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Random searches of passengers’ bags and other containers at subway stations by the New York City Police Department has been upheld as an effective, but minimally intrusive, way of deterring terrorists, a federal appeals court has ruled. The Second Circuit U.S. Court of Appeals said Friday the searches are constitutional under the special needs exception to the Fourth Amendment, which ordinarily requires that searches be justified by individualized suspicion of criminal wrongdoing. The decision in MacWade v. Kelly, 05-6754-cv, was a blow to the New York Civil Liberties Union, which had been rebuffed in its bid to stop the program by Southern District Judge Richard Berman. The Second Circuit panel of Judges Chester Straub and Jon Newman, and Southern District Judge Charles Brieant, sitting by designation, agreed with Judge Berman that the search program serves a special law enforcement need and “on balance, is reasonable.” Judge Straub wrote the opinion. The NYCLU had argued on appeal that the special needs doctrine only applies where people have a diminished expectation of privacy and contended that subway riders have a full expectation that the contents of their bags will be kept private. It also claimed that Judge Berman erred in applying a balancing test that ended with his conclusion that the searches were reasonable. The appeals court said that New York’s subway system is an “icon of the city’s culture and history, an engine of its colossal economy, a subterranean repository of its art and music, and, most often, the place where millions of diverse New Yorkers and visitors stand elbow to elbow as they traverse the metropolis.” It noted that New York’s subway system, the nation’s largest, includes 26 interconnected train lines and 468 far-flung passenger stations, carrying 4.7 million passengers on an average weekday and 1.4 billion a year. Under the circumstances, said Judge Straub, it is “unsurprising and undisputed that terrorists view it as a prime target.” The police started inspecting bags on July 21, 2005 � two weeks after terrorists killed 56 people and wounded 700 more on the London Underground. They established “checkpoints” manned by officers outside of subway turnstiles. The searches are voluntary, and riders who do not want their bags searched have the option of walking away and leaving the subway. Experts who testified for the city during the bench trial before Judge Berman claimed the program acted as an effective deterrent because it introduced an element of uncertainty into terrorists’ planning. On the appeal, Judge Straub rejected the plaintiffs’ interpretation of the special needs exception. “While it is true that in most special needs cases the relevant privacy interest is somewhat ‘limited’ . . . the [U.S.] Supreme Court has never implied � much less actually held � that a reduced privacy expectation is a sine qua non of special needs analysis,” he said. The Second Circuit, he said, has long held the view that “the nature of the relevant privacy interest must not be treated in isolation or accorded dispositive weight, but rather must be balanced against other fact-specific considerations.” To be clear, he said the court was now “expressly” holding that the subject of a search under the special needs doctrine is not required to have a reduced privacy interest. The court found the program served a special need, because it is “designed and implemented to seek out concealed explosives in order to safeguard a means of mass transportation from terrorist attack.” The court then employed the balancing test in determining that the searches were constitutional. It stated that the government’s interest was “immediate and substantial” in light of previous plots to bomb the New York City subway system and recent bombings in London, Madrid and Moscow. And while subway riders have a full expectation of privacy for their bags, the court found the searches to be “minimally intrusive,” and the program to be “reasonably effective.” Narrow tailoring The NYCLU had aggressively challenged the effectiveness of the program. They said there are too few checkpoints, the city’s experts cannot quantify the program’s deterrent effect and it is fatally flawed because riders are free to decline searches and walk away. On this last point, Judge Straub said that “we have always viewed notice and opportunity to decline as beneficial aspects of a suspicionless search regime.” But under the NYCLU argument, he said, “Striking a search program as ineffective on account of its narrow tailoring would create a most perverse result: Those programs ‘more pervasive and more invasive of privacy’ more likely would satisfy the Fourth Amendment.” Judge Straub said that the record “establishes that terrorists prize predictability.” “An unexpected change of plans might well stymie the attack, disrupt the synchronicity of multiple bombings, or at least reduce casualties by forcing the terrorists to detonate in a less populated location,” he said. Christopher Dunn of the NYCLU said the organization is considering further appeals. “It is troubling that the opinion fails to scrutinize the effectiveness of the program which has resulted in police searches of hundreds of thousands of innocent New Yorkers and which even the city’s own experts admitted leaves the subway system wide open to terrorist attack,” Dunn said. “Because this program authorizes police searches of all subway riders without any suspicion of wrongdoing, we continue to believe it raises fundamental constitutional questions and we are considering further appeals.” But Scott Shorr, senior counsel at the Corporation Counsel’s office, said “common sense prevailed again” in the Second Circuit as it did in the district court. “The city’s experts all agreed that the random inspection program is a good way to prevent and deter attempted terrorist attacks on the subway system,” he said. “The district court credited those opinions and the Second Circuit saw no reason to disagree.”

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