Police to Check Bags on NYC Subways ... 4th amendment anyone?

[Bravo25]

So, just a question here but what about when they finally realize that people have to aquire the stuff to build these bombs, and figure cutting it off at the source is the best idea. Now you can't go to the hardware store, the grocery store, or the electronics store without expecting to be searched. You can't buy gun powder for reloading. Is someone going to say you have a choice of "to eat or not" so you can just leave the grocery store?

Many people are sitting there saying that is stupid, it won't ever happen. 40 years ago who would've said that 911 would happen, and that we would now be searching subway riders?

 

[Al Norris]

Frank wrote:
The way I understand the case law, you have a greater expectation of privacy in your house as opposed to your bags when you're out at the train station.

Thank you for proving my case, Frank. Yes, I have a greater expectation of privacy at home as opposed to the public sphere. But that most definitely doesn't mean I have no expectation of privacy when away from home. The courts have ruled that I do have a limited expectation.

You were correct about the specifics of Katz. But it is the sum of the precedents of Berger; Katz and US v. US Dist. Court. They are about technology and the balance of privacy with police activity.

Now, as for the drunk driving thing. If you are a licensed driver, then you don't have the right, as you say. If you are not a licensed driver, the police either have to have a warrant or probable cause (not to danged hard if you are drunk and you have been stopped). Drawing blood is a search. Licensed Drivers give up that right as a condition for the state granting them the privilege of doing what they could be doing anyway.

As for the general statement that I don't have the right to my physical characteristics, just who do you think they belong to? The State? Those characteristics are my person, of which I retain the right against unreasonable searches.

The only real question here, is what constitutes an unreasonable search? You will fall back on years of precedent. Of case law that has ever expanded the police power at the expense of personal liberty. Do you call that progress? It is, in the sense of expanding governmental powers.

I doubt however you can point to anything that the founders wrote that would justify the Courts or your personal stance. The Constitution was written with the express purpose of allowing the Federal Government only those powers that would allow it to work where the Articles of Confederation didn't. All other authority was to reside with the State, where the founders reasoned, the rights of the people were better protected. The founders were wrong on those accounts it seems...

While I accept the rule of law, I also hold it in contempt for the encroachments upon my liberty it exercises. I hold, what I consider, a healthy distrust of government in general. I'm apparently in good company.

 

[brickeyee]

"Most likely though the bombs will just be directed elsewhere."

That is the goal of all the public show. It is not to find anything.

 

[jburtonpdx]

And if they do start going off someplace else - the mall, crowded grocery store, movie theater, the line in front of a night club, the dmv, our children's schools, colleges, apartment buildings, coffee shops at peak hours, etc...

Will all people in all places be subject to search? There is no guaranty of security, there is no possible way to search everybody all the time.

Lets say we somehow make the subways safe. As I said above, what is to stop the BG from going boom on a crowded intersection at rush hour? Maybe on a bridge someplace? Heck they somewhat coordinated the first set of bombs in London, what if they do that again on several bridges leading in/out of any city?

My point is not to go into hiding, these possibilities have been there all along, I bet a lot of these discussions occurred in the late 60s here in the states also.

We will make it through this, and we don't have to destroy our society to do it.

 

[butch50]

This breaks down, when all the emotion (and there is a LOT of emotion and sarcasm in this thread) is removed to a simple problem.

How to best prevent terrorists from exploding bombs inside a subway. That is the definition of the problem. And the answer is simple as well: Search the passengers before the get into the subway.

But here the emotions and sarcasm starts to flow because of a disagreement over two items: 1. Is it unconstitutional to search passengers. 2. Is it effective to search only some small percentage of passengers.

Here is my take:

1. It is not unconstitutional to search passengers about to get onto a subway. There is no compulsion forcing anyone onto a subway; anyone riding the subway does so voluntarily, and if a person finds being searched objectionable he merely stays away from the subway.

2. Random searches may have some deterrent effect and may have some practical value as well. How much effect? I don't think that could ever be measured, we won't ever know if any potential bombers were ever deterred because they won't be making announcements to that effect. Random searches do no harm. Continue on with them.

