Cassidy v. ChertoffCassidy v. Chertoff
Douglas N. Letter, Appellate Litigation Counsel, Civil Division, Department of Justice, Washington D.C., and Michael Brow, Sylvester & Maley, Inc., Burlington, VT (Peter D. Keisler, Assistant Attorney General, Washington, D.C.; David V. Kirby, United States Attorney for the District of Vermont; Carol L. Shea, Assistant United States Attorney, Burlington, VT on the brief), for Defendants-Appellees.
Before WINTER, POOLER, and SOTOMAYOR, Circuit Judges.
SOTOMAYOR, Circuit Judge.
Plaintiffs-appellants Michael Cassidy and Robert J. Cabin appeal from a judgment of the United States District Court for the District of Vermont (Murtha, J.) granting defendаnts-appellants Michael Chertoff, Thomas H. Collins, Glenn Wiltshire, and Lake Champlain Transportation Company‘s (“LCT“) motion to dismiss the plaintiffs’ claim that LCT‘s practice of searching the carry-on baggage of randomly selected passengers and inspecting randomly selected vehicles, including their trunks, pursuant to the Maritime Transportation Security Act of 2002 (“MTSA“),
BACKGROUND
In the wake of the September 11, 2001 terrorist attacks, Congress enacted the MTSA to detect and deter a potential “transportation security incident,” which Congress defined as a “security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area.”
The MTSA contains a set of nationwide directivеs for increasing both vessel and port security. First, it requires the Secretary of the Department of Homeland Security (“DHS“) to “conduct an assessment of vessel types ... on or adjacent to the waters subject to the jurisdiction of the United States to identify those vessel types . . . that pose a high risk of being involved in a transportation security incident.”
The Coast Guard conducted the initial nationwide vulnerability assessment on behalf of the Secretary. See Implementation of National Maritime Security Initiatives, 68 Fed. Reg. 39,240, 39,243 (July 1, 2003) (to be codified at
Based on this assessment, the Coast Guard determined that certain maritime vessels, including those that weigh more than 100 gross register tons or are licensed to carry more than 150 passengers “are at a high risk of a transportation security incident.” Id. at 39,246; see also
Owners and operators of high-risk vessels are permitted a certain measure of flexibility within this general framework. They may opt out of “identification checks and passenger screening requirements.”
- Searching selected areas prior to embarking passengers and prior to sailing; and
- Implementing one or more of the following:
- Performing routine security patrols;
- Providing additional closed-circuit television to monitor passenger areas; or
- Securing all non-passenger areas.
The parties agree that an ASP is a classified document, subject to the same “sensitive security information” designation that applies to a VSP. See
Plaintiffs Michael Cassidy and Robert J. Cabin, both residents of Vermont, are commuters who ride LCT ferries and were subject to random searches pursuant to the ferry company‘s ASP. They traveled to their jobs in New York via the LCT ferry between Grand Isle, Vermont and Plattsburgh, New York several times a week. The ferries that operate on this route weigh more than 100 gross register tons and are therefore subject to the MTSA‘s regulations for high-risk vessels. Cassidy usually crosses on the ferry in his car while Cabin, who mostly commutes by bicycle, always cаrries with him a backpack or small bike pack.
Shortly before July 1, 2004, LCT posted a notice at its ticket booths warning passengers that “[a]s a result of the September 11, 2001, terrorist attacks on the United States,” LCT had been required by DHS and the Coast Guard “to conduct random screening of persons, cargo, vehicles, or carry-on baggage.” The notice further explained that compliance with the search policy was mandatory and that “anyone refusing to submit to security screening will not be allowed to board [LCT] ferries.” LCT also placed large plastic signs near its ticket booth and ferry boarding areas stating that its facilities and boats were subject to security regulations issued by DHS and the Coast Guard; that all vehicles, baggage, and personal items were subject to screening at any time; and that failure to observe these requirements could result in immediate removal from the ferry or detention by law enforcement authorities.
On July 1, 2004, LCT ferry attendants began selecting passengers to be searched. Based on observations made by plaintiffs and other witnesses, LCT‘s security program appears to involve the following protocols. Foot and bicycle passengers are asked to open their carry-on items and present them for visual inspection. Car passengers are asked to open their trunks or tailgates so that the attendant may visually inspect the car‘s interior; attendants do not appear to search containers in either the trunks or interiors of vehicles. On occasion, attendants will ask the driver to open the car‘s windows to permit a visual scan of the interior.
