The document discusses constitutional and policy issues surrounding subway searches in New York City. It summarizes several court cases that have addressed whether NYC's program of random subway bag searches violates the 4th Amendment. The cases analyzed whether the searches fall under the "special needs" exception, which allows administrative searches without warrants or probable cause. Courts generally found the searches were justified by the special need to prevent terrorist attacks on the subway system. However, some argue the program may not be effective and could be less intrusive.

1. Dennis Huang
RCRJ 202
Discussion Leader: Sean Roche
Subway Searches: Constitutional and Policy Issues
Subway searches is a rising argument against the citizens and the Supreme Court. Subway
searches should be implemented in NYC and other cities. New York City has implemented a
new program for random subway bag search. The program is under the special need doctrine
which allows administrative officials to search without a search warrant or probable cause. In
order for it to become a special need doctrine, it requires more than law enforcement capabilities.
Many terrorist attacks consists of subway bombings in other countries. NYC subway
system has been the prime target for terrorists. The New York subway system started in 1904,
today the average of people traveling is 4.9 million. During 1995, religious extremists attack
Tokyo subway system with nerve gas killing 12 people and injuring 6000 people. 1997, terrorists
planned to bomb the Brooklyn’s Atlantic Avenue Station, 2004 terrorists planned to bomb
Herald Square Subway Station. Also during 2004 terrorists bombed commuter trains in Moscow
and Madrid which killed 240 people. 2005 terrorists killed more than 56 people and injured more
than 700 people by having multiple of attacks on London’s transit system. Two weeks after the
London bombing, terrorists planned a second attack, however it failed to detonate the bombs.
This is why New York City formed the program because of potential threats of terrorist attacks.
In 2006 another terrorist attack on the subway system happened again, this time it happened in
Mumbai. Terrorists planted bombs on 7 commuter trains killing more than 200 people and
wounding 800 people. In 2009, the police arrested terrorists for planning in suicide bombings on
the NYC subway system during rush hour of the month of September. It is very hard to secure
the subway system because there are lots of passengers underground in an enclosed space. The
NYC subway has been a target for terrorists, but the police manage to stop the explosives from

2. detonating.
An example of the special needs doctrine tying into the New York City’s program is a
Federal court case, MacWade v. Kelly. In MacWade v. Kelly passengers brought the statute
1983 against New York City for random and suspicion less subway searches that violates the
passengers Fourth Amendment and Fourteenth Amendment. The Fourth Amendment entitles you
to a right to be secure in your house, person, and papers against unreasonable searches and
seizures shall not be violated and no warrants shall be issued due to probably cause. The
Fourteenth Amendment entitles you the right to not let the State enforce any law which takes
away your rights as a citizen, nor shall the State deny your life, liberty or property without due
process of law, nor deny any person with the equal protection of laws. NYC program of random
bag searches help prevent terrorists attacks on the subway and also help deter terrorist plot in
bombing the subway system. The plaintiff, Brendan MacWade, Andrew, Joseph, Partha, and
Norman were asked for a search and refused to be searched by the NYPD. They were all
required to leave the subway system. The plaintiff claims that the “special needs doctrine applies
only in scenarios where the subject of search possesses a diminished exception of privacy and
because subway riders enjoy a full expectation of privacy in their bags the District Court made a
mistake in applying the special needs exception”. Even though the passengers have their bags on
reduces the expectation of privacy. They consented to the search because the public and law
enforcement personnel can see their bags on them. NYPD officers stand behind a table near the
turn stiles entering the subway system; they select random passengers and random stations to
have the bag searches. These decisions of random passengers may be every fifth person or every
tenth person and the random stations criteria is passenger volume and the threat level (Time
Square Bombing). These subway searches are voluntary meaning that you don’t have to be
searched however, if you don’t consent to the search then you will be sent outside of the subway.
However these subway searches are placed in random sequences, NYPD can have these