I have to say, even at the risk of being thrown off this forum - that a lot of the emotion and sarcasm has come from a "staff" member, which surprises me. Emotion I can understand up to a point, but sarcasm seems over the top.

 

[Marko Kloos]

If increased government control and decreased civil liberties meant increased safety, then prisons would be the safest places in the country.

 

[Rich Lucibella]

Butch-
Big difference between emotion and passion. And no, I see nothing in your posts that would cause us to consider taking action against your membership here.

It is not unconstitutional to search passengers about to get onto a subway. There is no compulsion forcing anyone onto a subway; anyone riding the subway does so voluntarily, and if a person finds being searched objectionable he merely stays away from the subway.

Asked and answered Butch. One might easily extend this doctrine to use of taxis, roadways, and sidewalks. IOW, the logic of "let us search you or find an alternative place to be" guts the 4th Amendment while preserving the illusion that it still exists.
Rich

 

[butch50]

I have to disagree with that Rich - It would be unconstitutional to search people at random looking for random law violations. If I was searched randomly and there was no apparent reason for the search, that would be unconstitutional. Fishing expeditions are unconstitutional.

But to be subjected to a random search, and that search has a specific and narrowly defined purpose based upon a very real threat; that I believe is not only constitutional but a rational act as well. It is a far better step than saying that the constitution forbids us from attempting to locate terrorists carrying bombs into densely crowded public places. From shutting down a transport system that is logistically important to the functioning of a city.

There are two things to prevent here - death/mayhem and the shutting down of a transportation system that could cripple the city if no one rode it.

The Constitution was not written to protect people intent on committing murder. It was written to protect people who have been accused of murder.

 

[buzz_knox]

But to be subjected to a random search, and that search has a specific and narrowly defined purpose based upon a very real threat; that I believe is not only constitutional but a rational act as well.

No, it's not. The 4th Amendment doesn't require the police to have a valid reasoning for conducting a search; it requires that the police have a valid reason for searching YOU.

The Constitution was not written to protect people intent on committing murder. It was written to protect people who have been accused of murder.

The Constitution was written to limit the power of government, regardless of the particular circumstances involving the excercise of said power.

When discussing the Constitution, we need to remember that the drafters of the Constitution had actively rebelled against their sovereign gov't less than a decade before it's drafting. It's hard to suggest that they intended the Constitution to be circumvented or curtailed in the interests of state security or "public" welfare when applied to the very freedoms they fought for.

 

[butch50]

No, it's not. The 4th Amendment doesn't require the police to have a valid reasoning for conducting a search; it requires that the police have a valid reason for searching YOU.

There is a distinct difference in searching a specific person for a specific reason, as in attempting to find evidence of a specific crime on a person because there is probable cause (as in your statement about them having a valid reason to search you) - or conducting random searches in an attempt to prevent a mass murder from taking place.

In the first instance the police are attempting to prove up a specific crime against an individual, in the second they are attempting to stop a bomb from going off in a crowded place. These are not similar, they are very different.

The only point of comparison between them is that a search takes place. Everything else is different and confusing the two is incorrect.

 

[buzz_knox]

There is a distinct difference in searching a specific person for a specific reason, as in attempting to find evidence of a specific crime on a person because there is probable cause - or conducting random searches in an attempt to prevent a mass murder from taking place.

Actually, there is no difference as far as the Constitution is concerned. Searches might be justified under an exigent circumstance standard, but the 4th Amendment still applies. The problem is that exigent circumstances do not exist in the situation we are discussing. The gov't has specifically stated they have no indicators pointing to a threat against the subways.

The only point of comparison between them is that a search takes place. Everything else is different and confusing the two is incorrect.

There is one other point of comparison: the Constitution. That's something that a lot of people forget in their zeal to obtain a spectre of security in return for the concrete loss of freedom.

