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The Supreme Court and the Strip Search

[ 16 ] October 13, 2011 |

Adam Liptak has a useful roundup of yesterday’s oral argument in Florence v. Board of Chosen Freeholders of Burlington County. The case involves a blanket policy of strip searching people arrested for minor offenses.    It is a classic case where Supreme Court intervention to protect Fourth Amendment rights is warranted.   The state is apparently unable to provide evidence of safety risks to would remotely justify suspicionless searches of people arrested for minor, non-violent offenses, and at an absolute minimum the Supreme Court should establish a standard of individualized reasonable suspicion for such searches that has some teeth.    There seems to be some skepticism of the state’s position from the Court, but my concern is that because of their unwillingness to set clear rules even if the Court rules against the state I can see an opinion for the Court so “minimalist” it doesn’t really stop states from doing anything.

Another point that should be made is that the term “contraband” conflates things that have different implications for safety within prisons.   The state has a very strong interest in insuring that people don’t smuggle weapons into prisons, but how many people arrested without warning for any offense — let alone minor, non violent offenses — are likely to have dangerous weapons hidden in intimate areas?   If the contraband we’re talking about is drugs smuggling might be a little more likely but this doesn’t entail a risk posed to other prisoners.        It’s a classic case of the War on (Some Classes of People Who Use Some) Drugs being used as an acid to dissolve the Bill of Rights; combining drugs and weapons into a generic “contraband” category allows the state to pretend there’s a more compelling justification for intrusive, humiliating searches than there actually is.   Both generally and in individual cases, it would better if they were kept distinct, although there’s virtually no chance anyone on this Court will do so.

Comments (16)

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  1. Njorl says:

    “but how many people arrested without warning for any offense — let alone minor, non violent offenses — are likely to have dangerous weapons hidden in intimate areas? “

    Many people routinely keep a stick up their ass, though somehow I don’t think these laws are meant for them.

  2. wiley says:

    a snuke in a snizz.

  3. soullite says:

    This from the same guy that was all ‘back off the TSA! they are just decent folks trying to make a living!’…

  4. Boudleaux says:

    If the contraband we’re talking about is drugs smuggling might be a little more likely but this doesn’t entail a risk posed to other prisoners.

    Ha. “Entail” indeed. Quite clever.

  5. DK says:

    I think you are probably right – minimalism to avoid using an extreme case to set some rules that might avoid similar but not identical problems in the future.

    And while there are some non-judges out there like the CA legislature trying to do the right thing on search and seizure, Jerry Brown is pointing to a court ruling to veto the legislature’s efforts.

    I don’t think there is any way to restore the 4th Amendment that doesn’t involve ending the War on (Some Classes of People Who Use Some) Drugs.

  6. c u n d gulag says:

    I think there may be some prurient interests involved here.

    If you’re going to strip search without real “Reasonable Cause,” then you need to do it to everyone. All of the time.

    Otherwise, I suspect that a 350 lb biker, in leather, with hygiene issues, stopped for speeding, might not get strip-searched as often as some nubile teen or 20-30 something who’ been stopped.

    And that 350 lb biker, well, she might get offended, sue, and then what’s the cops defense?

    For those of you suffering from an irony deficiency, this was not meant to offend anyone, this was meant as humor. If it failed, I’m sorry. I’ll try to do better next time.

  7. efgoldman says:

    I no longer have any faith that this particular SCOTUS will do the right and sensible thing. Not until one of the five monkeys [see no common sense - hear no common sense - say no common sense] is gone.

    • mpowell says:

      You mean is dead. Because that’s the only way they’re going. And yes, there are 5 justices committed to proving that a human death can be a thing hoped for.

      • efgoldman says:

        Well, I don’t wish death on anyone. And I don’t believe in an afterlife. That being said, it wouldn’t hurt *my* feelings at all, if all five hypocrite Catholics ended up in the Hellfire of Eternal Damnation(tm).
        I also wouldn’t mind if the Senate grew a pair big enough to go after Thomas on the income-reporting and influence-peddling issues.

        • mpowell says:

          Thomas should definitely be impeached. I mean, does a judge have to commit a felony in plain view to get in trouble these days? It wouldn’t even be political if our system of government were at all reasonable. We’d wait for a Republican president and then, out you go sucker. But Republicans these days don’t even insist on a minimum of governing integrity as long as you belong to the right tribe.

  8. L.M. says:

    There’s also the fact that the overwhelming majority of contraband in jails and prisons actually seems to be smuggled in by guards.

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