have the lower federal courts.398 As a rule, stadium searches have been held unconstitutional,399 but have been upheld upon an appropriate showing of danger and of the effectiveness 394 Id. at 30–31. 395 Id. at 31. 396 Id. at 32. 397 Id. at 33. 398 See, e.g., 524 P.2d 830; 421 N.E.2d 447 (discussing the need for protective measures at courthouses; announced court- house searches are constitutional as they are voluntary and, like airport searches, of no surprise); R.I. Defense Attorneys Ass’n v. Dodd, 463 A.2d 1370 (R.I. 1983); Davis v. United States, 532 A.2d 656 (D.C. App. 1987); State v. Plante, 594 A.2d 165 (N.H. 1991), cert. denied sub. nom, Plante v. N.H., 502 U.S. 984 (1999); Gibson v. State, 921 S.W.2d 747 (Tex. App. El Paso 1996); State v. Rexroat, 966 P.2d 666, 671 (Kan. 1998) (holding that defendant consented to limited search where he triggered metal detector through which everyone entering courthouse passed); People v. Troudt, 5 P.3d 349, 351 (Colo. Ct. App. 1999) (relying on 812 P.2d 1177: warrantless search without probable cause or individualized suspicion con- stitutional when conducted pursuant to a regulatory program calculated to further manifestly important governmental inter- est under circumstances where program is reasonably tailored to further governmental interest and where intrusion on per- sonal privacy or security is relatively slight in comparison to interest served), cert. denied sub. nom, Troudt v. People, 2000 Colo. Lexis 881 (2002); Smith v. Washington, 43 P.3d 1171 (Or. App.), rev. denied sub. nom, Smith v. Wash. County, 43 P.3d 1171 (Or. 2002). 399 E.g., 635 P.2d 946 (1981) (search at concert entry without showing of threat to public safety held unconstitutional; im- plied consent argument rejected, unconstitutional condition issue grounds for decision; validity of airport and courthouse searches recognized). of an appropriately limited search policy to reduce that danger.400 In a case holding pat-down searches at the entry to a rock concert to be unconstitutional,401 the Washington Supreme Court stated that there are five exceptions to the warrant requirement: consensual searches; stop and frisk searches; hot pursuit; border searches; and airport and courthouse searches. The court noted the intrusion involved in the brief visual searches performed at courthouse entrances was of a lesser degree than the intrusion of pat-down searches.402 The court declined to adopt a new exception for rock concerts, analogous to airport and courthouse searches.403 The Supreme Judicial Court of Massachusetts found that sensitive area cases are an appropriate framework for evaluating random stops of motorists to address an asserted terrorist threat.404 The court further noted that deterrence was an acceptable purpose for such a search,405 and that there need not be a specific threat against the facility at which searches are carried out. “Rather, based on prior experience with terrorism or violence, some types of facilities have been identified as particularly susceptible to attack, and officials may then take steps to prevent such attacks from occurring at other, similar facilities.”406 The court found that because the Commonwealth had not provided notice of the roadblock, it had failed to minimize the intrusiveness of the seizures, and there- fore the suspicionless stops failed to meet the require- ments of a constitutionally permissible administrative search. The court did not reach the issue of any other defects of the search scheme.407 3. Summary of Important Principles Rationales for upholding these searches include an administrative search analysis and a sui generis (rea- sonableness analysis/balancing test) analysis. The court will balance these factors: whether the search is clearly needed to protect a vital government interest and whether it is no more intrusive than needed to protect against the danger to be avoided, but nonetheless rea- sonably effective. Generally, an interest in keeping drugs, etc., out of rock concerts/similar events doesn’t meet the vital government interest criterion. The search must be conducted for a purpose other than gathering evidence for criminal prosecutions. Not all security threat levels may be sufficient to establish a vital government interest. A search is not clearly needed when general policing will protect the need at 400 Jensen v. Pontiac, 317 N.W.2d 619 (Mich. 1982) (search for objects that could be thrown onto football field upheld, upon showing of effectiveness of policy). 401 Jacobsen v. Seattle, 658 P.2d 653 (Wash. 1983). 402 Id. at 655–56 (citations omitted). 403 Id. at 656. 404 804 N.E.2d 320–21. 405 Id. 406 Id. at 321, n.5. 407 Id. at 323.

36 stake. The result of the search must be able to reduce the threat that is complained of. Notice reduces the intrusiveness of the search. K. Transit Searches As there has been very little case law on this precise area, the predominant theories of analysis have yet to be established, and litigants will likely differ as to which are appropriate. For example, the plaintiffs chal- lenging searches on the Boston transit system argued that the special needs doctrine was not relevant,408 while the parties challenging ferry searches in Vermont agreed that special need was the appropriate frame- work. 1. Federal Courts The Supreme Court has not addressed this specific is- sue. American-Arab Anti-discrimination Committee et al. v. Massachusetts Bay Transportation Authority409 in- volved a security search policy implemented by the Massachusetts Bay Transportation Authority (MBTA) to comply with the Secret Service’s designation of secu- rity zones during the 2004 Democratic Convention. Un- der the policy, the MBTA would search the carry-on items of all passengers on certain designated bus and subway lines. The plaintiffs challenged the policy as applied, arguing that despite the policy on paper, the searches were actually being conducted like the roving patrols condemned in Brignoni-Ponce, supra, rather than those upheld in Sitz, supra.410 Defendants coun- tered that the nature of the terrorist threat distin- guished the searches from any of the border cases.411 In addition, plaintiffs argued that it was unconstitutional to condition access to the mass transit system upon a waiver of Fourth Amendment rights.412 The District Court did not address the plaintiffs’ ar- guments. Instead it reviewed the MBTA’s contention that the searches were constitutional administrative security searches similar to those upheld for airports and the entryways to certain public areas such as courthouses and military installations. The court noted that such searches have been upheld, citing United States v. Doe, supra; Torbet v. United Airlines, Inc., supra; Morgan v. United States, supra; and McMorris v. Alioto, supra, as well as referring to the suggestion in Chandler, supra, that “where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’—for ex- 408 2004 WL 1682859 (D. Mass. 2004), Plaintiffs’ memoran- dum in support of preliminary injunction, at 8–9, n.1. 409 2004 WL 1682859. 410 Id. Plaintiffs’ memorandum in support of preliminary in- junction, at 7–9. 411 Id. Defendants’ memorandum, at 9, n.1. 412 Id. Plaintiffs’ memorandum in support of preliminary in- junction, at 12. ample, searches now routine at airports and at en- trances to courts and other official buildings.”413 The court reviewed the actual and potential terrorist threats to mass transit systems, including the Madrid bombing and the DHS’s reports of credible intelligence concerning threats aimed at disrupting the election process in the United States. While acknowledging that it would be difficult, if not impossible, to assess the like- lihood or imminence of an actual attack, the court noted that the absence of specific information is not proof that the transit facilities are not likely targets. The court discussed the fact that the airport cases do not require specific threats to a flight to justify security screening, citing Davis, supra, for the proposition that the purpose of the security searches is deterrence. The court then found that there is no reason not to apply the constitu- tional analysis of the airport cases to mass transporta- tion security searches,414 and held that there is a sub- stantial government need to conduct the searches.415 In assessing the reasonableness of the scope and effect of the privacy intrusion, the court noted that it is no greater than that of airport searches. The court did not discuss the fact that there was no statutory basis for the search policy, but did consider the MBTA’s efforts at mitigation, citing notice, which reduces subjective anxi- ety and offers passengers the opportunity to avoid the system during the time the searches are being con- ducted; the limitation of the plan as to scope (i.e., reach) and duration; and the lack of discretion on the part of the inspecting officers as to whose bags to inspect and what to inspect for.416 413 Id. at 1. 414 Id. at 2. 415 Id. at 3. 416 Id. at 3–4. The MBTA’s written policy contained guide- lines for implementing security inspections that: • identified the items to be searched for; • stated the purpose of the inspection; • provided written selection criteria as to who to search, with searches specifically not to be based on particularized suspicion of criminal activity; • prohibited racial/ethnic profiling; • stated a preference for using electronic scanning devices or explosive detection dogs whenever possible; • required notice of the security inspections at station en- trances, in transit vehicles, and elsewhere on MBTA property; • required screenings to be conducted where possible before passengers pay to get on the system; • set in writing the search intervals and the procedure for changing the intervals; • provided no discretion on the part of screening officers absent probable cause; • afforded passengers the choice to avoid the search by not entering or leaving the system; • limited the duration and scope of the search to what is re- quired to discover items prohibited in writing under the policy. The particulars of the General Order setting forth the secu- rity inspection guidelines are described in Opposition of Defen-