Cassidy has been asked to open the trunk of his car on a number of occasions when attempting to board the ferry. Cabin has been asked to open his bike pack on at least one occasion. Cassidy and Cabin acquiesced to these demands because commuting via LCT ferries is a practical necessity for both of them. (Cassidy stated in his complaint that the only feasible alternative—traversing Lake Champlain via Rouse‘s Point Bridge—would double his daily commute time from two hours to four.) Moreover, plaintiffs wish to avoid any repercussions that may attend refusal to acquiesce to LCT‘s boarding requirements; plaintiffs allege that LCT records the license numbers of vehicles whose drivers refuse to consent to a trunk search and communicates this information to attendants at all of its loading docks, where the offending vehicle is barred from boarding any LCT ferry until its driver submits to a search. In addition,
DISCUSSION
We review de novo a district court‘s grant of a mоtion to dismiss; we accept as true the factual allegations in the complaint and draw all inferences in the plaintiffs’ favor. Allaire Corp. v. Okumus, 433 F.3d 248, 250-51 (2d Cir. 2006).
Plaintiffs contend that LCT‘s policy of requiring passengers to submit to security checks before boarding ferries on two of its Lake Champlain routes violates their Fourth Amendment rights. The Fourth Amendment to the United States Constitution provides that the federal government shall not violate “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
“[T]he ultimate measure of the constitutionality of a governmental search is `reasonableness.\‘” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Courts judge the reasonableness of a search “by balancing its intrusion on the individual‘s Fourth Amendment interests against its promotion of legitimate governmental interests.” Id. at 652-53, 115 S.Ct. 2386 (internal quotation marks omitted). When law enforcement officials undertake a search to discover evidence of criminal wrongdoing, the Supreme Court has held that reasonableness generally requires those officials to obtain a search warrant. See Skinner, 489 U.S. at 619, 109 S.Ct. 1402. Such warrants cannot be obtained without a showing of probable cause. Id.
In Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997), the Supreme Court discussed the rubric courts must use to determine whether a particular governmental search falls within the “closely guarded category of constitutionally permissible suspicionless searches.” Id. at 309, 117 S.Ct. 1295. The Court explained that when “`special needs\’ — concerns other than crime detection or ordinary evidence gathering — are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Id. at 314, 117 S.Ct. 1295. In applying the special needs doctrine, courts must assess the constitutionality of the challenged conduct by weighing “the government conduct — in light of the special need and against the privacy interest advanced” — through the examination of three factors: (1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government‘s needs, and the efficacy of its policy in addressing those needs. Palmieri v. Lynch, 392 F.3d 73, 81 (2d Cir. 2004); see also United States v. Lifshitz, 369 F.3d 173, 183-84 (2d Cir. 2004). We examine each of these three factors in turn.
I. Plaintiffs’ Privacy Interest
Plaintiffs assert that they have a full privacy interest in protecting their carry-on baggage and automobiles from random, suspicionless searches. They contend that members of the public have an undiminished expectation of privacy when they board ferries on Lake Champlain. Plaintiffs further argue that the searches LCT conducts on its loading docks differ from searches the government conducts at international borders and traffic checkpoints because borders between countries, unlike rural loading docks, are obviously sensitive locations that implicate a diminished expectation of privacy.
A. Plaintiffs’ Expectation of Privacy in Their Carry-on Baggage
Plaintiffs assert that passengers with carry-on baggage retain an undiminished privacy interest in such baggage because plaintiffs experienced LCT‘s searches as a substantial intrusion on thеir privacy and because Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), “definitively reaffirmed the protected privacy interest in the contents of hand luggage.” While we do not read
The Supreme Court has held that “[t]he Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as `legitimate.\’ What expectations are legitimate varies, of course, with context, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park.” Vernonia, 515 U.S. at 654, 115 S.Ct. 2386 (citations omitted). Two key cases have applied this test to passengers’ carry-on luggage in the mass transport context and refused to find any diminished privacy expectations regarding such luggage. In Bond, the Supreme Court determined that travelers on an intracity bus enjoyed a full expectation of privacy in their carry-on items because they did not “expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner,” and that expectation was objectively reasonable. 529 U.S. at 338-39, 120 S.Ct. 1462. In MacWade, we confronted the question of whether a legitimate privacy interest existed as to searches of “items in a closed, opaque bag,” 460 F.3d at 272, carried by subway passengers, and found a full privacy interest in such bags, id. at 272-73.
