Busted? Get Ready for a Strip Search

Posted April 4, 2012 in Criminal Law by

Police and prison officials can strip search suspects after they’re arrested regardless of the offense, the Supreme Court ruled on Monday.

  • Divided court gives law enforcement option of strip searching anyone who passes through jailhouse
  • Lower court rulings mixed, tended to ban strip searches without specific cause
  • American Bar Association filed brief against searches, to no avail


Invasion of Privacy

If you plan on being one of the 13 to 14 million people who will get arrested this year, best to take a shower and put on clean underwear first. In a 5-4 ruling, the Supreme Court decided that anyone arrested and admitted to jail can be strip searched, even if police have no reason to suspect they might be carrying anything illegal or dangerous.

Florence recalls being told, "“Squat and cough. Spread your cheeks.”

“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,” Justice Anthony Kennedy wrote in an opinion for the majority.

The court’s block of four liberal justices argued to the contrary. “A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy,” Justice Stephen Breyer wrote in the dissenting opinion, noting that invasion of personal rights “is very serious and lacks need or justification — at least as to the category of minor offenses at issue.”

The ruling doesn’t give jail officials carte blanche to touch or invade the bodies of people entering the system, but they can ask that arrestees manipulate and move body parts so the officials can get a better look.  


What Fourth Amendment?

People arrested in drug and weapons offenses, especially, are usually searched, and for good reason — it’s generally a bad idea to introduce drugs and weapons into a jail. Furthermore, people can be charged for whatever extra contraband they might have secreted about their persons.

However, strip searching suspects who are arrested for offenses totally unrelated to anything dangerous– white collar crime, unpaid fines, back child support– is more controversial, with questions raised about whether it violates a person’s Fourth Amendment right to privacy. Appeals courts nationwide had differed on whether the consideration of jailhouse safety outweighs a person’s right to not stand naked for inspection. But no more, say the supremes.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Kennedy wrote, noting that searches could be useful in preventing (pubic?) lice outbreaks in jails, and for detecting tattoos or other gang symbols.


Stripped for Violation of Leash Law

Among the arrestable offenses that prompted strip searches and previously landed in front of lower courts:

  • Failure to pay child support
  • Driving without a license
  • Walking a dog in violation of a local leash law

The case the Supreme Court specifically ruled on came about after Albert Florence was pulled over for speeding in 2005 in New Jersey. Florence was arrested after a warrant turned up for unpaid fines (which was incorrect– he had paid the fines) and he was strip searched at two different jails. “It made me feel less than a man,” Florence said of the ordeal.

Marsh Halberg

The ruling comes as a surprise for some attorneys. “I understand the practical parts of it, but it is a little disconcerting,” says Marsh Halberg, a criminal defense attorney in Minneapolis. “They searched a passenger in a car for an unpaid fine that turned out to be paid? And not once but twice, and all for a mistake? I would be a little angry.”

“It’s pretty shocking violation,” Halberg says. “They’re not talking about physical contact, but they are talking about physical inspection. They can make someone pick up their genitals, squat down, do things that are extremely personal.”



Common Sense Application

The ruling probably doesn’t extend to people who are arrested but aren’t placed in the general prison population, the justices suggested, although “general population” could be interpreted to mean something as small as a two-person holding cell in a local county jail. And certain expectations of privacy still exist– police can’t strip search suspects in full view of the public, for example, unless they have a very good reason. “There will hopefully be common sense application by law enforcement if they choose to do it,” Halberg says.

One ray of hope for rogue dog-walkers who want to keep their clothes on, is that in some cases state laws and constitutions could extend greater protections to suspects under arrest without suspicion of contraband. “Although someone might not have a federal claim, they might still have a claim under state protections. All is not lost in that sense for defense lawyers,” Halberg says, while noting that some states might shift their policies to be consistent with the federal ruling.

A lot of lawyers aren’t happy– In a supporting brief, the American Bar Association argued that unfettered strip searches would fly in the face of international human rights standards. Arrestees should not “be subject to the grave intrusion of a strip search on admission to a detention facility unless there is individualized, reasonable suspicion of possession of contraband,” the brief contends. 

But there you have it. Arrests for failure to use a turn signal, or riding a bicycle without a bell, as Justice Breyer brought up? Strip search. Driving with a noisy muffler? Strip search. False arrest for fines you already paid? Better start taking your clothes off now.

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