Skip to main content
Can the National Guard Legally Search My Bag in the Subway?
In theory, law enforcement can legally search your bag in the subway. However, Governor Hochul’s deployment of the National Guard in the NYC subway may be unconstitutional.
If you were arrested after a search in the subway, contact Cody Warner, P.C. for a free consultation. We can evaluate your case to make sure that your rights are protected.
National Guard Deployment in the Subway
In March 2024, Governor Hochul announced the deployment of the National Guard in the New York City subway.
Governor Hochul stated that the purpose was to rid the subway of people who commit crimes and to protect all New Yorkers on the subway.
Can the Police Search My Bag Without Probable Cause?
Naturally, it feels like an infringement for law enforcement to search your bag in the subway if you did nothing wrong.
After all, the 4th Amendment to the U.S. Constitution protects us against unreasonable searches and seizures. Many passengers in the subway are likely to argue with the National Guard and say, “you can’t search my bag without probable cause.”
However, those passengers are mistaken.
If you think about it, there are other instances when you are seized or searched without probable cause, but you might not think twice about it. Some examples include:
- TSA screening at the airport;
- DUI checkpoints;
- stops at the U.S. border; and
- entering a courthouse.
In these situations, you are stopped and potentially searched without probable cause. You may be scratching your head. What about the 4th amendment? How can the government do this without probable cause?
The answer is that the 4th Amendment doesn’t say that you can be searched or seized only with a warrant or probable cause. The 4th Amendment simply says that we have a right against unreasonable searches and seizures.
The United States Supreme Court has held that these types of stops, known as checkpoint stops, are not necessarily unreasonable and therefore unconstitutional.
When is a Checkpoint Stop Legal?
From a legal perspective, when the police or National Guard conduct a subway search, they are performing a checkpoint stop.
In Michigan Dept. of State v. Sitz, the U.S. Supreme Court held that checkpoint searches are not illegal.
However, checkpoint searches must be for a purpose other than general crime control. For instance, in City of Indianapolis v. Edmond, the U.S. Supreme Court held that a checkpoint search for the purpose of finding narcotics was unconstitutional.
Generally speaking, a checkpoint stop must not be simply for crime control. It must be for some other legitimate state interest, such as safety. Although those concepts seem similar, they are different. For instance, DUI checkpoints can be constitutional, because they are for the purpose of getting drunk drivers off the road to keep other safe, not necessarily to arrest people for criminal offenses (although the drunk drivers incidentally get arrested).
Conversely, when a person is stopped for possessing narcotics, they are not actively putting others on the road at risk, because they are not operating their vehicle unsafely. Therefore a checkpoint for the purpose to stopping narcotics trafficking has been found to be unconstitutional.
Is Governor Hochul’s Deployment of the National Guard Legal?
Governor Hochul stated that the purpose of the National Guard intervention is to rid the subway of people who commit crimes and keep New Yorkers safe.
These two reasons seem similar, but they are legally very different. Removing criminals from the subway is not necessarily connected to safety of other passengers. For instance, a person may be transporting drugs, fake IDs, or stolen goods through the subway and is therefore a “criminal,” but they are not putting the other passengers in danger. However, the other stated reason, keeping passengers safe is, obviously, related to the safety of subway passengers.
Ultimately, the legality of the National Guard in the NYC subway is in a legal gray area due to the inconsistent reasons given by Governor Hochul.
A person who is searched and charged with a crime in the subway may have a legitimate claim that the National Guard checkpoints are unconstitutional and therefore they were falsely arrested.
Need Help?
If you were searched at a subway checkpoint and arrested, contact Cody Warner, P.C. for a free consultation.
The stated purpose of the checkpoint is only one part of the analysis. The checkpoint must follow strict protocols. If that protocol was violated, you may have another defense. At your free consultation, we can discuss the specifics of your case to make sure that all your rights are protected.