Searches continue despite concerns

NEW YORK – Watch and wait.

Civil liberties attorneys are taking a wait-and-see attitude over the police random searches in the subways and other mass transit that officially began Friday.

The New York Civil Liberties Union had received about 20 complaints as of late Friday but had not filed any legal action to challenge the police search tactic, said Christopher Dunn, associate legal director of the organization.

But Dunn also indicated that the city might be on some slippery legal terrain, based on state law and a ruling last year by a federal judge in a case involving searches during the Republican National Convention.

City officials said they will conduct searches at random before people enter the subway system and appeared to be doing that Friday. They cited as precedent the procedures used for random stops in checking for motorists who are driving while intoxicated.

Search and seizure law is one of the most complex and nuanced areas of criminal law.

Barry Kamins, a prominent Brooklyn criminal attorney and author of the textbook “New York Search and Seizure,” which is used by judges and lawyers alike, said that consent searches normally are not permitted without some indication to police officers that criminality is afoot.

Courts have thrown out evidence gathered in searches where police, with no reason to suspect a crime, are involved in individual street encounters with people, Kamins said.

There is a wrinkle in the law, however, allowing “public safety” searches that are not done to seek evidence of a crime, Kamins said. Examples are traffic stops for DWI and vehicle-registration checks, he noted.

If police find evidence of a crime in such public safety stops, they can use it in court, said Kamins.

But Dunn maintained that without reasonable suspicion, police still can’t legally perform baggage searches.

In 2004, Dunn noted, the NYCLU won a federal injunction against the city to stop police from searching the bags of all demonstrators at the RNC. The ruling stated that police couldn’t make such searches “without individualized suspicion” unless there was a “showing of both a specific threat to public safety and an indication of how blanket searches could reduce that threat.”

The matter is likely to end up in court.