Policing and Public Transportation (2022)

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22 TCRP LRD 58 consented to the seizure by traveling on the barrier-free Light Rail system.”272 The court held that “[t]he State bears the burden of proving that ‘consent was in fact voluntarily given.’”273 What was lacking in Carter’s case was any “express prior notice that a person may be subject to a search or seizure.”274 For example, there was “no signage that explicitly warn[ed] passengers [that] they may be subject to a seizure.”275 The State’s assertion was unacceptable “that a reasonable passenger understands [that] a barrier-free transit system requires onboard fare inspection to ensure a sufficient rate of fare payment, and[,] therefore, impliedly gives consent to fare inspection when the passenger boards the train.”276 The court held “that a reasonable Light Rail passenger does not impliedly consent to the type of fare sweep at issue in this case.”277 Although in Meredith the Washington Court of Appeals was aware of the Maryland Court of Appeals’ decision in State v. Carter, the Washington court distinguished the Carter prec- edent.278 For example, in the Meredith case, the court stated that, “unlike Carter, the alleged seizure was reasonable, occurring while the bus was in transit, and nothing suggests passengers were prohibited from exiting at a stop or otherwise detained when not speaking with an officer.”279 The Washington court observed that the Maryland Court of Appeals itself had “identi- fied ‘a significant difference between a team of armed officers seizing an entire train of passengers while the train is stopped at a station, and an individual officer or civilian fare inspector asking passengers to show proof of fare payment while a train is traveling between stations.’”280 2. Whether the Attenuation and Special Need Doctrines Apply when Incriminating Evidence Is Discovered during a Fare Sweep In Carter, the Maryland Court of Appeals considered but rejected the attenuation and special need doctrines when it held that the fare sweep, as it was conducted in that case, was unconstitutional. Carter’s case involved non-payment of fare to ride the Baltimore Light Rail for which there is no turntable to pass through before boarding. At the time of Carter’s arrest, Maryland Transit Administration (MTA) police officers were routinely checking whether passengers, who are required to pay the fare, had paid their fare. One method of verification was a fare sweep. After the arrival of a train at a station, MTA of- ficers would “simultaneously board each car of the stationary 272 Id., 472 Md. at 58, 244 A.3d at 1053. 273 Id. (citations omitted) (some internal quotation marks omitted). 274 Id., 472 Md. at 59, 244 A.3d at 1054. 275 Id., 472 Md. at 61, 244 A.3d at 1055 (footnote omitted). 276 Id., 472 Md. at 62, 244 A.3d at 1055. 277 Id., 472 Md. at 63, 244 A.3d at 1056 (footnote omitted) (empha- sis supplied). 278 Meredith, 492 P.3d at 205 (footnote omitted). 279 Id. at 206. 280 Id. at 205 (footnote omitted). sive and, based on expert testimony, which the district court had credited, the program was reasonably effective in deterring terrorist threats to the subway system.264 E. Whether a Fare Sweep Is Constitutional under the Fourth and Fourteenth Amendments 1. Whether a Passenger Consents to a Seizure for the Purpose of a Fare Sweep Decisions by two courts in 2021, respectively, in the states of Maryland and Washington, respectively, reached different conclusions on the constitutionality of a fare sweep as had been conducted in those cases. In State v Meredith,265 the Washington Court of Appeals held that, when the defendant boarded a bus, he consented to a fare sweep to verify payment of the fare. Meredith was arrested after two officers from the Snohomish County Sheriff ’s Office boarded a bus to conduct fare enforcement. The method used by the officers was to “board a bus at a stop and then ask indi- vidual passengers for proof of payment while the bus was driv- ing from one stop to the next. A ‘chase vehicle’ would follow the bus to help with identifying and processing anyone ordered off the bus for nonpayment.”266 When questioned, Meredith gave one officer (Dalton) a false name. After determining Meredith’s real name, the officers found that Meredith was subject to two outstanding felony warrants. Although Meredith argued on appeal that Officer Dalton violated the Fourth Amendment and the Washington Constitu- tion, art. 1, section 7, “by effectuating an unauthorized, warrant- less seizure when he requested proof of payment or an ORCA card,” the court held that Meredith consented to the search when he boarded the bus.267 First, a “contractual relationship forms between the opera- tor of a bus and a person choosing to ride it ‘when a person, intending to become a passenger and pay his fare when de- manded, having the means to do so, is permitted to board the coach.’”268 Second, “a reasonable passenger knows that only those authorized by the carrier, such as bus personnel and pay- ing ticket holders, are permitted on board.”269 Finally, “RCW 81.112.220(1) creates duties for passengers. It states that passen- gers on a Swift bus ‘shall pay the fare established’ and ‘shall pro- duce proof of payment when requested by a person designated to monitor fare payment.’”270 In contrast, in State v. Carter,271 supra, the Maryland Court of Appeals rejected the State’s argument that Carter “impliedly 264 Id. at 273-274. 265 492 P.3d 198, 200 (Wash. Ct. App. 2021), review granted, 2021 Wash. LEXIS 734, at *1 (Wash., Dec. 1, 2021). 266 Id. at 200. 267 Id. at 200-201, 205 (footnote omitted). 268 Id. at 204 (footnote omitted). 269 Id. (footnote omitted). 270 Id. (footnote omitted). 271 Carter, 472 Md. 36, 244 A.3d 1041 (Md. Ct. App. 2021).

