Yesterday in Manhatten, Federal District Court Judge Richard M. Berman rejected the New York Civil Liberty Union's challenge to random police searches of the bags and backpacks of subway patrons. Following a bench trial, Judge Berman concluded that the governmental interest in preventing a terrorist bombing of the subway system outweighed the invasion of privacy resulting from the random searches, and thus held that the searches passed constitutional muster.
The judge based his decision on the "special needs" doctrine, which was originally intended to support searches in situations that were beyond the need for normal law enforcement. Historically, if the special needs doctrine applied, searches could be conducted based upon less than probable cause, but only in certain carefully chosen regulatory (as opposed to law enforcement) contexts, as long as the purpose of the search did not include apprehension of one guilty of criminal conduct. The situations in which the doctrine has been held to apply have been expanded by the courts in recent years.
I believe that the judge was overreaching in this case and am hopeful that he'll be reversed on appeal. Otherwise, our Fourth Amendment rights will continue to be eroded to the point where any search without a warrant will be consitutional, as long as it was conducted in the name of the fight against the nebulous concept of terrorism.