SUBWAY SEARCHES: WHICH EXCEPTION TO THE WARRANT AND PROBABLE CAUSE REQUIREMENTS APPLIES TO SUSPICIONLESS SEARCHES OF MASS TRANSIT PASSENGERS TO PREVENT TERRORISM?

Fordham Law Review

Volumn 74, Issue 6, 2006, Pages 3231-3295

  Keeley, Charles J ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 33745285976     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (476)

1. Ronald Jay Allen et al., Criminal Procedure: Investigation and Right to Counsel 334 (2005).
2. U.S. Gen. Accounting Office, GAO Reports GAO-05-851, Passenger Rail Security: Enhanced Federal Leadership Needed to Prioritize and Guide Security Efforts 10 (2005), available at http://www.gao.gov/new.items/d05851.pdf [hereinafter Passenger Rail Security].
3. See MacWade v. Kelly, No. 05CIV6921, 2005 WL 3338573, at *1 (S.D.N.Y. Dec. 7, 2005); American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *2 (D. Mass. July 28, 2004).
4. See infra Part I.C.1.
5. See infra notes 332-35 and accompanying text.
6. See infra Part I.C.2.
7. See 5 Wayne R. LaFave, Search and Seizure § 10.6(c), at 291 n.58 (4th ed. 2004).
8. City of Indianapolis v. Edmond, 531 U.S. 32, 37-38 (2000).
9. See infraPart I.D.
10. Mapp v. Ohio, 367 U.S. 643, 650 (1961).
11. U.S. Const. amend. IV.
12. Thomas K. Clancy, The Fourth Amendment's Concept of Reasonableness, 2004 Utah L. Rev. 977, 993.
13. Id.
14. Id. at 999-1000. Professor Telford Taylor has argued that the framers were chiefly concerned with abuses in the issuance of warrants. Therefore, reading the Fourth Amendment to require warrants for all searches and seizures "stood the amendment on its head." Telford Taylor, Two Studies in Constitutional Interpretation 46-47 (1969). A paradoxical consequence of Taylor's interpretation is that the government may avoid the restrictions of the Warrant Clause simply by conducting a warrantless search or seizure. Professor Akhil Reed Amar has attempted to explain this paradox. Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994). During the founding era, officials conducting searches or seizures without a warrant were subject to civil actions for trespass and false arrest. The threat that a civil jury would impose damages for unreasonable conduct sufficiently restrained officials. Authorization by warrant, however, immunized officials from liability. Id. at 774. The framers thus were concerned only with the issuance of warrants, where "central officers on the government payroll in ex parte proceedings would usurp the role of the good old jury in striking the proper balance between government and citizen after hearing lawyers on both sides." Id
15. Thomas Y. Davies, Recovering the OriginalFourth Amendment, 98 Mich. L. Rev. 547 (1999). Davies criticizes both the warrant preference model and Taylor and Amar's interpretations as sharing the flawed assumption that the Fourth Amendment was intended to comprehensively regulate all searches or seizures. He argues that the framers did not intend for the Fourth Amendment to apply to warrantless searches or seizures because officials at that time lacked authority to conduct many warrantless searches and seizures, and it was assumed that warrants would be used. Id. at 551-552. Rather, "unreasonable searches and seizures" referred to those authorized by general, "too-loose" warrants granting officials wide discretion to search houses. Id. at 552. Because warrantless intrusions lay outside the amendment's scope, it is erroneous to subject them to either the warrant requirement or to a mere "reasonableness" requirement. Id. at 560-90. However, Davies notes that the modern practice of vesting officials with broad discretionary authority to act without a warrant marks a departure from the common law that was unanticipated by the framers. Id. at 668, 747-48. He concludes that adapting the Fourth Amendment's authentic meaning to this modern context requires "refocus[ing] attention on the critical question of what a 'right to be secure' should mean." Id. at 750; see also David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures, 56 Fla. L. Rev. 1051, 1083 (2004) ("The most plausible reading of the historical record leads to the following conclusion: The framers intended that the Fourth Amendment would apply only to physical searches of residences, pursuant to a general warrant or no warrant at all.").
16. Davies, supranote 15, at 576-83.
17. Clancy, supranote 12, at 993.
18. See, e.g., Johnson v. United States, 333 U.S. 10, 13-14 (1948) ("The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.... When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.").
19. See, e.g., Camara v. Mun. Court, 387 U.S. 523, 533 (1967) (requiring warrants for building inspections because "the burden of obtaining a warrant is [not] likely to frustrate the governmental purpose behind the search"); Carroll v. United States, 267 U.S. 132, 156 (1925) (permitting a warrantless seizure of an automobile because securing a warrant would not be "reasonably practicable" and seizure would be "impossible except without warrant").
20. Carroll, 267 U.S. at 151.
21. Chimel v. California, 395 U.S. 752, 762-63 (1969).
22. Warden v. Hayden, 387 U.S. 294, 297-98 (1967).
23. United States v. Place, 462 U.S. 696, 706 (1983).
24. This list is not exhaustive. See Elise Bjorkan Clare et al., WarrantlessSearches and Seizures, 84 Geo. L.J. 743, 743 (1996) ("[E]xceptions include investigatory detentions, warrantless arrests, searches incident to a valid arrest, seizure of items in plain view, exigent circumstances, consent searches, vehicle searches, container searches, inventory searches, border searches, searches at sea, administrative searches, and searches in which the special needs of law enforcement make the probable cause requirement impracticable.").
25. Compare Katz v. United States, 389 U.S. 347, 357 (1967) ("[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." (citations omitted)), with Illinois v. McArthur, 531 U.S. 326, 330 (2001) ("[The Fourth Amendment's] 'central requirement' is one of reasonableness. In order to enforce that requirement, this Court has interpreted the Amendment as establishing rules and presumptions designed to control conduct of law enforcement officers that may significantly intrude upon privacy interests. Sometimes those rules require warrants." (citation omitted)).
26. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619 (1989) ("In most criminal cases, we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment.").
27. See Phyllis T.Bookspan, Reworking the WarrantRequirement: Resuscitatingthe FourthAmendment, 44 Vand. L. Rev. 473, 512, 529-30 (1991); Silas J. Wasserstrom, The Court's Turn Towarda GeneralReasonablenessInterpretationof the FourthAmendment, 27 Am. Crim. L. Rev. 119 (1989); see also Groh v. Ramirez, 540 U.S. 551, 571-73 (2004) (Thomas, J., dissenting).
28. Katz, 389 U.S. at 360-62 (Harlan, J., concurring).
29. United States v. Place, 462 U.S. 696, 707 (1983).
30. Bond v. United States, 529 U.S. 334, 338 (2000).
31. Id.
32. Place, 462 U.S. at 706 ("[S]ome brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of a crime."). If probable cause does exist and the luggage is stowed in an automobile, police may search the luggage's contents along with the automobile without a warrant. See California v. Acevedo, 500 U.S. 565 (1991) (allowing a warrantless search of an automobile and all containers within it where there was probable cause that contraband was contained inside).
33. An exception can excuse the warrant requirement while demanding probable cause, can excuse both the warrant and probable cause requirements, or, more rarely, can excuse probable cause while still requiring a warrant. See Craig M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 1473-74 (1985) (listing twenty exceptions and describing which requirements they excuse).
34. Ferguson v. City of Charleston, 532 U.S. 67, 86 (2001); City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) ("A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing."); Chandler v. Miller, 520 U.S. 305, 308 (1997) (noting that the Fourth Amendment's "restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion").
35. See, e.g., Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 175-76 (1949).
36. See Carroll v. United States, 267 U.S. 132, 153-54 (1925).
37. See id. (stating that subjecting highway automobile searches to the warrant requirement would be too impractical because the motorist might drive away before a warrant could be issued).
38. Id. at 149.
39. Id. at 153-54.
40. Id. at 154. The U.S. Supreme Court made an exception for searches at international borders. Id.
41. Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the ReasonablenessofSearchesandSeizures, 25 U. Mem. L. Rev. 483, 485 (1995).
42. Clancy, supranote 12, at 996-97.
43. See id.at 996.
44. Clancy, supra note 42, at 489; see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 670 (1995) (O'Connor, J., dissenting) (stating that the Warrant Clause's requirement of objective probable cause to prevent abuses of general warrants implies the framers' disdain for all suspicionless searches and seizures).
45. See John Hart Ely, Democracy and Distrust 96-97 (1980); Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as ConstitutionalTheory, 77 Geo. L.J. 19, 92-103 (1988) (discussing representation reinforcement theory).
46. Cf Ferguson v. Charleston, 532 U.S. 67, 92 (2001) (Scalia, J., dissenting) ("The Constitution does not resolve all difficult social questions, but leaves the vast majority of them to resolution by debate and the democratic process-which would produce a decision by citizens ... through their elected representatives, to forbid or permit [a particular] police action ... ").
