The New York Police Department is in “largely uncharted legal terrain” randomly checking the bags and backpacks of people entering the subway system, says the New York Times. Donna Lieberman of the New York Civil Liberties Union says tht “searches without suspicion of wrongdoing are fundamentally at odds with our constitutional guarantee of privacy, and placing unfettered discretion in the hands of the police invites racial, religious and ethnic profiling.”
The new policy is likely to be challenged under the Fourth Amendment, which bars “unreasonable searches and seizures.” In the past, courts have held that when the police search people for a law enforcement purpose, the amendment requires that there be “individualized suspicion” to warrant the search. Police said riders who do not wish to have their bags searched will be free to leave the subway without further questioning. They have also said that anyone found to be carrying illegal drugs or weapons will be subject to arrest, a provision that lawyers have found troubling. “My guess is that the city will argue that the searches are constitutional because they are a lot like what is already being done at airports,” said Brooklyn Law School Prof. Susan Herman. But X-ray and magnetometer checks at airports are not considered searches under the law. There are few real precedents for the new policy.