37 Accordingly, the court denied the motion for injunc- tive relief. The request for an injunction had been nar- rowed to implementation of the search policy during the political convention within the designated security zone. The court did not rule on the reasonableness of a search policy not so limited. Cassidy v. Ridge417 involved a challenge to random searches of automobiles and baggage on the passenger ferries that run on Lake Champlain between New York and Vermont.418 The searches were conducted pursuant to the MTSA.419 Plaintiffs argued that the searches— which consisted of opening the trunks of passenger ve- hicles and visually inspecting carry-on bags of walk-on passengers—did not meet the requirements of the spe- cial needs exception to the Fourth Amendment and were therefore unconstitutional.420 The District Court judge adopted the special needs analysis, but ruled that the searches advance a special governmental need to provide domestic security and therefore do not violate the Fourth Amendment.421 The court rejected plaintiffs’ contention that the need for the searches had not been established,422 noting that the government’s assessment of risk was entitled to deference, and found that the searches did further the government’s objectives.423 The court also ruled that the searches were reasonable since they were no more intrusive than necessary to achieve the compelling governmental interest at hand.424 The court did not address plaintiffs’ right-to-travel argu- ment, but found that “[g]iven the voluntary nature of plaintiffs’ decision to travel by ferry, such searches con- stitute a minimal invasion of any arguable expectation of privacy.”425 dant MBTA to Plaintiff’ Motion for a Preliminary Injunction, at 4–6. 417 Civ. No. 1:04CV258. Posted at http://members.aol.com/ acluvt/home.html#CHECK%20HERE%20FOR%20NEWS,%20 UPCOMING%20EV. 418 See Wilson Ring, ACLU Goes to Court to Block Searches of Cars on Ferry Crossing Lake Champlain, Oct. 4, 2004, posted at www.signonsandiego.com/news/nation/20041004- 1504-ferrysearches.html. Washington State Ferries has also implemented a search policy. Although a subject of local con- troversy, these searches have not been challenged in court. Ray Rivera, Officials: Random Searches Not Part of Washington State Ferry-Security Plan, THE SEATTLE TIMES, Dec. 30, 2003. 419 See II.A.4., Background, context, supra, this report. 420 Civ. No. 1:04CV258. Ruling on motion to dismiss, at 1–4. Plaintiffs had suggested that the result of this analysis might be different for the Staten Island and Puget Sound ferries. Plaintiffs’ Memorandum of Law in Support of Motion for Pre- liminary Injunction, at 12, n.2. 421 Id. Ruling on motion to dismiss, at 4–5. 422 Id. Compare ruling on motion to dismiss, at 6–7, with plaintiffs’ memorandum in support of preliminary injunction, at 11–15. 423 Id. Ruling on motion to dismiss, at 7. 424 Id. Ruling on motion to dismiss, at 8. 425 Id. Ruling on motion to dismiss, at 8. Plaintiffs had ar- gued, unsuccessfully, that because of the excessive length of Although unsuccessful, the plaintiffs’ memorandum in support of the preliminary injunction is illuminating for making these points: 1) the government has a le- gitimate need to conduct suspicionless searches and identity checks in the case of airline passengers and visitors to courthouses and other government build- ings426 and 2) using explosive-detecting dogs on the fer- ries would not intrude into Fourth Amendment inter- ests.427 2. Summary of Important Principles Thus far both an administrative security search and special needs rationale have been used to uphold transit searches. The court, relying on the administrative stan- dard, considered the government interest in preventing terrorist attacks and the intrusiveness of the search. In evaluating the government interest, the court was cog- nizant of the specific context of the Democratic Conven- tion—i.e., that terrorists had attacked a transit system before an election in Madrid, and that DHS had re- ported credible intelligence concerning possible election season attacks—and found that the possibility that such an attack might take place was sufficient to estab- lish the requisite government interest. In evaluating the intrusiveness, the court considered the similarity to airport searches; notice provided; the limited duration; the limited area covered; and the lack of discretion af- forded the inspecting officials. The court relying on a special need standard consid- ered the government interest in providing domestic security (there supported by act of Congress), the effec- tiveness of the search, and whether the search was no more intrusive than necessary to achieve the govern- mental interest in question. III. STATE CONSTITUTIONAL ISSUES428 A. Judicial Federalism While federal cases provide the minimum protection required under the Fourth Amendment, states may provide more protection, based on state constitutions, statutes, and procedural rules.429 Although this princi- Cassidy’s commute if he did not take the ferry, requiring him to subject to a search to ride the ferry interfered with his abil- ity to travel freely from state to state. Plaintiffs’ memorandum in support of preliminary injunction, at 9. 426 Id. Plaintiffs’ memorandum in support of preliminary in- junction, at 9, 13. 427 Id. Plaintiffs’ memorandum in support of preliminary in- junction, at 17, n.3. 428 For a comprehensive discussion of these issues, see FRIESEN, supra note 5. 429 E.g., 386 U.S. at 62 (“Our holding, of course, does not af- fect the State’s power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so.”); California v. Greenwood, 486 U.S. 35, 43 (1988) (“Individual States may surely construe their own con- stitutions as imposing more stringent constraints on police

38 ple, known as judicial federalism,430 is not new, until the 1970s state courts generally employed federal constitu- tional analysis even in interpreting state constitutional provisions. Then differences in state interpretation be- gan to emerge, which some attributed to an influential 1977 law review article by Justice William Brennan that called on state courts to use their own constitu- tions to provide protections not being sustained by the Supreme Court.431 It has been suggested that states may have expanded their protections against search and seizures under their state constitutions in response to the proliferation of exceptions to the Fourth Amendment;432 this reason has been considered both an argument for judicial fed- eralism and against it.433 From 1970 to 1989, state courts issued over 450 opinions that expanded greater rights under state constitutions than those under the identical federal provision, with over one-third of them involving criminal issues.434 According to one re- searcher, the Supreme Courts of Alaska, California, Florida, and Massachusetts were the most active in conduct than does the Federal Constitution.”) See also I.A.3, Scope, supra, this report. 430 Numerous law review articles discuss the history of judi- cial federalism and the principle’s significance to constitutional rights. See, e.g., Robert K. Fitzpatrick, Neither Icarus nor Os- trich: State Constitutions As an Independent Source of Individ- ual Rights, 79 N.Y.U. L. REV. 1833 (2004). 431 See Jack L. Landau, Hurrah for Revolution: A Critical As- sessment of State Constitutional Interpretation, 79 OR. L. REV. 793, 808–10 (2000), referring to William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1977). Some commentators have criticized state courts that appeared to answer that call. See Ken Gormley, Perspectives: Federal Jurisprudence, State Autonomy: The Sil- ver Anniversary of New Judicial Federalism, 66 ALB. L. REV. 797–98 (2003). 432 James N. G. Cauthen, Expanding Rights Under State Constitutions: A Quantitative Appraisal, 63 ALB. L. REV. 1183, 1196 (2000). In addition, Judith Kaye, of the New York Court of Appeals, observed that when it is apparent that the U.S. Supreme Court has, in a particular area, “diluted constitu- tional principles,” a state court does not act improperly in “dis- charging [a] responsibility to support the State Constitution” by examining whether it is wise to “follow along as a matter of state law.” People v. Scott, 593 N.E.2d 1328, 1347 (N.Y. 1992) (Kaye, J., concurring). 433 Some have suggested that it is appropriate to use state constitutions to constrain the abusive exercise of federal power. James A. Gardner, State Constitutional Rights as Resistance to National Power: Toward a Functional Theory of State Constitu- tions, 91 GEO. L. J. 1003, 1004 (2003). For a discussion of ar- guments pro and con, citing numerous earlier articles, see Fitzpatrick, supra note 430, at 1841–48. 434 Ka Tina R. Hodge, Comment, Arkansas’s Entry into the Not-So-New Judicial Federalism, 25 U. ARK. LITTLE ROCK L. REV. 835, 846, n.105 (2003). expanding state constitutional rights in the period be- tween the 1960s and 1989.435 The United States Supreme Court has long held that it would not review states’ court decisions that rest on adequate and independent state grounds.436 However, the Court has also held that where the state court deci- sion is based primarily upon federal law, or interwoven with federal law, the Court has jurisdiction to review the state decision, and that the state court has to show that its decision was made on independent state law grounds. In order for a state court decision that in- cludes references to federal cases to be considered made on independent and adequate state law grounds, the decision must contain a plain statement that the federal law is only referred to as guidance.437 Where a federal court finds no violation of law and remands, upon re- mand, the state court may find a rationale for reinstat- ing its own verdict.438 435 BARRY LATZER, STATE CONSTITUTIONS AND CRIMINAL JUSTICE 166 (1991). 436 Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Herb v. Pitcairn, 324 U.S. 117, 125 (1945). The Pitcairn Court noted: “Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights.” Id. at 125– 26. 437 Michigan v. Long, 463 U.S. 1032, 1040-01 (1983), reaff’d in Arizona v. Evans, 514 U.S. 1 (1995). The assertion of federal jurisdiction where federal law is primary or interwoven with state law was not new to Long; the plain statement require- ment was. New Jersey Associate Justice Garibaldi described the Long holding as creating a presumption in favor of Su- preme Court review. The Honorable Marie L. Garibaldi, Con- ference on the Rehnquist Court: The Rehnquist Court and State Constitutional Law, 34 TULSA L.J. 67, 69 (1998). The extent of the plain statement requirement was illustrated by the holding in Pennsylvania v. Labron, 518 U.S. 938 (1996) (Statement by Pennsylvania Supreme Court that it was basing its decision on “this Commonwealth’s jurisprudence of the automobile excep- tion” was not deemed a plain enough statement of adequate and independent state grounds). Some have asserted that Long made it easier for the Court to review—and thus to overturn— decisions of the highest state courts if those decisions straddled the line between relying upon state and federal constitutional precedent. See Gormley, supra note 431, at 798. For a review of the effect of the Court’s decision concerning independent state grounds, see Mathew G. Simon, Note, Revisiting Michigan v. Long After Twenty Years, 66 ALB. L. REV. 969 (2003). 438 E.g., People v. Class, 494 N.E.2d 444, 445 (N.Y. 1986) (re- instated original holding after case was remanded in New York v. Class, 475 U.S. 106 (1986)); People v. P.J. Video, Inc., 501 N.E.2d 556, 557–58 (N.Y. 1987) (suppressed under New York Constitution evidence allowed by Supreme Court after case was remanded in New York v. P. J. Video, Inc., 475 U.S. 868 (1986)); Van Arsdall v. State, 524 A.2d 3 (Del. 1987) (held that although Federal Constitution was not violated, Delaware Constitution was violated; notwithstanding Del. v. Van Ards- dall, 475 U.S. 673 (1986) original decision reinstated); Com- monwealth v. Labron, 690 A.2d 228 (Pa. 1997) (restored court’s earlier order, overturning the order of the Superior Court un-

