published Tuesday, April 3rd, 2012

Jail strip-searches for minor offenses a blow to the Constitution

  • photo
    In this Oct. 11, 2011 file photo, Albert Florence, right, sits at his home Bordentown, N.J., with his attorney Susan Chana Lask. In a 5-4 decision, the Supreme Court ruled against Florence, who faced strip searches in two county jails following his arrest on a warrant for an unpaid fine that he had, in reality, paid. An ideologically divided court ruled today that jailers may perform invasive strip searches on people arrested even for minor offenses. (AP Photo/Mel Evans, File)
    Photo by Associated Press /Chattanooga Times Free Press.

In another 5-4 decision that followed the increasingly familiar ideological divide, the U.S. Supreme Court ruled Monday that jail guards may strip-search individuals arrested for any offense, including minor ones such as a traffic violation. The ruling needlessly weakens the Fourth Amendment's safeguard against unreasonable searches.

Justice Anthony Kennedy said in the majority opinion that if an individual is to be incarcerated with the general jail population, "courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security." Kennedy wrote that it would be "unworkable" to make an exception for people arrested minor offenses. The court's highly politicized right wing -- Chief Justice John G. Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. -- concurred with Kennedy that strip searches were reasonable.

The court's liberal minority took a far more balanced view.

Justice Steven G. Breyer, writing for himself and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, said jailers should have reasonable grounds before conducting an invasive strip search, which generally requires an individual to remove his or her clothes, to be subjected to a body cavity search and to allow their genitals to be inspected. Breyer correctly wrote that such searches were "a serious affront to human dignity and individual privacy" and should be used only when there was reason to expect that a person was hiding something.

The minority's opinion certainly matches the Fourth Amendment's view of unreasonable searches more closely than the majority's blanket approval of strip searches.

The case before the court was particularly egregious. The plaintiff was arrested in New Jersey because a search of records during a traffic stop incorrectly indicted he had not paid a fine. The plaintiff told the arresting officer the fine had been paid, but he was nevertheless arrested, subjected to strip searches at two jails and incarcerated for six days before he was allowed to prove the fine had been paid. He sued the county where he had been arrested for violating his privacy. Given the circumstances, his claim certainly had merit.

Earlier rulings regarding those charged with minor offenses but who had no compelling reason to be strip searched were mixed. Some courts approved them. Others said they were lawful only if there was reasonable suspicion that the person had contraband or weapons. Monday's decision removes the sensible requirement cited by the latter.

The ruling recklessly redefines the legal meaning of "reasonable." It also continues, even accelerates, the conservative majority's determination to broaden police powers while eroding constitutional protections and civil rights. The dangerous and partisan politicization of the U.S. Supreme Court, it is apparent, continues unabated.

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jjmez said...

sexual assaults at the hands of prison guards will likely increase. Are they still search women's labias in some of those Colorado jails?

America isn't a country any sane, righteous, free thinking person should want to live in anymore.

April 3, 2012 at 5:32 a.m.
holdout said...

Yeah. Lets just ask them if they happen to have anything like a weapon or drugs in their underwear. Why would a person going to jail lie? Besides most of the assaults, sexual and otherwise, happens among the inmates and has nothing to do with the guards. We certainly wouldn't want to inconvenience or embarrass anyone in an attempt to keep the inmates safe from each other.

April 3, 2012 at 8:34 a.m.
conservative said...

The writer: "The ruling needlessly weakens the Fourth Amendment's safeguard against unreasonable searches"

To quote Nancy Pelosi, "are you serious?"

April 3, 2012 at 9:38 a.m.
JustOneWoman said...

Headlight out, get strip searched. Turn right on red where you shouldn't, get strip searched. Someone tells a lie about you to get you in trouble, get strip searched. In other words, if a cop pulls you over for anything, get ready to take the clothes off. How rediculous! It walks all over the constitution. Welcome to the police state.

It will be overturned, it will just take time. Now how much of the tax payer's money is going to be spent to try and defend this? These people are not about making things better, they just want to bankrupt our government, for their money gods.

April 3, 2012 at 1:18 p.m.
holdout said...

