One of my first posts on this blog was regarding a New York federal district court decision that allowed the random searches of the belongings of subway patrons based on the special needs doctrine. As I'd explained in my earlier post:
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'm extremely disappointed to report that that decision has been upheld by the Second Circuit, in a decision which can be found here. In upholding the lower court's decision, the Court stated:
(T)he special needs doctrine may apply where, as here, the subject of a search possesses a full privacy expectation. Further, we hold that preventing a terrorist attack on the subway is a "special" need within the meaning of the doctrine. Finally, we hold that the search program is reasonable because it serves a paramount government interest and, under the circumstances, is narrowly tailored and sufficiently effective.
I think we're headed down a slippery slope here--all in the name of "terrorism". Talk about judicial activism! The definition of "special need" is being rapidly expanded by the courts, and soon, virtually any governmental intrusion that's alleged to be necessary to combat "terrorism" will be constitutionally permissible, regardless of how ineffective or invasive that it is.
This certainly doesn't feel like the America that I know and love.