Michael CASSIDY, Robert J. Cabin, Plaintiffs-Appellants,
v.
Miсhael CHERTOFF, Secretary, United States Department of Homeland Security, in his official capacity, Thomas H. Collins, Admiral, Commandant, United States Coast Guard, in his official capacity, Glenn Wiltshire, Captain, United States Coast Guard Federal Maritime Security Coordinator, New York Captain-of-the-Port Zone, in his official capacity, Lake Champlain Transportation Company, Inc., in its capacity as agent of the United States Government, Defendants-Appellees.
Docket No. 05-1835-cv.
United States Court of Appeals, Second Circuit.
Argued: October 27, 2005.
Final Submission: September 29, 2006.
Decided: November 29, 2006.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED William A. Nelson, Cooperating Attorney, American Civil Liberties Union of Vermont, Middlebury, VT, for Plaintiffs-Appellants.
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 defendants-appellants Michael Chertoff, Thomas H. Collins, Glenn Wiltshire, and Lake Champlain Transportation Company's ("LCT") motion to dismiss the plaintiffs' claim thаt 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"), 46 U.S.C. §§ 70101-70119 (2006), violated plaintiffs' Fourth Amendment rights. For the reasons that follow, we reject plaintiffs' contention that the searches at issue in this case violated their Fourth Amendment rights and affirm the judgment of the district court.
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." 46 U.S.C. § 70101(6). Because the resolution of this appeal depends, in significant part, on the MTSA and the regulations enacted pursuant to it, we begin by discussing the statutory background in some detail.
The MTSA contains a set of nationwide directives 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 adjaсent 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." Id. § 70102(a). Based on the information gathered in this initial assessment, the Secretary must then "conduct a detailed vulnerability assessment of . . . [such] vessels" to identify, inter alia, possible threats to critical assets and infrastructure as well as existing weaknesses in passenger and cargo security protection systems. Id. § 70102(b). After these vulnerability assessments have been made, the MTSA requires the owners and operators of vessels "that the Secretary believes may be involved in a transportation security incident" to prepare a security plan "for deterring a transportation incident to the maximum extent practicable." Id. § 70103(c)(1)-(2).
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 33 C.F.R. pts. 101, 102, 103 et al., 46 C.F.R. pts. 2, 31, 71, et al.). This assessment was aimed at "determin[ing] risks associated with specific threat scenarios against various classes of targets within the Marine Transportation System." Id. at 39,244. In order tо determine the susceptibility of various segments of the commercial maritime community to terrorist attack, Coast Guard analysts considered, inter alia, the likelihood that a particular type of vessel would be a terrorist target or would be used as a weapon itself; the plausibility of terrorists actually carrying out various hypothetical attack scenarios; the risk associated with a given attack against a given target; and the likelihood and consequences of various attack scenarios. Id. at 39,244-45; see also id. at 39,243-50 (describing the methods of assessment employed by the Coast Guard in making the determinations required by the MTSA).
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 33 C.F.R. § 104.105(a) (codifying the Coast Guard's above determination). Under the MTSA implementing regulations, vessels that fall into the high-risk category are required to adopt certain security measures to "[d]eter the unauthorized introduction of dangerous substances and devices, including any device intended to damage or destroy рersons, vessels, facilities, or ports." 33 C.F.R. § 104.265(a)(1). To determine what security measures are required for such high-risk vessels, a vessel owner must prepare a Vessel Security Assessment ("VSA"), which is "an analysis that examines and evaluates the vessel and its operations taking into account possible threats, vulnerabilities, consequences, and existing protective measures, procedures and operations," id. § 101.105, by collecting specified background information and carrying out an onsite survey of the vessel to check existing protective measures, procedures, and operations for a variety of factors. Id. § 104.305(a)-(b). When complete, the VSA is used by the vehicle's owner or operator to devise a Vessel Security Plan ("VSP"), which is a "plan developed to ensure the application of security measures designed to protect the vessel and the facility that the vessel is servicing or interacting with." Id. § 101.105. The VSP must be submitted to the Coast Guard for review and approval. Id. § 104.410. Owners of a vessel operating under a VSP must "[s]creen persons, baggage (including carry-on items), personal effects, and vehicles for dangerous substances and devices at the rate specified in the approved Vessel Security Plan." Id. § 104.265(e)(1). Owners must also "[c]heck the identification of any person seeking to board the vessel." Id. § 104.265(e)(3).
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." Id. § 104.292(b). In place of these search requirements, vessel owners "may ensure security measures are implemented that include": (1) Searching selected areas prior to embarking passengers and prior to sailing; and
(2) Implementing one or more of the following:
(i) Performing routine security patrols;
(ii) Providing additional closed-circuit television to monitor passenger areas; or
(iii) Securing all non-passenger areas.
