An assistant Maryland attorney general and a defense lawyer battled before the state’s top court Tuesday over whether transit officers violated the constitutional right of light-rail passengers to be free of unreasonable seizures when the agents conducted sweeps of the Baltimore train cars to ensure fares were paid.
Arguing for the state, Jer Welter defended the Maryland Transit Administration officers’ questioning of the passengers as reasonable and limited to the “primary purpose (of) deterring fare evasion” and not investigating potential criminal activity. In addition, light-rail passengers have “a reduced expectation of privacy” on the trains and can expect to be asked if they paid the fare, he told the Court of Appeals.
“The severity of intrusion is as minimal as it gets,” said Welter, noting the passengers were asked only to provide proof of having paid the fare.
Welter’s arguments drew a question from Judge Brynja M. Booth regarding whether the constitutional concern about police searching for fare cheaters would be alleviated if MTA officers stood outside the train to ensure people paid rather than accosting them on board.
Judge Michele D. Hotten asked whether passengers received sufficient notice that MTA officers could approach them and ask if they had paid.
Welter responded that posting officers outside would not deter fare cheaters, who would just board the train where there was no police presence. He added that signage on the trains reminds riders to pay the fare and that a “reasonable passenger” would know MTA enforces fare payments.
But Renee M. Hutchins, pressing the case of a man caught with a gun during a fare inspection, said MTA’s questioning of passengers is not benign but a “suspicionless” law enforcement effort to identify, apprehend and deter fare cheaters – the kind of baseless police activity the Fourth Amendment is designed to prevent.
“This is not a police state,” said Hutchins, dean of the University of the District of Columbia David A. Clarke School of Law. “If the war (on crime) is to be fought, those who fight it must respect the rights of individuals.”
Hutchins’ argument has won so far, as the intermediate Court of Special Appeals held in November that MTA’s sweeps amounted to an unconstitutional seizure of passengers who reasonably believed they were not free to leave the train in light of the strong police presence.
During a controversial sweep in October 2017, MTA police found a gun on Kennard Carter – Hutchins’ client — after he admitted skirting the fare. The Court of Special Appeals overturned Carter’s subsequent conviction for gun possession after concluding the officers had violated his Fourth Amendment protection against unreasonable seizure.
Appealing that decision, Welter told the high court the officers’ fare inspections are similar to highway sobriety checkpoints, which the U.S. Supreme Court has upheld as constitutional seizures of motorists to discourage drunk driving.
Likewise, the officers’ sweeps of rail cars are designed to encourage the payment of fares, Welter said.
Hutchins countered that passengers have a greater expectation of privacy – and thus a stronger Fourth Amendment right — than motorists engaged in the heavily regulated activity of driving an automobile.
She added that officers detaining people in a public place – such as a train car — without suspicion of criminal wrongdoing is “constitutionally offensive,” while police stopping automobiles to ensure the safety of motorists is not.
“We are talking about people riding the train” being approached by officers without suspicion, Hutchins told the high court.
The Court of Appeals is expected to render its decision by Aug. 31 in the case, State of Maryland v. Kennard Carter, No. 74 September Term 2019.
In finding the sweeps unconstitutional, the Court of Special Appeals cited not only the conduct of individual officers but the magnitude of MTA police’s presence at about 8 p.m. on Oct. 2, 2017.
Several officers boarded the train at the Mount Royal station while others remained on the platform, ready to question those who had not paid their fares and check whether they had outstanding arrest warrants, according to the intermediate court’s opinion. The passengers were never told they were free to leave as the officers asked to see their train tickets, the court said in its reported 3-0 decision.
Carter told MTA Cpl. Latoya Russell of his failure to pay — an offense punishable by a $50 fine — and was instructed to wait on a bench on the platform, where officers collected his name, birth date and Social Security number. While officers discovered he had a possible arrest warrant, Carter rose from the bench but was stopped by MTA police, who then saw he was armed and subdued him, according to the Court of Special Appeals’ opinion.
A Baltimore City Circuit Court judge rejected Carter’s motion to keep the gun from being introduced at trial.
A jury later found Carter guilty of possession of a gun after having been convicted; wearing, carrying or transporting a gun on his person; and resisting arrest. He was sentenced to 10 years in prison, with all but five years suspended, and three years’ supervised probation.
The Court of Special Appeals, in overturning the conviction, said Carter was unconstitutionally seized by the officers on the train without the necessary suspicion of unlawful activity on his part.
The court added that the Fourth Amendment violation could have been avoided had a conductor been sent to collect tickets and contact the police when a passenger could not provide one, thus giving the officers reasonable suspicion that a particular passenger had broken the law.
The state then sought review by the Court of Appeals.