It is clear that Bond reaffirmed the general privacy interest that individuals enjoy in relation to their bags, but we hesitate to accede to the plaintiffs’ assertion that Bond precludes a finding of a diminished expectation of privacy in such bags in any context. Instead, as with any privacy analysis, the Supreme Court has cautioned that privacy expectations necessarily depend on context. Vernonia, 515 U.S. at 654, 115 S.Ct. 2386. We do, however, agree with plaintiffs that in this specific context, MacWade is particularly persuasive here because it concerned the privacy interests of individuals commuting on mass transportation. First, plaintiffs have clearly evinced — and the government does not deny — a subjective privacy interest in the carry-on bags that they take with them onto the ferry. MacWade, 460 F.3d at 272. Second, given that we found it objectively reasоnable for subway riders to expect that their carry-on bags will not be “opened and [their] contents visually inspected or physically manipulated,” id. at 273, we see little reason to alter that analysis as applied here to ferry passengers.
Finally, we are not convinced by the government‘s argument that our airport search cases alter the privacy interest calculus here. In United States v. Edwards, we upheld pre-boarding, suspicionless searches of airline passengers, holding that to brand them “as unreasonable would go beyond any fair interpretation of the Fourth Amendment.” 498 F.2d at 500. But airplanes are very different creatures from the more quotidian commuting methods at issue in MacWade and the instant case, and society has long accepted a heightened level of security and privacy intrusion with regard to air travel. Moreover, Edwards did not specifically determine or discuss the privacy interest involved, and we are wary of extending its analysis to a markedly different factual context.2
For the foregoing reasons, we find that the privacy interests of LCT‘s ferry passengers in their carry-on luggage are undiminished.3
B. Plaintiffs’ Expectation of Privacy in Their Automobiles
We turn now to the question оf whether plaintiffs have a full privacy interest in their automobiles, including the trunks of such vehicles. It has long been recognized that “[t]he search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one‘s person or of a building.”
Plaintiffs contend, nevertheless, that they have a full privacy interest in the trunks of their cars and that LCT ferry attendants violate this interest when they ask passengers to open their trunks. Plaintiffs note that the Supreme Court has not upheld a suspicionless search regime that involved the opening and examination of motor vehicle compartments outside of the border or customs context. We are mindful, nonetheless, that the Supreme Court has stated:
[E]ven when enclosed “repository” areas have been involved, we have concluded that the lesser expectations of privacy warrant application of the exception. We have applied the exception in the context of a locked car trunk, Cady v. Dombrowski, 413 U.S. 433, 442, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), a sealed package in a car trunk, United States v. Ross, 456 U.S. 798, 806, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), a closed compartment under the dashboard, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the interior of a vehicle‘s upholstery, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), or sealed packages inside a covered pickup truck, United States v. Johns, 469 U.S. 478 [105 S.Ct. 881, 83 L.Ed.2d 890] (1985).
Carney, 471 U.S. at 391-92, 105 S.Ct. 2366. While the above-cited cases involved warrantless searches where probable cause existed, the Court clearly found an exception to the warrant requirement because of the lesser expectations of privacy attendant to automobiles. This would suggest that the vehicle owners might also have diminished privacy interests in their vehicles’ trunks, in the narrow factual context presented in the instant case, where randomly selected automobile drivers, who seek to board a ferry, are simply asked to open their trunks briefly for security purposes.
