SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

subjective expectation defendant may have had that his right to
privacy would be preserved was unreasonable. (People v. Thomas
(2011) 200 Cal.App.4 th 338.)
Special Needs:
Search of Luggage in a Subway Facility: Implemented in response
to terrorist attacks on subways in other cities, a program was
designed to deter terrorists from carrying concealed explosives
onto the New York’s subway. The city program established daily
inspection checkpoints at selected subway facilities where officers
searched bags that met size criteria for containing explosives.
Subway riders wishing to avoid a search were required to leave the
station. In a bench trial, the district court found that the program
comported with the Fourth Amendment under the “special needs
doctrine.” On appeal, the court affirmed, finding that the program
was reasonable and therefore constitutional. In particular, the
court found that preventing a terrorist attack on the subway was a
special need, which was weighty in light of recent terrorist attacks
on subway systems in other cities. In addition, the court found that
the disputed program was a reasonably effective deterrent.
Although the searches intruded on a full privacy interest, the court
further found that such intrusion was minimal, particularly as
inspections involved only certain size containers and riders could
decline inspection by leaving the station. (MacWade v. Kelly (2 nd
Cir. 2006) 460 F.3 rd 260.)
Other “Expectation of Privacy” Issues:
A jail inmate talking over a jail telephone, where he is warned that
his conversations were subject to monitoring, asking a friend to
retrieve what officers understood to be a gun (although defendant
only referred to it as “the thing”) from a container (also described
in vague, generic terms) in the closet of his girlfriend’s home, does
not waive any expectation of privacy defendant had in the
container that was later retrieved by law enforcement and illegally
searched without a search warrant. (United States v. Monghur
(2009) 588 F.3 rd 975, 978-981.)
Monghur differentiated these facts from a similar
circumstance where defendant told law enforcement
officers, clearly and unequivocally, that a particular
container contained contraband. The Court in the case
found that such a concession waived any expectation of
privacy defendant might have had in the container, thus
© 2012 Robert C. Phillips. All rights reserved
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