Id. In fact, a vessel owner or operator may, with the express permission of the Coast Guard, opt out of any regulatory requirement contained in a VSP so long as the Coast Guard has determined that "the waiver will not reduce the overall security of the vessel." Id. § 104.130 (stating that the owner or operator of a high-risk vessel is permitted to "apply for a waiver of any requirement . . . that the owner or operator considers unnecessary in light of the nature or operating conditions of the vessel"). The regulations also permit owners and operators to propose an "equivalent" to any of the security measures required by a VSP. Id. § 104.135. Finally, instead of implementing a VSP, a vessel owner or operator may fulfill the requirements of the MTSA by implementing an Alternative Security Program ("ASP"). Id. § 104.140(c). An ASP is "a third-party or industry organization developed standard that the [Coast Guard] Commandant has determined provides an equivalent level of security to that established by" the agency's regulations. Id. § 101.105. Vessel owners and operators who adopt an ASP must still develop and make available for Coast Guard inspection a vessel-specific security assessment report. Id. §§ 101. 120(b)(4), 104.120. To date, the Coast Guard has approved a number of ASPs through publication in the Code of Federal Regulations, see 33 C.F.R. § 101.125, including the program that LCT adopted, which was devised by the Passenger Vessel Association. See id. § 101.125(c).
The parties agree that an ASP is a classified document, subject to the same "sensitive security information" designation that applies to a VSP. See id. § 104.400(c) (stating that VSPs are subject to protection as "sensitive security information"). Because the ASP designed by the Passenger Vessel Associatiоn is classified and has not been entered into evidence, we will assume, for the purpose of reviewing the district court's decision to grant defendants' motion to dismiss, that the searches alleged by the plaintiffs are either required or permitted by LCT's security program.
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 carries 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 complianсe 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, 33 C.F.R. § 104.265(e) provides that some type of report, as required by undisclosed DHS and Coast Guard directives, must be made if a person refuses to consent to a search. Plaintiffs allege that they acquiesced to LCT's unconstitutional searches in order to avoid such repercussions.
Plaintiffs brought the instant suit on October 4, 2004, seeking injunctive and declaratory relief against defendants for Fourth Amendment violations. Defendants moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the district court granted the motion after determining that the searches conducted by LCT "advance a `special governmental need' to provide domestic security [and thus] are not proscribed by the Fourth Amendment." The district court explained that "Congress has determined that ferries like those which operate on Lake Champlain may be vulnerable to terrorist incidents and, therefore, should be subject to new, more comprehensive security measures designed to protect public safety and secure commercial interests." The court found that "[r]andom, warrantless searches further these goals by deterring potential security breaches," and that the searches here are reasonable because "they are conducted in a manner no more intrusive than is necessary to achieve the compelling government interest of protecting the safety of passengers and deterring terrorist attacks on maritime vessels." The court found further that the plaintiffs voluntarily elected to ride LCT ferries and consented to the required searches. The court also concluded that plaintiffs had a diminished expectation of privacy when attempting to board the ferries because such search procedures are akin to those that passengers have been accustomed to expect, and which have been found constitutional, in the airline industry. Plaintiffs filed this timely appeal.1
DISCUSSION
We review de novo a district court's grant of a motion to dismiss; we accept as true the factual allegations in the complaint and draw all inferences in the plaintiffs' favor. Allaire Corp. v. Okumus,
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 seizurеs." U.S. Const. amend. IV. Although a wholly private search falls outside the scope of the Fourth Amendment, Burdeau v. McDowell,
"[T]he ultimate measure of the constitutionality of a governmental search is `reasonableness.'" Vernonia Sch. Dist. 47J v. Acton,
In a limited set of circumstances, however, the Supreme Court has held that a search warrant, and the requisite showing of probable cause, are not required. A search unsupported by probable cause may be constitutional "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin,
In Chandler v. Miller,
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 their privacy and because Bond v. United States,
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,
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,
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."
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 of 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." Cardwell v. Lewis,
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 thе context of a locked car trunk, Cady v. Dombrowski, [
Carney,
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 motor 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
II. The Character and Degree of the Governmental Intrusion
Because an undiminished privacy interest is not itself dispositive in special needs cases but is merely one among three factors to be weighed, MacWade,
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 оr searches have been "cursory" and of the short duration which the Supreme Court has long held to be minimally intrusive. Lidster,
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 whо have to open their trunks for a brief visual inspection by a ferry attendant.
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 least intrusive means" to accomplish the government's ends. Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls,
Finally, plaintiffs make a slippery-slope argument, claiming that because the threat of terrorism is omnipresent, there is no clear limit to the government power to conduct suspicionless searches. This is a legitimate concern. As we discuss in the next section, however, it is not a concern implicated by the facts in this case, where the government has imposed security requirements only on the nation's largest ferries after making extensive findings about the risk these vessels present in relation to terrorism and, as noted, the scope of the searches is rather limited. Having thus found that the visual inspection of vehicles and their trunks along with the search of carry-on bаggage at issue here are minimally intrusive, we weigh this factor in the government's favor.