It is clear that there are significant questions here regarding the level of the privacy interest implicated in trunk searches. Given that we have already found an undiminished privacy interest in plaintiffs’ carry-on baggage, the government will have to demonstrate that the other two factors of the special needs analysis outweigh plaintiffs’ privacy interests to establish the constitutionality of its searches. Thus, regardless of how we resolve the issue of the expectation of privacy in the plaintiffs’ automobile trunks, the government must overcome the full privacy expectations plaintiffs enjoy in their carry-on bags here. Accordingly, we need not reach the privacy expectation plaintiffs possess in the trunks of their motоr vehicles and will assume but expressly not hold that plaintiffs have demonstrated that they enjoy a full expectation of privacy in their vehicles’ trunks.4
Because an undiminished privacy interest is not itself dispositive in special needs cases but is merely one among three factors to be weighed, MacWade, 460 F.3d at 272, we must next examine the screening at issue and determine whether searches, which consist of random visual inspections by ferry attendants of vehicles’ trunks as well as the carry-on baggage of bicyclists and pedestrians, are minimally or substantially intrusive. In making this examination, courts have looked to various factors, including, inter alia, the duration of the search or stop, see Lidster, 540 U.S. at 427, 124 S.Ct. 885; Sitz, 496 U.S. at 451-52, 110 S.Ct. 2481; Martinez-Fuerte, 428 U.S. at 546-47, 558, 96 S.Ct. 3074, the manner in which government agents determine which individuals to search, see Lidster, 540 U.S. at 428, 124 S.Ct. 885, Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. 3074, the notice given to individuals that they are subject to search and the opportunity to avoid the search by exiting the premises, see MacWade, 460 F.3d at 273; Edwards, 498 F.2d at 500, as well as the methods employed in the search, see Sitz, 496 U.S. at 451, 110 S.Ct. 2481; Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. 3074.
On the basis of these factors, it is clear that the searches in this case are, by any measure, minimally intrusive. As recounted by plaintiffs, the duration of the stops or searches have been “cursory” and of the short duration which the Supreme Court has long held to be minimally intrusive. Lidster, 540 U.S. at 427, 124 S.Ct. 885 (upholding brief stops of vehiclеs at checkpoint and questioning of drivers); Sitz, 496 U.S. at 451, 110 S.Ct. 2481 (same); Martinez-Fuerte, 428 U.S. at 546-47, 558, 96 S.Ct. 3074 (same). Plaintiffs have not alleged that the government has given unbridled discretion to LCT employees to carry out searches in a discriminatory or arbitrary manner. Lidster, 540 U.S. at 428, 124 S.Ct. 885 (“[T]here is no allegation here that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops.“); Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. 3074 (discussing the intrusiveness of roving patrols that presented “a grave danger [of] unreviewable discretion,” but finding that a fixed checkpoint greatly reduced the possibility of abuse). Other factors similarly weigh in the government‘s favor in this inquiry. For instance, the methods used to conduct the searches at issue are limited to visual inspections of vehicles and their trunks and brief examinations of the contents of carry-on baggage. See Sitz, 496 U.S. at 451, 110 S.Ct. 2481 (brief visual inspections); Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. 3074 (same); Edwards, 498 F.2d at 500 (brief examination of contents of carry-on luggage).5 Ample notice is given to individuals seeking to board LCT ferries that they are subject to search and that they may avoid the search by exiting the premises. See MacWade, 460 F.3d at 273 (“[P]assengers receive notice of the searches and may decline to be searched so long as they leave the subway....“); Edwards, 498 F.2d at 499-500 (finding notice central to upholding the constitutionality of airport sеarches where large signs had been posted near the boarding gates warning: “PASSENGERS AND BAGGAGE SUBJECT TO SEARCH“). Such notice helps “reduc[e] to a minimum any unsettling show of authority that may be associated with unexpected intrusions on privacy.” Von Raab, 489 U.S. at 672 n. 2, 109 S.Ct. 1384 (internal citation and quotation marks omitted); see also Edwards, 498 F.2d at 501 (“The point is . . . that in order to bring itself within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to proceed no further.“). Notice also serves to eliminate any stigma associated with the search. Id. at 500 (“The search of carry-on baggage, applied to everyone, involves not the slightest stigma. More than a million Americans subject themselves to it daily ....“) (internal citation omitted).
Plaintiffs argue that the searches in the above cases are inapposite because they did not involve opening trunks. The drivers brought to the “secondary inspection area” in Martinez-Fuerte for more intense questioning of their residency status were, however, almost certainly subjected to a greater intrusion of their privacy than the ferry passengers who have to open their trunks for a brief visual inspection by a ferry attendant. 428 U.S. at 547, 96 S.Ct. 3074 (upholding brief questioning in a “secondary inspection area” which lasted on average between three and five minutes). And even if the intrusions in this case were more significant than those in the Supreme Court‘s checkpoint cases, they are certainly less intrusive than the search at issue in Edwards. In Edwards, we found pre-boarding baggage searches at airports to be minimally intrusive, even when a Deputy United States Marshal searched a woman‘s bag, found a package with a pair of slacks wrapped around it, removed the slacks, and looked inside the package. 498 F.2d at 499-500; see also MacWade, 460 F.3d at 273 (holding that random searches of subway passengers’ carry-on bags, which include the visual inspection of the contents of such bags, to be minimal).
