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At the moment, a policy of random searches of people’s bags, backpacks and other possible repositories of bombs on the New York City subway system has not elicited widespread criticism-except predictably by the New York Civil Liberties Union. Of course, we have learned of the occasional abuse-the cop who was sent for retraining for checking IDs, for instance. But unless careful training and supervision occur, there will be other abuses, not necessarily because of malice or racism, but because of what might be called the phenomenon of “control by cop.” This is a combination of an almost reflexive need to secure any environment that may be troublesome or dangerous and an insatiable curiosity about individuals with whom police are dealing (check out almost any episode of Law & Order). The police simply loathe giving up control over anyone they deem suspicious. This inclination is present in any random-search scenario, where, by definition, police control the encounter, both physically and legally. Initial control is the key issue in the law of search and seizure, since it permits a high level of intrusive police conduct thereafter. Acknowledging this, the U.S. Supreme Court has required “reasonable suspicion” to justify “stops” of individuals or autos-and the term means something more than a hunch. On the other hand, the court has also suggested that a particular activity may not be a “stop” at all under the Fourth Amendment, but merely a “consensual encounter” in which a person (who may feel he is “stopped”) is theoretically “free to leave.” The dividing line is often hazy and often litigated, and, amazingly, police attempts to blur it often succeed. Although this issue is not present in random searches, since all concede that such a “search” is never casual and consensual, it is important to understand that any authority to search provides a tempting opportunity for expanding “control by cop,” and, unless carefully monitored, for police abuse. Take a recent Illinois case where an officer encountered someone walking alone at night, asked him for ID, obtained it and discovered that he was who he said he was. There was no suspicion at all that a crime was being committed or about to be committed. End of encounter-right? Not quite, since the officer retained the ID and ran his customary warrant check. Lo and behold, a warrant was, in fact, outstanding. In suppressing the arrest and inevitable search, the decision rejected the rationale that the defendant was free to request return of his ID or just to leave. Note that this is the same situation that occurred in New York in the case of the overzealous cop. How much discretion? Even assuming there are no other issues about the random searches, what happens when drugs or weapons are discovered during the rummaging? Much may depend on whether a lot of rummaging occurs, or whether a cursory “toss” reveals contraband in plain view. How much discretion will the individual searcher have? Lots of tossing may be expected-since explosives may be small, easily hidden and readily concealable (just like drugs?). Will opening of opaque bottles and jars or even more intrusive searches be countenanced? How “plain” will “plain view” be? The answer depends on the legal justification for the activity. The major justification is what the courts have called the “administrative search” rationale. But even administrative searches must be reasonable to remain constitutional. One case has held that “[l]awful airline security searches of carry-on luggage may not be enlarged or tailored systematically to detect contraband (e.g., narcotics) unrelated to airline security.” U.S. v. Doe, 61 F.3d 107, 110 (1st Cir. 1995). Another, U.S. v. Bulacan, interpreted a federal regulation authorizing inspections of visitors to federal buildings to permit only explosives and weapons searches, not searches for drugs or alcohol, since the parameters of the search policy granted too great discretion to individual officers. These decisions went far beyond concerns about profiling and requiring a “plan” to “rationalize” the intrusion. The notion that natural police inquisitiveness can be channeled is quaint. My more than 20-year experience analyzing Fourth Amendment cases has led me to the conclusion that police officers simply love to search and to invent (or embellish) justifications. Indeed, a primary responsibility of police departments will be to train police in the complexities of Fourth Amendment law in this area, especially now that large numbers of people will be subject to increasing levels of police control. Plus, there is the always tempting prospect of using that control to discover not the rare bomb, but the much more frequent illegal drug. It may be argued that people should not carry drugs when they know they are likely to be searched, but, of course, this is the reverse of what the Fourth Amendment requires-or should require-that searches of free people must be justified by the law. We should not assume that people waive their rights by attempting to use public transportation. If we do, then, the next step would be to permit random street searches on a “who knows what will turn up” theory. Only police management and judicial oversight can prevent a random search program from becoming the fulcrum of a police state. Isidore Silver is a retired professor of constitutional law and history at the City University of New York.

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