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Commentary By Nicole Gelinas

What Makes a Police Search Seem Reasonable

Public Safety, Cities Policing, Crime Control, New York City

It should be a startling sight: hundreds of Americans lined up on a public street, waiting to submit to open their bags and coats to police officers.

They weren’t getting on a plane or visiting prison: They were waiting for entrance to other public streets, to look at the Macy’s balloons being blown up last Wednesday.

Suicide bombers in England and mass-scale gun attacks in America have transformed what was once an informal event — local people milling about with their kids on their way to buy a turkey — to yet another chore.

“Public opinion tends to support [reasonable searches]. We feel safer that the government considers each of us an armed terrorist.”

The Constitution’s Fourth Amendment protects against unreasonable searches. Is this search unreasonable? The common-sense answer is yes. The police had no grounds to suspect anyone was toting deadly weapons. And they have no grounds to keep people off public streets.

But courts have repeatedly ruled that such searches pass constitutional muster. In 1989, the Supreme Court ruled that the government could invoke something called the “special needs” doctrine to force railway workers to undergo drug tests.

The “special need” was public safety “that may justify departures from . . . probable-cause requirements.”

More than a decade before, a federal court ruled that the government can search people getting on airplanes, because searches aren’t targeted at individuals, but “part of a general regulatory scheme.”

The court also reasoned that you could avoid the search by eschewing airline travel — a reasoning eroded after 9/11, when yet another federal ruling held that the government can search someone who tried to leave an airport rather than go through enhanced screening.

And private companies have the right to search you and your stuff at will. You want to see Katy Perry or Mozart, you’ll pass through a metal detector.

Add it up, and you have a slow erosion of the expectation that you can go about your day-to-day life without submitting to intrusive, time-consuming searches.

Public opinion tends to support the practice. We feel safer that the government considers each of us an armed terrorist.

Public and court opinion has hardened against another type of search, though: the police stop, question and frisk tactic of people police consider to be behaving suspiciously in high-crime neighborhoods.

The goal of such searches: Disarm people before they kill, and to deter people from carrying weapons. Yet concerns about racial profiling have seen such searches fall out of favor.

It’s seen as a success in one context: Police search people for bombs at a public event, and therefore find none. Yet it’s seen as a failure in another context: Police search hundreds of young men for loaded guns and find “only” one.

It’s reasonable to be a Fourth Amendment absolutist — and say that no number of killings of young men by other young men justifies stop-and-frisk searches. Not 614 homicides in Chicago this year, not 311 in Baltimore and not 146 murders in New Orleans.

To be consistent, though, one would have to say that preventing 300 Americans from being blown up on a jumbo jet doesn’t justify indiscriminate body scans of tens of millions of people. Unless, that is, some lives are more important than others.

“People freely consent to a search when they don’t feel racially or otherwise targeted... and when they feel they’re receiving a benefit in greater safety.”

In the meanwhile, a pragmatist might note a middle ground, if an unconstitutional one. People freely consent to a search when they don’t feel racially or otherwise targeted, when they feel the search is done respectfully and competently and when they feel they’re receiving a benefit in greater safety.

In fact, earlier this fall, the NYPD deployed the same technique they later used at the Thanksgiving Day Parade: subjecting people attending the J’Ouvert party before the West Indian Day parade to metal detectors and bag searches. This “worked”: The bloodshed this year stayed outside the party perimeter.

This piece originally appeared at the New York Post


Nicole Gelinas is a senior fellow at the Manhattan Institute and contributing editor at City Journal. Follow her on Twitter here.

This piece originally appeared in New York Post