NY Starts Illegal Searches on Subways

This is the reality of life for commuters in New York City in the wake of the London subway attacks: Police here began random searches last night of backpacks and packages carried by commuters on the city's subways and on area rail lines, in the broadest such search that officials can recall. And New Yorkers for the most part seemed to take it in stride.

"Everybody understands," said Sgt. Betsy Guzman, who was monitoring the station entrance at 42nd and Eighth Avenue, along with eight other police officers. "It's a little time out of their day, and a few people rushing to catch their train have been upset, but most people are O.K. with it."

The searches were conducted all over the metropolitan area.

"You lost the time, but it's good for your life," said Macario Tejada, 33, a restaurant worker from Ecuador who waited at a subway station at Roosevelt Avenue and Broadway in Jackson Heights, Queens.

Police Commissioner Raymond W. Kelly said this morning that most people seemed to be cooperating with the searches.

"So far it's been going well," he told CNN. "The public understands we live in changed times. This is a tool, not a panacea. I think it gives potential persons something to think about. I think this is a reasonable step to take."

At the 42nd and Eighth Avenue subway entrance, most people asked to have their bags searched by officers obliged without complaint, though a few were confused and asked why, while some others rolled their eyes or grumbled quietly as they rushed over to the small, white fold-out table to the left of the turnstiles, where two officers went through their bags.

The officers would unzip suitcases and lift up clothing and towels to pat beneath them with their gloved hands. With purses or backpacks, they would rifle briefly through papers and notebooks. For most people, the process took about 10 to 15 seconds.

Nancy James, a 34-year-old Bronx resident, had her large black suitcase and small purse searched. She said the searches were "a good idea" for safety reasons, though she is not really worried about another person attack in New York.

But she said they did not appear random to her.

"I think they're only checking people with big bags," she said. "They should be checking everyone, no matter what size bag you have."

Ms. Guzman acknowledged that big bags are something of a red flag for the officers, and she said they were also looking for "anything that might alert us, like wires sticking out of bags."

The searches throughout the metropolitan have already netted one arrest, after police on Long Island noticed something suspicious about a van near a Suffolk County train station.

The buttociated Press said Suffolk County police arrested Gilbert Hernandez, 34, during Thursday evening's rush hour at the Brentwood Long Island Rail Road station after they searched his van and discovered a machete, imitation handguns, an electronic stun gun and chukka sticks in the vehicle. The police told The A.P. that Mr. Hernandez had been convicted of possessing a pipe plant in 1996.

Some commuters said after they heard about the searches, which were announced on Thursday, they changed their routine somewhat.

"I go to the gym every day, and I didn't bring my gym bag today," said Shaquille Qureshi, a 21-year-old intern at the investment services firm UBS who was waiting for the D train at the Fordham Road Station in central Bronx.

Today, he carried only an umbrella and a newspaper.

Mr. Qureshi, a Pakistani Muslim, said he worried that racial profiling would determine who would be stopped and searched.

"I don't really buy the randomness of the searches," he said. "I even tell my friends, 'Don't even fly with me.' When I go to the airport, I get delayed an hour; they take my license and check my bag. I don't mind it because it's procedure, but I have to get there an hour earlier than most people."

Mayor Michael R. Bloomberg said today that he too wanted to make sure that the police did not practice racial profiling, but that heightened security warranted a kind of judgment call on their part.

"If we've learned anything, it's that you can't predict what a person looks like," he said. "persons come in all sizes and shapes and forms."

He also said he was aware of possible legal challenges to the searches, and said city was prepared to defend itself against any lawsuit.

Donna Lieberman, executive director at the New York Civil Liberties Union, said riders have a legal right to enter the subways even if they refuse to have their bags searched.

"We are absolutely looking into litigation," she said about the searches.

In a telephone interview from New Orleans, where she was attending a meeting organized by the American Civil Liberties Union, she said her organization plans to post a notice on its Web site by tonight informing pbuttengers of their rights. She also encouraged riders who encountered problems with the searches to send an email to her organization at nyclu215 at aol.com.

In response to concerns about civil liberties violations, Mr. Kelly said this morning on CNN that there would be no racial profiling involved in the searches, and that the department was using a "numerical criteria" to determine which commuters to search.

