Monday, April 2, 2012

The Strip Search Case

Well, folks, this blog is supposed to involve me telling you why the law's not as crazy as it seems - unless it is. This is one of those "unless it is" situations. Today, the Supreme Court actually did decide that anyone being detained in the general population of a jail may be strip searched, without reasonable suspicion.

The case is Florence v. Board of Chosen Freeholders of Country Burlington et. al, and it's one of the scariest I've seen in a long time. When I saw this New York Times article about it, I laughed at the headline, "Supreme Court Ruling Allows Strip-Searches For Any Offense."  I assumed this was an alarmist overstatement. Unfortunately, it's really not...probably.

Essentially, it went like this: Justice Kennedy, writing for the majority (along with Scalia, Roberts and Alito, and Thomas - except he dissented from one part), basically explains that cops can't know who might or might not have contraband, lice, diseases, and gang tattoos (really?) before they're put into the general population, and so they'll never be able to separate the dangerous from the non-dangerous. That means they can't be forced to restrict their searches to situations where they have "reasonable suspicion" (which is the usual test for, say, pulling someone over while driving) that the arrestee is hiding something.  The Court, he thinks, can't get too involved with the nuances of how the state runs its jails, or it'll risk tying cops' hands too much. The officers of the law know more than the Court about how this stuff works, so they shouldn't interfere with decisions like this. The opinion also points out that there are a lot of previous cases saying things like this. Here's a characteristic quote:

The officials in charge of the jails in this case urge the Court to reject any complicated constitutional     scheme requiring them to conduct less thorough inspections of some detainees based on their behavior,suspected offense, criminal history, and other factors. They offer significant reasons why the Constitution must not prevent them from conducting the same search on any suspected offender who will be admitted to the general population in their facilities. The restrictions suggested by petitioner would limit the intrusion on the privacy of some detainees but at the risk of increased danger to everyone in the facility, including the less serious offenders themselves.

The dissent, written by Justice Breyer (and unsurprisingly joined by Ginsburg, Kagan, and Sotomayor) sees things very differently (and very much more the way I do, which I'm sure you can tell from my tone here). Effectively, it says, WTF? Have you not heard of the Fourth Amendment, guys? It goes on to describe how invasive strip searches can be (hint: very) and gives statistics from the many amicus briefs about how many strip searches are performed over time - tens of thousands over the course of about five years- versus how many times contraband, etc. is actually found - about two or three. It reminds the majority that prisoners have constitutional rights too, and "reasonable suspicion" is the limitation we've drawn on the authority of the police to search folks. Here's a good quote from this one:

Even when carried out in a respectful manner, and even absent any physical touching . . . such searches are inherently harmful, humiliating, and degrading. And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass . . . . I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strong reasons to believe they are not justified.

There might be a silver lining though - or at least a sparkly grey lining, anyway. That can be found in the concurrences by Justices Roberts and Alito. For those of you out there who aren't law nerds (but who are, for some reason, still reading), separate opinions aren't (usually) just so that a given Justice can prove he or she is a way better writer than whoever wrote the majority opinion. More often, these opinions explain how the Justice is interpreting the opinion, and often what he or she thinks it doesn't mean. They can give you an idea of how the next case on the issue will go.

In this case, the concurrences written by Alito and Roberts express a lot of concern about the reach of the opinion, indicating that they think the strip-searches-for-everyone rule isn't as broad as you might think. Justice Roberts says,  

. . . it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces . . .[t]hose circumstances include the facts that Florence was detained not for a minor traffic offense but instead pursuant to a warrant for his arrest, and that there was apparently no alternative, if Florence were to be detained, to holding him in the general jail population.

In other words, Roberts thinks the rule makes sense here, because the defendant was arrested for an actual crime, and because he absolutely had to be thrown in the clink with the riff raff. Which means, if someone were just arrested in traffic, it might not be ok to do a strip search. Justice Alito says this even more clearly:

It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.

It's this kind of behavior that makes me like Alito more than most other bleeding heart liberals do. I may disagree strongly with the majority opinion here, but I think that this concurrence sets a limit on how much damage the rule can do.

At least it gives me hope that even if the Court refused to draw the line where I think it ought to be drawn, there is a line somewhere.

P.S. Justice Thomas doesn't explain why he dissents from Part IV of the opinion, which declines to create a specific exception for specific situations involving minor offenses, like the ones the concurrences talk about.  He didn't write his own opinion or join a concurrence or even part of the dissent. But no one should be surprised when Thomas decides to remain silent.


  1. I see nothing wrong with this. Like Alito and Roberts said, if the person is already being jailed, there is probably more than reasonable suspicion they committed a crime.

    If the problem is that the police might use this for illicit purposes, we all know criminals are generally icky looking. Thus, no fear of that and it is actually a disincentive to boot!

  2. I do think the concurrences limit the decision helpfully. But I do want to note that this is a strip search without reasonable suspicion that they have contraband, NOT that they committed a crime. The point is that committing a crime alone (or being accused of committing one) doesn't mean there's reasonable suspicion that they're smuggling something.

    And, I think the concern is not that the police will use this for "illicit purposes" so much as that they will be able to abuse the power just for power's sake, even when they don't actually have a good reason to search someone. Not that they need one, under this decision.

  3. Your quotation marks only face one direction!