At 2014 Boston Marathon, bags searched without warrants at police checkpoints

UPDATE: The Bay State Examiner has informed us that the correct byline for this story is “Andrew.”

For the 2014 Boston Marathon, police established checkpoints on various streets near the finish line where private security guards searched the bags of any spectators who attempted to pass through. The checkpoints were part of a new security plan, which was put in place in response to last year’s Boston Marathon bombings, which killed three and injured more than 260 people.

Prior to the race, the Massachusetts Emergency Management Agency (MEMA) published a list of recommendations for spectators including no backpacks, no loose clothing, no costumes or masks, no liquids in excess of one liter, and no weapons of any kind. MEMA also said that spectators may have their bags and bulky items searched at the aforementioned checkpoints.

We saw a number of these checkpoints in action and observed that the searches were primarily carried out by private security guards under the watch of Boston police officers. Once a person’s bag had been searched, the security guards would attach a tag to it and allow the person through.

The searches were not voluntary. Each checkpoint featured a banner reading “All bags and containers are subject to search.” We saw one man being forcibly removed from the area beyond a checkpoint by police officers who noticed that his mesh bag did not have a tag on it. Police took the bag away from the man and would not allow him back into the area until a security guard had searched it.

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A security guard searches through a man’s bag after police removed him from the area beyond a checkpoint

It was apparent that the police did not suspect the man had a bomb because they did not call a bomb squad to the scene. Instead, they asked the man for personal information such as his address, which they wrote down, and lectured him about the need to follow the rules the police had established.

“You got a bag, you put a tag on it. Okay? Simple,” one police officer told the man.

“You have bottles in there, I don’t know what that liquid is. Y’know, it could be something,” another police officer said. “It doesn’t matter what you’re dressed like. You could be anybody.”

Tom Nolan, a 27-year veteran of the Boston Police Department who is now chair of the SUNY-Plattsburgh criminal justice department, told The Republican that the bag searches were “illegal and unconstitutional.”

“This is a public place, these are public streets. People have the absolute right to travel them without being stopped and searched by police. Just because there was a tragic event doesn’t give the police the authority to unilaterally suspend the US Constitution and the Fourth Amendment,” he said.

Beyond the issue of whether the bag searches were legal, there is also the question of whether they are truly an effective security measure or just a form of “security theater.”

James Allan Fox, a Northeastern University criminal justice professor, told The Republican it was unlikely that terrorists would try to attack the Boston Marathon again. “Terrorists often capitalize on the element of surprise, which is why the odd thing is, whenever we have an incident we fortify the places that have already been attacked, thinking lightning might strike twice,” he said.

When MEMA unveiled their security plan at a March 10 press conference, FBI Assistant Special Agent in Charge Kiernan Ramsey said “At this time we have no specific intelligence indicating there is a threat to this year’s marathon.” The day before the marathon, Governor Deval Patrick went on CBS’s Face The Nation where he said that there was no “elevated chatter” about specific threats to the race. Finally, the morning of the marathon, Boston Police Commissioner William Evans told reporters that “There have been no threats on the race.”

Even if terrorists had decided to try to bomb the Boston Marathon again, the checkpoints would not necessarily have prevented them from carrying out an attack. A would-be terrorist could have attacked people at a part of the race that had fewer security measures in place than the finish line. Alternatively, a would-be terrorist could have detonated a bomb right at a checkpoint, where large numbers of people were sometimes gathered throughout the day.

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After police stopped allowing spectators through this checkpoint, they began congregating just outside it

The fact that the security guards were fixating on people with bags and allowing people without bags to pass through without being searched also meant that they would not be able to identify people who were carrying knives, guns, and other small weapons on their person.

Furthermore, the police did not even manage to completely secure the area around the finish line. At one point on Monday, while we were wandering around the city looking for checkpoints to document, we realized that we had somehow gotten into the area behind the checkpoints without even meaning to. Maya was even wearing a fanny pack with camera equipment that had wires protruding from it that almost certainly would have been searched had we passed through a checkpoint.

