Ruth A.

Bourquin
Senior Attorney
(617) 482-3170 ext. 348
rbourquin@aclum.org
 
 
August 14, 2019

Via First Class Mail and On-Line

Peter DiMatteo
Chief of Police
Dennis Police Department
90 Bob Crowell Road
South Dennis, MA 02660
https://www.town.dennis.ma.us/user/129/contact

Re: Container Searches at the Entrances to Public Beaches

Dear Chief DiMatteo:

We are writing to express concern regarding the constitutionality of the Town

of Dennis’s policy and practice of requiring individuals to submit to warrantless and
suspicionless searches of their containers (e.g. coolers and bags) as a condition of
entry to the Town beaches. Several residents of Dennis who have been subject to
such searches have contacted our office to inform us about this matter. We write in
the hope that the Town will take immediate action to suspend this policy and
practice, so as to avoid continued deprivation of constitutional rights.

We understand that the policy and practice reflect the Town’s effort to enforce
its Beach Regulations forbidding the possession and consumption of alcoholic
beverages on the beaches. However, warrantless and suspicionless entry searches of
containers at the Town beaches are unreasonable under both federal and
Massachusetts case law, and the “unconstitutional conditions” doctrine forbids the
Town from conditioning access to public beaches upon submission to an
unreasonable search. Therefore, we believe the Town’s beach entry search policy is
clearly inconsistent with and in violation of the Fourth Amendment to the United
States Constitution and Article 14 of the Massachusetts Declaration of Rights.

Legal Background

The Fourth Amendment and Article 14 protect individuals against

unreasonable searches and seizures. Under both federal and Massachusetts
case law, a search conducted without a warrant or individualized suspicion is
presumptively unreasonable. See, e.g., Arizona v. Gant, 556 U.S. 332, 338
(2009); O’Connor v. Police Com’r of Bos., 408 Mass. 324, 328 (Mass. 1990).

ACLU Foundation of Massachusetts  211 Congress St., Boston, MA 02110 • 617.482.3170 • www.aclum.org 
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Chief DiMatteo
August 14, 2019

Courts have recognized a few limited exceptions to this rule where the
burden of requiring a warrant or individualized suspicion would frustrate the
government’s purpose for the search. See, e.g., United States v. Davis, 482 F.2d
893, 908 (9th Cir. 1973); O’Connor, 408 Mass. at 328. Under the “special needs”
exception, warrantless and suspicionless searches may be reasonable if they
serve special government interests that go “beyond the normal need for law
enforcement.” New Jersey v. T.L.O., 469 U.S. 340, 351 (1985) (Blackmun, J.,
concurring). Also exempt from the warrant and suspicion requirements are
administrative searches “conducted as part of a general regulatory scheme,
rather than as part of a criminal investigation to secure evidence of crime[.]”
Davis, 482 F.2d at 908.

Under the special needs and administrative search exceptions, courts

have upheld warrantless and suspicionless searches only where: (1) such
searches furthered a substantial government interest that went beyond the
normal need for law enforcement and thus justified the intrusion upon
individual privacy interests; (2) requiring a warrant and/or individualized
suspicion was impracticable in light of the circumstances; and (3) the
government provided adequate procedural safeguards to minimize the privacy
intrusion. See, e.g., Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989);
O’Connor, 408 Mass. at 328. Without satisfying these requirements, a search
made without a warrant or individualized suspicion fails to pass constitutional
muster.

Although consent is another recognized exception to the warrant and

suspicion requirements, the “unconstitutional conditions” doctrine prohibits the
government from coercing people into waiving their constitutional rights by
denying a benefit or privilege to those who exercise them. See Memorial
Hospital v. Maricopa County, 415 U.S. 250 (1974); O’Connor, 408 Mass. at 329.
In particular, the government may not condition an individual’s access to a
public area upon submission to an unreasonable search. See Blackburn v. Snow,
771 F.2d 556, 567-68 (1st Cir. 1985) (unconstitutional to require prison visitors
to undergo unreasonable strip searches before entry). In such situations, courts
have refused to find voluntary consent. See, e.g., United States v. Albarado, 495
F.2d 799, 806-07 (2d Cir. 1974); O’Connor, 408 Mass. at 329.

Analysis

Conducted without any warrant or individualized suspicion of

wrongdoing, container searches at the entrances to the Town’s public beaches
are presumptively unreasonable under both the Fourth Amendment and Article
14. See Gant, 556 U.S. at 338; O’Connor, 408 Mass. at 328. Although these
searches serve to enforce the Town’s Beach Regulations and thus may be
administrative in nature, they fail to satisfy the requirements of the special
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Chief DiMatteo
August 14, 2019

needs or administrative search exceptions—i.e. a real, grave danger to public

safety, the impracticability of individualized suspicion, and the existence of
adequate procedural safeguards that minimize the privacy intrusion.

