MADELEINE BRAND, host:
And those random searches of bags and packages in the subway prompted our colleagues at the online magazine slate.com to ask if this kind of screening is indeed legal. Slate's Daniel Engber has this Explainer.
DANIEL ENGBER reporting:
The searches can be legal, but it depends on how they're done. The Fourth Amendment protects people from unreasonable searches or seizures. That means that as a general rule the government can't search your baggage without a reason to believe you're a criminal. But according to legal precedent, a random search is acceptable if it fulfills a special need, like public safety. If New York subway screenings were challenged in court, the city's lawyers could argue that the program's primary purpose is to protect the city from terrorism.
Let's assume the courts believe the subway searches are an effective deterrent for terrorism and that the recent subway bombings in London make them reasonable. Then a judge would have to consider whether the scope and duration of the searches is appropriate.
The first random subway screenings occurred last summer in Boston during the Democratic Convention. A district court ruled that searches on trains that ran beneath the convention center were acceptable since they took place in a restricted area for a limited amount of time. The New York City searches, though, are taking place all over the system and seem to be of open-ended duration.
The judge must also consider how individuals are selected for screening. If police officers have too much discretion, they might single out certain kinds of people for what are supposed to be random searches. To prevent profiling, cops are sometimes given a strict formula. In Boston, for example, every 11th passenger was pulled aside at some commuter rail stations. The New York Police Department says it's using numerical criteria, but spokesmen also say that large or suspicious-looking bags can be red flags.
BRAND: And that Explainer from Slate's Daniel Engber.
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