In addition to bag checks, the police presence was doubled from last year’s marathon, with about 3,500 police officers from various agencies present along with FBI and National Guard. More than a hundred surveillance cameras with live feeds were installed along the marathon route and monitored by police.

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5 thoughts on “At 2014 Boston Marathon, bags searched without warrants at police checkpoints

  1. It seems pretty clear to me that, however concerned we may be about safety, Article XIV of the Massachusetts Constitution precludes the kind of searches performed here. It holds that a search is unconstitutional if “if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.” There was clearly no “special designation”, because they were searching everyone’s bags without exception and without any ground for suspecting particular individuals.

    1. How does this – and more generally checkpoints at mass public events – differ from TSA searches at an airport? There is no warrant there either. How are they justified legally (I presume there is some attempt at legal justification)?

  2. Excellent question, Phil. The answer is that, since the founding of the Republic, there has been what is known as the “border search exception” to the Fourth Amendment, whereby a warrant is not required for situations where people are entering or exiting the country.

    That exception has been expanded out beyond its original limitations too. Our bags are all subject to search at airports irrespective of whether our flights are purely domestic. The legal justification for border searches is airline safety, and they are not supposed to be attempting to enforce the laws in general (such as by searching for drugs), because carrying drugs does not threaten airline safety, but they do anyway. Also, TSA has begun to perform searches at locations that do not involve people crossing borders, such as on the MBTA public transit system in Boston, and it is hard to see how such activities are constitutional. The Border Patrol has even attempted to claim that anywhere within 100 miles of a border counts as a border, and that they can stop cars without a warrant or reasonable suspicion for any reason within that distance (though the Ninth Circuit, I think, ruled that interpretation unconstitutional, so that doesn’t apply to the borders of Ninth Circuit states).

    So you can see that there is complexity in how the law is applied; but the language of the Massachusetts Constitution seems to be clear. They need to “designate” the “persons or objects of search, arrest or seizure”; they therefore can’t search randomly or universally, but only subject to some articulable ground of suspicion.

    The problem with establishing that constitutional violation is that the harm to any individual is small. Most people probably didn’t mind their bag being checked. Those who did are unlikely to litigate over it, because the cost of doing so would almost always greatly exceed the harm. So in effect, broad-spectrum, small-scale harms of this kind are made routine because establishing that they are in fact unconstitutional is in no-one’s individual interest. There would be a role for an organization such as Digital Fourth to take on such public-interest litigation, but we’d need a sight more funding before we can do that kind of thing! 🙂

  3. Thanks Alex!
    Yes, that’s what I’m thinking too. I’m sure a lot of people, attending the marathon for example, find it reasonable that there was extra security and just accept this. (Similarly for July 4 on the esplanade.) I was thinking that if it were codified in law to make these exceptions – for the authorities – it would be clearer when it was egregious. If the authorities (city, parks dept, whatever) had to get a judge to grant a stay of the 4th amendment for mass events, then random checks at other times would be more clearly an unreasonable violation of our rights. Just like activists have to get permits to hold a demonstration – the govt should have to get a “public security permit” to secure a mass event. I know it seems counterintuitive to argue for, but maybe people would say “that’s reasonable” too.

    1. I think what you’d have to ask yourself is: is it really worth the candle, to allow the government to institute “public safety” exceptions to the Constitution? Governments can and will drive an armored truck through any such exception.

      If they want Article XIV or the Fourth Amendment not to apply, let them come by it honestly, and work to amend our state and federal constitutions. Till then, they are obliged to abide by them in all of their actions.

      I’m not arguing that any extra security would have been inappropriate. I would argue that searching everyone’s bag, without exception, is a waste of police resources that, as the authors of the article make clear, might have been better used properly securing the perimeter. I’d also contend that focusing so obsessively on preventing a repeat of the exact same attack at the finish line of the Marathon is merely trying to fight last year’s war. No realistic assessment of this year’s threats would have put the finish line of the Marathon at the top of the list. That’s simply allowing the (dead and imprisoned) Tsarnaevs’ bucket list to determine the priorities of law enforcement, instead of trying to discern the bucket list of the current set of lunatics.

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