First, both federal and Massachusetts courts have approved warrantless

and suspicionless administrative searches only when the government interest at
issue concerned a grave and concrete threat to public safety—one that would
harm a great number of people or society as a whole. See, e.g., United States v.
Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (airport security screenings for
weapons and explosives); Skinner, 489 U.S. at 620-21 (drug testing of railroad
employees involved in a major train accident); Commonwealth v. Roland R., 448
Mass. 278, 281 (Mass. 2007) (entry searches at courthouses for weapons and
explosives). Presumably, the Town’s beach entry searches for alcohol are not
aimed at protecting public safety against such catastrophic dangers as airplane
hijackings, major train accidents, or acts of terrorism/ mass violence.

In fact, courts have “permit[ted] blanket suspicionless searches of all

persons and their effects at the entry points to particular areas only where: the
purpose is . . . preventing the entry of weapons or explosives.” Norwood v. Bain,
143 F.3d 843, 852 (4th Cir. 1998). In contrast, they have invalidated entry
searches in public areas for narcotics and alcohol, finding no substantial threat
to public safety. See, e.g., United States v. Bulacan, 156 F.3d 963, 973 (9th Cir.
1998) (entry searches of visitors to a federal building for narcotics); Collier v.
Miller, 414 F. Supp. 1357 (S.D. Tex. 1976) (entry searches at public university
events for alcoholic beverages). Therefore, beach entrance searches for alcohol
fail to qualify for an exception to the warrant and suspicion requirements, since
they do not serve any government interest as grave as preventing “death or
serious injury to a number of citizens caused by inherently lethal weapons or
bombs.” Collier, 414 F. Supp. at 1362.

The Town’s beach entry searches are unreasonable also because requiring
individualized suspicion is not impracticable. Generally, courts have found the
suspicion requirement to be impractical only where the government had a “need
to discover . . . latent or hidden conditions,” Nat’l Treasury Employees Union v.
Von Raab, 489 U.S. 656, 668 (1989), and “even one undetected instance of
wrongdoing could have injurious consequences for a great number of people,”
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 675, (1995) (O’Connor, J.,
dissenting). Searches for weapons and explosives at airports and government
buildings are paradigmatic examples of such a situation. See United States v.
Edwards, 498 F.2d 496, 500 (2d Cir. 1974); Roland R., 448 Mass. at 281.

Concerns that are substantial enough to justify suspicionless searches do

not exist here. Indeed, it is not clear what government interest is being served,
since the Beach Regulations do not prohibit being intoxicated on the beaches,
but merely possessing alcoholic beverages. Assuming this is a legitimate
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Chief DiMatteo
August 14, 2019

governmental interest, Town officials can detect persons apparently possessing

or consuming alcohol on the beach through observation and monitoring, and
then possibly search such persons’ coolers and bags based on individualized
suspicion. Moreover, a few undetected instances of beach-goers bringing alcohol
would not cause any major accident or disaster causing serious harm to many
people, unlike an undetected explosive on an airplane. To the extent the Town’s
interest is in beach safety and this regulation is rationally related to that
interest, it can be adequately furthered without suspicionless container
searches at the beach entrances, which makes them unreasonable.

Lastly, some Dennis residents have informed us that Town officials

search even bags that are too small to carry any alcoholic beverage, which
suggests a lack of predetermined criteria and procedures limiting the inspecting
officials’ discretion. Concerned with individual privacy, courts have upheld
warrantless and suspicionless searches only where the criteria discussed above
are met and only where standardized procedures adequately constrain the
inspecting officers’ discretion. See, e.g., Skinner, 489 U.S. at 622; Roland R., 448
Mass. at 281. In Bulacan, the court found entry searches of visitors at a federal
building for narcotics to be unreasonable because the officers had too much
discretion and “virtually any closed container, however small, could be subject
to a search.”156 F.3d at 966. Likewise, a lack of adequate procedural safeguards
limiting the Town officials’ discretion would render the beach entry searches
unreasonable.

Since the warrantless and suspicionless container searches at the beach

entrances are unreasonable and thus unconstitutional under the Fourth
Amendment and Article 14, the “unconstitutional conditions” doctrine prohibits
the Town from requiring individuals to submit to such searches as a condition of
entry. Courts have held that conditioning a citizen’s access to a public area upon
submission to an unreasonable search is unlawful and that voluntary consent
cannot be implied in such cases. See, e.g., Blackburn v. Snow, 771 F.2d 556, 567-
68 (1st Cir. 1985) (unconstitutional to require prison visitors to undergo
unreasonable strip searches before entry). Just as requiring prison visitors to
submit to unreasonable strip searches is unlawful, so is conditioning residents’
access to public beaches upon submission to unreasonable container searches.

Request

For the foregoing reasons, we ask that the Town of Dennis promptly suspend
the unconstitutional policy and practice of conducting warrantless and suspicionless
container searches at the entrances to the Town beaches and requiring individuals
to submit to such searches as a condition of entry.
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Chief DiMatteo
August 14, 2019

We would be happy to discuss this matter further with you or counsel for the
Town and look forward to hearing from you soon as to your intentions.

Sincerely,

Ruth A. Bourquin
Michael Hur, Legal Intern