3. checkpoints any time of the day or in the week.
The trial of MacWade v. Kelly had three defense experts; David Cohen, Michael Sheehan,
and Richard C. Clarke says that the subway program is great, they stated that terrorists “placed a
premium”. Terrorists plan their attacks, rehearse them, and train, the Al Queda Manual states that
“terrorists traveling on a mission of an attack should avoid security check points along the way”.
This program throws the uncertainty for the terrorists operation and uncertainty of when and
where the checkpoints are located. The program is a special need because it aims to prevent
detection of terrorist attack on the subway. The container program is considered to be
constitutional and also factor into the special needs doctrine. The government interest in
preventing terror on subway is high in standards. In the end the District Court denied the
plaintiff’s pled for declaratory and injunctive relief and dismissed the complaints as prejudice. I
agree with the District Court ruling because the Fourth Amendment doesn’t apply to the special
needs exception because the special needs exception acts as a protection of the public.
Another case that argues against subway searches being unconstitutional is American-
Arab Anti -Discrimination Committee v. Massachusetts Bay Transportation. Plaintiff argues to
the MBTA bag searches was unconstitutional and also violated the passenger’s Fourth
Amendment to reasonable and warrant searches. MBTA argues that the searches are reasonable
because they are security searches and help the general public in protecting them from terror
attacks. These searches do not violate the Fourth Amendment because it is a special needs
expectation. The searches are here to help the public and deter the terrorist from their planned
attack on the subway and bus system. The Department of Homeland Security warns that
“terrorists will plan larger attacks on U.S. to disrupt the government and the political sides”
(Arab Anti- Discrimination Committee v. Massachusetts Bay Transportation). The riders were
given a week notice that the MBTA will be starting a subway random bag search. During these
search the scope and duration are limited to 5-10 seconds. The District Court denied the motion

4. of the plaintiff.
Intrusiveness was argued by the plaintiffs in MacWade v. Kelly; in MacWade v. Kelly
the subway random searches were not overly intrusive but there were some levels of
intrusiveness of the subway searches. The random searches can be intrusive because the NYPD
check on random people instead of going with a target to fit the terrorist profile. In William and
Mary Bill of Rights Law Review Journal it states “Make the program more effective is police
target those who fit the terrorist profile” (William and Mary Bill of Rights Journal,5, 2007). A
better program for the NYPD to incorporate is swabbing technology that will make the subway
random bag search less intrusive. Instead of the officer going into your bag and searching it, they
will just swab the bag and test if the bag has any explosive devices.
In the Supreme Court Appellate Division case People v. Smith, the defendant entered the
subway station without paying the fare. Two detectives pulled him to the bathroom and asked
him if he was wearing a bullet proof vest. He was wearing a bullet proof vest and was handcuffs.
The two detectives opened the defendant’s briefcase and found a .38 caliber pistol which was
still loaded, a pair of handcuffs and other items. The defendant appealed to the Court for the
Judge Wingate to grant motion to suppress physical evidence. The Court granted the defendant’s
appeal to the Court and said that the search was unlawful because of unreasonable search and
seizures without search warrant. This had violated the defendant’s Fourth Amendment right to
protect against unreasonable searches. I disagree with the Court saying that this violated the
defendant Fourth Amendment right. The defendant was allowed to be searched because the
detectives had probable cause and saw him not pay the fare to go in the subway station. However
the search was going too far because the detectives arrested him first before searching his
briefcase. The defendant was allowed to consent to the officers in not being searched however he
didn’t object to the consent.
The Suffolk University Law Review journal argues that the special needs exception

5. doctrine does apply to searches without consent and warrants or suspicion-less searches. In the
law review journal article it backs up the argument with the case Johnston v. Tampa Sports
Authority. In this case the Tampa Bay Buccaneers and the Tampa Sports Authority (TSA) wants
to have security in the football games. Fans were told in advance that the TSA would be
searching everyone’s personal items before entering the stadium. Johnston knew about the search
but he didn’t consent to the search but still got patted- down in order to enter the stadium.
Johnston argued that he didn’t consent to being searched however he was still searched and he
said that violated his Fourth Amendment right to be secure against unreasonable searches.
However he had gotten searched, The District court ruled that Johnston voluntarily consented to
the searches. He already paid for the ticket which entitles him to be searched before entering the
stadium. The Eleventh Circuit Court reversed the decision to the district court allowing the pat
down search to continue for the Tampa Sports Authority (TSA). New York City’s suspicion-less
subway searches was reasonable under the Second Circuit Court of Appeals, they also waived
the Fourth Amendment challenge. Under the special needs exception intrusiveness of search, and
levels of suspicion are under the special needs doctrine.
The Harvard Law Review also states the special need doctrine applies with searches
without consent only if it is needed higher than law enforcement. Judge Straub examined the
special needs doctrine, the court concluded that most special needs case involve the subject with
lower privacy interest. In the law review article it also explains why the random bag search is
reasonably constitutional. The first point the court states “government interest is to stop terror
which acts in a immediate and important idea”. Secondly, Judge Straub states “subway riders
have the objective and subjective reasonable with full expectation of privacy in their containers”.
The third point the court states they found that the subway search program has little intrusion of
full expectation of privacy. Lastly the program was “reasonable in deterring and detecting a
subway terror attack”. In the Harvard Law Review the supporting case was MacWade v. Kelly.