39 There are generally three approaches to state consti- tutional interpretation: lock-step, primacy, and intersti- tial.439 In addition, some states have followed New Jer- sey in using a “criteria approach.”440 Under the lock-step approach, the state provides the same protection under its cognate provision as under the federal constitution: no less (as required by the Supremacy Clause), but no more, either.441 Under the primacy approach, the court looks to its state constitution first, only looking to the federal constitution if the defendant’s rights are not protected under state law.442 Under the interstitial ap- proach, the court looks to see whether the right as- serted is protected under the federal constitution. If not, the court looks to the state constitution. Under this ap- proach, there are three reasons for departing from fed- eral precedent: a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.443 In addition, the state may exercise “horizontal federalism” and look to other states’ decisions concerning similar provisions.444 Not- withstanding the voluminous commentary,445 state courts decide far more cases under the federal constitu- tion than under state constitutions.446 der the state constitution, notwithstanding the U.S. Supreme Court’s prior reversal based upon federal grounds in 518 U.S. 938). 439 State v. Gomez, 932 P.2d 1, 6–7 (N.M. 1987). See also Robert F. Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues When Dispos- ing of Cases on State Constitutional Grounds, 63 TEX. L. REV. 1025, 1027 (1985); Rachel E. Fugate, Comment: The Florida Constitution: Still Chamption of Citizens’ Rights?, 25 FLA. ST. U.L. REV. 87, 100 (1997). At least some commentators have identified more approaches. Ronald K.L. Collins & Peter J. Galie, Models of Post-Incorporation Judicial Review: 1985 Sur- vey of State Constitutional Individual Rights Decisions, 55 U. CIN. L. REV. 317, 318 (1986) (identifying five sub-categorical approaches). Whatever the number of approaches, states are free to choose the method they deem appropriate. City of Mes- quite v. Aladdin’s Castle, 455 U.S. 283, 293 (1982) (finding that state court has discretion both in interpretation of state consti- tutional provision and in mode of analysis utilized in favor of its own model). 440 Garibaldi, supra note 437, at 74. 441 932 P.2d 6. 442 Id. at 7, citing cases from Maine, New Hampshire, Ore- gon, and Washington. 443 Id. at 7. 444 Hodge, supra note 434, at 850. 445 See, e.g., Susan King, State Constitutional Law Bibliogra- phy: 1989–1999, 31 RUTGERS L. J. 1623–1708 (2000). 446 [S]tate supreme courts based their decisions primarily on state grounds in only twenty-two percent (22%) of their cases. Additionally, in ninety-eight percent (98%) of the decisions based on state law, the state supreme courts deferred to prece- dents of the United States Supreme Court. According to Profes- sor Esler, only eight states consistently utilize state law, basing at least half of their decisions on state law grounds: Alaska, Ar- kansas, Florida, New Jersey, New York, South Dakota, Tennes- see and Texas. The approach taken by a particular state court will affect the predictability of its review of a warrantless, suspicionless search scheme. If a court does not analyze the constitutionality of searches solely in terms of the Fourth Amendment, then its decision in a particular case will not only be somewhat unpredictable in terms of its application of a legal standard to the facts, but also in terms of the appropriate legal standard to be applied. For purposes of predictability, it is perhaps less important to know which particular theory the court follows than whether or not it is in lock-step with the Supreme Court. B. Comparing State Provisions to Fourth Amendment This section compares the cognate search and seizure provision in each state constitution to the Fourth Amendment. Many are identical: nineteen states in- clude a warrant clause in their constitutions that is identical to that in the Fourth Amendment.447 Others are different, but not substantially so. Important differ- ences do exist. For example, some states include an ex- press right to privacy in their state constitutions.448 Of course, even state clauses that are identical to the Fourth Amendment may be interpreted differently by state courts.449 In the state-by-state review, very slight differences are indicated by “virtually identical.” A number of state constitutions formulate “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” as “The people shall be secure in their per- sons, papers, homes and effects, from unreasonable searches and seizures.” This is indicated by the phrase “alternate Clause I.” Those state provisions whose dif- ferences are not easily described are quoted in their entirety. It is beyond the scope of this paper to provide an in- depth examination of case law for every state. However, as an aid to further research, this section identifies cases that indicate whether or not the state construes its own search and seizure provision in lockstep with the Fourth Amendment. State courts may extend greater protection in a specific circumstance,450 which (footnotes omitted). Garibaldi, supra note 437, at 79–80. Ex- amples of cases decided on state grounds include: People v. Ramos, 689 P.2d 430 (Cal. 1984); 501 N.E.2d 556; 524 A.2d 3. 447 Alaska, Arkansas, California, Hawaii, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Nebraska, New Jersey, New York, Ohio, South Carolina, Utah, West Vir- ginia, Wisconsin. Gardner, supra note 433, at 1029, n.125. 448 FRIESEN, supra note 5, § 2-2(a). 449 Id. § 11-2(a), at 11-5. 450 E.g., some states have found their constitutions require more stringent protection in the case of minor misdemeanor arrests than afforded under Atwater v. Lago Vista, 532 U.S. 318, 354 (2001) (officer with probable cause to believe that an individual has committed even a very minor criminal offense in his presence may arrest the offender).

40 does not mean that there will be greater protection in all circumstances, but does indicate that further dis- tinctions are possible. The paper flags this possibility in some instances. Given the fact-dependent nature of these cases, however, these labels are indications of possible future direction, not an indication of likely out- come under every set of circumstances. Nonetheless, these cases should provide a starting point for assessing how a particular state court may evaluate a transit screening policy. Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Alabama: Article I, Section 5. Uses the term “posses- sions” instead of “effects;” does not have “particularly describing” clause. Lockstep?451 Alaska: Article 1, Section 14. Searches and seizures. Uses term “houses and other property” instead of “houses.” Article 1, Section 22. Right of privacy. “The right of the people to privacy is recognized and shall not be infringed.” Not in lockstep.452 Arizona: Article 2, Section 8. Right to privacy. “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Not in lockstep.453 Arkansas: Article 2, Section 15. Unreasonable searches and seizures. Virtually identical: adds “of this State” after “people.” Not in lockstep. 454 451 No cases on point were found. However, two opinions from the Alabama Office of the Attorney General shed some light. Both the December 1, 1997, opinion on employee drug testing, 98-00044, and the October 31, 1996, opinion on library bag searches, 97-00029, discuss only federal Fourth Amendment cases in responding to questions about the constitutionality of both procedures. The inference is that the Attorney General’s Office, and presumably also the Alabama courts, look to the Fourth Amendment rather than Article I, Section 5 of the Ala- bama Constitution. 452 State v. Jones, 706 P.2d 317 (Alaska 1985) (in construing Section 14, Alaska gives careful consideration to Supreme Court holdings on Fourth Amendment, but is not bound by them; court applied stricter standard for warrant under state constitution than federal standard). 453 Large v. Superior Ct., 714 P.2d 399, 405 (Ariz. 1986) (in construing Arizona Constitution, court refers to federal consti- tutional law only as a benchmark of minimum constitutional protection); State v. Ault, 724 P.2d 545, 552 (Ariz. 1986) (Ari- zona’s constitutional provisions were both generally intended to incorporate federal protections, and specifically intended to create a right of privacy). 454 Griffin v. State, 67 S.W.3d 582, 584 (Ark. 2002). In decid- ing whether to provide more protection under Article 2, Section California: Article 1. Declaration of rights, Section 13. Virtually identical: uses “may” instead of “shall.” Not in lockstep, but.455 Since approval of Proposition 8 in June 1982, state claims relating to exclusion of evi- dence on grounds of unreasonable search and seizure have been measured by the federal standard. Colorado: Article II, Section 7. Security of person and property searches seizures warrants. Uses alternate Clause I; “homes” instead of “houses;” “as near may be” instead of “particularly.” Addition: requires oath or af- firmation to be in writing. Not in lockstep.456 Connecticut:457 Article First, Section 7. Uses alter- nate formulation; “possessions” instead of “effects;” “as near may be” instead of “particularly.” Arrests also sub- ject to Article 1, Section 9: “no person shall be arrested, detained or punished, except in cases clearly warranted by law.” Not in lockstep.458 Standard for considering the scope of the state constitution:459 The court should examine the text of the provision, its historical roots, the 1818 15, than under the Fourth Amendment, the court looks to whether it had traditionally viewed issue differently than fed- eral courts. State v. Sullivan III, 74 S.W.3d 215, 218 (Ark. 2002). 455 While Section 13 affords more protection than the Fourth Amendment, since approval of Proposition 8 (now Section 28(d) of Article 1) in June 1982, state claims relating to exclusion of evidence on grounds of unreasonable search and seizure have been measured by the federal standard. In re Lance W., 694 P.2d 744, 752 (Cal. 1985). As one court explained: Section 28(d) does not repeal or amend section 13 rights; sec- tion 28(d) simply abrogates the remedies fashioned by our courts for section 13 violations….Section 13 continues to pronounce search and seizure rights; section 28(d) requires we look to fed- eral authority to define the remedies for violations of those rights. People. v. Daan, 161 Cal. App. 3d 22, 29, 207 Cal. Rptr. 228, 231–32 (Cal. App. 1984). 456 People v. Galvadon, 103 P.3d 923, 927 (Colo. 2005) (Colo- rado historically interprets legitimate expectation of privacy more broadly under Article II, Section 7 than under Fourth Amendment; where, however, Fourth Amendment jurispru- dence provides sufficiently for expectation of privacy, court looks only to Fourth Amendment and does not determine if state constitution provides greater protection). 457 See WESLEY W. HORTON, THE CONNECTICUT STATE CONSTITUTION: A REFERENCE GUIDE (1993); Michael F.J. Piecuch, High Court Study: State Constitutional Law in the Land of Steady Habits: Chief Justice Ellen A. Peters and the Connecticut Supreme Court, 60 ALB. L. REV. 1757 (1997). 458 See, e.g., State v. Oquendo, 613 A.2d 1300, 1308–09 (Conn. 1992) (holding that search and seizure clauses of Connecticut Constitution, Article I, 7, 9, are more protective of individual liberties than Fourth Amendment of United States Constitu- tion); State v. Miller, 630 A.2d 1315 (Conn. 1993) (holding a warrantless search of an automobile to be invalid). 459 State v. Geisler, 610 A.2d 1225 (Conn. 1992) (explaining factors court will consider in diverging from Federal Constitu- tion); State v. Lamme, 579 A.2d 484 (Conn. 1990).

