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For a few years, I was privileged enough to live and work in Manhatttan.  Like everyone else, I got to work using the city's extensive subway system.  This was in the post 9/11 years, and a familiar site in the subway stations were the checkpoints set up by the Metropolitan Transit Authority (MTA) police force to inspect  riders and any large bags thought worthy of inspection.  Mostly, I would just see 3 or 4 police officers standing around a folding table with a sign saying all packages are subject to inspection.  Only rarely did I ever see the police actually searching anyone or anything.  On what basis the police decided someone was worthy stopping and searching was a mystery to me.  

The public was told that any large packages brought into MTA facilities was subject to search.  This offended my liberal sensitivities, given my understanding that our written laws guaranteed the citizens in a public setting (such as a metropolitan transit system) were to be free of unreasonable search and seizure by the government and its agents.  It seemed nonsensical to me that “probable cause” sufficient to allow a personal search extended automatically to everyone who stepped into the metropolitan transit system.  I gathered from conversations with friends and colleagues, and from blogs and newspaper columns, that these searches were only done after asking permission, and if the policed asked to search you and you declined, a search was then not done.  I resolved that if I was ever asked, I would politely decline the invitation to be searched.

According to the 4th amendment of the US constitution, US citizens are protected from unreasonable search and seizure by agents of the government.  But according to legal precedent, a random search is reasonable if it fulfills a “special need”: law enforcement is allowed to search individuals not suspected of criminal activity if 1) there is a compelling state interest to do the search, 2) the searches are reasonably effective, and 3) the searches interfere only minimally with individual liberty.  Presumably, the MTA claims that its random searches of passengers is done to prevent acts of terrorism.  And of course, to be legal, all such searches must not single out any particular groups for special attention.  In 2005, a few months after the search policy was introduced in the NYC subways, the New York Civil Liberties Union (NYCLU) sued the city of New York on behalf of subway riders, claiming the searches were unconstitutional under the Fourth Amendment.  The court ruled the searches as constitutional under the “special needs” doctrine.

I no longer live in the city, but now in one of the extended suburbs.  Hence, I now ride the commuter train from its terminus north of the city into Grand Central Station on those days when my now part-time employment requires me.  So when I walked into my local train station building well north of the city in the early am on my way to work, I was not surprised to see a clutch of police (it's like a gaggle, except they are police) standing around a folding table.  I had never seen such a checkpoint in this station, but it was a couple of days after the bombings in Boston, and the increased security presence is I suppose to be expected in our new normal.  I used the automated machines to purchase my ticket and pay for my parking spot, then went into the lobby to buy a cup of coffee for the train trip.  As I made my way from the cathedral-sized waiting room to the train platform, I was mildly surprised when one of the officers stepped into my path and said “Sir, can we inspect your bag please?”.

I was immediately nervous, as I am any time I am approached by the police.  I managed to look the officer in the eye, and stammered out that my understanding of the laws was that the officers needed either a warrant or my permission to search me, and that I did not wish to be searched.  The officer replied with certainty that he was allowed to search me.  At that moment, a second officer joined us, and introduced himself as Sargent So-and-so, ad told me that I did not need to give my permission to be searched, and I would then not be searched.  He went on to say that if I declined to be searched, the police would not allow me to get on the train.  I admitted to the Sargent that I did want to use the train that morning.  I thought about it for like three seconds, then lifted my knapsack off my shoulder, and unzipped it to reveal to the inquiring officers my lunch (wheat roll, carrots, apple, and tangelo), and my book (the third volume of Shelby Foote's history of the American Civil War).  Now that we all felt safer and more secure, the officers allowed me to go about my peaceable, law-abiding, and private business.

Except that I did not feel safer and more secure.   I felt upset and mildly violated.  I wish I could tell you that I was braver and fought harder for my right to be free of an unreasonable search, but I didn't.. I wish I could say that I told the officers that having just paid for a ticket, I intended to ride the train, and if the officers stopped me, they would be adding an unreasonable seizure to the unreasonable search.  But I didn't do any of those things: I submitted to the search and forced out a “thank you”.  I did have a few minutes before my train left so I hung around a bit to observe that the officers at the checkpoint did appear to be stopping and searching everyone coming by – unlike those similar checkpoints I had previously seen in the NYC subways.  I was interested to see how the officers would deal with the group of 30 or so high-school students (most with backpacks) and adult handlers still getting themselves ready in the waiting area.  But time was getting short and I had to move off to my train before the student-group moved out of the waiting area.

Once I got to the platform and onto the waiting train, I realized a curious thing.  By virtue of the physical layout of the station, and the location the police had chosen to site their checkpoint, the police were neither in position to check the belongings of people entering through the front door to the station lobby/waiting area, nor check all the people getting onto the platform and the train itself.  Out of eyesight of the officers at the checkpoint, it would have been perfectly easy to drive right up, unload a couple of man-sized duffels, and move them into the lobby/waiting area or onto the train.  And if the plan called for it, it would have been equally easy to then leave the lobby/waiting area or the train to escape the blast radius.

But then, I had know all along that these police check-points are not really designed to intercept terrorist activities and ensure the safety of public mass transit users.  The checkpoints and searches have a more malevolent purpose: to intimidate the citizens and accustom citizens to swift and docile compliance with the armed representatives of the government.

It is common these days to be asked “if you have nothing to hide, why object to a search?”  One reason (among others) I object is because the search might be illegal.  But a better question to ask is “if I have nothing to hide, why do you need to search me?”  The need to search many people is the hallmark of a repressive government that seeks largely to control the populace and perceives its citizens as guilty until proved innocent.  A government of the people, truly formed to “secure the blessings of liberty” and to “extending the ground of public confidence in the government”, has no need for wholesale searches of the citizenry.

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