Nor does plaintiffs’ assertion that magnetometer searches are less intrusive than visual searches alter the fact that the level of intrusion visited on the plaintiffs in this case was minimal. The Supreme Court has “repeatedly stated that reasonableness under the Fourth Amendment does not require employing the leаst intrusive means” to accomplish the government‘s ends. Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 837, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002); see also Vernonia, 515 U.S. at 663, 115 S.Ct. 2386; Skinner, 489 U.S. at 629 n. 9, 109 S.Ct. 1402. Thus, what matters in this case is not whether the defendants could have satisfied the requirements of the MTSA by devising a less intrusive means of searching passengers, but whether the means they chose unconstitutionally trenched on plaintiffs’ privacy interests in an unreasonable way. As our decision today makes clear, we cannot say, after having balanced the “special needs” factors, that plaintiffs’ Fourth Amendment rights have been violated.6
III. The Government‘s Special Needs and the Efficacy of the Searches
A. The Government‘s Special Need
Our next task in the special needs analysis requires us to determine the “nature and immediacy of the governmental concern at issue here.” Vernonia, 515 U.S. at 660, 115 S.Ct. 2386. The Supreme Court has cautioned that the government‘s asserted special need must “describe[ ] an interest that appears important enough to justify the particular search at hand,” id. at 661, 115 S.Ct. 2386, and we have expressly mandated that “a close and substantial relationship” exist between the degree of intrusiveness and the governmental need asserted, Lifshitz, 369 F.3d at 184, 186.
The Supreme Court has indeed “been reluctant to ratify implausible or overbroad assertions of `special needs.\‘” Id. at 185, 369 F.3d 173. In Chandler v. Miller, for example, the Court struck down a drug testing regime imposed upon candidates for state office in Georgia because it found that “the proffered special need for drug testing” was not substantial where Georgia “assert[ed] no evidence of a drug problem among the State‘s elected officials, [and] those officials typically do not perform high-risk, safety-sensitive tasks.” 520 U.S. at 318, 322, 117 S.Ct. 1295. The Court concluded that the government‘s asserted need was merely “symbolic, not `special.\‘” Id. at 322, 117 S.Ct. 1295.
The Court has also emphasized that the government‘s asserted “special need” must not be isomorphic with law enforcement needs, but rather go beyond them. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 80, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (striking down a public hospital‘s policy of ordering drug screens for maternity patients suspected of cocaine use because “the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment“); City of Indianapolis v. Edmond, 531 U.S. 32, 42, 47, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (invalidating an Indianapolis drug checkpoint program because its “primary purpose” was “to uncover evidence of ordinary criminal wrongdoing,” and noting that, “[w]hile reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs . . . cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue“). The Court differentiated the drug checkpoint in Edmond from the immigration checkpoint in Martinez-Fuerte by emphasizing the difficulty of effectively containing illegal immigration at the border and noting that this problem was distinct from, and went beyond, regular law enforcement needs. See Edmond, 531 U.S. at 38-39, 121 S.Ct. 447.
Plaintiffs make three principal arguments that the searches at issue here do not constitute a special need under our caselaw. They first argue that the special needs doctrine only applies where those searched comprise a “well-defined target class.” They next contend that the government has proffered only an abstract, unsubstantiated need that does not justify the searches at issue. Finally, plaintiffs assert that this Court should not defer to the Coast Guard‘s determinations of the terrorism risk in deciding this case. We discuss each argument in turn.
1. The Special Needs Doctrine Does Not Require a “Well-Defined Target Class.”
As a threshold matter, plaintiffs contend that this case does not involve “special needs” because LCT‘s search policy is not aimed at a “well-defined target class.” Although it is true that some “special needs” searches target well-defined groups — i.e., high school students who participate in competitive extracurricular activities, see Earls, 536 U.S. at 825, 122 S.Ct. 2559, or a particular group of United States Customs Service employees, see Von Raab, 489 U.S. at 659, 109 S.Ct. 1384 — neither the Supreme Court nor this Court has ever held that a “well-defined target class” is a requisite showing in a “special needs” case. In fact, the baggage screening and checkpoint cases make it clear that such targeting is not required in order for the government to establish a “special need.” See, e.g., Sitz, 496 U.S. at 455, 110 S.Ct. 2481 (permitting sobriety checkpoints); Martinez-Fuerte, 428 U.S. at 561-64, 96 S.Ct. 3074 (permitting immigration-control checkpoints); MacWade, 460 F.3d at 275 (permitting random, suspicionless searches at subway stations); Edwards, 498 F.2d at 499-500 (permitting pre-boarding baggage inspection at airports). This argument is without merit.