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,
The Supreme Court has indeed "been reluctant to ratify implausible or overbroad assertions of `special needs.'" Id. at 185,
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,
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,
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. See MacWade,
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,
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,
Von Raab,
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 added). 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 thе 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,
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, 46 U.S.C. §§ 70102(a), 70103(c)(1)-(2)) are entitled to significant deference. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
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 operatеs 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. 33 C.F.R. §§ 101-105. To date, the Coast Guard has approved only a few ASPs, including the Passenger Vessel Association program adopted by LCT. Id. § 101.125(c). Thus, contrary to the plaintiff's suggestion, LCT's ASP bears little resemblance to the thousands of tariff classification rulings issued by dozens of local Customs offices each year, and we owe significant deference to the Coast Guard's determination that ferries weighing over 100 gross register tons fall into a high-risk category.
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,
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," 46 U.S.C. § 70103(a). The Secretary then determined that the statutory purpose would be served by "[d]eter[ring] the unauthorized introduction of dangerous substances and devices" onto such vessels. 33 C.F.R. § 104.265(a)(1). When evaluated in this context, the ASP adopted by LCT appears to be reasonably calculated to serve its goal of deterring potential terrorists because "[i]t provides a gauntlet, random as it is, that persons bent on mischief must traverse." United States v. Green,
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."
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 thоrough. 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' view, the testing program would be more likely to be constitutional if it were more pervasive and more invasive of privacy.
Von Raab,
Having determined that LCT's practice of searching carry-on baggage and vehicles of randomly selected passengers is justified by a special 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 defеndants' motion to dismiss.
Notes:
Notes
After oral argument, plaintiffs filed a motion for leave to file supplemental briefs regarding the impact of our decision inMac Wade v. Kelly,
We do not readMac Wade or Bond's privacy analysis (nor our discussion here) to suggest that Edwards no longer remains good law. Indeed, the Supreme Court, we observe, has specifically noted in its special needs jurisprudence that Edwards is a "leading case." Von Raab,
Although plaintiffs contend that LCT's searches were unconstitutional, they concede that they acquiesced in the searches and did not experience any of the repercussions that might attend refusal to submit to a search. Cassidy and Cabin are therefore not representative of hypothetical plaintiffs claiming that their rights were violated as a result of their refusal to submit tо LCT's searches. Our opinion does not address the constitutionality of any repercussions that might be visited upon a person who withholds consent
Given the very narrow circumstances here — where a motor vehicle's trunk is searched as part of a government-instituted anti-terrorism search regime before that vehicle itself is boarded onto a ferry — we are not presented with, and need not address, the potentially more troublesome question of the constitutionality of a similar search that occurs, for instance, on a highway
Finally, plaintiffs' briefs focus on the searches of carry-on bags and motor vehicles' trunks. To the extent that their complaint can be read to challenge the visual inspection of a vehicle's interior through its windows, the parties do not appear to dispute that, as we noted above, there is a diminished expectation of privacy in that context. This does not alter our analysis of the searches' constitutionality.
Plaintiffs contend that the intrusions on their privacy cannot be considered minimal because "[t]he Fourth Amendment privacy interest has a subjective as well [as] an objective component," and they found them subjectively intrusive. In support of this proposition, they cite Justice Harlan's concurrence inKatz v. United States,
Plaintiffs take issue with the fact that the MTSA allowed LCT to implement the ASP designed by the Passenger Vessel Association that imposed relatively little cost on the ferry company when the company could instead have adopted other less intrusive, but more costly security measures. That LCT took cost into account in determining how to fulfill the requirements of the MTSA does not in and of itself render LCT's policy constitutionally suspect. All governmental search procedures, whether conducted by the government or by a private entity at the instigation of the government, take cost into account. An inexpensive search policy, like any search policy, runs afoul of the Fourth Amendment only insofar as it is unreasonable. Similarly, it is clear that a private entity, empowered by the government to conduct a search, need not choose the least restrictive means to avoid a violation of the Fourth AmendmentSee, e.g., Skinner,
LCT's security measures were probably not optimally effective. As plaintiffs note, LCT's search policy applies to carry-on baggage, but not baggage stored in cars, and exempts tractor trailer trucks from search altogether. Furthermore, LCT's policy allows passengers to board the ferry with knives and guns, which may increase the risk that the ferry will be hijacked. Our task, however, is to determine not whether we could devise a superior plan, but whether LCT's security policy was reasonably effective in accomplishing its goals