Headlight out and go to jail? Really? Right on red and go to jail? Really? No one goes to jail for such. And just suppose you are in jail for something that you did that you deserved to be there for. Would you really want to share a cell with someone who was not searched? It is not about random strip searches on the street. It is about strip searches for people being placed into lockups. If one of your family members were stabbed to death by an unsearched prisoner you would be screaming that they should have been protected and suing everyone. And rightly so. The notion of someone being placed in jail and not being searched is so idiotic as to defy explanation.

April 3, 2012 at 2:52 p.m.
PinkSalmon said...

holdout said... Headlight out and go to jail? Really? Right on red and go to jail? Really? No one goes to jail for such.

You must have just moved from a more civilized third world country. In the U.S. Americans are arrested for such mundane infractions as a headlight out. Heck! Atlanta police have already been accused of strip searching citizens on the streets of Atlanta during routine stops. Now all those sex depraved jailers and cops can really get their groove on.

April 3, 2012 at 4:29 p.m.
dao1980 said...

Oh heck, now I'm confused..

I thought a quick feel-n-grope session was the reason anyone wanted to go to jail in the first place.

April 3, 2012 at 4:48 p.m.
holdout said...

BS. No one is arrested for a headlight out. You can read arrest reports going back for years and no one was ever booked into jail for a headlight out. Name one person ever arrested for nothing more than a headlight out. They may get stopped for that and then arrested for something else but no one has ever gone to jail for a headlight out. I know of one guy who was stopped for a driving a car with no tag. He would have just gotten a ticket but he had no driver's license or other identification. He was arrested and held until he could be identified. He was ultimately executed for 138 murders. Google Timothy McVeigh some time. Would you say he was executed for driving without a tag?

April 4, 2012 at 8:14 a.m.
chet123 said...




April 4, 2012 at 3:48 p.m.
JustOneWoman said...

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

April 4, 2012 at 4:12 p.m.
chet123 said...


April 4, 2012 at 4:50 p.m.
holdout said...

See jails listed as a place where you have a right to privacy? And how does one get to jail? Reasonable suspicion leads to probable cause. They are taken before the magistrate where the complaint is sworn to and a warrant is issued. Yes government does and will go too far and that is far from the act of just one party Chet. The Democrats have had years to repeal the patriot act and yet it has gotten stronger. Only a fool would trust either party to do right unless they are forced to. That aside what argument is there against searching a person being booked into a jail?

April 5, 2012 at 9:53 a.m.
pNc said...

What's to expect: when a civilized society slipping into absolute insanity

Believe me: you don't want the state having the power to strip your clothes off. History shows that the use of forced nudity by a state that is descending into fascism is powerfully effective in controlling and subduing populations.

The political use of forced nudity by anti-democratic regimes is long established. Forcing people to undress is the first step in breaking down their sense of individuality and dignity and reinforcing their powerlessness. Enslaved women were sold naked on the blocks in the American south, and adolescent male slaves served young white ladies at table in the south, while they themselves were naked: their invisible humiliation was a trope for their emasculation. Jewish prisoners herded into concentration camps were stripped of clothing and photographed naked, as iconic images of that Holocaust reiterated.

One of the most terrifying moments for me when I visited Guantanamo prison in 2009 was seeing the way the architecture of the building positioned glass-fronted shower cubicles facing intentionally right into the central atrium – where young female guards stood watch over the forced nakedness of Muslim prisoners, who had no way to conceal themselves. Laws and rulings such as this are clearly designed to bring the conditions of Guantanamo, and abusive detention, home.

Our surveillance state shown considerable determination to intrude on citizens sexually. There's the sexual abuse of prisoners at Bagram – der Spiegel reports that "former inmates report incidents of … various forms of sexual humiliation. In some cases, an interrogator would place his penis along the face of the detainee while he was being questioned. Other inmates were raped with sticks or threatened with anal sex". There was the stripping of Bradley Manning is solitary confinement.

April 6, 2012 at 10:42 p.m.
holdout said...

So pnc should people booked into a jail not be searched? Is that what you're saying? Who is then responsible for the drugs and weapons that would flood into the jails and prisons? Is it okay to let inmates kill each other as long as they are not embarrassed?

April 7, 2012 at 9:13 a.m.
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