47. Wasserstrom & Seidman, supranote 46, at 92-93.
48. Id.; see also Ely, supranote 46, at 97 ("[T]he Fourth Amendment can be seen as another harbinger of the Equal Protection Clause, concerned with avoiding indefensible inequities in treatment."). But see Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting) (stating that the "greatest dangers" to the liberty protected by the Fourth Amendment "lurk in insidious encroachment by men of zeal, well-meaning but without understanding").
49. Ely, supranote 46, at 172-73.
50. See William J. Stuntz, Implicit Bargains, Government Power, and the Fourth Amendment, 44 Stan. L. Rev 553, 588 (1992) ("The likeliest explanation for giving greater leeway to group stops is that politics provides an adequate remedy for overzealous police action; groups of drivers, unlike the solitary suspect, can protect themselves from overzealous police tactics at the polls.").
51. See California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring) ("For some years... our jurisprudence lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone.... By the late 1960's, the preference for a warrant had won out, at least rhetorically." (citations omitted)); see also Scott E. Sundby, A Return to FourthAmendment Basics: Undoing the Mischiefof Camara andTerry, 72 Minn. L. Rev. 383, 386-87 (1988).
52. 387 U.S. 523 (1967).
53. See Sundby, supranote 52, at 394.
54. SeeFrank v. Maryland, 359 U.S 360 (1959).
55. Camara,387 U.S. at 533.
56. Id. at 538-39.
57. See Griffin v. Wisconsin, 483 U.S. 868, 877 n.4 (1987) ("In the administrative search context, we formally require that administrative warrants be supported by 'probable cause,' because in that context we use that term as referring not to a quantum of evidence, but merely to a requirement of reasonableness. In other contexts, however, we use 'probable cause' to refer to a quantum of evidence for the belief justifying the search, to be distinguished from a lesser quantum such as 'reasonable suspicion."' (citations omitted)).
58. Camara,387 U.S. at 534.
59. Id. at 534-35.
60. Id. at 535.
61. Id. at 537.
62. Id. at 538. Responding to the concern that this standard for probable cause permitted a "synthetic search warrant" that diluted the Fourth Amendment's protections, the Court stated: The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant. Such an approach neither endangers time-honored doctrines applicable to criminal investigations nor makes a nullity of the probable cause requirement in this area. It merely gives full recognition to the competing public and private interests here at stake and, in so doing, best fulfills the historic purpose behind the constitutional right to be free from unreasonable government invasions of privacy.
63. Id.at 539 (internal citations omitted).
64. Id. at 538.
65. 392 U.S. 1 (1968).
66. Id.at 16-19.
67. Id. at 20.
68. Id.; see also United States v. Place, 462 U.S. 696, 704-06 (1983) (holding that reasonable suspicion, a lesser quantum of individualized suspicion than probable cause, suffices to validate a temporary seizure of luggage that is minimally intrusive on privacy interests and justified by a substantial government interest).
69. Terry, 392 U.S. at 21.
70. Id.at 20-21 (citations omitted).
71. See id. at 21.
72. Id.("The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness ofa particular search or seizure in light of the particular circumstances.").
73. Id.at 22.
74. See Wasserstrom, supra note 27, at 127 ("[Terry] paved the way for a more conservative court that assigns greater weight to governmental interests to invoke Terry not only to strike the balance in a way that gives the police enlarged authority to stop and frisk on reasonable suspicion, but also to use a balancing approach to justify even full scale searches and seizures without a warrant, probable cause, or even individualized suspicion, where the governmental need is determined to be especially acute.").
75. Camara v. Mun. Court, 387 U.S. 523, 533, 538-39 (1967). See generally 5 LaFave, supranote 7, § 10.1.
76. Terry, 392 U.S. at 20-21.
77. Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007, 1007-08 (1968).
78. prohibition of the amendment." Boyd, 116 U.S. at 623. However, it is not entirely clear that the Collection Act discussed in Boyd contemplated suspicionless searches. The Act reads as follows: Sec. 23 And Be it FurtherEnacted,That it shall be lawful for the collector, or other officer of the customs, after entry made of any goods, wares or merchandise, on suspicion of fraud, to open and examine, in the presence of two or more reputable merchants, any package or packages thereof.... Sec. 24 And Be it Further Enacted, That every collector, naval officer and surveyor, or other person specially appointed by either of them for that purpose, shall have full power and authority, to enter any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed; and therein to search for, seize, and secure any such goods, wares or merchandise; and if they shall have cause to suspect a concealment thereof, in any particular dwelling-house, store, building, or other place, they or either of them shall, upon application on oath or affirmation to any justice of the peace, be entitled to a warrant to enter such house, store, or other place (in the day time only) and there to search for such goods, and if any shall be found, to seize and secure the same for trial .... Act of July 31, 1789, ch. 5, 1 Stat. 29, 43 (1789) (repealed 1790); see also Vemonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 671 (1995) (O'Connor, J., dissenting) (noting that the Collection Act of 1789 required suspicion before search).
79. Carroll v. United States, 267 U.S. 132, 154 (1925) ("Travelers may be [stopped without probable cause] in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.").
80. Ramsey, 431 U.S. at 616.
81. Carroll, 267 U.S. at 154.
82. United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) ("Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.").
83. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
84. United States v. Drayton, 536 U.S. 194, 201 (2002).
85. Florida v. Rodriguez, 469 U.S. 1 (1984); Florida v. Royer, 460 U.S. 491, 500 (1983).
86. Drayton, 536 U.S. 194; Florida v. Bostick, 501 U.S. 429 (1991).
87. These searches, each of which involved police singling out individuals for search, differ from the general searches of all passengers seeking to use mass transit. See infra Part I.C-D.
88. Drayton, 536 U.S. at 208-09 (Souter, J., dissenting). A seizure occurs when a "reasonable person would [not] feel free to terminate the encounter [with the officers]." Id. at 201 (majority opinion). However, no seizure occurs when a police officer simply approaches an individual and asks questions, requests identification, or requests permission to search the individual. Id. at 200-01. A seizure may be lawful, even if it is based upon a level of suspicion short of probable cause, so long as it is an "investigative detention," it lasts no longer than necessary, and it uses the least intrusive means to confirm or dispel the officer's suspicion. Royer, 460 U.S. at 500.
89. Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973).
90. a
91. Drayton, 536 U.S. at 202; see Simmons, supra note 91, at 781-84. Thus, the test for determining whether a seizure has occurred and whether a search is voluntary "turn[s] on very similar facts." Drayton, 536 U.S. at 206 (internal quotation omitted); Simmons, supra note 91, at 782 ("[l]n practice, the voluntariness test for consent has become so inextricably linked to the objective Fourth Amendment test for seizure that it is unlikely that the subjective elements will ever be reaffirmed by the courts.").
92. Drayton,536 U.S. at 197.
93. Id.at 197-98.
94. Id. at 198.
95. Id.at 198-99.
96. Id. at 199.
97. Id.at 206.
98. Id. at 206-07.
99. Id. at 204.
100. Id. at 207.
101. United States v. Martinez-Fuerte, 428 U.S. 543, 560-61 (1976).
102. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 624 (1989).
103. City of Indianapolis v. Edmond, 531 U.S. 32, 37-38 (2000).
104. 397 U.S. 72 (1970).
105. Id. at 76-77. The Court found that Congress did not exercise this power but instead imposed a fine on licensees who refused to allow entry. Id. at 77. Thus, the Court concluded that the official's forcible entry was unauthorized by Congress without reaching the Fourth Amendment question. Id.; see also 5 LaFave, supranote 7, § 10.2(a), at 41.
106. Colonnade Catering Corp., 397 U.S. at 75. This history of regulation distinguished the case from See v. City of Seattle, 387 U.S. 541, 545 (1967), in which the Court had held that "administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure."
107. ColonnadeCateringCorp., 397 U.S. at 77.
108. United States v. Biswell, 406 U.S. 311,316-17 (1972).
109. Id. at 315,316.
110. Id. at 317.
111. New York v. Burger, 482 U.S. 691, 701 (1987).
112. Id. at 694, 716-17.
113. Id. at 712-13.
114. Marshall v. Barlow's, Inc., 436 U.S. 307, 313-20 (1978)
115. Id. at 320.
116. Id. (quoting Camara v. Mun. Court, 387 U.S. 523, 538 (1967)).
117. See, e.g., Delaware v. Prouse, 440 U.S. 648, 661 (1979).
118. City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000).
119. Brown v. Texas, 443 U.S. 47, 50-51 (1979); see also Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990) (stating that the Brown v. Texas balancing test applies to checkpoint seizures).