 

[butch50]

Actually, there is no difference as far as the Constitution is concerned. Searches might be justified under an exigent circumstance standard, but the 4th Amendment still applies. The problem is that exigent circumstances do not exist in the situation we are discussing. The gov't has specifically stated they have no indicators pointing to a threat against the subways.

I don't know who in the government made the statement that they have no specific indicators pointing to a threat against the subways, but there certainly are specific indicators.

1. We have an arch enemy who has actively attacked and killed on our soil.
2. This enemy has publicly and often declared war on us and stated that taking the lives of civilans is a Holy endeavor.
3. This same enemy, to the best of our knowledge, was recently involved in a coordinated attack on the London subway.

How much more specific does it need to be? We do not actually have to receive an engraved announcement from Bin Laden that says he is going to attack your subway. At least not in my opinion.

There is one other point of comparison: the Constitution. That's something that a lot of people forget in their zeal to obtain a spectre of security in return for the concrete loss of freedom.

I do not see any loss of freedom in being subjected to random searches in an effort to prevent mass murders. If you find yourself being searched you are inconvenienced for a brief amount of time, but you certainly have not lost any freedom. You still go where and when you please.

 

[Al Norris]

Butch50, what you have just espoused is called the "compelling interest" argument. It is the same argument used by the government, and agreed upon by the Court, to provide any number of exceptions to the rule or to provide for powers that did not before exist, or to expand those that do.

This argument was used in the last 2 years in deciding, Kelo v. New London; Gonzales v. Raich; Cabelles v. Illinios; Hiibel v. Sixth Judicial District and in McConnell v. Federal Elections Commission.

In First Amendment issues, "compelling Interest" can be traced back to the 1938 case of Lovell v. City of Griffin. Commerce Clause issues can be traced to the 1942 decision, Wickard v. Filburn. Expansion of police power to search was Terry v. Ohio, 1968.

Each successful use of the argument creates a precedent upon which further expansion can be built. Each expansion further erodes our personal liberties.

I reject the compelling interest doctrine for what it is. An excuse to stomp on individual rights.

 

[LAK]

Rich Lucibella

One might easily extend this doctrine to use of taxis, roadways, and sidewalks. IOW, the logic of "let us search you or find an alternative place to be" guts the 4th Amendment while preserving the illusion that it still exists.

Butch50,

So what happens if bombs start going off on the hundreds of packed sidewalks in NYC? Random searches on the streets?

Apart from Constitutional issues, and the fact that random searches are not going to keep bombs out of NY subways, where does this have an end?

Is it when the Federal government declares that;

a) All Islamic militant fanatics are in custody, turned, or dead?

b) All explosive materials and "bomb making" components and other weapons capable of causing mass casualties and destruction are now either in the hands of government or destroyed?

c) Terrorism, the thought process wherein people devise ways to commit acts of terrorism has been eradicated from human thought?

This is not meant to be sarcastic, rather one of a number rational and logical questions that must be answered.

 

[shaggy]

Each successful use of the argument creates a precedent upon which further expansion can be built. Each expansion further erodes our personal liberties.

Its almost funny how some of us are quite willing to allow the government to trample on the 4th amendment for something as subjective and non-specific as a "very real threat". I suppose if Congress decided tomorrow that personal ownership of firearms creates a "very real threat" to public safety and outright banned personal ownership of firearms they would be the first ones lining up to hand them in?

If somethng as subjective and non-specific as a "very real threat" is enough to justify the evisceration of the 4th Amendment, does anyone seriously believe it couldn't (and wouldn't eventually) be used against the 2nd Amendment?

So how about it Butch? Ready to hand them in?

 

[Rich Lucibella]

Butch-
Expanding on Shaggy's point, lets look at the numbers:
For every American dead on 9/11, approximately FORTY have died since from firearms.

Now, you may have softened your position on firearms ownership and you may or may not side with the Brady Center, but your approach to the Fourth, in light of terrorism, is identical to their approach to the Second, in light of firearms deaths.

I don't live in NYC....but my dedication to ALL of the Bill of Rights is not dependant on whether it's my oxe being gored. When we begin to pick and choose among those rights or among the Americans who should enjoy them, we seriously threaten all Ten.

