Searches without Reasonable Suspicion: TSA v. NYPD

I was visiting a friend this evening in Brooklyn. Heading back to the subway required me to pass through a well-lit, somewhat busy, safe-feeling neighborhood which happened to be almost exclusively inhabited by black people. I’m a white guy, but not a problem, right?

On my way, I stop in a deli to grab a bottle of water, and when I come out, I’m confronted by 4 of New York’s Finest, undercover, asking to speak with me. They want to know where I’m coming from and where I’m going to, or as one of them put it, “what [I was] doing in this neighborhood,” all of which I politely decline to answer and ask if I’m being detained or if I’m free to go. Being in federal court already over a 4th Amendment issue, you would be safe to assume that I’m pretty knowledgable on my rights and what I’m required to answer and what I’m not.

The officer responded that I was being detained.

I was then searched by one of the officers, with whom I clarified that I was not consenting but would not resist, to which he responded that he didn’t need my consent. This is known in the legal world as a “Terry” search, after a Supreme Court case which authorized police to do an extremely limited pat-down to search for weapons if they have a reason to believe a person they are talking to is armed and dangerous (I’m a 150 lb. guy with a water bottle surrounded by 4 men with guns who probably totaled 6 times my weight).

The officers exceeded their boundraies by 1) detaining me without cause (other than my race, which I presume must have meant to them that I could only be in that ‘hood to buy drugs), 2) conducting a Terry search when there was no reason to believe that I was armed or dangerous, and 3) by exceeding the boundraies of a Terry search by feeling the contents of my pockets beyond what would be needed to determine the presence of a weapon.

However, the search was still less intrusive than any search I’ve seen the TSA do since November 2010.

The officer did not “touch my junk,” he did not do “a waistband check,” and even though he was basically touching my ass, you could tell his intent was on the contents of my pocket rather than simply to touch my ass because that’s what all TSA screeners are told to do. He didn’t pat down my face or my hair, and he didn’t even ask me to take my shoes off.

If a law enforcement search is less invasive than a TSA search given to anyone who declines to let the government photograph them nude, do we not have a problem here?

After a few more minutes of badgering and threatening with arrest for not answering questions and not producing my ID, I was told to “have a nice night.” Two letters off from what the TSA says after they molest someone.

–Jon