41 Constitutional Convention debates, state precedent immediately before and after the debates, and 20th cen- tury cases.460 Delaware: Article I, Section 6. Searches and sei- zures. Uses alternate Clause I; “possessions” instead of “effects;” “as near may be” instead of “particularly.” Not in lockstep.461 District of Columbia: Article I, Section 104. Virtu- ally identical. Florida: Article I, Section 12. Searches and seizures. Addition: right of the people to be secure “against the unreasonable interception of private communications by any means”; warrants supported by affidavit, descrip- tion of “communication to be intercepted, and the na- ture of evidence to be obtained.” Explicitly ties con- struction of, and admissibility of evidence under Florida provision to construction of, and admissibility of evi- dence under, Fourth Amendment.462 Lockstep, but.463 Georgia: Article I, Section I, Paragraph XIII. Searches, seizures, and warrants. Virtually identical. Not in lockstep?464 Hawaii: Article I, searches, seizures, and invasion of privacy. Section 7. Virtually identical. Addition: protec- tion against “invasion of privacy”; description in war- rants of “communications sought to be intercepted.” Not in lockstep.465 460 Piecuch, supra note 457, at 1775–76. 461 524 A.2d 3. 462 See Christopher Slobogin, State Adoption of Federal Law: Exploring the Limits of Florida’s “Forced Linkage” Amendment, 39 U. FLA. L. REV. 653, 654, 665 (1987). 463 State v. Cross, 487 So. 2d 1056, 1057 (Fla.), cert. denied, 479 U.S. 805 (1986). Where the United States Supreme Court has not addressed a particular search and seizure issue, the state court will look to its own precedent for guidance. Rolling v. State, 695 So. 2d 278, 293, n.10 (Fla. 1997), cert. denied, 522 U.S. 984 (1997). 464 Dawson v. State, 554 S.E.2d 137, 139 (Ga. 2001) (Federal constitutional standards are minimum protection state must afford its citizens). Although Dawson asserts right to construe its constitution differently, no cases found on search and sei- zure where court does so. 465 The Supreme Court of Hawaii has afforded greater protec- tion under Article I, Section 7, than that afforded under the Fourth Amendment in a number of cases, based on a rule of reason requiring government intrusion into Hawaiians’ per- sonal privacy to be “no greater in intensity than absolutely necessary.” State v. Lopez, 896 P.2d 889, 901–02 (Haw. 1995), citing State v. Quino, 840 P.2d 358, 362 (Haw. 1992) (declining to adopt the definition of seizure employed by the United States Supreme Court and, instead, choosing to afford greater protection to the citizens of Hawaii). See also State v. Kaluna, 520 P.2d 51, 57–59 (Haw. 1974) (providing broader protection under Article I, Section 7, in the area of warrantless searches incident to a valid custodial arrest than is provided on the fed- eral level) (some citations omitted); State v. Hoey, 881 P.2d 504, 523 (Haw. 1994). Idaho: Article I, Section 17. Unreasonable searches and seizures prohibited. Uses phrase “without probable cause shown by affidavit” instead of “but upon probable cause, supported by Oath or affirmation.” Not in lockstep.466 Illinois: Article I, Section 6. Searches, seizures, pri- vacy, and interceptions. Uses alternate Clause I, “other possessions” instead of “effects.” Addition: right to be secure from “invasions of privacy or interceptions of communications by eavesdropping devices or other means.” Generally in lockstep.467 Indiana: Article 1, Section 11. Virtually identical. Rejects lockstep.468 Iowa: Article I, Personal security—searches and sei- zures. Section 8. Virtually identical. Lockstep:469 Kansas: Kansas Bill of Rights, Section 15. Search and seizure. Uses the term “property” instead of “houses, papers and effects”; “inviolate” instead of “not be violated.” Lockstep.470 Kentucky: Part 1, Section 10. Uses alternate Clause I, “possessions” instead of “effects,” “as near may be” instead of “particularly.” Close to lockstep.471 466 State v. Guzman, 842 P.2d 660, 667 (Idaho 1991) (Idaho seriously considers federal law in determining parameters of state constitution, may accept federal precedent under state constitution, but only to extent state court finds federal law not inconsistent with protections of state constitution). See also State v. Donato, 20 P.3d 5, 8 (Idaho 2001). 467 People v. Bull, 705 N.E.2d 824 (Ill. 1998), cert. denied, 528 U.S. 827 (1999); Cf., People v. Krueger, 675 N.E.2d 604, 611 (Ill. 1996) (acknowledging application of lockstep in Fourth Amendment cases, but declining to adopt good faith exception to exclusionary rule). 468 Ajabu v. State, 693 N.E.2d 921, 929 (Ind. 1998); Indiana Gaming Comm’n v. Moseley, 643 N.E.2d 296, 298 (Ind. 1994) (Questions arising under Indiana Constitution should be re- solved by “examining the language of the text in the context of the history surrounding its drafting and ratification, the pur- pose and structure of our constitution, and case law interpret- ing the specific provisions.”). 469 State v. Bishop, 387 N.W.2d 554, 557 (Iowa 1986). 470 The Kansas Supreme Court has asserted its right to con- strue its constitution to afford more protection than under the Federal Constitution, but, at least in the case of the Fourth Amendment, has traditionally declined to do so. State v. Schultz, 850 P.2d 818 (Kan. 1993) (scope of Section 15 of the Bill of Rights to the Kansas Constitution and of the Fourth Amendment to the United States Constitution is usually iden- tical); State v. Alexander, 981 P.2d 761, 765 (Kan. 1999). 471 Kentucky has exercised its right to construe some of its constitutional provisions differently than the Federal Constitu- tion. Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992). However, it seems disposed to construe Section 10 in parallel with the Fourth Amendment. Crayton v. Commonwealth, 846 S.W.2d 684, 687 (Ky. 1992).

42 Louisiana: Article I, Section 5. Right to privacy. “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of pri- vacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly de- scribing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”472 Not in lockstep.473 Maine: Article I, Section 5. Unreasonable searches prohibited. Uses alternate Clause I, “possessions” in- stead of “effects.” Warrant must have “a special desig- nation of the place to be searched, and the person or thing to be seized, nor without probable cause— supported by oath or affirmation.” Not in lockstep.474 Maryland: Declaration of rights, Article 26. “That all warrants, without oath or affirmation, to search sus- pected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected per- sons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.” Lockstep.475 Massachusetts: Article XIV. Uses alternate Clause I; “all his possessions” instead of “effects”; “special des- ignation” instead of “particularly describing”; warrant “issued but in cases, and with the formalities prescribed by the laws” instead of “upon probable cause.”476 Not in lockstep.477 472 See Lee Hargrave, The Declaration of Rights of the Louisi- ana Constitution of 1974, 35 LA. L. REV. 1 (1974). 473 State v. Hernandez, 410 So. 2d 1381 (La. 1982). However, the court has found broader rights in some instances, but not in all. 764 So. 2d at 71, n.11. Factors for broader interpretation under the Louisiana Constitution: examine history of the con- stitution and its textual differences with the Fourth Amend- ment to determine whether additional protections are called for; where state invasion of privacy provision does not in and of itself require additional protection, balance the state’s legiti- mate interest advanced against privacy right infringed by practice. Id. at 70–72. 474 City of Portland v. Jacobsky, 496 A.2d 646, 648 (Me. 1985). 475 Scott v. State, 782 A.2d 862, 873 (Md. 2001), cert. denied, 535 U.S. 940 (2002). 476 See Herbert P. Wilkins, The State Constitution Matters, BOSTON B.J., Nov.–Dec. 2000, at 4, 15 (discussing development of search and seizure jurisprudence by the Massachusetts Su- preme Judicial Court under Massachusetts Declaration of Rights). 477 722 N.E.2d at 434. This case provides a good explanation of the Massachusetts court’s approach to constitutional analy- sis. The court has found that Article 14 provides broader pro- Michigan: Article I, Section 11. Uses alternate Clause I, omits “particularly” before “describing.” Addi- tion: “The provisions of this section shall not be con- strued to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.” Not in lockstep.478 Minnesota: Article I, Section 10. Unreasonable searches and seizures prohibited. Virtually identical. Not in lockstep.479 Mississippi: Article 3, Section 23. Uses alternate Clause I, “specially designating” instead of “particularly describing.” Not in lockstep.480 Missouri: Article I, Section 15. Uses alternate Clause I, “as nearly as may be” instead of “particularly describing.” Addition: requires written oath or affirma- tion. Lockstep.481 Montana: Article II, Section 10. Right of privacy. “The right of individual privacy is essential to the well- being of a free society and shall not be infringed with- out the showing of a compelling state interest.” Article II, Section 11. Searches and seizures. Uses alternate Clause I, omits “particularly” before “describing.” Addi- tion: requires written oath or affirmation. In addition, Montana statutory law requires that a peace officer have “a particularized suspicion that the person…has committed, is committing, or is about to commit an of- fense” before stopping that person. Section 46-5-401, MCA. Not in lockstep.482 tection than the Fourth Amendment in a variety of circum- stances. Id. at n.7. 478 People v. Goldston, 682 N.W.2d 479, 484–85 (Mich. 2004) (Michigan not bound by Federal Constitution, even where lan- guage is identical; Michigan free to interpret state constitution consistent with Federal Constitution unless compelling reason precludes court from doing so. Determination of existence of compelling reasons is based on six factors: 1) textual language of state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitu- tional and common-law history, 4) state law preexisting adop- tion of relevant constitutional provision, 5) structural differ- ences between state and federal constitutions, and 6) matters of peculiar state or local interest). 479 State v. Carter, 596 N.W.2d 654, 657 (Minn. 1999). (Min- nesota will find greater protection where it finds Supreme Court’s decision in particular case is radical departure from precedent; cases both following and departing from Federal Constitution cited). 480 Penick v. State, 440 So. 2d 547, 549 (Miss. 1983); 708 So. 2d 858. 481 State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999), cert. denied, 528 U.S. 1009 (1999) (subsequent proceedings not re- lated to search and seizure issue). 482 State v. Pastos, 887 P.2d 199, 202 (Mont. 1994) (when government intrudes upon fundamental right, any compelling