TCRP LRD 58 23 ality, on the basis of the individual circumstances.’”290 In doing so, a court must balance three factors: (1) the gravity of the pub- lic concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.291 The Maryland Court of Appeals was not persuaded that MTA’s “primary purpose” in directing officers to conduct fare sweeps on Light Rail trains is apparent from the record of the suppression hearing. There was no foundational testimony showing that the officers know, as a matter of MTA policy, what the purpose of a fare sweep is, much less the “primary purpose” of this type of fare inspection. Nor did the officers identify any particular purpose of a fare sweep as MTA’s primary purpose[] or testify that there are no other purposes of a fare sweep beyond those defense counsel asked about.292 The court held that the State failed to establish that the spe- cial needs exception applied.293 The court also rejected the State’s argument that the search was constitutional based on the attenuation doctrine, i.e., that “the discovery of the warrant for Carter’s arrest attenuated the taint of the unlawful seizure.”294 As discussed in Section VI. C, supra, if the attenuation doctrine applies, then evidence is admis- sible that the exclusionary rule would have precluded. Whether the attenuation doctrine applies depends on (1) the temporal proximity between the unlawful conduct and the discovery of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. The Maryland Court of Appeals, focusing on the third element, held that the discovery of an outstanding warrant did not “attenuate the taint of an illegal agency program that requires officers to search for open warrants as part of the program.”295 The court concluded by stating that its “holding reinforces for MTA and all other state and local agencies that they should proceed with caution when implementing a program of war- rantless, suspicionless seizures.”296 290 Id. (citation omitted). 291 Id. (citations omitted) (quotation marks omitted). 292 Id., 472 Md. at 79, 244 A.3d at 1066. The Maryland Court of Appeals found that the “differences between a fare sweep conducted by multiple officers and a fare inspection conducted by an individual offi- cer suggest the possibility (but in no way conclusively demonstrate) that a different primary purpose underlies these methods of fare enforce- ment.” Id., 472 Md. at 68-69, 244 A.3d at 1059 (footnote omitted). 293 Id., 472 Md. at 71, 244 A.3d at 1061. The court “conclude[d] that the record is insufficient to determine the primary purpose of a fare sweep. Because we do not know the primary purpose of a fare sweep, we also do not know whether it is necessary to undertake the three-part balancing analysis set forth in Brown v. Texas, 443 U.S. at 51, let alone what the result of that analysis would be. In short, we cannot say one way or the other whether the special needs exception applies….” Id. 294 Id. 295 Id., 472 Md. at 75, 244 A.3d at 1063. 296 Id., 472 Md. at 76, 244 A.3d at 1064. train and announce that all passengers must show their tickets or passes.”281 During one such sweep, Carter told an officer that he did not have a ticket. After the officer obtained identifying informa- tion on Carter, which disclosed the existence of a warrant for Carter’s arrest, the officers discovered, while attempting to arrest Carter on the outstanding warrant, that Carter was carrying a gun. Carter argued that the fare sweep constituted a warrantless seizure that was not based on reasonable suspicion. The Maryland Court of Appeals held that the State failed to establish at a suppression hearing that Carter’s seizure was con- stitutional. The State conceded that Corporal Russell “seized” Carter when announcing the fare sweep, because “during a fare sweep a passenger generally is not free to leave ... without show- ing proof-of-payment.”282 However, at the time of the sweep, the officer did not suspect “that Carter had committed any criminal offense, including fare evasion.”283 The court held that Carter’s seizure violated the Fourth Amendment, unless the fare sweep came within one of the recognized exceptions to the warrant requirement, and, if the fare sweep did not, then Carter’s subse- quent admission that he did not have a ticket “was the fruit of an unlawful detention.”284 Besides arguing unsuccessfully that Carter had consented to the search, the State argued that the fare sweep was “constitu- tional under the ‘special needs’ exception to the Fourth Amend- ment warrant requirement.”285 As discussed in Section VI. D, supra, pursuant to the special needs doctrine, the “courts may uphold the constitutionality of a program of seizures without individualized suspicion, where the program is designed to serve ‘special governmental needs, beyond the normal need for law enforcement,’”286 such as “sobriety checkpoints along state roads….”287 In Carter, the court applied a two-step analysis to determine whether the special needs exception applied. [T]he “primary purpose” served by the program must be an objec- tive other than the governmental body’s “general interest in crime control.” … If the primary purpose of the program is to advance the general interest in crime control – in other words, to “uncover evidence of ordinary criminal wrongdoing” … – then the program is presumptively unconstitutional under the Fourth Amendment.288 “If the State establishes that the program is not ‘a general crime control device,’ … then the analysis proceeds to the sec- ond step.”289 The second step requires an evaluation of the fare sweep program’s “‘reasonableness, [and] hence, its constitution- 281 Carter, 472 Md. at 44, 244 A.3d at 1045. 282 Id., 472 Md. at 57, 244 A.3d at 1053 (internal quotation marks omitted). 283 Id., 472 Md. at 57-58, 244 A.3d at 1053. 284 Id., 472 Md. at 58, 244 A.3d at 1053. 285 Id., 472 Md. at 63, 244 A.3d at 1056. 286 Id. (citation omitted). 287 Id. (citation omitted). 288 Id., 472 Md. at 64, 244 A.3d at 1057 (citations omitted). 289 Id., 472 Md. at 65, 244 A.3d at 1057 (citations omitted).