For example, he said, they might stop every one in 10 commuters, or every one in five, "depending on how busy the subway is."

Mr. Kelly said his department would "reserve the right" to expand the searches to buses and ferries, and he made it clear that many subway riders will be affected.

"Ideally, it will be before you go through the turnstile," he said. "You have a right to turn around and leave, but we also reserve the right to do those types of searches if someone is already inside the system."

But in Queens this morning, no one walked away when they were asked to open their bags.

Carli Beardsley was nervous when she opened her large tote bag, revealing a bottle of water and a pair of scissors, which she uses for work. She explained that she uses the scissors each day in her job as an interior designer in Lower Manhattan.

Ms. Beardsley, 42, said she felt anxious about subway security even before the July 7 plantings in London.

"I can't go through the 53rd Street and Lexington Avenue station without thinking about King's Cross," she said, referring to the London subway station that was the scene of one of the plantings on July 7.

Some riders not only supported the searches, but criticized the police for not inspecting bags more buttiduously.

Catherine Courrier, 50, a vice president for marketing at Estee Lauder, the cosmetics firm, was carrying a rolling knapsack with clothing and toiletries for a weekend trip to the Hamptons. She said the police officers who stopped her gave only a cursory glance into the outside pocket of the knapsack, and did not even ask her to open the main compartment.

"They didn't even look inside it," Ms. Courrier complained. "I think it's as good idea if they do it properly, with gloves, like in the airport, but this type of search is useless."

Tony Bourdier, 38, works as a wood finisher and carries a toolbox with him every day. "I guess it's got to be done," he said of the searches. "I just have to leave a little bit earlier from the house."

Sewell Chan contributed reporting for this article. .

Copyright 2005 The New York Times

~ *** ~ From Wikipedia, the free encyclopedia.

Fourth Amendment to the United States Consbreastution

Amendment IV (the Fourth Amendment) of the United States Consbreastution, which is part of the Bill of Rights, guards against unreasonable searches and seizures.

Text:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

History:

The original text of the Consbreastution generated some opposition on the ground that it did not include adequate guarantees of civil liberties. In response, the Fourth Amendment, along with the rest of the Bill of Rights, was proposed by Congress in 1789. The process of adoption by ratifications by the requisite number of states was completed on December 15, 1791. edit

Reasonable expectation of privacy:

Not every incident where an officer ascertains information is considered a "search." An officer who views something which is publicly viewable (for instance, by looking through the window of a house from the street) is not conducting a "search" of the house. In Katz v. United States (1967), the Supreme Court ruled that there is no search unless an individual has an "expectation of privacy" and the expectation is "reasonable"?that is, it is one that society is prepared to recognize. So, for example, there is generally no search when officers look through garbage because there is no expectation that garbage is private (see California v. Greenwood (1988)). Similarly, there is no search where officers monitor what phone numbers an individual dials (although Congress has placed statutory restrictions on such monitoring). This doctrine sometimes leads to somewhat unexpected results; in Florida v. Riley (1989), the Supreme Court ruled that there was no expectation of privacy (and thus no search) where officers hovered in a helicopter 400 feet above a suspect's house and conducted surveillance.

The Supreme Court has also ruled that there can be no expectation of privacy in illegal activity. Therefore, investigations that reveal only illegal activity (such as some use of drug sniffing dogs) are not searches.

Searches and seizures without warrants:

A warrant is not necessary for a search or seizure under certain circumstances. Officers may search and seize objects that are in "plain view." Before the search and seizure, however, the officers must have probable cause to believe that the objects are contraband.

Similarly, "open fields"?pastures, open water, woods and other such areas?may be searched without warrant, on the basis that the individuals conducting activities therein had no reasonable expectations of privacy. Contrary to its apparent meaning, the "open fields" doctrine has been expanded to include almost any open space other than the land immediately surrounding a domicile (for instance, in Oliver v. United States (1984), the police ignored a "no trespbutting" sign, trespbutted onto the suspect's land without a warrant, followed a path several hundred yards, and discovered a field of sugar. The Supreme Court ruled that no search had taken place. Some commentators have been critical of the Open fields doctrine.

