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The U.S. Court of Appeals for the Second Circuit continues to recognize special needs exceptions to the Fourth Amendment warrant requirement in the context of random searches to deter terrorist attacks. In its latest decision on the issue, the circuit has ruled that searches of bags and car trunks of randomly selected passengers on commuter ferries on Lake Champlain are constitutional. The decision in Cassidy v. Chertoff, 05-1835, comes on the heels of the court’s August ruling upholding random searches of bags and containers on New York City’s subway system. The decision will be published Wednesday. In Cassidy, Judge Sonia Sotomayor said the challenge to the searches on Lake Champlain fell within what the U.S. Supreme Court has called the “closely guarded category of constitutionally permissible suspicionless searches.” The searches, first ruled constitutional by Judge J. Garvan Murtha of the U.S. District Court for the District of Vermont, were conducted pursuant to the Maritime Transportation Security Act of 2002, 46 U.S.C. ��70101-70119. Judge Sotomayor traced the arc of special needs doctrine through Supreme Court and Second Circuit case law, noting that warrantless, suspicionless searches have been allowed for highway checkpoint stops erected during an investigation of a hit-and-run accident, highway checkpoint stops to deter drunken drivers, searches of airline passengers’ carry-on luggage, random drug testing of interscholastic sports athletes and, finally, the searches on the New York subways in MacWade v. Kelly, 460 F.3d 260 ( NYLJ, Aug. 14, 2006). Cassidy plaintiffs had claimed an “undiminished expectation of privacy” when they hopped aboard ferries for their daily commute. They argued that the searches conducted by the Lake Champlain Transportation Company on its loading docks were different from international borders and drunken-driving stops, where there is a diminished expectation of privacy. Judges Sotomayor, Ralph Winter and Rosemary Pooler agreed. The court also assumed, without deciding the issue, that plaintiffs have a full expectation of privacy in their automobile trunks. But the privacy interest is only one factor to be weighed, the court said. Another factor is whether the searches are “minimally or substantially intrusive,” a test that requires examination of the duration of the search, the manner in which government officials determine who to search, the notice given and whether people know they have an opportunity to avoid the search and leave the premises – and the methods employed in the search. ‘Minimally Intrusive’ “On the basis of these factors, it is clear that the searches in this case are, by any measure, minimally intrusive,” Judge Sotomayor said. She noted that the searches are cursory, limited to brief visual inspection of carry-on bags and car trunks, and ample notice is given to passengers. “What matters in this case is not whether the defendants could have satisfied the requirements of the [Maritime Transportation Security Act] by devising a less intrusive means of searching passengers, but whether the means they chose unconstitutionally trenched on plaintiffs’ privacy interests in an unreasonable way,” Judge Sotomayor said. “As our decision today makes clear, we cannot say, after having balanced the ‘special needs’ factors, that plaintiffs’ Fourth Amendment rights have been violated.” She then addressed what she called the plaintiffs’ “slippery-slope argument” and the requirements and concerns addressed by Congress in the act. The plaintiffs, she said, had argued that the threat of terrorism is “omnipresent” and, therefore, “there is no clear limit to the government power to conduct suspicionless searches.” “This is a legitimate concern,” she said. “However, it is not a concern implicated by the facts of this case, where the government has imposed security requirements only on the nation’s largest ferries after making extensive findings about the risk these vessels present in relation to terrorism and, as noted, the scope of the searches is rather limited.” Despite the plaintiffs’ argument to the contrary, she said, neither the U.S. Supreme Court nor the Second Circuit has ever held that the special needs exception requires that special needs searches target “well-defined groups.” Second, she said that the government has shown a special need: “Preventing or deterring large-scale terrorist attacks present problems that are distinct from standard law enforcement needs and indeed go well beyond them.” While Lake Champlain ferries are “less obvious” targets than ferries in New York City, she said, the airline cases “make it clear” that the government “need not show that every airport or ferry terminal is threatened by terrorism in order to implement a nationwide security policy that includes suspicionless searches.” Finally, Judge Sotomayor said, the government’s determination that the larger ferries are potential “high-risk” targets is entitled to deference. The court ended by concluding that the government’s determination that the random searches were effective in deterring a terrorist attack “weighed heavily” in its favor. William A. Nelson, cooperating attorney, American Civil Liberties Union in Middlebury, Vt., represented the plaintiffs. The government was represented by Douglas N. Letter of the Department of Justice, Assistant Attorney General Peter D. Keisler, Michael Brow of Sylvester & Maley in Burlington, Vt., David Kirby, U.S. attorney for the District of Vermont, and Assistant U.S. Attorney Carol L. Shea. - Mark Hamblett can be reached at [email protected].

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