43 Nebraska: Article 1, Section 7. Search and seizure. Uses “homes” instead of “houses.” Lockstep.483 Nevada: Article 1, Section 18. Unreasonable seizure and search; issuance of warrants. Virtually identical. Not in lockstep.484 New Hampshire: N.H. Constitution, Part I, Article 19: Searches and Seizures Regulated. “Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. Therefore, all warrants to search suspected places, or arrest a person for examination or trial in prosecutions for criminal matters, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order, in a warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued; but in cases and with the formalities, prescribed by law.” Not in lockstep.485 New Jersey: Article I, Paragraph 7. Uses “the pa- pers and things to be seized” instead of “the person and things to be seized.” Not in lockstep,486 but.487 state interest for doing so must be closely tailored to effectuate only that compelling interest); State v. Bauer, 36 P.3d 892 (Mont. 2001) (under Article II, Section 10 and Section 11 of the Montana Constitution, it is unreasonable for a police officer to effect an arrest and detention for a non-jailable offense when there are no circumstances to justify an immediate arrest.). 483 State v. Vermuele, 453 N.W.2d 441, 445 (Neb. 1990) (framers intended no greater protection under Article 1, Sec- tion 7, than under Fourth Amendment). 484 State v. Bayard, 71 P.3d 498, 502 (Nev. 2003). Arrest made in violation of Nevada Revised Statutes § 484.795 vio- lates a suspect’s right to be free from unlawful searches and seizures under Article 1, Section 18, even though the arrest does not offend the Fourth Amendment. But see Osburn v. State, 44 P.3d 523, 526–27 (Nev. 2002) (Rose, J. dissenting) (Nevada usually defers to and follows federal courts, but will construe Nevada Constitution “to give more protection when Federal interpretation falls short in recognizing the right or remedy given to [Nevada’s] citizens”). 485 State v. Ball, 471 A.2d 347, 350–52 (N.H. 1983); State v. Wong, 635 A.2d 470, 473 (N.H. 1993). 486 Cases in which New Jersey Supreme Court found more protection under New Jersey Constitution than is available under United States Constitution: Robinson v. Cahill, 303 A.2d 273 (N.J. 1973) (guaranteeing the constitutional right of every child in New Jersey to receive a thorough and efficient educa- tion), cert. denied, sub. nom Dickey v. Robinson, 414 U.S. 476 (1973); Right to Choose v. Byrne, 450 A.2d 925, 928 (N.J. 1982) (extending to economically deprived women the guarantee of access to medically necessary abortions); State v. Schmid, 423 A.2d 615, 632–33 (N.J. 1980) (extending free speech protections New Mexico: Article II, Section 10. Uses alternate Clause I, omits “particularly” before “describing.” Not in lockstep.488 New York: Article 1, Security against unreasonable searches, seizures, and interceptions, Section 12. First paragraph identical. Addition: “The right of the people to be secure against unreasonable interception of tele- phone and telegraph communications shall not be vio- lated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of com- munication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.” Not in lockstep.489 North Carolina: Article I, Section 20. General war- rants. “General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not par- ticularly described and supported by evidence, are dan- gerous to liberty and shall not be granted.” Not in lockstep.490 North Dakota: Article I, Section 8. Virtually identi- cal. Not in lockstep.491 Ohio: Article I, Section 14. Uses “possessions” in- stead of “effects.” Lockstep,492 but.493 to include political speech in quasi-public private property, including a university campus). 487 Joye v. Hunterdon Cent. Reg’l High Sch. Bd. of Educ., 826 A.2d 624, 648–49 (N.J. 2003). The seven circumstances under which the New Jersey Supreme Court will amplify federal con- stitutional rights were first articulated in a concurring opinion by Justice Handler. State v. Hunt, 450 A.2d 952, 965–67 (N.J. 1982). 488 932 P.2d 8. See also Robert F. Williams, New Mexico State Constitutional Law Comes of Age, 28 N.M. L. REV. 379 (1998). 489 593 N.E.2d 1328 (declining to adopt rule in Oliver v. United States, 466 U.S. 170 (1984), on grounds it does not ade- quately protect fundamental constitutional rights). The Scott court cites numerous New York cases finding greater state protections, Id. at 1331–32. But see Fitzpatrick, supra note 430, at 1849: New York has set forth criteria, but hasn’t ap- plied them consistently. 490 State v. Jackson, 503 S.E.2d 101, 103 (N.C. 1998). 491 City of Bismarck v. Uhden, 513 N.W.2d 373, 378 (N.D. 1994). 492 State v. Robinette III, 685 N.E.2d 762, 771 (Ohio 1997). 493 Some 6 years later, relying on the statement in Robinette, supra, that the court should “harmonize [its] interpretation of Section 14, Article I of the Ohio Constitution with the Fourth Amendment, unless there are persuasive reasons to find oth- erwise,” the court held that Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against war-

44 Oklahoma: Article II, Section 30. Unreasonable searches or seizures—Warrants, issuance of. Uses “de- scribing as particularly as may be” instead of “particu- larly describing.” Not in lockstep.494 Oregon: Article I, Section 9. Unreasonable searches or seizures. Uses “No law shall violate the right of the people to be secure” instead of “the right of the people to be secure…shall not be violated.” Not in lockstep.495 Pennsylvania: Article 1, Section 8. Security from searches and seizures. Uses alternate Clause I, uses “describing them as nearly as may be” instead of “par- ticularly describing.” Addition: “subscribed by the affi- ant” after “supported by oath or affirmation.” Not in lockstep.496 Rhode Island:497 Article I, Section 6. Search and sei- zure. Uses “persons, papers and possessions” instead of “persons, houses, papers, and effects”; “describing as nearly as may be” instead of “particularly describing.” Addition: “on complaint in writing” before “probable cause.” Not in lockstep.498 South Carolina: Article I, Section 10. Searches and seizures; invasions of privacy. Addition: “and unreason- able invasions of privacy” after “unreasonable searches and seizures,” “and the information to be obtained” af- ter “the person or thing to be seized.” Not in lockstep.499 South Dakota: Article VI, Section 11. Addition: “supported by affidavit” after “probable cause.” Not in lockstep.500 Tennessee: Article I, Section 7. “That the people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evi- rantless arrests for minor misdemeanors. State v. Brown, 792 N.E.2d 175, 178 (Ohio 2003). 494 Turner v. City of Lawton, 733 P.2d 375 (Okla. 1986). 495 State v. Kennedy, 666 P.2d 1316, 1318 (Or. 1983); State ex rel. Juvenile Dep’t of Multnomah County v. Rogers, 836 P.2d 127 (Or. 1992). 496 615 A.2d 314; 836 A.2d 88 (privacy protection afforded by Article I, Section 8 is greater than that under Fourth Amend- ment). 497 Rhode Island also protects privacy by statute: R.I. GEN. LAWS § 9-1-28.1(a)(1). See Appendix C. 498 561 A.2d. 1348 (R.I. 1989). 499 State v. Forrester, 541 S.E.2d 837, 841 (S.C. 2001) (Article I, Section 10, which includes an express right to privacy, “fa- vors an interpretation offering a higher level of privacy protec- tion than the Fourth Amendment.”). See also State v. Easler, 489 S.E.2d 617, 622 n.13 (S.C. 1997). 500 State v. Opperman (Opperman II), 247 N.W.2d 673, 674 (S.D. 1976) (asserting right of independent interpretation, re- gardless of similarity in language, reinstated Opperman I, citing the state, rather than federal, constitution, after Su- preme Court reversal, 428 U.S. at 376). dence of the act committed, to seize any person or per- sons not named, whose offenses are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.” Not in lockstep.501 Texas: Article 1, Section 9. Uses alternate Clause I; “as near as may be” instead of “particularly.” Not in lockstep.502 Utah: Article I, Section 14. [Unreasonable searches forbidden—Issuance of warrant.] Virtually identical. Not in lockstep.503 Vermont: Article 1, Article 11th. Search and seizure regulated. “That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or af- firmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their prop- erty, not particularly described, are contrary to that right, and ought not to be granted.” Not in lockstep.504 Virginia: Article I, Section 10. General warrants of search or seizure prohibited. 501 State v. Lakin, 588 S.W.2d 544 (Tenn. 1979). Tennessee provision to be construed like Fourth Amendment where possi- ble, but court will look at federal search and seizure decisions in light of previous Tennessee holdings before deciding whether to follow federal precedents in a particular circumstance); State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989); State v. Randolph, 74 S.W.3d 330 (Tenn. 2002). 502 Heitman v. State, 815 S.W.2d 681, 690 (Tex. Ct. App. 1991) (the Texas court, when analyzing and interpreting Arti- cle I, Section 9, Texas Constitution, “will not be bound by Su- preme Court decisions addressing the comparable Fourth Amendment issue”); Johnson v. State, 912 S.W.2d 227, 234 (Tex. Crim. App. 1995) (if court elects to afford greater protec- tion under Article I, Section 9, court will choose in individual cases to interpret Article I, Section 9, in manner justified by facts of the case, state precedent on the issue, and state policy considerations). 503 State v. Debooy, 996 P.2d 546 (Utah 2000) (Utah’s inter- pretation of Article 1, Section 14 has often paralleled that of the Fourth Amendment, but Utah will construe it differently to give more appropriate protection to Utah’s citizens); Brigham City v. Stuart, 2005 Utah 13, ¶ 11 (dicta: Article I, Section 14 of the Utah Constitution provides a greater expectation of pri- vacy than the Fourth Amendment as interpreted by the United States Supreme Court). 504 State v. Jewett, 500 A.2d 233, 236–37 (Vt. 1985) (in con- struing state constitution, court will examine historical analy- sis; textual analysis; analysis of decisions of sister states with similar or identical provisions; and analysis of economic or sociological materials); State v. Morris, 680 A.2d 90, 101–02 (Vt. 1996) (when state constitutional issue is raised squarely on appeal, court will consider all arguments raised, “including historical, textual, doctrinal, prudential, structural, and ethical arguments.”).