2. The Government Has Demonstrated a “Special Need.”
Plaintiffs further contend that defendants have adduced only an “abstract or general” need to justify the implementation of searches aboard the Lake Champlain ferries and that is insufficient to excuse the invasion of their privacy.
It is clear to the Court that the prevention of terrorist attacks on large vessels engaged in mass transportation and determined by the Coast Guard to be at heightened risk of attack constitutes a “special need.” Preventing or deterring largescale terrorist attacks present problems that are distinct from standard law enforcement needs and indeed go well beyond them.
Plaintiffs contend that even if the government has a “special need” to protect large ferries in major metropolitan areas, it does not have a “special need” to protect the ferries on Lake Champlain, where there is no obvious terrorist threat. The Supreme Court, however, has held that the government need not adduce a specific threat in order to demonstrate a “special need.” See Earls, 536 U.S. at 835-36, 122 S.Ct. 2559 (noting that “this Court has not required a particularized or pervasive ... problem [to occur] before allowing the government to conduct” suspicionless searches where there is a real threat of substantial harm to society). In Von Raab, the Court pointed to the federal government‘s practice of requiring the search of all airline passengers seeking to board commercial airlines as an illustration of this point. The Von Raab Court quoted aрprovingly the following passage in Judge Friendly‘s opinion in Edwards:
When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air. United States v. Edwards, 498 F.2d 496, 500 (2d Cir.1974) (emphasis in original).
Von Raab, 489 U.S. at 675 n. 3, 109 S.Ct. 1384. The Von Raab Court then noted that although airline searches “were adopted in response to an observable national and international hijacking crisis,” the Court
would not suppose that, if the validity of these searches be conceded, the Government would be precluded from conducting them absent a demonstration of danger as to any particular airport or airline. It is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from spreading to the particular context.
Id. (emphasis аdded). Although the plaintiffs may be correct that Lake Champlain ferries are a less obvious terrorist target than ferries in, for example, New York City or Los Angeles, the airline cases make it clear that the government, in its attempt to counteract the threat of terrorism, need not show that every airport or every ferry terminal is threatened by terrorism in order to implement a nationwide security policy that includes suspicionless searches.
As the Supreme Court noted in Von Raab: If the government has determined that airports fall into a high-risk category and require special protection from terrorist attack, it does not matter whether a regional airport in a small city is perceived to be less susceptible to attack than an international airport in a major city. See id. at 675 n. 3, 109 S.Ct. 1384. Here, the Coast Guard, pursuant to a Congressional directive, conducted a risk analysis to determine which vessels “pose a high risk of being involved in a transportation security incident.”
3. The Government‘s Determinations of “High Risk” Are Entitled to Deference.
Expert determinations by the Coast Guard, like the one discussed above, which are based on an explicit Congressional delegation of legislative authority (in this case,
It is clear that the Coast Guard is entitled to deference on its determinations that 100-ton vessels are at “high risk” of terrorist attack; even plaintiffs acknowledge as much. They instead seek to analogize the instant case to Mead by suggesting that the ASP under which LCT operates is akin to a tariff classification ruling made by a local Customs office. Mead, however, is inapposite to the instant case. Here, the Coast Guard was acting under an explicit congressional delegation of legislative authority when it determined that increased security was required on the nation‘s largest ferries, and the regulations it devised were clearly intended to have the force of law. The MTSA requires the owners and operators of specified maritime vessels to implement a Coast-Guard approved security plan. ASPs, such as the one implemented by LCT, are approved at a national level by the Coast Guard Commandant if he or she finds that they provide a level of security equivalent to that established by the agency‘s regulations.
