DC Metro has implemented a “random search” policy.1 It justifies the searches (in light of the 4th Amendment) by stating that the searches are voluntary. In other words, if you don’t want to be searched, you can just not take the metro.
Metro Transit Police Chief Taborn asserts that a 2nd Circuit Court of Appeals case that allowed New York subway to continue searches is what grants DC Metro “authority” to conduct its own searches.2 NEWSFLASH: Just because a federal court in a different jurisdiction found a particular policy to be not a constitutional violation in that particular location doesn’t “grant authority” for others to do the same. It sets precedent, certainly, but not authority. Authority would be given based on a state or federal law, clarified by regulation, if necessary. The court case merely gives Metro the confidence to carry out its policy without worrying too much about losing a lawsuit.
Where does constitutionality come into play? Why, the Fourth Amendment, of course. You know, the one George W. Bush abolished (among others)? Here’s what our former amendment said:
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.
Metro’s policy is that since you’re being intercepted supposedly randomly for a search prior to paying fare for access to the transportation system, you have the right not to be searched. However, “refusing” to be searched would prevent your ability to enter the transportation system. Compare it to a government building’s metal detector/bag search at each entry point. You could walk into the pre-search area, see that there’s a search taking place, and you could turn around and leave. You keep from being searched, but you also can’t enter the building.
When asked about potential infringement of the Fourth Amendment, Chief Taborn rebuts, “This is a consent search.”
In the Washington Post discussion with Chief Taborn, a questioner asks:
I am opposed to these searches and plan on refusing any Metro officer’s request to go through my bags. Because I’ll be allowed to refuse search and turn around without being detained, I will simply enter the Metro through another escalator or elevator. How do you plan on addressing this loophole?
Chief Taborn replies:
You may choose not to be searched and leave the station with your bags or other items. We do have a plan to address suspicious behavior.
(emphasis added)
Perhaps I’m reading too much into the reply, but if you add it all up, it really reads like this:
If you want to take the metro, you subject yourself to being searched. If you “refuse” to be searched (i.e., if you exercise your right not to be searched), you will raise suspicion that you might be trying to avoid being searched, and therefore anyone who refuses to be searched will be observed, just in case that person tries to use another entrance. Which, of course, isn’t illegal. And, our tracking, identification, suspicion, and future potential apprehension of anyone doing something like that is somehow constitutional.
Let me give you an analogy that I think will play out in the coming months as this “random” search is implemented. If a police officer comes to your house to ask you some questions about some crime that was supposedly committed in the area, and you step outside your door to greet the officer, bringing your door shut, and then proceed to tell the officer your name, when asked, but decline to answer further questions, and also politely decline to give consent to search your home when the officer asks (even to the point of nearly insisting (you’ve seen Law & Order) ), and, if after all that, the police officer pushes you aside and enters and searches your home anyway, and later in court asserts that your refusal to give consent to search your home was, in itself, suspicious, then any charges brought against you for something found in your home by that officer would most likely be dropped, because refusal to consent to a search is not probable cause!3
So, if Metro police agents notice that you refuse to be searched at one entrance to a Metro station, and then you amble down to the next Metro station, and try to enter there, can the Metro officers radio ahead to all stations to be on the lookout for you, and to refuse you passage, and to have you apprehended for trying to avoid being searched? Of course they can. And they would. And they will.
So, what, as a citizen, can you do? What should you do?
The Citizen’s Guide to Refusing DC Metro Searches, at http://www.flexyourrights.org, supports the notion that refusing being searched is not cause for suspicion (or shouldn’t be), but gives some helpful tips to avoid getting shot in the process of refusing. Briefly:
-Be calm
-Don’t chat
-Don’t physically resist (even though you have rights, you don’t want to get the shit beat out of you to defend them — the police could actually have probable cause to search you for other reasons that you might not be aware of)
-Don’t run (lest ye be shot)
-Report abuses (and keep notes of names, locations, times, etc.)
Good advice for sheepdom, but, unfortunately, if you want to get to work, sometimes you just gotta say “baaa.”
What can you do beyond that? You could try to make yourself a martyr to push a case up to the Supreme Court (which, of course, would side with Metro). You could try to pass legislation preventing these searches (lobbying, getting the word out, whatever). You could just not ever take the metro. You could break the system. I’m not going to tell you how to do the latter, or that you should do it, but sometimes that actually works.
If you’re curious, the key to the MacWade case (that allowed New York subway the ability to keep searching) is the narrow application of the searches. Specifically: (emphasis mine)
“The Program is narrowly tailored to achieve its purpose:
1. passengers receive notice of the searches and may decline to be searched so long as they leave the subway;
2. police search only those containers capable of concealing explosives, inspect eligible containers only to determine whether they contain explosives, inspect the containers visually unless it is necessary to manipulate their contents, and do not read printed or written material or request personal information;
3. a typical search lasts only for a matter of seconds;
4. uniformed personnel conduct the searches out in the open, which reduces the fear and stigma that removal to a hidden area can cause;
5. police exercise no discretion in selecting whom to search, but rather employ a formula that ensures they do not arbitrarily exercise their authority.”4)
I consider the highlighted text the keys to perpetuating or breaking the policy. If Metro starts abusing passenger rights by giving pat-downs, detaining people for five or ten minutes, or by “miscounting” such that the supposed randomness is infused with an unhealthy dose of prejudice, then we need to fight back and have the policy nixed, changed, or heavily regulated.
What irks me as much as this blatant infringement on my rights (with no worthy justification, since hundreds and hundreds of people aren’t being screened — there’s NO actual security or prevention, just weak intimidation, especially since potential passengers can refuse to be searched) is that those whose rights are being stepped upon are the ones having to pay for it, through increased metro fares. Oh, did I also mention that it’s even the non-metro-riding taxpayer who is also paying for it? The government just gave Metro $1.5 billion to fix itself.5
I mean, we all did.
—–
Some handy links:
Brief and nearly pointless “discussion” with Metro Transit Police Chief Michael Taborn
Wikipedia entry on the Fourth Amendment
Wikipedia entry on Consent Searches
“I do not consent to a search; Am I free to go?; I want a lawyer.” (warning, very green)
ACLU: Know Your Rights: What to Do If You’re Stopped by the Police

- http://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDocument&orgId=1593&topicId=21355&docId=l:875380583 [<]
- “Legal authority to inspect packages brought into mass transit systems and other venues has been upheld by the courts in numerous jurisdictions. Metro�s inspection program is very similar to the one conducted in the subway system in New York City. The United States Court of Appeals for the Second Circuit has specifically ruled on the constitutionality of the New York program in MacWade v. Kelly.” http://www.washingtonpost.com/wp-dyn/content/discussion/2008/10/27/DI2008102702325.html [<]
- See United States v. Fuentes, 105 F.3d 487, 490 (9th Cir. 1997). (“refusal by itself does not give rise to reasonable suspicion or probable cause”). [<]
- MacWade v. Kelly, 460 F.3d 260 (2d Cir.2006 [<]
- http://media.www.gwhatchet.com/media/storage/paper332/news/2008/10/13/News/Federal.State.Governments.To.Give.Metro.1.5.Billion.For.Upgrades-3483736.shtml?pop [<]