45 “That general warrants, whereby an officer or mes- senger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.” Lockstep.505 Washington: Article I, Section 7. Invasion of private affairs of home prohibited. “No person shall be dis- turbed in his private affairs, or his home invaded, with- out authority of law.” Not in lockstep.506 The ferry searches implemented by Washington State Ferries have not been challenged in court. However, when random searches of the interior of vehicles were proposed, the Washington State Attor- ney General opined that they would violate the state constitution, but that external inspections and use of drug-sniffing dogs would not.507 However, the Attorney General later stated that because of Coast Guard orders and intelligence of increased threats, the vehicle searches would be justified.508 West Virginia: Article III, Section 6. Uses “citizens” instead of “people.” Not in lockstep.509 Wisconsin: Article I, Section 11. Searches and sei- zures. Virtually identical. Lockstep.510 505 Lowe v. Commonwealth, 337 S.E.2d 273, 274 n.1 (Va. 1985) (explaining that protections under Virginia’s Constitu- tion and statutes are “substantially the same as those con- tained in the Fourth Amendment”), cert. denied, 475 U.S. 1084 (1986); Janis v. Commonwealth, 472 S.E.2d 649, 652 (Va. 1996) (holding same). 506 State v. Coe, 679 P.2d 353, 361–62 (Wash. 1984). The court has found six criteria to be relevant in determining whether the Washington State Constitution provides broader protection than the United States Constitution: the textual language; differences in the texts; constitutional history; preex- isting state law; structural differences; and matters of particu- lar state or local concern. 720 P.2d 812–13 (use of pen register held to violate Article I, Section 7). The court noted that it has held in a number of cases that Article I, Section 7’s focus on the protection of its citizens’ private affairs provides for greater protection than that of the Fourth Amendment, citing State v. Chrisman, 676 P.2d 419 (Wash. 1984); State v. White, 640 P.2d 1061 (Wash. 1982); State v. Simpson, 622 P.2d 1199 (Wash. 1980), as examples of cases in which it found greater protection under Article I, Section 7 than under the Fourth Amendment based on its language concerning protection of private affairs. 720 P.2d 814, n.20. 507 Rivera, supra note 418. 508 Mike Carter, No Ferry Car Searches, For Now, SEATTLE TIMES, Oct. 9, 2004. 509 State v. Flippo, 575 S.E.2d 170, 190, n.25 (W.Va. 2002) (upheld strict standard of proof for meeting the inevitable dis- covery exception to the exclusionary rule, because of the strin- gent warrant requirement under Article III, Section 6 of the West Virginia Constitution). Wyoming: Article 1, Section 4. Security against search and seizure. Addition: “supported by affidavit” after “probable cause.” Not in lockstep, but.511 IV. STRUCTURING SEARCH POLICIES As noted at the outset, it is beyond the scope of this paper to offer legal advice on structuring a search pol- icy. However, this section does discuss matters that transit agencies may want to consider in structuring a policy: 1) the components of the five exceptions re- viewed in Section II that suggest possible analytical models for assessing transit searches; 2) additional questions that courts may address in transit cases; and 3) questions to consider in developing a search policy. A. Common Components of Search Exceptions The five exceptions that provide possible models are: search and seizure without individualized suspicion (fixed checkpoints); administrative searches in general; special needs; airport security searches; and area entry searches. The components from these search exceptions that should apply to the review of a screening policy implemented by a transit agency are: • Purpose of search would be frustrated by war- rant/reasonable suspicion requirement. • Search cannot be aimed at general law enforcement. • Search must further substantial/vital government interest. • Privacy intrusion must be no greater than required to further governmental interest (although least intrusive means not required), yet reasonably effective. 510 Wis. v. Angelia D.B. (In the Interest of Angelina B.), 564 N.W.2d 682, 685 (Wisc. 1997) (based on the substantial simi- larity of Article 1, Section 7 of the Wisconsin Constitution and the Fourth Amendment, Wisconsin “conform[s] the law of search and seizure under the Wisconsin Constitution to that developed by the United States Supreme Court under the Fourth Amendment to prevent the confusion caused by differ- ing standards”). See also Wis. v. Malone, 683 N.W.2d 1, 6 (Wis. 2004). 511 Wyoming has reserved the right to independent analysis of Article 1, Section 4, provided that a petitioner presents an argument supporting such analysis, but does not appear to have exercised that right to significantly expand search and seizure protections under its own constitution. Saldana v. State, 846 P.2d 604, 621–24 (Wyo. 1993) (greater right under Article 1, Section 4 rejected, but concurrence set forth test for presenting separate state constitutional analysis); Gronski v. State, 910 P.2d 561, 565 (Wyo. 1996) (rejected state constitu- tional claim because separate state constitutional analysis not presented); Vasquez v. State, 990 P.2d 476 (Wyo. 1999); Mor- gan v. State, 95 P.3d 802 (Wy. 2004) (court would entertain argument that Article 1, Section 4 provides greater protection against canine sniffs than Fourth Amendment if properly pre- sented).

46 • Hierarchy of intrusiveness of search methodology: canine sniff, magnetometer, visual inspection, physical inspection. • Generally, more intrusive search that would not be reasonable as initial search may become reasonable as follow-up search. • Evaluation of intrusiveness may consider both ob- jective (duration and intensity) and subjective (poten- tial for generating fear and suspicion) aspects of search. • Consent, if any, governs scope of search. • Search must be conducted pursuant to neutral crite- ria, strictly limiting discretion of inspecting officials. • Reasonable notice and opportunity to avoid search must be afforded. B. On the Horizon Whatever theory a court applies, it will balance the government interest asserted against the privacy inter- ests at stake, considering whether the search is suffi- ciently limited to its purpose and yet comprehensive enough to protect the government interest at stake. There are a number of new questions that could arise in the context of transit security screening: • Is consent voluntary when a search must be agreed to in order to use the transit system? Is the search an un- constitutional condition on access to the public trans- portation system? The search policy upheld in Boston was implemented for a limited period of time on a lim- ited segment of the system. The reach and duration of a search policy may affect the answer to these questions. • Is the expectation of privacy in a transit system any greater than in the boarding area of an airport? Airport cases discuss the decreased expectation of privacy due to universal expectation of searches to enter the secu- rity area of airports. The difference in the type of travel involved could make a difference in the case of a search policy that was implemented in less limited fashion than that in Boston. • Will tying searches to a specific threat level make a difference in the defensibility of policies?512 The search upheld in Boston took place during a presidential nominating convention, after intelligence was received on increased threats to the transit system. A general elevated threat level was not sufficient to justify searches in Bourgeois v. Peters, supra. • Must threats be directed at the transit system? Threats during the Republican Convention were not sufficient to justify searches at demonstrations in Stau- ber, supra, in part because the court did not see a connection between the searches and the danger alleg- edly posed. The court evaluating the MBTA search pol- icy, however, upheld the policy despite the lack of spe- cific threats directed at the MBTA system. 512 See National Materials Advisory Board, supra note 8. The authors suggest that in the context of evaluating the legiti- macy of an airport search under the Fourth Amendment, there is a stronger government interest when there is a specific credible threat. See id. at 35. • Does the FTA’s recommendation on threat level re- sponse have any effect on the legality of search policies? Would TSA directives or regulations have any such ef- fect? One difference between airport searches and tran- sit searches is the lack of a nationwide policy and/or statutory/regulatory requirements for searches. Federal guidance on, if not requirements for, searches might alter the assessment of this difference. C. Issues to Consider When Formulating Search Policy Regardless of jurisdiction, there are a number of is- sues that a transit agency should consider in formulat- ing its (written) policy. Does the policy strike a balance between being narrow enough to intrude as little as possible (which will also reduce its effect on the effi- ciency of the system) and being robust enough to meet the targeted threat? Are the guidelines focused on de- fining a reasonable scope? Does the policy identify the threat and tie search parameters to factors likely to turn up the threat? For example, if the threat requires looking for 20-pound explosives, do the guidelines pro- hibit searching small bags and small pockets in big bags? Some of the questions that a transit agency may want to take into account in formulating its policy follow. The answers to these questions will depend, to some extent, upon the law of the specific jurisdiction. Not all possible questions are addressed here, including how to handle the discovery of contraband. 1. What Is the Purpose of the Search Policy? Clearly the search policy must advance a substantial government interest separate from general crime con- trol efforts. Just as checkpoints initiated solely for drug interdiction and drug testing with extensive police in- volvement in policy formulation and implementation have been struck down, transit searches too closely in- terwoven with general law enforcement could be held invalid. However, the mere fact that transit police were involved in conducting searches would not necessarily turn them into general law enforcement exercises. Keying searches to articulated threat warnings could help to differentiate them from routine law enforce- ment, provided that the type of threat warning was in fact related to a relatively specific danger. Moreover, the intended result of the search may have analytical implications, as it will affect the assessment of the efficacy of the search. Is the search intended to actually discover a threat (explosives, etc.)? Is it to merely deter people from bringing dangerous items into the system? 2. Is the Search Calibrated to Discover the Identified Threat? This question cuts two ways, as the scope of the search should be no broader than required to reach the identified threat, but must be broad enough to actually do so. For example, if the identified goal of the policy is