Lastly, you continually claim that opposition to random searches is a vote in favor of terrorism. That's specious and, ummm, "emotional".
Rich

 

[Mike Irwin]

"I now pose the question back, as is only fair.
If you had "supreme authority", what would you do to make us even a little more safe without making us a significantly less free? Stop every 10th citizen getting on ONE form of public transport in ONE city, to ask if they will submit to a VOLUNTARY search?"

Rich,

Please go back and tell me where I claimed to have an answer?

I'm trying to get people moving in a direction different that the typical responses of:

1. WOE IS ME, THE CONSTITUTION IS FALLING!

or

2. KILL ALL THE RAG HEAD BASTARDS AND LET THEM BURN IN HELL! MUSLIM EQUALS TERRORIST!

As an example of No. 2...

"Why, I'd pour some chlorine into that thar gene pool!

Yessiree!"

As I've noted several times, wailing and crying are easy.

Coming up with solutions? Hard, but potentially very rewarding.

Thomas Paine understood that.



"Who ever it was, that convinced the American People that they can live a life of liberty without danger, has to be the absolute best salesman ever!"

No one ever convinced Americans of that. We, as a society, grew to accept that. It's called complacency.

 

[butch50]

One might easily extend this doctrine to use of taxis, roadways, and sidewalks. IOW, the logic of "let us search you or find an alternative place to be" guts the 4th Amendment while preserving the illusion that it still exists.

I disagree on the comparison: Subways are confined spaces that have specific and limited points of entry. They condense masses of people into tightly constrained spaces. An ideal environment for maximizing damage from explosives. Because of their nature it is logistically possible to control the entry points.

Not so with taxis, roadways and sidewalks. They are not as constricting or confining and it would be impossible, logistically speaking, to control the entrances to them. This makes subways and airplanes (an airplane is basically the same setup as a subway) a different kettle of fish.

Now, you may have softened your position on firearms ownership and you may or may not side with the Brady Center, but your approach to the Fourth, in light of terrorism, is identical to their approach to the Second, in light of firearms deaths.

Again I disagree with the comparison. There is a vast difference between erosion of rights, as the brady center advocates, and taking a common sense approach to trying to keep bombs out of subways. You see it as two similar attacks on your rights, I see it as one attack on my right to KBA and as an attempt to stop bombs from getting into subways. The two are not the least mixed together in my mind. However, if random searches were conducted in an effort to fish for random violations of the law then I would agree with you.

Lastly, you continually claim that opposition to random searches is a vote in favor of terrorism. That's specious and, ummm, "emotional".

Touche!

 

[Rich Lucibella]

Mike-
I did, at least, answer your questions directly....even though I was under no more obligation than you are to answer mine. Still, if you'd prefer not to answer in turn, I'll respect that.

Amazing that so many on a Pro-Second Amendment board, are willing to wither on the other Nine Amendments at the first sign of "danger". Little wonder the Second continues to shrink.

Subways are confined spaces that have specific and limited points of entry. They condense masses of people into tightly constrained spaces. An ideal environment for maximizing damage from explosives. Because of their nature it is logistically possible to control the entry points.

Butch-
Same holds true of: Churches, Movie Theaters, Shopping Malls, Hotels, Office Buildings and Apartment Complexes. Shall we commence random searches at each of these or do we assume the terrorist dismantles his bomb when he realizes he can't get thru the 1:5 "dragnet" on the subway platform?
Rich

 

[shaggy]

There is a vast difference between erosion of rights, as the brady center advocates, and taking a common sense approach to trying to keep bombs out of subways.

A "common sense approach"? Gee whiz, where have I heard that line before?

Oh yes, Sara Brady herself...

"The tide is turning in America, and smart leaders are going to be fighting to make it harder for the bad guys to get guns," said Sarah Brady, Chair of the Brady Campaign united with the Million Mom March. "Now, if only President Bush and Congress will take a more common sense approach to these issues, we'll make real progress."​

Brady link