Cassidy v. Chertoff

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 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"), 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.

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 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." 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 to 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 persons, 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 Association 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 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, 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

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, 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." U.S. Const. amend. IV. Although a wholly private search falls outside the scope of the Fourth Amendment, Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), a search conducted by private individuals at the instigation of a government officer or authority constitutes a governmental search for purposes of the Fourth Amendment. See Skinner v. Ry. Labor Executives' Ass'n 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). LCT implemented its security policy in order to satisfy the requirements imposed by the MTSA and such law's implementing regulations on owners and operators of ferries that weigh over 100 gross register tons. The ASP adopted by LCT was approved by the Coast Guard — and published in the Code of Federal Regulations, 33 C.F.R. § 101.125(c) — as an adequate means of fulfilling the requirements imposed by the MTSA. The parties agree that the government's significant involvement in LCT's contested search policy brings these searches within the ambit of the Fourth Amendment.

"[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 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, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (internal quotation marks omitted). Indeed, the Supreme Court and this Court have upheld warrantless, suspicionless searches in a variety of circumstances in which the government's actions were motivated by "special needs." See, e.g., Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (upholding highway checkpoint stops erected in the course of investigating a fatal hit-and-run accident); Vernonia, 515 U.S. at 650, 115 S.Ct. 2386 (upholding random drug testing by school officials of students who participate in interscholastic sports); Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (upholding highway checkpoint stops designed to detect drunk drivers); Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (upholding drug tests for United States Customs Service employees who seek transfer or promotion to certain positions and those who carry firearms); Skinner, 489 U.S. at 608-13, 109 S.Ct. 1402 (1989) (upholding drug and alcohol tests by railroad companies of railroad employees who are involved in train accidents or violate certain safety rules); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (upholding brief stops for questioning at a fixed Border Patrol checkpoint); Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005) (upholding a statute that requires certain classes of convicted felons to provide DNA samples to be maintained in a state database); United States v. Edwards, 498 F.2d 496 (2d Cir.1974) (Friendly, J.) (upholding suspicionless searches of the persons and carry-on luggage of all passengers seeking to board an airplane). Most recently, we upheld a random, suspicionless search regime of subway passengers' baggage as constitutional under the special needs doctrine. MacWade v. Kelly, 460 F.3d 260 (2d Cir.2006).

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.

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, 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 Bond as broadly as plaintiffs suggest, we agree with plaintiffs that they enjoy a full expectation of privacy in their carry-on baggage.

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 Mac Wade, 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 reasonable 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 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, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (internal quotation marks omitted); see also Martinez-Fuerte, 428 U.S. at 561, 96 S.Ct. 3074 ("[O]ne's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence."). The Supreme Court has held that "[o]ne has a lesser expectation of privacy in a motor vehicle" because it "travels public thoroughfares where its occupants and its contents are in plain view," Cardwell, 417 U.S. at 590, 94 S.Ct. 2464, and because the "pervasive regulation of vehicles" diminishes one's expectation of privacy in an automobile, California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Even plaintiffs concede — and the Supreme Court has recognized — that there may be a diminished expectation of privacy regarding the part of the search that involves ferry attendants looking through car windows. See Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) ("There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers." (internal citations omitted)).

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