Maryland’s top court has left unresolved whether state transit officers violate the constitutional rights of light-rail passengers by putting on a show of force in conducting a sweep of the train cars to ensure fares were paid.
The Court of Appeals held Friday that the warrantless, unconsented-to checking of passengers who reasonably believe they cannot leave the train before showing proof of payment raises deep concern that the police activity violates the Fourth Amendment prohibition on unreasonable searches and seizures.
However, the Maryland Transit Administration officers’ sweeps can still be found constitutional if their primary purpose is a public good – perhaps deterring fare evasion – and not to detect criminal wrongdoing, such as an outstanding warrant, the high court said.
But the determination of whether such a “special needs” exception to the Fourth Amendment exists for the MTA sweeps will have to wait for another case, the Court of Appeals said in concluding that a passenger’s constitutional rights were violated during a sweep in which MTA officers found a gun on him.
The high court overturned Kennard Carter’s gun possession conviction, noting that Maryland prosecutors had failed to raise the “special needs,” or public-good, defense until his was on appeal and thus the argument was essentially waived.
In finding Carter’s Fourth Amendment rights violated, the court said the MTA officers conducted their sweep without reasonable suspicion that any passenger was violating the law; without the passengers’ consent; and with the passengers’ reasonable belief that they were not free to leave the train without displaying proof of payment.
Noting the officers’ show of force, the high court rejected the state’s argument that passengers have given their “implied consent” to the fare sweep when they get on the light-rail system and have a “reasonable expectation” that they might be asked for proof of payment.
“The state asserts that a reasonable passenger understands a barrier-free transit system requires on-board fare inspection to ensure a sufficient rate of fare payment, and therefore, impliedly gives consent to fare inspection when the passenger boards the train,” Judge Jonathan Biran wrote for the court.
“However it does not follow that a reasonable passenger understands that the passenger will be seized on a stationary train by police officers for as long as it takes to check whether all passengers have paid their fare,” Biran added. “Moreover, there is a significant difference between a team of armed officers seizing an entire train of passengers while a train is stopped at a station, and an individual MTA officer or civilian fare inspector asking passengers to show proof of fare payment while a train is traveling between stations.”
The high court, however, left open the state’s special needs argument that the primary purpose of the fare sweep is to deter fare evasion and not to detect crime.
The court said the record from the hearing on the pre-trial motion to suppress the gun found on Carter was “insufficient to determine the primary purpose of a fare sweep” and “it was the state’s burden to establish the applicability of the special needs exception at the suppression hearing in this case in order to argue that the seizure of Carter was constitutional on that basis.”
Biran, writing for six of the high court’s seven members, addressed the need for sufficient record regarding the state’s special needs argument.
“We have no reason to doubt that some form of fare inspection is essential for the successful operation of a barrier-free transit system,” Biran wrote. “However, it does not necessarily follow that the primary purpose of a fare sweep – as opposed to fare inspections that do not involve the simultaneous seizure of all passengers on the train and lead to warrant checks on all non-paying passengers – is to promote fare payment.”
Judge Shirley M. Watts, in a concurring opinion, criticized the majority’s discussion of the MTA’s special needs argument, saying the court “essentially offers the state advice regarding how to prove, in a future case, that there is a special need for fare inspection sweeps.” Instead, the court should have stated that “we are not persuaded that MTA’s ‘primary purpose’ in directing officers to conduct fare sweeps on light rail trains is apparent from the record of the suppression hearing,” Watts wrote.
The Maryland attorney general’s office said in a statement Monday that it is “reviewing the decision, but is pleased that the Court of Appeals’ decision does not foreclose the MTA from conducting reasonable fare enforcement activity while respecting the constitutional rights of passengers.”
Carter’s appellate attorney, Renee M. Hutchins, did not immediately return messages Monday seeking comment on the high court’s ruling. Hutchins is dean of the University of the District of Columbia David A. Clarke School of Law.
Several officers boarded the train at the Mount Royal station at about 8 p.m. on Oct. 2, 2017, 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 court papers. The passengers were never told they were free to leave as the officers asked to see their train tickets, the papers read.
Carter told MTA corporal 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 court papers.
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.
But the Court of Special Appeals overturned the conviction, saying Carter was unconstitutionally seized by the officers on the train without the necessary suspicion of unlawful activity on his part.
The state then sought review by the Court of Appeals.
The high court rendered its decision in State of Maryland v. Kennard Carter, No. 74 September Term 2019.