120. 428 U.S. 543 (1976).
121. Id.at 562.
122. Id. at 555; see also 5 LaFave, supra note 7, § 10.8(d), at 360 ("The teaching of United States v. Martinez-Fuerte... is that the constitutionality of a roadblock must be determined by application of the Camarabalancing test.").
123. Martinez-Fuerte,428 U.S. at 557.
124. Id. at 565.
125. The Court determined that the stops were necessary to curtail illegal immigration and substantially furthered this government interest. Id. at 556-57. The Court then assessed the intrusion upon a motorist's privacy interest and determined it to be "quite limited." Id. at 557-58. The Court found the checkpoints less intrusive than the suspicionless roving patrol stops that it had previously struck down "because the subjective intrusion-the generating of concern or even fright on the part of lawful travelers-is appreciably less in the case of a checkpoint stop." Id. at 558 (discussing United States v. Brignoni-Ponce, 422 U.S. 873 (1975)). In UnitedStates v. Brignoni-Ponce,the Court struck down suspicionless roving patrol stops near the border because "the nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators." Brignoni-Ponce,422 U.S. at 883. Thus, "a requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference." Id. The Court in Martinez-Fuertefurther found the routine checkpoint stops reasonable because they granted officials in the field minimal discretion, in determining both the location of the checkpoint and which motorists to seize. Martinez-Fuerte,428 U.S. at 559; see also 5 LaFave, supra note 7, § 10.8(d), at 367.
126. See United States v. Ortiz, 422 U.S. 891, 896-97 (1975) (holding that "[a] search, even of an automobile, is a substantial invasion of privacy" and therefore requires probable cause because accepting a lesser quantum of suspicion would grant officials a "degree of discretion... not consistent with the Fourth Amendment").
127. Martinez-Fuerte,428 U.S. at 558.
128. Id. at 561.
129. Delaware v. Prouse, 440 U.S. 648, 659-62 (1979).
130. Id. at 663.
131. Id.at 654-63. The Court recognized that Delaware had a "vital interest" in enforcing state licensing and registration requirements and thereby maintaining highway safety. Id. at 658. Nonetheless, it struck down the state's use of roving patrols to conduct random spot checks of motorists because this practice was not a "sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests." Id. at 659. The Court assumed that, absent data showing otherwise, the police were more likely to detect vehicle regulation violations through the traditional method of enforcement-vehicle stops after police observation of traffic violations-than by "choosing randomly from the entire universe of drivers." Id. Likewise, the Court found it inconceivable that an unlicensed driver, undeterred by the prospect of some incident or accident requiring him to prove his qualification to drive would be deterred by a random spot check. Id. at 660. Therefore the Court concluded that the practice's "incremental contribution to highway safety" was "marginal at best" and did not justify departure from the Fourth Amendment's usual requirement of individualized suspicion. Id. at 659-60. The Court held that roving patrols could only stop motorists to enforce licensing vehicle regulations upon "articulable and reasonable suspicion" that the driver is unlicensed or that the automobile is unregistered. Id at 663.
132. Id. at 663. Justice Blackmun wrote in concurrence to emphasize that the Court's reservation "also includes other not purely random stops (such as every 10th car to pass a given point) that equate with, but are less intrusive than, a 100% roadblock stop." Id at 664 (Blackmun, J., concurring).
133. Id.at 653-54.
134. Id. at 654. The Court stated that "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. Later in the opinion, a footnote added that the warrant clause "generally requires that prior to a search a neutral and detached magistrate ascertain that the requisite standard is met." Id. at 654 n. 11. However the Court excused the roving patrol stops from the warrant requirement by analogizing them to the street encounters in Terry, which required no warrant. Id. at 655-56.
135. Id. at 654-55 (internal quotation omitted).
136. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 454-55 (1990).
137. Id. at 453-54. The Court stated that the inquiry into the degree to which a program furthers the governmental interest is "not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger." Id. at 453. The Court pointed to evidence that 1.6% of motorists stopped were arrested for drunk driving as proof that the program was sufficiently effective and distinguished Prouseon the grounds that no empirical evidence of effectiveness had been offered in that case. Id. at 454-55.
138. Id.at 451.
139. Id.at 451-53.
140. Id. at 455.
141. See City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
142. Id. at 42.
143. Id.at 41-42.
144. Id.at37.
145. Id.at 37-38.
146. 540 U.S. 419 (2004).
147. Id.at422.
148. Id.at 423-24.
149. Id. at 423.
150. Id.at 423-28.
151. City ofIndianapolis v. Edmond 531 U.S. 32, 37 (2000).
152. Tracey Maclin, Is Obtaining an Arrestee's DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 33 J.L. Med. & Ethics 102, 108-09 (2005).
153. 2 the need to search against the invasion
154. T.L.O., 469 U.S. at 337.
155. Id. at 342.
156. Id at 342 n.8.
157. Id. at 352 (Blackmun, J., concurring).
158. O'Connor v. Ortega, 480 U.S. 709, 720 (1987).
159. probable-cause this case, no requirements.").
160. Griffin v. Wisconsin, 483 U.S. 868, 875-76 (1987).
161. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602 (1989).
162. Id. at 619 (citing Delaware v. Prouse, 440 U.S. 648, 654 (1979)).
163. Id.The Court found that the regulation of railroad employees' conduct to prevent drug- and alcohol-related railway accidents constituted a special need. The Court dispensed with the warrant requirement because the standardized nature of the drug tests achieved the warrant's dual purposes of limiting the scope of the intrusion and the discretion of officials; thus a warrant would furnish no additional protection of privacy. Id.at 621-22. Also, requiring judicial pre-authorization would "impede the achievement of the Government's objective" because physical evidence of an employee's impairment might be lost in the time it would take to secure a warrant. Id.at 623-24. The Court also determined that it would be unreasonable to expect the private railroads charged with administering the drug tests to comply with the warrant procedure. Id.
164. Id.at 624.
165. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).
166. id. at 665.
167. id. at 665-66.
168. Id. at 666-67.
169. Id. at 667.
170. Id.at 667-68.
171. Id. at 668.
172. Id.at 667-79.
173. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995).
174. Bd. of Educ. v. Earls, 536 U.S. 822, 837 (2002).
175. See Acton, 515 U.S. at 678-81 (O'Connor, J.,dissenting); 5 LaFave, supra note 7, § 10.1 (c), at 518-20.
176. Acton, 515 U.S. at 663; see alsoEarls,536 U.S. at 837 (questioning "whether testing based on individualized suspicion in fact would be less intrusive" because "[s]uch a regime would place an additional burden on public school teachers who are already tasked with the difficult job of maintaining order and discipline" and "might unfairly target members of unpopular groups").
177. Acton, 515 U.S. at 674 (O'Connor, J., dissenting).
178. Chandler v. Miller, 520 U.S. 305, 309 (1997).
179. Id. at318.
180. Id.at319.
181. Id. at 321-22.
182. Id. at 319-20.
183. Id. at 323.
184. Ferguson v. City of Charleston, 532 U.S. 67 (2001).
185. Id. at 83.
186. Id. As the Court explained, "Because law enforcement involvement always serves some broader social purpose or objective, under respondents' view, virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose." Id.at 84.
187. Maclin, supra note 160, at 115.
188. Id.at 115-116.
189. Id. (quotingFerguson,532 U.S. at 81).
190. Id. at 116-117.
191. Id. at 116.
192. Ferguson,532 U.S. at 84; see Maclin, supranote 160, at 116.
193. Maclin, supranote 160, at 117.
194. Griffin v. Wisconsin, 483 U.S. 868, 873-75 (1987).
195. Ferguson, 532 U.S. at 88 (Kennedy, J., concurring); see also id. at 84 (Stevens, J.) (stating that the policy did not qualify as a special need because of "the extensive involvement of law enforcement officials at every stage of the policy"); Maclin, supra note 160, at 117.
196. Maclin, supranote 160, at 117.
197. Id.at 117-118.
198. Compare City of Indianapolis v. Edmond, 531 U.S. 32, 54 (2000) (Rehnquist, C.J., dissenting) ("[Tihe 'perfectly plain' reason for not incorporating the 'special needs' test in our roadblock seizure cases is that seizures of automobiles 'deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection."' (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976))), with Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987) (describing the government's supervision of a regulated industry as a special need, "like its operation of a school, government office or prison" and allowing departure from the warrant and probable cause requirements).