6. MacWade didn’t bother to listen to the cases on lesser expectations in the special needs doctrine
such as Skinner v. Railway Labor Executives’ Association. MacWade extended construction of
special needs doctrine threaten the privacy of the Fourth Amendment to protect the rights to be
not searched without a probable cause and a warrant. The opinion of the Harvard Law Review
says that it is not a good idea to have the subway bag search. However the goal of the
government is to protect us from terror attacks. But protecting the rights of American citizens is
another thing that the judicial system achieve.
In William and Mary Bill of Rights Law Review Journal, the Second Circuit Court
agree that the NYC program meets the expectation of the special needs exception to the Fourth
Amendment requirement of individual suspicion. If police comes up to you on the street and asks
you questions, you are entitled to not answer the question and refuse to cooperate with the
officer. However police can conduct suspicion-less search of any person who voluntarily consent
to their Fourth Amendment right given up. The Supreme Court allows the suspicion-less
searches to serve as a special needs and beyond the need of law enforcement. In the William and
Mary Bill of Rights Law Review Journal, to know if the special needs search is reasonable the
Court needs to balance “the gravity of the public concern and the degree to which the seizure
advances the public interest and the harshness of the obstruction with individual liberty”
(William and Mary Bill of Rights Journals, 3, 2007). The NYCLU (New York Civil Liberties
Union) don’t think that the NYC container inspection program is a great tactic to scare terrorists
because these searches are not at most subway stations and they aren’t subject to consent. So
anyone can consent to not being searched however he/she has to exit the subway station. It will
less damage if the bomb detonates at street level, the fatalities won’t be serious then below
ground because passengers are trapped and there is no exit out except going up. The NYCLU
argues that the program must have a “measurable deterrent effect” (William and Mary Bill of
Rights Journals, 5, 2007). The Supreme Court refuse to inspect the effectiveness of the special

7. need searches of random bags in the subway system. Katherine Lee Martin, the writer of the
William and Mary Bill of Rights Journal Law Review jumped to an opinion, which wants the
NYPD to find another way to secure the subway system in a reasonable manner.
This is the only process that is created by the NYPD, however the NYPD may conduct
reasonable searches instead of intruding peoples’ privacy. All three law cases shows an example
of subway random bag searches policy. MacWade v. Kelly, American-Arab Anti- Discrimination
Committee v. Massachusetts Bay Transportation, and Johnston v. Tampa Sports Authority
incorporated the special needs exception/doctrine and the defenses argue that they were violated
because of their right to the Fourth Amendment. All three law review journals supported their
argument in why the Fourth Amendment didn’t violate the random bag searches because it falls
under the special needs exception. To be considered a special needs with suspicion-less searches
the special needs need to go beyond the limit of law enforcement.

8. Citation
American-Arab Anti- Discrimination Committee v. Massachusetts Bay Transportation
Authority, 2004 WL 1682859
Johnston v. Tampa Sports Authority, 442, U.S. 1257, 2006
MacWade v. Kelly, 460, U.S. 260, 2006
People v. Smith, 89, U.S. 549, 1982
Harvard Law Review Association (2006). Criminal Law-Fourth Amendment-Second
Circuit Holds New York City Subway Searches Constitutional Under Special Needs Doctrine-
McWade v. Kelly. Harvard Law Review, 460 F. 3D 260. Retrieved 13 October 2013, from
Westlaw Academic database
Beckley, J. (2008). Constitutional Law-Spectator Attending Athletic Event Voluntarily
Consents Under Fourth Amendment To Pat-Down Search At Stadium Entrance- Johnston v.
Tampa Sports Authority. Suffolk University Law Review, 490 F. 3D 820. Retrieved 13 October
2013, from Westlaw Academic database
Martin, K. (2007). The Constitutionality of Suspicion-Less Subway Searches.
College of William & Mary Bill of Rights Journal. Retrieved 13 October 2013, from Westlaw
Academic database