47 to prevent terrorists from bringing explosives into the system, is it possible to determine the likely bulk or weight of the explosives that would be used? If so, does the policy limit searches to containers, or portions of containers, large enough or heavy enough to contain those explosives? If the identified goal were trying to protect against biological/chemical agents, what would it take to search for them? Is it possible to detect such agents by conducting brief visual inspections of brief- cases and other carry-on items? 3. How Is the Policy Established? Given that limits on discretion are critical to uphold- ing warrantless searches, it is questionable whether a search policy would be upheld unless it were reduced to writing. Beyond that, the minimum acceptable basis for a search policy is uncertain. Based on the limited ex- perience to date, a search policy need not be based on statutory requirements to be upheld under an adminis- trative search exception. However, even under a rea- sonableness/balancing analysis, which does not require a regulatory scheme per se, the greater the authority behind the policy, the greater the chances of a court finding it to be reasonable. Clearly, though, the policy cannot be ad hoc in either its inception or its administration. 4. Can the Policy Be Implemented as Described on Paper? Plaintiffs in the Boston case argued unsuccessfully that the policy was unconstitutional as applied. If a policy calls for the use of less intrusive methods, such as dogs and electronic screening devices, but the re- sources are not there to use those methods, another court could reach a different conclusion, particularly if the policy under consideration were less limited as to area and duration than the Boston policy. 5. How Is the Search Protocol Determined? Where the protocol is defined (at the command or line level) and how it is executed (ministerially or with dis- cretion) will have enormous implications for its consti- tutionality. The search policy upheld in Boston was defined at the command level and executed ministeri- ally. In order to be executed ministerially, a policy must have guidelines on what to inspect, how to inspect, and what constitutes prohibited items. 6. Should the Policy Call for Searching People or Packages? Searching people will be considered more intrusive than searching packages and hence subject to greater justification, including but not limited to reasonable suspicion. Searching people on less than a randomized basis may be considered profiling and, to the extent that it focuses on the characteristics of any protected class, will be subject to strict scrutiny. Searching packages implicates the Fourth Amend- ment/state constitutions, but is subject to lower stan- dards than searching people. Targeting packages based on size, weight, or some other factor related to the pur- pose of the search should not have the same constitu- tional implications as selectively searching passengers. 7. Should the Policy Be Randomized or Targeted? Here randomized means not based on reasonable suspicion and not subject to the discretion of the in- specting official. A randomized search policy could re- quire inspecting the packages of every passenger board- ing the transit system or that of every passenger at specific intervals. Intervals can be fixed or changed; for example, by using a random digit table. Targeting packages relates to confining the scope of the search to the interest to be protected. A randomized search policy could target packages based on their size and weight. 8. Where Should Searches Take Place? An important issue in structuring the protocol is the selection of the search location. An initial decision is whether to conduct searches within the system or only at entrances to the system. Searches within the system may be more difficult to conduct in a truly randomized, non-arbitrary fashion,513 which of course has implica- tions for the constitutionality of the searches, and could require a different standard for conducting searches. Even a policy that only allows searches at entrances to the system is likely to have selection issues, either as to location or time of day. Concerns include not creating a pattern discernible to a potential terrorist (which goes to the efficacy of the policy) and not disproportionately affecting certain segments of the population (which may raise equal protection issues, as conducting searches will have an effect on transit service). If the threat is not confined to a particular part of the system, or time of day, the agency should examine whether the check- point selection is randomized except as to the objective threat. 9. Does the Policy Provide Adequate Notice/Opportunity to Avoid Search? Clearly, notice of the search and opportunity to avoid it will enter into an assessment of the reasonableness of the search. Two aspects to consider are: timing— whether notice of the policy is adequate to allow people to make other plans, and prominence—whether notice is clearly visible in system before payment is required. 10. What Search Technology/Methodology Will Be Employed? Methodologies differ as to degree of intrusiveness. Less intrusive methods such as dogs and electronic screening devices will generally be considered more reasonable, may provide a greater deterrent effect by exposing a greater number of people to screening, and may be used to develop reasonable suspicion. Physical 513 See II.B., Search and Seizure Without Individualized Sus- picion (Fixed Checkpoints), supra, this report.

48 inspection, in addition to being more intrusive, is more likely to turn up contraband.514 However, the less intru- sive methodologies are more expensive, and their use may be limited by the availability of funding.515 V. CONCLUSIONS Although the law on transit security searches is still emerging, transit agencies may look to established case law on suspicionless searches for guidance. Legal au- thority on checkpoints, special needs, and general ad- ministrative searches all provide useful insight into the requirements for constitutional screening policies. Cases on airport security and sensitive area entry screening should prove particularly relevant. These authorities teach that generally suspicionless searches must be based on a government policy, not the individual decision of the inspecting official. The policy must be grounded on a substantial government interest other than general law enforcement; provide for searches that are reasonably calibrated to support that interest; provide adequate notice and some opportunity to avoid the search; and be based on neutral guidelines that clearly limit the inspecting officers’ discretion. The devil is in the details: any review in this area of the law will be fact-specific. However, an understanding of these requirements should provide a starting point for fashioning appropriate policies based on the specific law in a given jurisdiction. 514 Hall, supra note 298, vol. 2, § 32.9, n.99, at 317. 515 See generally GAO-03-263, supra note 44, for a description of funding challenges faced by transit agencies.

49 APPENDIX A: SECURITY-RELATED LEGISLATION I. ENACTED LEGISLATION UNITING AND STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM (USA PATRIOT ACT OF 2001, PUB. L. NO. 107–56—OCT. 26, 2001). SECTION 801. TERRORIST ATTACKS AND OTHER ACTS OF VIOLENCE AGAINST MASS TRANSPORTATION SYSTEMS. Chapter 97 of Title 18, United States Code, is amended by adding at the end the following: ‘‘§ 1993. Terrorist attacks and other acts of violence against mass transportation systems ‘‘(a) GENERAL PROHIBITIONS.—Whoever willfully— ‘‘(1) wrecks, derails, sets fire to, or disables a mass transportation vehicle or ferry; ‘‘(2) places or causes to be placed any biological agent or toxin for use as a weapon, destructive substance, or destructive device in, upon, or near a mass transportation vehicle or ferry, without previously obtaining the permission of the mass transportation provider, and with intent to endanger the safety of any passenger or employee of the mass transportation provider, or with a reckless disregard for the safety of human life; ‘‘(3) sets fire to, or places any biological agent or toxin for use as a weapon, destructive substance, or destructive device facility used in the operation of, or in support of the operation of, a mass transportation vehicle or ferry, without previously obtaining the permission of the mass transportation provider, and knowing or having reason to know such activity would likely derail, disable, or wreck a mass transportation vehicle or ferry used, operated, or employed by the mass transportation provider; ‘‘(4) removes appurtenances from, damages, or otherwise impairs the operation of a mass transportation signal system, including a train control system, centralized dispatching system, or rail grade crossing warning signal without authorization from the mass transportation provider; ‘‘(5) interferes with, disables, or incapacitates any dispatcher, driver, captain, or person while they are employed in dispatching, operating, or maintaining a mass transportation vehicle or ferry, with intent to endanger the safety of any passenger or employee of the mass transportation provider, or with a reckless disregard for the safety of human life; ‘‘(6) commits an act, including the use of a dangerous weapon, with the intent to cause death or serious bodily injury to an employee or passenger of a mass transportation provider or any other person while any of the foregoing are on the property of a mass transportation provider; ‘‘(7) conveys or causes to be conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this subsection; or ‘‘(8) attempts, threatens, or conspires to do any of the aforesaid acts, shall be fined under this title or imprisoned not more than twenty years, or both, if such act is committed, or in the case of a threat or conspiracy such act would be committed, on, against, or affecting a mass transportation provider engaged in or affecting interstate or foreign commerce, or if in the course of committing such act, that person travels or communicates across a State line in order to commit such act, or transports materials across a State line in aid of the commission of such act. ‘‘(b) AGGRAVATED OFFENSE.—Whoever commits an offense under subsection (a) in a circumstance in which— ‘‘(1) the mass transportation vehicle or ferry was carrying a passenger at the time of the offense; or ‘‘(2) the offense has resulted in the death of any person, shall be guilty of an aggravated form of the offense and shall be fined under this title or imprisoned for a term of years or for life, or both. ‘‘(c) DEFINITIONS.—In this section— ‘‘(1) the term ‘biological agent’ has the meaning given to that term in section 178(1) of this title; ‘‘(2) the term ‘dangerous weapon’ has the meaning given to that term in section 930 of this title;

50 ‘‘(3) the term ‘destructive device’ has the meaning given to that term in section 921(a)(4) of this title; ‘‘(4) the term ‘destructive substance’ has the meaning given to that term in section 31 of this title; ‘‘(5) the term ‘mass transportation’ has the meaning given to that term in section 5302(a)(7) of title 49, United States and sightseeing transportation; ‘‘(6) the term ‘serious bodily injury’ has the meaning given to that term in section 1365 of this title; ‘‘(7) the term ‘State’ has the meaning given to that term in section 2266 of this title; and ‘‘(8) the term ‘toxin’ has the meaning given to that term in section 178(2) of this title.’’ (f) CONFORMING AMENDMENT.—The analysis of Chapter 97 of Title 18, United States Code, is amended by adding at the end: ‘‘1993. Terrorist attacks and other acts of violence against mass transportation systems.’’ AVIATION AND TRANSPORTATION SECURITY ACT OF 2001 (ATSA), PUB. L. NO 107-71. Section 101(a) added § 114 to Title 49, United States Code. Section 114 provides in relevant part: (d) FUNCTIONS.—The Under Secretary shall be responsible for security in all modes of transportation, including— (1) carrying out Chapter 449, relating to civil aviation security, and related research and development activities; and (2) security responsibilities over other modes of transportation that are exercised by the Department of Transportation. (f) ADDITIONAL DUTIES AND POWERS.—In addition to carrying out the functions specified in subsections (d) and (e), the Under Secretary shall— (1) receive, assess, and distribute intelligence information related to transportation security; (2) assess threats to transportation; (3) develop policies, strategies, and plans for dealing with threats to transportation security; (4) make other plans related to transportation security, including coordinating countermeasures with appropriate departments, agencies, and instrumentalities of the United States Government; (5) serve as the primary liaison for transportation security to the intelligence and law enforcement communities; (6) on a day-to-day basis, manage and provide operational guidance to the field security resources of the Administration, including Federal Security Managers as provided by Section 44933; (7) enforce security-related regulations and requirements; (8) identify and undertake research and development activities necessary to enhance transportation security; (9) inspect, maintain, and test security facilities, equipment, and systems; (10) ensure the adequacy of security measures for the transportation of cargo; (11) oversee the implementation, and ensure the adequacy, of security measures at airports and other transportation facilities; (12) require background checks for airport security screening personnel, individuals with access to secure areas of airports, and other transportation security personnel; (13) work in conjunction with the Administrator of the Federal Aviation Administration with respect to any actions or activities that may affect aviation safety or air carrier operations; (14) work with the International Civil Aviation Organization and appropriate aeronautic authorities of foreign governments under Section 44907 to address security concerns on passenger flights by foreign air carriers in foreign air transportation; and (15) carry out such other duties, and exercise such other powers, relating to transportation security as the Under Secretary considers appropriate, to the extent authorized by law. (l) REGULATIONS.— (1) IN GENERAL.—The Under Secretary is authorized to issue, rescind, and revise such regulations as are necessary to carry out the functions of the Administration.