199. Edmond,531 U.S. at 37-38.
200. Ferguson,532 U.S. at 84.
201. Id. at 83 n.21 ("Accordingly, this case differs from New York v. Burger.... That case involved an industry in which the expectation of privacy in commercial premises was particularly attenuated given the extent to which the industry in question was closely regulated. More important for our purposes, the Court relied on the plain administrative purposes of the scheme to reject the contention that the statute was in fact designed to gather evidence to enable convictions under the penal laws .... This case also differs from the handful of seizure cases in which we have applied a balancing test to determine Fourth Amendment reasonableness. First, those cases involved roadblock seizures, rather than the intrusive search of the body or the home. Second, the Court [has] explicitly distinguished the cases dealing with checkpoints from those dealing with special needs." (citing New York v. Burger, 482 U.S. 691, 701 (1987)); see also Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990) (distinguishing the standard for departing from individualized suspicion in special needs searches from the standard for suspicionless checkpoint seizures).
202. But see Jennifer Y. Buffaloe, Note, "SpecialNeeds " andthe FourthAmendment: An Exception Poised to Swallow the WarrantPreferenceRule, 32 Harv. C.R.-C.L. L. Rev. 529, 536 (1997) (arguing that "[t]he special needs cases differ radically from the administrative inspection cases" because "[w]hile the administrative cases involve essentially limited, nonpersonal investigations, the special needs cases are full-fledged searches aimed at discerning evidence of individual wrongdoing" and "none of the special needs searches presents a situation where a search based on individualized suspicion is unworkable").
203. See, e.g., United States v. Fern, 484 F.2d 666 (7th Cir. 1973); United States v. Doran, 482 F.2d 929 (9th Cir. 1973); United States v. Davis, 482 F.2d 893 (9th Cir. 1973); United States v. Miller, 480 F.2d 1008 (5th Cir. 1973); United States v. Legato, 480 F.2d 408 (5th Cir. 1973); United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973); United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973); United States v. Echols, 477 F.2d 37 (8th Cir.
204. 1973); United States v. Clark, 475 F.2d 240 (2d Cir. 1973); United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972); United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Epperson, 454 F.2d 769 (4th Cir. 1972).
205. See, e.g., Davis, 482 F.2d 893 (characterizing airport screening procedures as an administrative search); Skipwith, 482 F.2d at 1276 ("[T]he standards for initiating a search of a person at the boarding gate should be no more stringent than those applied in border crossing situations.").
206. United States v. Edwards, 498 F.2d. 496 (2d Cir. 1974).
207. 5 LaFave, supra note 7, § 10.6(c), at 291 n.58.
208. United States v. Hartwell, 296 F. Supp. 2d. 596, 602 (E.D. Pa. 2003).
209. On September 11, 1970, President Nixon announced that airlines would be required to employ electronic surveillance equipment at all U.S. airports. See Davis, 482 F.2d at 899 & n.17.
210. by the as
211. Federal Aviation Association ("FAA"). Notices were posted conspicuously around the terminals warning passengers of a potential search of their luggage and persons. All passengers passed through a magnetometer device, but only activation by selectees attracted further investigation. Airline officials would summon a federal marshal to question the selectee. If the selectee failed to furnish adequate identification and pass though the device again without activating it, the federal marshal might frisk the selectee or search his carry-on luggage. See 5 LaFave, supranote 7, § 10.6(a), at 279-80.
212. See Patrick W. McGinley & Stephen F. Downs, Airport Searches and Seizures-A ReasonableApproach, 41 Fordham L. Rev. 293, 306 (1972).
213. A contemporary article described the controversy over airport searches as follows: "Since [the] traditional exceptions to the warrant rule are not applicable to the airport search, the only justifiable exception is the protective 'frisk' for weapons authorized by Terry v. Ohio."Id.at 307.
214. United States v. Bell, 464 F.2d 667 (2d Cir. 1972).
215. Id.at 668.
216. Id. at 668-69.
217. Id. at 669.
218. Id.at 672.
219. Id.at 673.
220. Id. Chief Judge Henry Friendly of the Second Circuit wrote in concurrence to assert that the power to search passengers for weapons extended beyond situations where articulable facts-such as a profile match or activation of the magnetometer screening-give rise to suspicion of the targeted passenger. Id.at 674 (Friendly, C.J., concurring). The Fourth Amendment limits this power only by requiring reasonableness, which is determined simply by the "weighing of the harm against the need." Id. at 675. Chief Judge Friendly noted that probable cause is usually the appropriate standard when a search seeks to discover evidence of a past crime. Terry's lower standard applies when a suspect's behavior leads an officer to reasonably believe that "'criminal activity may be afoot and that the persons whom he is dealing with may be armed and presently dangerous."' Id. (quoting Terry v. Ohio, 392 U.S. 1, 30 (1962)). However, [w]hen the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the tests of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air." Id. While the use of the hijacker profile was a permissible means of minimizing inconvenience, Chief Judge Friendly would "have no difficulty in sustaining a search... based on nothing more than the trained intuition" of officials. Id.This concurrence incited Judge Walter Mansfield to write a concurring opinion in response. He disagreed that the gravity of the threat of air piracy in itself justified searching all passengers, "measured only by the good faith of those conducting the search, regardless of the absence of grounds for suspecting that the passengers searched are potential hijackers." Id. Such a "vague" principle would eliminate the Fourth Amendment's "carefully constructed" and time-tested safeguards-the warrant and probable cause requirements. Id.It would also lack a limiting principle to prevent extension of suspicionless searches to many other contexts (for example, searches of individuals within high crime areas in response to increasing crime rates). Id. at 675-76.
221. United States v. Moore, 483 F.2d 1361, 1363 (9th Cir. 1973); People v. Hyde, 524 P.2d 830, 832-34 (Cal. 1974).
222. United States v. Lopez, 328 F. Supp. 1077, 1097 (E.D.N.Y. 1971).
223. Hyde, 524 P.2d at 833; 5 LaFave, supranote 7, § 10.6(b), at 287.
224. Some court decisions, like Bell, took the position that the magnetometer screening alone was so minimally intrusive that it did not constitute a search under the Fourth Amendment. United States v. Slocum, 464 F.2d 1180, 1182 (3d Cir. 1972); Bell, 464 F.2d at 673; United States v. Epperson, 454 F.2d 769, 771 (4th Cir. 1972); see also Note, The ConstitutionalityofAirportSearches,72 Mich. L. Rev. 128, 135 (1973).
225. This mandate took effect in January 1973. Note, Airport Searches: Fourth Amendment Anomalies, 48 N.Y.U. L. Rev. 1043, 1044 (1973).
226. 5 LaFave, supra note 7, § 10.6(c), at 291 & n.56; see United States v. Edwards, 498 F. 2d. 496, 497-98 (2d Cir. 1974).
227. See, e.g., United States v. Davis, 482 F.2d 893 (9th Cir. 1973).
228. See infraPart II.
229. 5 LaFave, supranote 7, § 10.6(c), at 291 n.58.
230. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 674-75 (1989).
231. Id. at 675 n.3.
232. Id. The other two airport cases cited in Von Raab are UnitedStates v. Edwards, 498 F.2d 496 (2d Cir. 1974) and United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973). Edwards found the administrative search doctrine "most nearly applicable" to the airport search context rather than other proposed exceptions. 498 F.2d at 498 n.5. The court there declined, however, "to fold airport searches under the rubric" of administrative searches. Id. Rather, it proceeded directly to the reasonableness analysis, in apparent defiance of the "heavy judicial gloss that a warrantless search is invalid unless within an appropriate exception."' Id. at 498. Skipwith relied upon the border search doctrine. 482 F.2d at 1276.
233. Von Raab, 489 U.S. at 675 n.3. (quoting Edwards, 498 F.2d at 496).
234. Chandler v. Miller, 520 U.S. 305, 323 (1997).
235. 531 U.S. 32 (2000).
236. Id. at 47-48.
237. United States v. Drayton, 536 U.S. 194, 208 (2002) (Souter, J., dissenting).
238. Edmond,531 U.S. at44.
239. Illinois v. Caballes, 543 U.S. 405, 417 n.7 (2005) (Souter, J., dissenting). This case held that a dog sniff of a vehicle pulled over for a traffic violation did not constitute a search. Id.at 409-10.
240. Id.at 425 (Ginsburg, J., dissenting).
241. Passenger Rail Security, supranote 2, at 10.
242. See id.
243. American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *2 (D. Mass. July 28, 2004).
244. Passenger Rail Security, supranote 2, at 10.
245. Sewell Chan & Kareem Fahim, New York Starts To Inspect Bags On The Subways, N.Y. Times, July 22, 2005, at Al.
246. Alan Cowell, Bombs Set at 4 London Sites, but Failto Explode, N.Y. Times, July 22, 2005, at Al.
247. Plaintiffs' Memorandum of Law in Support of Request for Declaratory and Injunctive Relief at 5, MacWade v. Kelly, 2005 WL 3338573 (S.D.N.Y. Dec. 7, 2005) (No. 05CIV692 1) [hereinafter NYCLU's Pre-Trial Brief]. One day after the announcement, New York City Mayor Michael Bloomberg stated that "[the program] is partially designed to make people feel comfortable. That's part of the security thing. You want to make people comfortable. You also want to have substance and make sure you keep the potential threats away. We still have not had any specific threats that the public should worry about." Id.
