Law and Order

Well, I certainly feel safer now that the Supreme Court has handed down its decision in Florence v. Burlington.

The issue in this case was whether jail officials have the right to strip-search anyone and everyone who is arrested, no matter what the charge and no matter the presence or lack of probable cause to believe the “strip-ee” possesses contraband or a weapon. The plaintiff in the case had been arrested for non-payment of a traffic ticket; it later turned out that he had paid his ticket, but due to a computer error, the payment wasn’t documented. (Governor Daniels can surely relate–those pesky computer errors have been cropping up with annoying frequency in his administration lately!)

According to the case syllabus,

“petitioner, like other arriving detainees, had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, arm- pits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting.”

The Court ruled 5-4 that authorities could lawfully require a person accused only of an unpaid traffic citation to submit to this process.

You can bet I won’t be jaywalking any time soon!

As Justice Breyer wrote in his dissent,

“In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable search” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.”

The majority placed a lot of emphasis on–and expressed sympathy for–the difficulties involved in running a penal institution. As a result, the Justices were unwilling to require those in charge to make initial distinctions–that is, to determine the presence or absence of probable cause sufficient to justify a bodily search of this magnitude.

But that is precisely what the 4th Amendment requires of government.

The prohibition against unreasonable searches doesn’t include a caveat for inconvenience or difficulty. And really, how threatening is a guy who’s been hauled in for an unpaid traffic ticket? If jail authorities can’t distinguish between an arrest for a traffic violation and one for theft or armed robbery, we have a lot bigger problem than strip searches.

A quick look at the breakdown of the Justices in the majority and minority certainly confirms the old saying that elections have consequences. We all need to “remember in November.”

And meanwhile, whatever you do, don’t cross against the light!


  1. I wonder if this gives pause to any of the men who thought forcing a woman to submit to a transvaginal ultrasound was just all right.

  2. I regard as a legitimate issue whether probable cause is a prerequisite to a search of a prisoner. And, I think reasonable minds can differ on that issue.

    What I have trouble understanding is the focus on the nature of the crime charged as a central point in the analysis; other than as a play for sympathy. In almost every analysis of this case, I’ve seen the plaintiff’s traffic ticket featured prominently. I can see that as relevant as to whether he ought to have gone to jail or not. But that wasn’t the question raised in this case.

    The search in question wasn’t a punishment imposed in retribution for a person’s particular crime. It was an administrative undertaking to maintain order at the jail. And, on that point, I think a falsely accused murder is less of a danger to the general population of a jail than a never-accused murderer accused of a traffic violation. In other words, I don’t see the danger (or lack of danger) posed by a person in jail as solely or even primarily a function of the crime charged.

  3. Doug–Point taken. I do think, however, that the reason for the arrest is one element in the determination of reasonable suspicion, and not an irrelevant or even minor one. Is it really burdensome to look at the reason for the arrest, the criminal history or lack thereof, and behaviors that might give rise to concern, and make that initial determination?

  4. i haven’t been able to find the decision yet, but i read the SCOTUS blog and found it kind of insightful ( one part that jumped out to me as being most interesting read:

    “Justice Alito, with apparent support from the Chief Justice, suggested that a general search policy might not always be reasonable under the Constitution’s Fourth Amendment. ”The Court,” Alito wrote, “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.”

    in my procedural law class this past semester (disclaimer: i am not a law student or an attorney, but a CJ major) we studied US v. McCargo (US Court of Appeals, 2006) which held that it was proper for a police officer to frisk a man before putting him in his car in the interest of officer safety.

    in that vein, i think it would fit precedent to allow searches in jails to protect the general population of the facility and guards. i have a friend that works at a jail in CA and while he hates doing these searches, he has said it’s amazing what some people will smuggle in. so i am torn on this, i feel that on one hand it is necessary to ensure safety. on the other, it does seem ridiculous for petty offenses. however, as doug pointed out the severity of the arrestable offense is not always indicative of the danger of the individual. case in point the Burlington case, where the petitioner did have a criminal history (including resisting arrest and a charge of possession of a deadly weapon within 7 years of his arrest).

  5. Shiela:

    In case you didn’t notice it, Linda Greenhouse had an excellent column a couple days ago regarding the frightening illogic of the Florence decision.

    What is especially troublesome is the hypocrisy of thus Court allowing government officials to subject arrested persons who are presumed innocent to humiliating strip searches, but that same majority suggesting that the people’s Congress can’t pass a law requiring that all persons carry health insurance so as to promote the common welfare. The Court has ushered in a new era when even constitutional principles thought to be established may no longer be taken for granted.

  6. This may come as a shock for some who may know me as a devout civil libertarian, but here goes. While I generally agree with the need for reasonable, individualized suspicion as grounds for a 4th Amendment search, my father worked in a federal prison for 30 years, and I grew up visiting this prison regularly. So, I do have some sympathy for prison administrators’ need to a) prevent weapons or contraband from being smuggled in; b) protect the jail population from said weapons and contraband; and c) record, as a baseline, the physical condition and unique physical characteristics of each person who is booked into custody.

    Is it humiliating? Of course it is, unless you are a complete narcissist. And the fact that a person may not be guilty of the crime for which they have been arrested is irrelevant, in my opinion, to whether they are going to have to spend at least a little bit of time (until the misunderstanding can be sorted out) in jail among the general prison population.

    The question I have, though, is how many people who have failed to pay a parking ticket, or even a basic speeding ticket, without more, ever see the inside of a jail? Even many peace activists, arrested for protesting near federal military bases are only rounded up at a remote site, ticketed, and released without ever setting foot in jail. So obviously, if they don’t actually go to jail, this ruling wouldn’t force them to submit to a strip search for their minor crimes and infractions.

    For me, this is not an open and shut case of the Supremes got it right (or wrong), but rather, a case where two important needs of our constitutional democracy — the right against unreasonable searches and seizures vs. the necessity of providing a safe and secure penal facility — tend to collide. The jail’s policy is a rule of general applicability: everyone who is booked into the jail must, as a preliminary matter, undergo a strip search to record identifying features and check for illegal weapons and/or contraband. So unless it is unconstitutional on its face, the government need only show a rational basis for the policy, and I think they have articulated one here.

  7. This was actually the law of the land for many years. It was overturned 10 or 15 years ago and looks like it’s just been reinstated.

    Any time we’re protesting court decisions based on these kind of outliers, and then trying to extrapolate them into a pattern of unreasonableness, I believe is more supportive of that which one is opposing.

    I understand the reasonableness standard, but how do you define what crosses the threshold? When they passed the law that you couldn’t strip everybody, they only stripped for warrants, drug offenses, and felonies I believe (so the ticket scofflaw would have been declothed anyway.) If you’re left with a motley matrix of all kinds of variables all you’re doing is inviting even more court cases and bogging down the system even more than it already is.

    Without reading the decision, I wonder if the argument was made that literally tons of contraband are smuggled into jails and prisons just in Indiana alone every year. I have a friend who did a weekend in Marion County for DUI 10 or 11 years ago (during the ‘no-strip’ period.) One of his cellmates pulled some Marijuana laced with PCP out his tailpipe, rolled it up in toilet paper and even managed to light it. Definitely a major safety issue.

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