51 HOMELAND SECURITY ACT OF 2002 (HSA), PUB. L. 107–296, NOVEMBER 25, 2002. SECTION 402. RESPONSIBILITIES. The Secretary, acting through the Under Secretary for Border and Transportation Security, shall be responsible for the following: (1) Preventing the entry of terrorists and the instruments of terrorism into the United States. (2) Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferred to the Department at ports of entry. (3) Carrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the date on which the transfer of functions specified under Section 441 takes effect. (4) Establishing and administering rules, in accordance with Section 428, governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States. (5) Establishing national immigration enforcement policies and priorities. (6) Except as provided in subtitle C, administering the customs laws of the United States. (7) Conducting the inspection and related administrative functions of the Department of Agriculture transferred to the Secretary of Homeland Security under Section 421. (8) In carrying out the foregoing responsibilities, ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce. SECTION 403. FUNCTIONS TRANSFERRED. In accordance with Title XV (relating to transition provisions), there shall be transferred to the Secretary the functions, personnel, assets, and liabilities of— (1) the United States Customs Service of the Department of the Treasury, including the functions of the Secretary of the Treasury relating thereto; (2) the Transportation Security Administration of the Department of Transportation, including the functions of the Secretary of Transportation, and of the Under Secretary of Transportation for Security, relating thereto; (3) the Federal Protective Service of the General Services Administration, including the functions of the Administrator of General Services relating thereto; (4) the Federal Law Enforcement Training Center of the Department of the Treasury; and (5) the Office for Domestic Preparedness of the Office of Justice Programs, including the functions of the Attorney General relating thereto. SECTION 423. FUNCTIONS OF TRANSPORTATION SECURITY ADMINISTRATION. (a) CONSULTATION WITH FEDERAL AVIATION ADMINISTRATION.— The Secretary and other officials in the Department shall consult with the Administrator of the Federal Aviation Administration before taking any action that might affect aviation safety, air carrier operations, aircraft airworthiness, or the use of airspace. The Secretary shall establish a liaison office within the Department for the purpose of consulting with the Administrator of the Federal Aviation Administration. (b) REPORT TO CONGRESS.—Not later than 60 days after the date of enactment of this Act, the Secretary of Transportation shall transmit to Congress a report containing a plan for complying with the requirements of Section 44901(d) of Title 49, United States Code, as amended by Section 425 of this Act. (c) LIMITATIONS ON STATUTORY CONSTRUCTION.— (1) GRANT OF AUTHORITY.—Nothing in this Act may be construed to vest in the Secretary or any other official in the Department any authority over transportation security that is not vested in the Under Secretary of Transportation for Security, or in the Secretary of Transportation under Chapter 449 of Title 49, United States Code, on the day before the date of enactment of this Act. (2) OBLIGATION OF AIP FUNDS.—Nothing in this Act may be construed to authorize the Secretary or any other official in the Department to obligate amounts made available under Section 48103 of Title 49, United States Code.

52 SECTION 1710. RAILROAD SAFETY TO INCLUDE RAILROAD SECURITY. (a) INVESTIGATION AND SURVEILLANCE ACTIVITIES.—Section 20105 of title 49, United States Code, is amended— (1) by striking “Secretary of Transportation” in the first sentence of subsection (a) and inserting “Secretary concerned”; (2) by striking “Secretary” each place it appears (except the first sentence of subsection (a)) and inserting ‘‘Secretary concerned’’; (3) by striking “Secretary’s duties under chapters 203–213 of this title” in subsection (d) and inserting “duties under chapters 203–213 of this title (in the case of the Secretary of Transportation) and duties under section 114 of this title (in the case of the Secretary of Homeland Security)”; (4) by striking “chapter” in subsection (f) and inserting “chapter (in the case of the Secretary of Transportation) and duties under section 114 of this title (in the case of the Secretary of Homeland Security)”; and (5) by adding at the end the following new subsection: “(g) DEFINITIONS.—In this section— “(1) the term ‘safety’ includes security; and “(2) the term ‘Secretary concerned’ means— “(A) the Secretary of Transportation, with respect to railroad safety matters concerning such Secretary under laws administered by that Secretary; and “(B) the Secretary of Homeland Security, with respect to railroad safety matters concerning such Secretary under laws administered by that Secretary.” II. PROPOSED TRANSIT-ORIENTED LEGISLATION: 109TH CONGRESS (AS OF MARCH 2005) • H.R. 3, the Transportation Equity Act: A Legacy for Users • Section 3026 requires that project management plans for major capital projects address both safety and security management. Section 3027 authorizes FTA to assist grantees in matters of security and investigate security risks, even without notice of specific security breaches. • H.R. 153, Rail and Public Transportation Security Act of 2005 • Directs the Secretary of Homeland Security to award research, development, and demonstration grants to reduce and deter terrorist threats against public transportation systems. • Authorizes the Under Secretary to make operating grants and capital grants for mass transportation system security improvements. • H.R. 1109, Rail Transit Security and Safety Act of 2005 • Directs the DHS Secretary to award grants directly to public transportation agencies for allowable capital and operational security improvements. • H.R. 1116, Public Transportation Systems Vulnerability Assessment and Reduction Act of 2005 • Directs the Secretary of Homeland Security to carry out activities to assess and reduce the vulnerabilities of public transportation systems. III. Proposed Legislation: 108th Congress • H.R. 3550, the Transportation Equity Act: A Legacy for Users • Section 3026 would have required that project management plans for major capital projects address both safety and security management. Section 3027 would have authorized FTA to assist grantees in matters of security and investigate security risks, even without notice of specific security breaches. • H.R. 5082, Public Transportation Terrorism Prevention and Response Act of 2004 • This bill would have provided funding for grants to improve transit security and required DOT and DHS to enter into a memorandum of understanding (MOU) concerning public transportation security roles; does not appear to provide specific authority for searches. • S. 1072, Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2004 • Section 3025 would have required that project management plans for major capital projects address both safety and security management. Section 3027 would have authorized FTA to assist

53 grantees in matters of security and investigate security risks, even without notice of specific security breaches, and would have required DHS and DOT to enter into an MOU defining and clarifying the respective roles and responsibilities of the two departments concerning public transportation security. Section 3029 would have authorized DHS/TSA to promulgate rules prohibiting disclosure of sensitive security information that could prove detrimental to the safety of transportation facilities, infrastructure, and personnel. • S. 2453, Public Transportation Terrorism Prevention Act of 2004 • This bill would have created a grant program within DHS based on risks and vulnerabilities identified within transit systems across the country, and required DHS to develop strategies for alleviating those risks and to create a framework for coordination amongst governmental agencies. • H.R. 4008, Anti-Terrorism Protection of Mass Transportation and Railroad Carriers Act of 2004 • This bill would have amended Title 18 of the United States Code to include terrorist attacks on mass transportation systems among the criminal offenses therein. • H.R. 4143, Railroad Carriers and Mass Transportation Protection Act of 2004 • This bill would have amended Title 18 of the United States Code to include terrorist attacks on mass transportation systems among the criminal offenses therein. • H.R. 4361, Safe Transit and Rail Awareness and Investments for National Security Act of 2004 • This bill would have provided for DHS grants to transit agencies for capital investments in security infrastructure and operating assistance for security, required an MOU between DHS and DOT, and authorized $1.2 billion in federal funding in FY05, $900 million in federal funding in FY06, and $700 million in federal funding in FY07. • S. 2216, Rail Transportation Security Act • This bill would have provided increased rail transportation security by requiring risk assessments; creating a capital grant program in DHS to meet needs identified by the risk assessments; and authorizing DOT to award $677 million in FY05 to upgrade the six Amtrak tunnels in New York City, $57 million in FY05 to upgrade the Amtrak tunnel in Baltimore, and $40 million in FY05 to upgrade the Amtrak tunnels in Washington, D.C. • S. 2273, Rail Security Act of 2004 • This bill would have provided increased rail transportation security by requiring risk assessments; creating a capital grant program in DHS to meet needs identified by the risk assessments; authorizing DOT to award $677 million in FY05 to upgrade the six Amtrak tunnels in New York City, $57 million in FY05 to upgrade the Amtrak tunnel in Baltimore, and $40 million in FY05 to upgrade the Amtrak tunnels in Washington, D.C.; and requiring system-wide security upgrades for Amtrak and freight railroads. • S. 2289, Railroad Carriers and Mass Transportation Protection Act of 2004 • This bill would have amended Title 18, United States Code, to combat terrorism against railroad carriers and mass transportation systems on land, on water, or through the air, and for other purposes, including adding terrorist attacks on mass transportation systems among the criminal offenses therein.