Finally, even were we to accept plaintiffs’ reading of Mead, it is unclear exactly what portion of our analysis here would change. The “high risk” designation, as we have already held, applies to LCT ferries on Lake Champlain as much as it does to the Staten Island Ferry. Plaintiffs are thus left to challenge the ASP, but it is simply a detailed plan of the security procedures that LCT has implemented to comply with the MTSA. As this opinion makes clear, we have not deferred to the government in examining the searches as authorized by the ASP, but have analyzed de novo the constitutional privacy interests involved as well as the nature of the government‘s intrusion. Given this scrutiny, plaintiffs’ challenge here would still fail were we to follow their application of Mead. We accordingly find that the government has proffered an important, even compelling, special need here, having determined that ferries such as the ones operated by LCT are at a high risk of terrorist attack.
B. The Efficacy of the Searches
We now conclude the special needs analysis by examining the efficacy of the searches at issue here. We are mindful that the requirement that a court assess the efficacy of challenged searches and seizures in a “special needs” case is “not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternatives law enforcement techniques should be employed to deal with a serious public danger .... [T]he choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and responsibility for, limited public resources.” Sitz, 496 U.S. at 453-54, 110 S.Ct. 2481; see also Mollica v. Volker, 229 F.3d 366, 370 (2d Cir.2000) (“[T]he effectiveness inquiry involves only the question whether the [search] is a `reasonable method of deterring the prohibited conduct;’ the test does not require that the [search] be `the most effective measure.‘“) (quoting Maxwell v. City of New York, 102 F.3d 664, 667 (2d Cir.1996)). In this case, the government determined that the ASP devised by the Passenger Vessel Association and adopted by LCT was a reasonable means of fulfilling the requirements of the MTSA. Thus, our task is to determine not whether LCT‘s ASP was optimally effective, but whether it was reasonably so.7
Congress made clear in the MTSA that the central purpose of random security screening on high-risk maritime vessels is to “deter[ ] a transportation security incident,”
Plaintiffs contend, however, that the government cannot intrude on privacy rights merely for symbolic purposes. In support of this argument, plaintiffs cite the Supreme Court‘s holding in Chandler v. Miller, that suspicionless drug testing of candidates for state office cannot be justified by the government‘s desire to communicate a message that “the candidates, if elected, would be fit to serve their constituents free from the influence of illegal drugs.” 520 U.S. at 321, 117 S.Ct. 1295. The Chandler Court found that Georgia had not shown that сandidates for state office were engaged in drug abuse and that a merely symbolic purpose that did not address an actual need could not justify a nontrivial invasion of privacy. Here, by contrast, the government is not seeking to convey a message that it disapproves of terrorism, but rather to deter an actual terrorist attack on a vessel that the Coast Guard has determined to be at an elevated risk of such attack. Unfortunately, the government‘s efforts to prevent terrorism in this case are not merely symbolic.
Plaintiffs further contend that the screening policy at issue in this case is not reasonably calculated to further Congress‘s aim of deterring a terrorist attack because it is not sufficiently thorough. The Supreme Court has been skeptical of challenges to the constitutionality of searches under the Fourth Amendment that suggest that a security policy‘s randomness or insufficient thoroughness contributes to its constitutional deficiencies:
[P]etitioners’ objection is based on those features of the ... program ... that contribute significantly to diminish the program‘s intrusion on privacy.... Thus, under petitioners’ viеw, the testing program would be more likely to be constitutional if it were more pervasive and more invasive of privacy.
Von Raab, 489 U.S. at 676 n. 4, 109 S.Ct. 1384 (citations and internal quotation marks omitted). In this case, Congress directed the Coast Guard to identify vessel types posing a high risk of being involved in a terrorist attack.
Having determined that LCT‘s practice of searching carry-on baggage and vehicles of randomly selected passengers is justified by a spеcial governmental need and that such searches are a reasonable method to discourage prohibited conduct, we weigh this factor heavily in the government‘s favor.
CONCLUSION
While plaintiffs enjoy undiminished privacy expectations in their carry-on baggage and we presume such undiminished expectation in the trunks of their vehicles, we find that the remaining two factors under the “special needs” doctrine weigh heavily in the government‘s favor. Indeed, given that both the intrusions on plaintiffs’ privacy interests are minimal and the measures adopted by LCT are reasonably efficacious in serving the government‘s undisputedly important special need to protect ferry passengers and crew from terrorist acts, we find no constitutional violation. Accordingly, we affirm the district court‘s judgment granting defendants’ motion to dismiss.