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Policing and Public Transportation (2022)

Chapter: D. The Special Needs Doctrine

« Previous: C. The Attenuation Doctrine
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Suggested Citation:"D. The Special Needs Doctrine." National Academies of Sciences, Engineering, and Medicine. 2022. Policing and Public Transportation. Washington, DC: The National Academies Press. doi: 10.17226/26652.
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Suggested Citation:"D. The Special Needs Doctrine." National Academies of Sciences, Engineering, and Medicine. 2022. Policing and Public Transportation. Washington, DC: The National Academies Press. doi: 10.17226/26652.
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20 TCRP LRD 58 The court further held that “[in] the absence of evidence showing that the officers’ decision to conduct the second search was untainted by what they saw during the initial unlawful entry, . . . the Government [has] not met its burden of showing that the discovery of the suspicionless search condition was a sufficient intervening circumstance.”228 The attenuation doctrine, an ex- ception to the exclusionary rule, does not apply “when informa- tion learned through an unlawful search ‘tends to significantly direct the investigation to the evidence in question.’”229 The court distinguished the attenuation doctrine from the independent source doctrine. Pursuant to the independent source doctrine, a trial court may admit evidence obtained in an unlawful search when officers independently acquired the evi- dence from a separate, independent source. In Garcia, however, the evidence was “not ‘separately discovered through an inde- pendent source’” but rather was “found only as a direct result of an earlier constitutional violation.”230 As for the other two factors—the flagrancy of the officers’ violation of the Fourth Amendment (entering Garcia’s home without probable cause231) and the temporal proximity (the pas- sage of “only minutes” between the initial Fourth Amendment violation and the discovery of the order for Garcia’s supervised release with a suspicionless search condition232)—both factors favored the suppression of the evidence. The court vacated Garcia’s conviction and remanded the case with instructions to suppress the evidence, including the statements that Garcia made at the police station following his arrest. Finally, in United States v. Walker,233 supra, police officers had stopped Walker based on a photograph “that provided little meaningful identifying information to the police” other than the race of the suspect.234 Walker challenged the denial of his motion to suppress statements that he made and the evidence of narcotics the officers discovered during their search of Walker incident to his arrest.235 The Second Circuit held that the “taint of illegality” of the stop “was not purged by the officers’ subsequent discovery of an unrelated arrest warrant” for Walker.236 The exclusionary rule applied, because the attenuation doctrine, as an exception to the exclusionary rule, did not apply. “[T]he explanation for stopping Walker [was] ‘woefully short’ of what the Fourth Amendment requires,”237 and “any suspicion that Walker was the individual in the photograph was dispelled when [Officer] Montanino ap- proached Walker and could confirm that he was not the photo- graphed suspect.”238 228 Id. at 1079. 229 Id. (citation omitted). 230 Id. at 1080 (citations omitted) (emphasis supplied). 231 Id. 232 Id. at 1082. 233 965 F.3d 180 (2d Cir. 2020). 234 Id. at 183. 235 Id. 236 Id. 237 Id. at 188 (citation omitted). 238 Id. The search of Walker that led to the discovery of narcotics and to Walker’s statements were “insufficiently attenuated from the unconstitutional stop.”239 Because the exclusionary rule applied, the remedy was to suppress the evidence of Walker’s statements and the narcotics, because both were the “fruit of an unconstitutional search.”240 D. The Special Needs Doctrine A warrantless, suspicionless, search may be valid when the search is justified by a special need. However, as a federal dis- trict court in Colorado explained, “[t]he special needs doctrine is not an exception to Fourth Amendment protections; rather, it is an exception to the warrant requirement under the Fourth Amendment.”241 To overcome the government’s argument that a search satisfies the special needs doctrine, the plaintiff has to demonstrate that the search in question “was unreasonable regardless of the absence of a warrant, consent, and/or exigent circumstances.”242 As discussed in the next three subsections, special needs cases “appear to share” at least three features:243 (1) an exercise of governmental authority distinct from that of mere law enforcement—such as the authority [of an] employer, the in loco parentis authority of school officials, or the post- incarceration authority of probation officers; (2) lack of individualized suspicion of wrongdoing and con- comitant lack of individualized stigma based on such suspicion; and (3) an interest in preventing future harm, generally involv- ing the health or safety of the person being searched or of other persons directly touched by that person’s conduct, rather than deterrence or punishment for past wrongdoing.244 1. The Exercise of Governmental Authority that Is Distinct from Mere Law Enforcement The case of Lynch v. City of New York245 appears to come within the first category of special needs cases—an exercise of governmental authority that is distinct from mere law en- forcement. In Lynch, union representatives of police officers employed by the NYPD challenged a departmental policy that required a breathalyzer test to be administered to any NYPD officer who caused injury or death as a result of firing his or her 239 Id. at 183. 240 Id. at 190. 241 Doe v. Woodward, 2016 U.S. Dist. LEXIS 197978, at *1, 20 (D. Colo. 2016) (citation omitted) (stating that “[s]earches conducted with- out a warrant are per se unreasonable under the Fourth Amendment— subject only to a few ‘specifically established and well-delineated excep- tions,’” which are “‘beyond the normal need for law enforcement … [that] make the warrant and probable-cause requirement impractica- ble’”) (id. at *15) (citations omitted)). 242 Id. at *27. 243 Id. at *17-18. 244 Id. at *17-18 (citation omitted) (quotation marks omitted) (emphasis supplied). 245 589 F.3d 94 (2d Cir. 2009), cert. denied, 131 S. Ct. 415, 178 L. Ed.2d 344 (2010).

