How ferry searches ran aground
The Associated Press
OLYMPIA — Headed home from the zoo with two tired, hot, hungry young sons in the back seat, Christine Brown could have submitted to a random search of her Volvo station wagon, then taken the brief ferry ride home to Bainbridge Island.
Instead, she balked when a pair of Washington State Patrol troopers approached her, and the ferry captain refused to carry her. So she drove south to Tacoma, across the Narrows Bridge and then back north, turning a half-hour cruise into a 2-1/2-hour ordeal, her 2-year-old screaming much of the way.
"We were looking forward to ice cream on the boat," Brown said. "But I had to draw a line someplace. Do you search people getting on a bus?"
The random searches, which were halted a day after Brown's encounter June 18, were just that — random. Brown was merely the person driving the 15th vehicle in line. Not a terrorist suspect. Not someone acting suspiciously.
"They didn't say this is just a mom with her two kids coming back from the zoo," Brown said, recalling the troopers' brief report to the ferry captain. "I was just stunned that the captain wanted to know absolutely nothing about me, just the fact that I'd refused the search."
Brown was one of just four people who balked out of 623 approached for random searches before boarding state ferries last month. But her story exemplifies the furor over searches aboard the vessels many regard as simply a floating part of the road system.
It also illustrates the post-Sept. 11 interplay of federal and state interests that first led to the searches and then to their abrupt end. Immediately after the terrorist attacks, similar searches went virtually unnoticed for a month, said Pat Patterson, a spokeswoman for the ferry system.
With citizens frightened and authorities on high alert, tighter security measures seemed appropriate. The American Civil Liberties Union of Washington didn't receive a single complaint in those first few weeks, said Doug Honig, an ACLU spokesman.
The searches stopped mostly for budgetary reasons, state officials said. The overtime needed to keep troopers rifling through trunks was draining the State Patrol's budget.
When they started again early last month with a budget enhancement for increased ferry security, the ACLU's phone began to ring.
"We started getting complaints as soon as it hit the media," Honig said. "They objected to the idea that they would be searched by law enforcement when there was no reason to think they had done anything wrong or posed a threat."
The ACLU was gearing up for a legal fight when State Patrol Chief Ronal Serpas abruptly announced he was halting the searches on June 19. Understanding that sudden turnaround requires a look back at how the searches were reinstated.
The first push apparently came from the U.S. Coast Guard, which has broad power to require security measures aboard ships.
"The measures presently being used — heightened security personnel present at terminals, random searching of vehicles, Washington State Patrol presence on ferries, Washington State Ferries internal security measures, etc., represent the base line of the security measures we will continue to require," Coast Guard Capt. J.D. Dwyer wrote in an Oct. 6 letter to the ferry system.
The Coast Guard convened a committee on ferry security, including officials from the Patrol and the ferry system. While the Coast Guard was clearly the lead agency, officials from the other two agencies happily concede they were concerned more about ferry safety than passenger privacy.
A trunk-full of high explosive packed in an innocent-looking sedan could easily sink a ferry, killing hundreds of people in plain sight of a major American city, a possibility that isn't lost on ferry riders.
"People forget, we're at war right now. You've got to give up some of your rights," said Tom Schmidt of Bremerton, a retired Navy man who works for the military as a civilian. "Somebody who doesn't want their vehicle searched and raises Cain about it, they've got something to hide."
The committee adopted security measures for the ferries, including bomb dogs, increased trooper presence aboard the vessels themselves, and random searches by the troopers.
"The Washington State Patrol, in concert with its partners, made the decision," Serpas said last week as a committee of lawmakers peppered him with questions about why he hadn't discussed the searches when he sought a $1.8 million budget increase for ferry security.
But any warrantless search of an American citizen raises legal questions, so the state's lawyers had to be consulted. Their answer — pried loose from the state by persistent requests from the ACLU and news organizations — was ambivalent.
The Washington Constitution provides a strong privacy protection that courts have used to strike down other random searches such as roadblock sobriety checkpoints. To override that protection in court, the state would need to prove a "special need."
"The need for random ferry-patron vehicle searches should be periodically reviewed by the Washington State Patrol to confirm the presence of a clear threat to the safety and security of ferry passengers," Assistant Attorney General Kasey Myhra wrote in a June 7 memo.
Ultimately, it was that constant review of the potential threat that led to the end of the searches, said Capt. Glenn Cramer, a State Patrol spokesman.
There was not any immediate known intelligence pointing to a threat to the ferries, Cramer said. That prompted Serpas to speak to the Coast Guard about stopping the random searches, Cramer said.
Whether the searches will resume is uncertain. Myhra's memo indicates that the Coast Guard could force the issue by threatening to shut down the ferry system under the regulations that give it authority over shipping.
But no clear national policy exists yet, a spokesman for the Coast Guard said.
"We're still waiting, and I know that at the national level they're reviewing this," said Lt. Scott Casad, a spokesman for the Coast Guard's Marine Safety Office in Seattle. "For the time being, those regulations allow us the authority."