248. Chan & Fahim, supranote 266, at Al.
249. Id.at B5.
250. MacWade v. Kelly, No. 05CIV6921, 2005 WL 3338573, at *4.
251. Chan & Fahim, supra note 266, at Al.
252. Defendant's Pre-Trial Memorandum of Law at 3-4, MacWade v. Kelly, 2005 WL 3338573 (No. 05CIV6921) [hereinafter City's Pre-Trial Brief].
253. MacWade, 2005 WL 3338573, at *7.
254. Id.at *7 n.13.
255. Id.at *7.
256. Id.at *6.
257. Id.at *6-*7. But see NYCLU's Pre-Trial Brief, supra note 268, at 6 ("The NYPD is searching the bags or containers of people without the bag or container having to be any minimum size. Thus, everything from women's purses to large backpacks are subject to search.").
258. MacWade, 2005 WL 3338573, at *6.
259. Id.; NYCLU's Pre-Trial Brief, supranote 268, at 6.
260. See Terry v. Ohio, 392 U.S. 1 (1968).
261. However, individuals that refuse to submit to an inspection and are caught attempting to enter at the same station through another entrance may be arrested. See MacWade, 2005 WL 3338573, at *7 n.14.
262. Complaint, MacWade v. Kelly, No. 05 Civ 6921 (S.D.N.Y. Dec. 7, 2005) [hereinafter NYCLU Complaint].
263. Id. at 1,41.
264. See United States v. Lifshitz, 369 F.3d 173, 186 (2d Cir. 2004).
265. See NYCLU's Pre-Trial Brief, supra note 268, at 13-15. The New York Civil Liberties Union ("NYCLU") challenged the effectiveness of the Container Inspection Program in preventing an attack. First, the NYCLU noted that no instance of terrorist activity has been detected, despite its estimation that the subway system had been entered 400 million times between the adoption of the policy and the trial. Id. at 6. Second, the NYCLU contended that the voluntary nature of the inspections, combined with the subway system's design, makes the program devoid of any "meaningful value" in preventing terrorists from carrying explosives into the system. Id at 7. Each subway line connects to multiple other lines and many lines run twenty-four hours a day, allowing riders to access any point in the system from any station at all hours. Id. at 4. Many of the stations have multiple entrances, and generally these entrances are not visible to an officer conducting searches at another entrance. Id. at 3. Furthermore, many stations, particularly within Manhattan, are within close walking distance of others. Id.at 3-4. The NYCLU claimed that these features make the City's search program futile. Nothing prevents a selected rider who withholds consent to a search from attempting to enter the system at another station or even at a different entrance to the same station. Id.at 4. Because searches are conducted at only a minority of stations at any given time, such an attempt is likely to succeed. See id. at 7. The NYCLU argued that terrorists could easily evade checkpoints and access any point within the subway system despite the program checkpoints, thus calling into doubt the program's efficacy in detecting and deterring terrorist attempts. Id.
266. City's Pre-Trial Brief, supra note 274, at 8. The City asserted that the special needs doctrine is available when, "based upon special needs unrelated to law enforcement. . . the searches (1) address a serious special threat to public health and safety; (2) minimally implicate privacy interests; and (3) reasonably promote the goal of countermanding the threat." Id.at 5 (citing Illinois v. Lidster, 540 U.S. 419, 427 (2004); Bd. of Educ. v. Earls, 536 U.S. 822, 830, 834, 837-38 (2002)). Claiming that suspicionless searches were first permitted in airports and courthouses, New York City noted that courts have approved of extending such searches to new contexts and urged a similar extension to meet the emerging terrorist threat against mass transit systems. Id.at 6-7. To surpass Edmond's limitation that suspicionless intrusions may not primarily intend to further a "general interest in crime control," the City noted that it implemented the program shortly after the attacks upon London's subway system. Id.at 8. It also distinguished the program from a "typical crime control tactic" by stating that the New York Police Department ("NYPD") permits riders selected for inspection to leave the subway station without being searched, although persons found with contraband would be arrested. Id.at 8-9. Addressing the government interest in the balancing analysis, the City presented expert witnesses to testify that mass transit systems have become a more attractive target since airport security was tightened following September 11, 2001, that recovered Al Qaeda manuals explicitly endorse "blasting and destroying bridges leading into and out of the cities," and that the NYPD has uncovered plots to bomb tunnels and subway stations. Id.at 9. Furthermore, the City pointed to recent mass transit bombings in Moscow, Madrid, and London as revealing the vulnerabilities of mass transit systems and the desire and capacity of terrorists to exploit them. Id.The City argued that "protective measures need not await intelligence of a specific threat." Id. at 10. Rather, it urged the court to take judicial notice of the threat in light of the 9/11 attack and recent international attacks, as courts have done with respect to courthouse, airport, and mass transit security. Id.at 9-10. The City then asserted that the search minimally intrudes upon privacy interests. First, widespread media coverage of the program, as well as loud-speaker announcements and posted notices warning of a potential search, provides riders with advance notice of the searches. Id.at 12-13. The City maintained that such advance notice mitigates the intrusiveness of the search by reducing surprise and allowing riders to avoid the search by avoiding the transit system or carrying containers into it. Id. Finally, the City asserted that the Container Inspection Program was a "reasonable means of advancing the city's goal of detecting and deterring mass transit terrorist activity," and that the search need only be reasonably effective in advancing a special need. Id.at 17-18.
267. MacWade v. Kelly, No. 05CIV6921, 2005 WL 3338573, at *16-*20 (S.D.N.Y. Dec. 7, 2005). The court's application of the special needs doctrine will be discussed infra Part II.B.
268. Id.at* 17.
269. Id. at *18-*19.
270. Id. at *12.
271. Id.at * 13 ("Apart from presenting the ironic position that less intrusiveness renders the Program less effective, [plaintiffs' expert] offered no evidence of the measure of 'enough uncertainty,' and he did not at all rebut the evidence presented by Defendants that the Program has a meaningful deterrent effect.").
272. Id.at *18-*19.
273. Id.at*19.
274. Id.(quoting United States v. Albarado, 495 F.2d 799, 807-08, 808 n.15 (2d Cir. 1974)).
275. Id.at *19-*20.
276. American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *1 (D. Mass. July 28, 2004).
277. See Memorandum in Support of Preliminary Injunction, American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859 (D. Mass. July 28, 2004) [hereinafter American-Arab Anti-Discrimination Comm.'s Brief].
278. American-ArabAnti-DiscriminationComm., 2004 WL 1682859, at *1.
279. Id. at *1,*4.
280. Id.at * 1. Plaintiffs urged the trial court to analyze the searches under the checkpoint seizure exception. See American-Arab Anti-Discrimination Comm.'s Brief, supranote 310.
281. American-ArabAnti-DiscriminationComm., 2004 WL 1682859, at *2.
282. Id.at *3.
283. Id. at *4.
284. Seesupranotes 17-27 and accompanying text.
285. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 557 (1976).
286. City of Indianapolis v. Edmond, 531 U.S. 32, 37-38 (2000).
287. 5 LaFave, supranote 7, § 10.6(c), at 291 n.58.
288. See supraPart I.C.2.
289. See supranote 213 and accompanying text.
290. See, e.g., United States v. Hartwell, 296 F. Supp. 2d. 596, 602 (E.D. Pa. 2003).
291. See United States v. Davis, 482 F.2d 893, 905-08 (9th Cir. 1973).
292. See United States v. Skipwith, 482 F.2d 1272, 1276 (5th Cir. 1973) ("[Tjhe standards for initiating a search of a person at the boarding gate should be no more stringent than those applied in border crossing situations.").
293. United States v. Edwards, 498 F.2d 496, 498 (2d Cir. 1974).
294. American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859 (D. Mass. July 28, 2004).
295. See supraPart I.B.2.b-c.
296. See Note, The ConstitutionalityofAirportSearches,supranote 235, at 153.
297. United States v. Davis, 482 F.2d 893, 905-08 (9th Cir. 1973).
298. Id.at 908. A recent decision of the U.S. Court of Appeals for the Ninth Circuit confirmed that Davis remains good law. Gilmore v. Gonzales, No. 04-15736, slip op. 1135, 1157-58 (9th Cir. Jan. 26, 2006). However, the decision seems to place less emphasis on labeling airport searches as "administrative," stating simply that "[a]irport screening searches.., do not per se violate a traveler's Fourth Amendment rights, and therefore must be analyzed for reasonableness." Id.at 1158.