TCRP LRD 58 21 picion that any containers carried explosives. The first issue was whether the government could employ such random searches in an attempt to safeguard mass transportation facilities from a possible terrorist attack.253 The second issue was whether the random container-search program conducted in the New York City subway system “satisfie[d] the special needs exception to the Fourth Amendment’s usual requirement of individualized suspicion.”254 The intent of the program was to protect the subway and the city by deterring “terrorists from carrying concealed ex- plosives onto the subway system and, to a lesser extent, to un- cover any such attempt.”255 Searches were limited to containers large enough to have an explosive device. Anyone intending to ride the subway who declined to be searched was not subject to arrest, but the police could arrest anyone who refused to be searched but later tried to reenter the subway system with an uninspected container.256 The Second Circuit held that the special needs doctrine ap- plies in “‘exceptional circumstances’” when “‘the warrant and probable-cause requirement [is] impracticable….’”257 The “im- mediate purpose” and “threshold requirement” of the special needs doctrine must serve an objective that is “‘distinct from the ordinary evidence gathering associated with [a] crime investigation.’”258 To determine whether a search is reasonable, a court must balance several “competing considerations:”259 (1) the weight and immediacy of the government interest; (2) the nature of the privacy interest allegedly compromised by the search; (3) the character of the intrusion imposed by the search; and (4) the efficacy of the search in advancing the gov- ernment interest.260 After a thorough consideration of the above four factors, the MacWade court upheld the subway container-search program under the special needs exception to the Fourth Amendment. The special needs doctrine “does not require, as a threshold matter, that the subject of the search possess a reduced privacy interest. Instead, once the government establishes a special need, the nature of the privacy interest is a factor to be weighed in the balance.”261 When “a search program is designed and imple- mented to seek out concealed explosives in order to safeguard a means of mass transportation from terrorist attack, it serves a special need.”262 A specific threat to the subway system was not required before invoking the special needs exception to prevent subway passengers from carrying explosives concealed in con- tainers.263 The searches of subway riders were minimally intru- 253 Id. at 263. 254 Id. 255 Id. at 264. 256 Id. at 265. 257 Id. at 268 (citation omitted). 258 Id. at 268-269 (citations omitted). 259 Id. at 269 (citations omitted). 260 Id. (citations omitted) (internal quotation marks omitted). 261 Id. at 270. 262 Id. at 271. 263 Id. at 272. gun. The district court denied the plaintiffs’ motion for a pre- liminary injunction to enjoin the enforcement of the policy on the ground that it violated the Fourth Amendment. The Second Circuit held that the district court properly ap- plied the special needs doctrine. The NYPD program did not vio- late the Fourth Amendment, because the breathalyzer policy had multiple purposes, some of which were unrelated to crime con- trol. The program acted as a deterrent to officers carrying their firearms while under the influence of alcohol, as well as promoted the department’s reputation among New York City residents. The special needs doctrine applied even though one purpose of the policy was “directly related to crime control:” the NYPD “treat[ed] every shooting involving an officer as a potential crime….”246 A program may be reasonable under the special needs doc- trine as long as crime control is not the primary purpose of the program.247 Because crime control was not the primary purpose of the breathalyzer policy, the Second Circuit held that the dis- trict court correctly applied “the special needs doctrine to evalu- ate the policy.”248 The court also held that, inasmuch as the “‘the special need[s]’ asserted by the NYPD outweigh the ‘privacy interest advanced’ by plaintiffs, … the breathalyzer program is reasonable under the Fourth Amendment….”249 2. Lack of Individualized Suspicion of Wrongdoing The case of State v. Carter,250 discussed in Section VI. E. infra, in which the question was the constitutionality of a fare sweep, appears to represent the second category of special needs cases, i.e., cases in which there was a “lack of individualized suspicion of wrongdoing and concomitant lack of individualized stigma based on such suspicion….”251 In Carter, the Maryland Court of Appeals held that the type of fare sweep of all passengers that was conducted in that case was unconstitutional as the search was not based on an individualized suspicion of wrongdoing. The search could not be upheld either on the basis of the attenu- ation doctrine or the special needs doctrine. 3. An Interest in Preventing Future Harm to the Health or Safety of the Person Being Searched or the Safety of other Persons The case of MacWade v. Kelly252 illustrates the third category of special needs cases. In MacWade, subway riders brought a § 1983 action to enjoin, as a violation of the Fourth Amendment, a New York City program that authorized random searches of containers carried by subway passengers without any prior sus- 246 Id. at 102. 247 Id. 248 Id. 249 Id. at 104 (some internal quotation marks omitted). 250 472 Md. 36, 244 A.3d 1041 (2021). 251 See Doe, 2016 U.S. Dist. LEXIS 197978, at *17 (citation omitted) (quotation marks omitted). 252 460 F.3d 260 (2d Cir. 2006), distinguished by Tangredi v. N.Y. City Dep’t of Envtl. Prot., 2012 U.S. Dist. LEXIS 36788, at *1, 13-14 (S.D. N.Y 2012) and Schiller v. City of New York, 252 F.R.D. 204, 208 (S.D. N.Y. 2008).

Next: E. Whether a Fare Sweep Is Constitutional under the Fourth and Fourteenth Amendments »
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Compliance with transit-equipment and operations guidelines, FTA financing initiatives, private-sector programs, and labor or environmental standards relating to transit operations are some of the legal issues and problems unique to transit agencies.

The TRB Transit Cooperative Research Program's TCRP Legal Research Digest 58: Policing and Public Transportation provides a comprehensive analysis of constitutional issues and summarizes current laws and practices that apply to policing by public transportation agencies.

Supplemental to the Digest is Appendix A: Agreements, Policies, Reports, and Other Documents Provided by Public Transportation Authorities for the Report.

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