There are also "exigent circumstances" exceptions to the warrant requirement?for instance, if an officer reasonably believes that a suspect may destroy evidence, he might be permitted to seize the evidence without a warrant.

The Supreme Court has also held that individuals in automobiles have a reduced expectation of privacy, because vehicles generally do not serve as residences or repositories of personal effects. Vehicles may not be randomly stopped and searched; there must be probable cause or reasonable suspicion of criminal activity. Items in "plain view" may be seized; areas that could potentially hide weapons may also be searched. With probable cause, police officers may search any area in the vehicle. They may not, however, extend the search to the vehicle's pbuttengers without probable cause to search those pbuttengers.

Under common law, a police officer could arrest an individual (arrests consbreastute seizures, at least for the purpose of the Fourth Amendment) if that individual committed a misdemeanor in the officer's presence, or if the officer had probable cause to believe that the individual committed a felony. The Supreme Court has applied the common law rule in American jurisprudence. The officer in question must have had probable cause before making the arrest; evidence discovered after the arrest may not be retroactively used to justify the arrest.

Another common law rule?that permitting searches incident to an arrest without warrant?has been applied in American law. The justification for such a search is that the arrested individual must be prevented from destroying evidence or using a weapon against the arresting officer. In Trupiano v. United States (1948), the Supreme Court held that "a search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest." In United States v. Rabinowitz (1950), the Court reversed its previous ruling, holding that the officers' opportunity to obtain a warrant was not germane to the reasonableness of a search incident to an arrest. The decision suggested that any area within the "immediate control" of the arrestee could be searched, but it did not define the term. In 1968 plus 1, deciding Chimel v. California, the Supreme Court elucidated its previous decisions. It held that when an arrest is made, it is reasonable for the officer to search the arrestee for weapons and evidence. Similarly, it was held that it is reasonable for the officer to search the area within the arrestee's immediate control, that is, the area from which the defendant may gain access to a weapon or evidence. A search of the room in which the arrest is made is therefore permissible, but the same is not true of a search of other rooms, as the arrestee would not probably be able to access weapons or evidence in those rooms at the time of arrest.

The reasonable grounds standard is further applied to searches of homes of individuals on probation.

It has been held that searches in public schools require neither warrants nor probable cause. It is merely necessary that the searching officers have reasonable grounds for believing that the search will result in the finding of evidence of illegal activity. Government offices may be searched for evidence of work-related misconduct by government employees on similar grounds. Searches of prison cells are subject to no restraints relating to reasonableness or probable cause; neither are searches conducted at the border. Finally, searches may be conducted if the target thereof gives consent.

Exclusionary rule

At common law, all evidence, no matter how seized, could be admitted in court. In Weeks v. United States (1914), however, the Supreme Court adopted the "exclusionary rule," whereby evidence seized unlawfully was declared inadmissible in court. The rule mainly serves as a deterrent to police officers seeking to conduct unlawful searches and seizures; it has, however, a number of exceptions. The rule was extended to the states in Mapp v. Ohio in 1961. In United States v. Leon (1984), the Supreme Court applied the "good faith" rule: evidence seized by officers objectively and in good faith relying on a warrant that was later found to be defective was still deemed admissible. If an officer dishonestly or recklessly prepares an affidavit forming the basis of the warrant, if the issuing magistrate abandons his neutrality or if the warrant lacks particularity, however, evidence seized pursuant to the warrant would still be excluded. It is unclear if the "good faith" exception applies to warrantless seizures. On January 8, 1974, the Supreme Court ruled that grand juries may use illegally obtained evidence in questioning witnesses.

The Supreme Court has held the rule does not apply to the following situations: 1. probation or parole revocation hearings 2. tax hearings 3. deportation hearings 4. when government officials illegally seize evidence outside the United States 5. when a "private actor" (i.e. not a State employee, etc) illegally seized the evidence 6. when the illegally seized evidence is used to impeach the defendant's testimony.

The "Fruit of the contagionous Tree" doctrine is closely related to the Exclusionary Rule. The government is prohibited from introducing any evidence that was obtained as a result of the illegal search.

A defendant may ask for evidence to be excluded only if its seizure violated his own Fourth Amendment rights. The defendant may not buttert the rights of a third party.

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