299. Camara v. Mun. Court, 387 U.S. 523 (1967); see supra notes 53-64 and accompanying text.
300. United States v. Biswell, 406 U.S. 311 (1972); see supra notes 114-116 and accompanying text.
301. See v. City of Seattle, 387 U.S. 541, 545 (1967) (holding that determining whether probable cause for a warrant exists for an administrative agency's seizure of corporate records will be measured "against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved").
302. Wyman v. James, 400 U.S. 309 (1971) (holding that requiring a warrantless home visit as a condition for receipt of welfare benefits does not violate the Fourth Amendment).
303. Davis,482 F.2d at 908.
304. American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *2 (D. Mass. July 28, 2004).
305. Id.
306. Id. The court also stated that "administrative searches have been upheld in the face of objections that they violated the Fourth Amendment." Id. at *1. To support this proposition, the court cited authorities finding airport searches and searches at the entrances to courthouses to be administrative. It also cited cases that excused the warrant and probable cause requirements by applying the consent and special needs exceptions. Id.
307. See Note, AirportSearches: FourthAmendment Anomalies, supranote 236, at 1058 ("Courts that adopted the Camaraapproach in the context of airport searches recognized that these searches are prompted by a unique kind of administrative necessity and are separable from the normal routine of law enforcement.").
308. Camara v. Mun. Court, 387 U.S. 523, 535 (1967).
309. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 557 (1976).
310. Ferguson v. City of Charleston, 532 U.S. 67, 83 n.21 (2001). However, the Court in Edmonddescribed the administrative search exception as encompassing not only searches of heavily regulated businesses, but also investigative searches of fire-damaged commercial premises and inspections of residential structures to ensure compliance with local housing codes. Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (citing Michigan v. Tyler, 436 U.S. 499, 507-09, 511-12 (1978); Camara,387 U.S. at 534-39).
311. New York v. Burger, 482 U.S. 691, 701 (1987); United States v. Biswell, 406 U.S. 311,316 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 75-76 (1970).
312. See Note, The ConstitutionalityofAirport Searches, supranote 235, at 144. But see Simcha Herzog, Constitutional Problems Posed By Aviation Security Post September Eleventh, 6 Fla. Coastal L. Rev. 361, 376 (2005) ("Airport searches fit neatly into the administrative search rationale because air travel is a heavily regulated activity and has become more regulated post September 11.").
313. Almeida-Sanchez v. United States, 413 U.S. 266 (1973).
314. Id.at 271. This language dissuaded other circuits from adopting Davis's expansive administrative search rationale in considering airport searches. See United States v. Edwards, 498 F.2d 496, 498 n.5 (2d Cir. 1974) ("[T]he principle that seems most nearly applicable to the airport search is that recognized in Colonnade CateringCorp. v. United States, and applied in United States v. Biswell .... But since an attempt to fold airport searches under the rubric of this type of administrative search would entail the question of reasonableness, as well as the need for dealing with language in Almeida-Sanchez v. United States, the issue of reasonableness may as well be faced directly." (citations omitted)).
315. Camara,387 U.S. 523.
316. Id.at 533.
317. See, e.g., Note, The ConstitutionalityofAirport Searches,supra note 235, at 142.
318. Camara,387 U.S. at 536-37.
319. But see 5 LaFave, supra note 7, § 10.1(b), at 11 (questioning the validity and significance of Camara'sfinding that housing inspections enjoyed a long history of public acceptance).
320. See American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *2 (D. Mass. July 28, 2004) ("[T]here is also no reason to believe that specific information is necessarily, or even frequently, available before a terrorist attack, so its absence cannot be taken to indicate that the facilities are not likely targets.").
321. 5 LaFave, supra note 7, § 10.6(c), at 296.
322. See id. § 10.1(b), at 15.
323. See Note, Airport Searches: Fourth Amendment Anomalies, supra note 236, at 1058.
324. 5 LaFave, supra note 7, § 10.6(c), at 297.
325. See Camara v. Mun. Court, 387 U.S. 523, 538-39 (1967).
326. See Note, The Constitutionalityo fAirport Searches, supra note 235, at 143 ("[T]he Camarastandard of 'reduced' probable cause [could] not be met. In the current inspection system, . . . no evidence is produced that would indicate that violations of the law might exist in the 'area' or group [of passengers] searched.").
327. American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *2 (D. Mass. July 28, 2004) ("It is not unreasonable, then, to think that national party nominating conventions could become terrorist targets, and when the conventions are held in cities with significant mass transportation systems that serve the convention locations, it is not without foundation to worry that a terrorist event might be aimed simultaneously at the convention and the transit system.").
328. See supraPart I.B.2.a.
329. United States v. Albarado, 495 F.2d 799, 804 n.9 (2d Cir. 1974) ("UnitedStates v. Davis, while styling the airport search as 'administrative,' placed no analytical significance on this label." (citation omitted)).
330. United States v. Barbera, 514 F.2d 294, 299 n. 12 (2d Cir. 1975) (citations omitted).
331. See City's Pre-Trial Brief, supra note 274, at 8; NYCLU's Pre-Trial Brief, supra note 268, at 12. The NYCLU asserted, however, that the special needs exception applies in "highly unusual circumstances" and that the Supreme Court has yet to rule upon this doctrine's applicability to antiterrorism search programs. NYCLU's Pre-Trial Brief, supra note 268, at 12-13.
332. MacWade v. Kelly, No. 05CIV6921, 2005 WL 3338573, at *17 (S.D.N.Y. Dec. 7, 2005) (quoting Chandler v. Miller, 520 U.S. 305, 323 (1997)).
333. Id. (internal quotations omitted).
334. See id.
335. Ferguson v. City of Charleston, 532 U.S. 67, 84 (2001); Mich. Dep't of State Police v. Sitz, 496 U.S. 444,450 (1990).
336. See City's Pre-Trial Brief, supra note 274, at 9 ("[P]olice officers conducting Program inspections would arrest people found carrying illegal substances ....).
337. O'Connor v. Ortega, 480 U.S. 709, 720 (1987) (citing New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring)).
338. City of Indianapolis v. Edmond, 531 U.S. 32, 54 (2000) (Rehnquist, C.J., dissenting).
339. Maclin, supranote 160, at 115-16.
340. MacWade v. Kelly, No. 05CIV6921, 2005 WL 3338573, at *5 n.9 (S.D.N.Y. Dec. 7, 2005); American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *2 (D. Mass. July 28, 2004).
341. Maclin, supranote 160, at 117-18.
342. Buffaloe, supra note 212, at 548 ("To conduct a search, a police officer must first secure a warrant supported by probable cause, whether the crime is writing a check for less than one dollar or killing thousands ofpeople.").
343. Maclin, supra note 160, at 117-18. However, safety clearly "factors into the special needs analysis." Bd. of Educ. v. Earls, 536 U.S. 822, 836 (2002).
344. Maclin, supranote 160, at 116-17.
345. See generallysupra notes 274-90, 388.
346. Griffin v. Wisconsin, 483 U.S. 868, 870 (1987) (dealing with a probationer charged with a state-law weapons offense); New Jersey v. T.L.O., 469 U.S. 325, 328-29 (1985) (addressing delinquency charges brought against a student).
347. Ferguson v. City of Charleston, 532 U.S. 67, 81-84 (2001).
348. Chandler v. Miller, 520 U.S. 305, 309 (1997).
349. See supranotes 255-62 and accompanying text.
350. Chandler,520 U.S. at 323.
351. Id.at 318.
352. Id.at 319-20.
353. City's Pre-Trial Brief, supranote 274, at 4.
354. See NYCLU's Pre-Trial Brief, supranote 268, at 14-15.
355. MacWade v. Kelly, No. 05CIV6921, 2005 WL 3338573, at *12 (S.D.N.Y. Dec. 7, 2005) ("[The City's experts] testified persuasively that, because of the random nature of the Container Inspection Program, i.e., because when and where an inspection will occur is not revealed in advance, the Program adds uncertainty and unpredictability to the planning and implementation of a terrorist attack which, in turn, increases the risk of failure and helps to deter an attack.").
356. Daniel J. Solove, NYC Subway Searches Upheld: A Critique of the Court's
357. Decision, Concurring Opinions, Dec. 5, http://www.concurringopinions.com/archives/2005/12/nycsubwaysear.html. 2005,
358. Id.Professor Daniel Solove points out that "[tihe reasonableness of the policy... depends upon balancing the efficacy of the searches against their intrusiveness" and asserts that "if the court defers to the government in this regard, it is essentially rubber-stamping the government in this determination."
359. Chandler v. Miller, 520 U.S. 305, 322 (1997); see also Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 687 (1989) (Scalia, Stevens, J.J., dissenting) (stating that "the impairment of individual liberties cannot be the means of making a point; that symbolism ... cannot validate an otherwise unreasonable search").
360. Buffaloe, supranote 212, at 529.
361. See supra notes 193-207 and accompanying text.
362. But see Ronald M. Gould & Simon Stern, CatastrophicThreats and the Fourth Amendment, 77 S. Cal. L. Rev. 777, 824 (2004) (arguing that the special needs doctrine should be extended to permit neighborhood house searches to discover a hidden weapon of mass destruction). The authors conclude that "[b]uilding on the special-needs cases would provide continuity of precedent and greater protection of individual privacy than would the construction of an entirely new and ad hoc catastrophic-threat or national-security exception to probable-cause requirements." Id.at 831-32.
363. See 5 LaFave, supranote 7, § 10.6(c), at 298 (characterizing airport searches as "a variety of checkpoint, albeit involving people on foot rather than in vehicles").
364. City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
365. MacWade v. Kelly, No. 05C1V6921, 2005 WL 3338573, at *5 (S.D.N.Y. Dec. 7, 2005); American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *2 (D. Mass. July 28, 2004). However, the Court in Edmond might have exempted airport searches from this primary purpose requirement by stating that its holding "does not affect the validity of border searches or searches in airports and government buildings, where the need for such measures to ensure public safety can be particularly acute." Edmond, 531 U.S. at 47-48.
366. Id.at44.
367. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 (1976).
368. Passenger Rail Security, supranote 2, at 10.
369. Sitz, 496 U.S. at 455; Martinez-Fuerte,428 U.S. at 558.
370. Martinez-Fuerte,428 U.S. at 555 (distinguishing United States v. Ortiz, 422 U.S. 891 (1975)).
371. See Ferguson v. City of Charleston, 532 U.S. 67, 83 n.21 (2001) ("This case also differs from the handful of seizure cases in which we have applied a balancing test to determine Fourth Amendment reasonableness .... [T]hose cases involved roadblock seizures, rather than 'the intrusive search of the body or the home."' (citations omitted)).
372. Compare Martinez-Fuerte, 428 U.S. at 561 (noting that "one's expectation of privacy in an automobile and of freedom in its operation are significantly different" from one's expectation of privacy in the home), with Delaware v. Prouse, 440 U.S. 648, 662 (1979) ("An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation.").
373. Cf Florida v. Rodriguez, 469 U.S. 1 (1984). The Court in this case held that a police officer's detention of individuals for questioning at an airport before the individuals attempted to board the plane was not a seizure. Id. at 5-6. In the alternative, the Court found that there was sufficient suspicion to justify the seizure because at a "major international airport where, due in part to extensive anti-hijacking surveillance and equipment, reasonable privacy expectations are of significantly lesser magnitude." Id. at 6. But see Bond v. United States, 529 U.S. 334, 337 (2000) (Rehnquist, C.J.) (holding that a bus passenger possessed a privacy interest in his baggage, so that a Border Patrol agent's suspicionless manipulation of it while it was in an overhead compartment violated the Fourth Amendment).
374. See supra notes 279-80 and accompanying text.
375. Prouse,440 U.S. 648; United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
376. Prouse,440 U.S. at 663 (stating that the Court's holding did not preclude Delaware from using less intrusive methods to check motorists' licensing and registration, such as "[q]uestioning of all oncoming traffic at roadblock-type stops"); see also Martinez-Fuerte, 428 U.S. at 556.
377. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 452-53 (1990) (citing Martinez-Fuerte,428 U.S. at 558).
378. Seesupranotes 274-78 and accompanying text.
379. See, e.g., Sitz, 496 U.S. at 456 (Brennan, Marshall, J.J., dissenting) ("Today, the Court rejects a Fourth Amendment challenge to a sobriety checkpoint policy in which police stop all cars and inspect all drivers for signs of intoxication .... ").But see Prouse,440 U.S. at 664 (Blackmun, J., concurring) (writing separately to emphasize that the Court should uphold "not purely random stops (such as every 10th car to pass a given point) that equate with, but are less intrusive than, a 100% roadblock stop").
380. Martinez-Fuerte,428 U.S. at 559-60.
381. See 5 LaFave, supra note 7, § 10.8(a), at 345-47.
382. See NYCLU Complaint, supra note 291, at 2 ("[T]he volume of people entering subway stations and the lack of NYPD control over that volume result in many people being selected for search in a discretionary and arbitrary manner, which creates the potential for impermissible racial profiling.").
383. See, e.g., Sitz, 496 U.S. at 450.
384. NYCLU's Pre-Trial Brief, supranote 268, at 14-15.
385. Delaware v. Prouse, 440 U.S. 648, 655-63 (1979).
386. Sitz, 496 U.S. at 453-54.
387. City's Pre-Trial Brief, supranote 274, at 3.
388. MacWade v. Kelly, No. 05CIV6921, 2005 WL 3338573, at *13 (S.D.N.Y. Dec. 7, 2005) (noting the NYCLU's "ironic position that less intrusiveness renders the Program less effective").
389. John M. Copacino, Suspicionless CriminalSeizures After Michigan Department of State Police v. Sitz, 31 Am. Crim. L. Rev. 215, 243-46 (1994).
390. MacWade, 2005 WL 3338573, at *12 (finding that "[d]efendants effectively countered [p]laintiffs' argument that the Program is not effective due to the ease with which one can evade checkpoints and enter the subway system").
391. United States v. Davis, 482 F.2d 893, 913 (9th Cir. 1973).
392. Id.; accord Gilmore v. Gonzales, No. 04-15736, slip op. 1135, 1159 (9th Cir. Jan. 26, 2006). But see United States v. Lopez, 328 F. Supp. 1077, 1092-93 (E.D.N.Y. 1971) (rejecting the notion that passengers implicitly consent to a search by proceeding to a boarding gate after receiving notice of search).
393. MacWade,2005 WL 3338573, at *19.
394. American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *3 (D. Mass. July 28, 2004).
395. See United States v. Drayton, 536 U.S. 194 (2002); Florida v. Bostick, 501 U.S. 429 (1991); Florida v. Rodriguez, 469 U.S. 1 (1984); Florida v. Royer, 460 U.S. 491 (1983).
396. MacWade, 2005 WL 3338573, at *6.
397. Drayton, 536 U.S. at 204.
398. MacWade, 2005 WL 3338573, at *1-*19; City's Pre-Trial Brief, supra note 274, at 3-4.
399. Drayton, 536 U.S. at 206-07.
400. American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *3 (D. Mass. July 28, 2004).
401. Id. However, Davis clearly contemplated that passengers would receive notice of the search. The court stated that airport searches were "reasonable under the Fourth Amendment provided each prospective boarder retains the right to leave rather than submit to the search." United States v. Davis, 482 F.2d 893, 912 (9th Cir. 1973). Passengers unaware of the Massachusetts Bay Transportation Authority's ("MBTA") search policy may have not had such an opportunity to leave. Cf American-Arab Anti-Discrimination Comm.'s Brief, supra note 310 ("Under the policy, Security Inspections are to be conducted where practical before persons proceed through the paid entrance area of an MBTA station. In fact, it is not practical to do this throughout the system and searches take place on the trains themselves.").
402. American-ArabAnti-DiscriminationComm., 2004 WL 1682859, at *1-*4.
403. Drayton, 536 U.S. at 207.
404. See Note, Airport Security Searches and the Fourth Amendment, 71 Colum. L. Rev. 1039, 1048 (1971) (arguing that airport searches should not be considered as consent searches).
405. Florida v. Royer, 460 U.S. 491, 503 (1983).
406. Drayton, 536 U.S. at 201.
407. See United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973); 5 LaFave, supra note 7, § 10.6(g), at 308.
408. See, e.g., Note, Skyjacking: Constitutional Problems Raised by Anti-Hijacking Systems, 63 J. Crim. L., Criminology, & Police Sci. 356, 363-64 (1972); cf American-Arab Anti-Discrimination Comm.'s Brief, supra note 310 (citing circuit court opinions prohibiting the conditioning of a public benefit on the waiver of a constitutional right). But see Gilmore v. Gonzales, No. 04-15736, slip op. 1135, 1154 (9th Cir. Jan. 26, 2006) (holding that the right to interstate travel does not prohibit the government from placing restrictions on any particular mode of transportation); United States v. Davis, 482 F.2d 893, 912-13 (9th Cir. 1973) (allowing right to travel to be conditioned upon relinquishment of Fourth Amendment rights where there is a compelling state interest and search is appropriately tailored). The Supreme Court has stated that "constitutional concepts of personal liberty ... require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." Shapiro v. Thompson, 394 U.S. 618, 629 (1969).
409. Dave Hoffman, Deterrence and Subway Searches, Conglomerate, July 24, 2005, http://www.theconglomerate.org/2005/07/deterrence-and .html ("The privacy losses created by these searches will fall most heavily on poor and working class New Yorkers, who... will be unable to opt out of the system by regularly taking cabs/town cars instead of the subway.").
410. Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973).
411. Seesupranote 92 and accompanying text.
412. Schneckloth, 412 U.S. at 229.
413. See United States v. Drayton, 536 U.S. 194, 208 n.1 (2002) (Souter, J., dissenting) ("[C]onsent [must] satisfy the voluntariness test of Schneckloth v. Bustamonte, which focuses on the nature of a person's subjective understanding, and requires consideration of the characteristics of the accused [in addition to] the details of the interrogation." (internal quotation omitted)); see alsoSimmons, supranote 91, at 782.
414. Cf Simmons, supra note 91, at 774 (criticizing the consent search doctrine as "meaningless" because "no action taken by anybody in any situation is wholly 'voluntary' or 'involuntary,' but rather is a result of myriad pressures, some internal and some external").
415. United States v. Edwards, 498 F.2d 496, 498 (2d Cir. 1974).
416. Id. (internal quotation omitted). Chief Judge Friendly found the administrative search doctrine "most nearly applicable to the airport search," but stated that "since an attempt to fold airport searches under the rubric of this type of administrative search would entail the question of reasonableness.., the issue of reasonableness may as well be faced directly." Id. at 498 n.5.
417. See Arizona v. Hicks, 480 U.S. 321 (1987) (rejecting the reasonableness balancing test and requiring a warrant to pick up stereo equipment and read its serial number); cf Groh v. Ramirez, 540 U.S. 551, 557 (2004).
418. See, e.g., Bradley, supra note 33, at 1468; see also Sundby, supra note 52, at 383 ("[T]he Court retain[s] a semblance of coherent fourth amendment analysis only by resorting to exceptions or an ill-defined balancing test.").
419. See Groh, 540 U.S. at 571-73 (Thomas, Scalia, J.J., & Rehnquist, C.J., dissenting) (criticizing the warrant-preference rule and asserting that a search conducted pursuant to defective warrant was nonetheless reasonable).
420. For a discussion of the exclusionary rule, see Allen et al., supranote 1, at 336-48.
421. Bradley, supra note 33, at 1475 ("The reason that all of these exceptions have grown up is simple: the clear rule that warrants are required is unworkable and to enforce it would lead to exclusion of evidence in many cases where the police activity was essentially reasonable. By its continued adherence to the warrant requirement in theory, though not in fact, the Court has sown massive confusion among the police and lower courts." (footnote omitted)).
422. See, e.g., Chandler v. Miller, 520 U.S. 305, 323 (1997) ("[W]here the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as 'reasonable'-for example, searches now routine at airports and at entrances to courts and other official buildings.").
423. See supra note 240 and accompanying text.
424. Tracey Maclin, When the Cure for the Fourth Amendment is Worse than the Disease,68 S. Cal. L. Rev. 1, 21 (1994) (arguing that "[a]n interpretation that detaches the Reasonableness Clause from the Warrant Clause runs the risk of making the Warrant Clause virtually useless"').
425. Scott E. Sundby, Protecting the Citizen "Whilst He Is Quiet": Suspicionless Searches, "Special Needs," and General Warrants, 74 Miss. L.J. 501, 511 (2004) ("[B]ecause the generalized-reasonableness approach does not view probable cause as an essential prerequisite, the role of individualized suspicion lost some of its Fourth Amendment swagger.").
426. Id.at 511-12.
427. Id. at 512.
428. See City of Indianapolis v. Edmond, 531 U.S. 32,42 (2000).
429. California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring).
430. Erik G. Luna, Sovereignty and Suspicion, 48 Duke L.J. 787, 788 (1999) ("Academics of all stripes agree that search and seizure law is a 'mess."'); Samuel C. Rickless, The Coherence of Orthodox FourthAmendment Jurisprudence,15 Geo. Mason U. Civ. Rts. L.J. 261, 261 (2005) ("If there is any statement to which virtually all constitutional scholars would agree, it is that orthodox Fourth Amendment jurisprudence is a theoretical mess .... ); Wasserstrom & Seidman, supra note 46, at 20.
431. See Bookspan, supranote 27, at 475.
432. See, e.g., Justice v. Elrod, 832 F.2d 1048 (7th Cir. 1987) (upholding a search at a civic center); McMorris v. Alioto, 567 F.2d 897, 898 (9th Cir. 1978) (upholding searches at courthouse entrances).
433. United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 316-317 (1972) (rejecting the creation of a broad "domestic security" exception allowing warrantless wiretap surveillance because "Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch"). But see U.S. Dep't of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (2006), availableat http://news.findlaw.com/hdocs/docs/nsa/dojnsall906wp.pdf [hereinafter DOJ Domestic Spying Memo]. The DOJ asserts that the President has authority to conduct warrantless wiretaps within the United States for foreign intelligence purposes under his inherent Article II powers as the commander in chief and under the Authorization for the Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001) (reprinted in a note to 50 U.S.C.A. § 1541 (West Supp. 2005). DOJ Domestic Spying Memo, supra,at 6-17. The DOJ points out that the Supreme Court in Keith declined to address whether the Fourth Amendment prohibits warrantless wiretaps of agents of foreign powers "acting within or without this country." Id.at 8 (citing Keith, 407 U.S. at 308, 321-22, 322 n.20). See generally James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, at Al.
434. Note, The ConstitutionalityofAirportSearches,supranote 235, at 153.
435. See United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974).
436. See Camara v. Mun. Court, 387 U.S. 523, 537 (1967).
437. Id.at 533.
438. Id.at 539.
439. MacWade v. Kelly, No. 05CIV6921, 2005 WL 3338573, at *7, n.13 (S.D.N.Y. Dec. 7, 2005) (noting that on certain days the number of checkpoints were increased in response to threats against the subway system).
440. City's Pre-Trial Brief,supranote 274, at 3-4.
441. Seesupranotes 309-12 and accompanying text.
442. Camara,387 U.S. at 534.
443. Cf United States v. Martinez-Fuerte, 428 U.S. 543, 565-66 (1976).
444. Camarastated, Under the present system, when the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization.
445. U.S. at 532.
446. As the court in MacWade put it, "[T]he use of suspicionless searches always must be examined carefully, and Plaintiffs have played an important (vigilant) role in this process." MacWade v. Kelly, No. 05CIV6921, 2005 WL 3338573, at *1 (S.D.N.Y., Dec. 7,2005).
447. Martinez-Fuerte,428 U.S. at 561.
448. New Jersey v. T.L.O., 469 U.S. 325, 342 (1985).
449. American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652, 2004 WL 1682859, at *2 (D. Mass. July 28, 2004).
450. See supranotes 342-82 and accompanying text.
451. See supranotes 383-414 and accompanying text.
452. See supranotes 415-42 and accompanying text.
453. See supra notes 443-68 and accompanying text.
454. See supra notes 469-83 and accompanying text.
455. See supranotes 484-502 and accompanying text.
456. See Bradley, supra note 33, at 1475.
457. See, e.g., Delaware v. Prouse, 440 U.S. 648 (1979).
458. See supranotes 110-22 and accompanying text.
459. See supranotes 343-52 and accompanying text.
460. Ferguson v. City of Charleston, 532 U.S. 67, 83-84 (2001).
461. Seesupranotes 123-58 and accompanying text.
462. See supranotes 421-24 and accompanying text.
463. See supranotes 458-63 and accompanying text.
464. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000).
465. Id.at 41-42.
466. See supranote 489 and accompanying text.
467. See supra notes 42-45 and accompanying text.
468. Allen et al., supra note 1, at 335-36.
469. Beck v. Ohio, 379 U.S. 89, 96 (1964) (warrantless arrest "bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment").
470. See Allen et al., supranote 1, at 336.
471. See supra notes 46-54 and accompanying text.
472. See supra notes 279-82, 324 and accompanying text.
473. See supranotes 266, 309 and accompanying text.
474. See Davies, supranote 15, at 561 (noting that the conventional history of the Fourth Amendment is rooted in "episodes of controversy regarding search and arrest authority that preceded the American Revolution").
475. See, e.g., United States v. Skipwith, 482 F.2d 1272, 1281 (5th Cir. 1973) ("Where special circumstances are allowed to reduce the ordinary conditions precedent to a lawful search there should be special safeguards to see that the opportunity is not abused .... [The] same prophylactic principle that dictates exclusion of property unlawfully seized should be employed to temper possibly overzealous airport searches." (citations omitted)).
476. See supranote 236 and accompanying text.