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“Unreasonable Search And Seizure”: Supreme Court Undercuts 4th Amendment Protections-Again

In yet another 5-4 decision of the Supreme Court, the conservatives sitting on the Roberts Court have cut deeply into our protection from unreasonable search and seizure guaranteed to Americans by the 4th Amendment to the Constitution.

As a result of today’s ruling, jailers can now perform bodily strip searches on anyone brought in to a holding cell, no matter how minor the alleged infraction. And when I say ‘minor’, I’m not talking about people arrested and held for violent or even misdemeanor drug related crimes.

I’m talking about individuals arrested for riding a bicycle without an audible bell, driving a car with a noisy muffler or failing to properly use a signal when making a left or right turn.


These are but a few of the offenses that were committed by people who found themselves being strip-searched and subject to the long arm of the law when that long arm intruded into personal spaces where no arm was intended to go. These were also the offenses represented in a class action brought against two New Jersey jails by Albert Florence, a New Jersey resident who was also subjected to the humiliation of a strip search—twice— for what the police believed was an outstanding warrant for failing to pay a court fine.

Florence’s ordeal began on a day in 2005 while he and his family were on his way to his mother-in-law’s home to celebrate the purchase of a new residence for the Florence family. Mrs. Florence was at the wheel of the family BMW when she was pulled over for speeding. When the police officer ran a check on Mr. Florence as the owner of the car (despite the fact that he wasn’t driving), they discovered that he had an outstanding warrant for failing to pay a fine to the Court.

Never mind that Mr. Florence, a financial executive with an automobile dealership, had, in fact, paid the fine and actually had proof of having done so in the glove box of his automobile because he feared that local police were suspicious of black men who drive nice cars. And never mind that even if the warrant had been an outstanding bench order, not paying a court fine in New Jersey is not a crime.

Florence was arrested and handcuffed as his pregnant wife and young son watched in distress.

When Mr. Florence arrived at the local jail where he was to be held pending a hearing on the warrant, he was subjected to a strip-search. And when he was transferred to a different county jail he was treated to a search of his body once again, despite the fact that, at no time since his first strip-search, was he outside the custody of the police.

During his first strip-search, Florence was forced to disrobe in front of an officer and told to lift his genitals. Upon arriving at the second jail, he was made to squat and cough in front of a number of viewers for the purpose of expelling anything that might be hidden in a body cavity.

Setting aside my curiosity as to what the cops expected to find hiding beneath his genitals, I will simply report that the local Magistrate finally ordered Mr. Florence released when he determined that Florence had, indeed, paid the fine some years before.

Still, the Supreme Court came to the conclusion that the body searches Mr. Florence was subjected to—not once but twice and despite the fact that he had been in police custody the entire time between the first and second search—were “reasonable” within the meaning of what constitutes a reasonable search and seizure for 4th Amendment purposes.

So deeply concerned was the five Justice majority for the need to keep contraband—including weapons and drugs—out of the jail system, they were prepared to relieve authorities throughout the nation of their responsibility to afford American citizens their privacy rights—even when they are hauled in for having a broken bell on a bicycle.

Writing the minority opinion, Justice Stephen Breyer argued that this behavior is not constitutionally appropriate for an individual arrested for a minor offense that does not involve drugs or violence.

“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,” Breyer wrote. The “invasion of personal rights” at issue in this case, the dissenters argued, “is very serious and lacks need or justification — at least as to the category of minor offenses at issue.

Via SCOTUSblog

The Court’s decision greatly expands upon what authorities can do when searching those they detain for alleged crimes, no matter how miniscule the charge may be.

In 1979, the Supreme Court upheld the policy of body cavity searches for prisoners after they had met with visitors. The theory was that the possibility of a guest from the outside having slipped an item of contraband to a prisoner posed a significant threat to the remainder of the prison population and jail officials. For that reason, the search was deemed reasonable.

However, since that decision, the principle has been widely limited so as not to to be applied to newly arriving prisoners where there was no reason for authorities to suspect that the incoming prisoner might have some item of contraband on his or her person requiring confiscation. In other words, the ‘reasonable’ standard was applied.

That limitation is no longer the law of the land.

In what is becoming a habit of some members of the conservative side of the Court who don’t appear to want to be held responsible for the bad precedents they set, Justices Roberts and Alito when out of their way to say that this practice should be limited to the case at hand and that it should not be assumed that this principle is to be applied to all searches—particularly when someone is only to be held for a short time and placed in a cell separated from the general population.

The hope is that this limiting opinion will be applied at jails throughout the country so that people held only until bond is posted will not be subjected to intrusive and humiliating strip -searches.

Just last year, the Roberts Court put another serious dent into the 4th Amendment prohibition against unreasonable search and seizure when it upheld the constitutionality of police in Kentucky entering a suspect’s home without a search warrant.

By: Rick Ungar, Contributor, The Policy Page, Forbes, April 2, 2012

April 3, 2012 - Posted by | SCOTUS | , , , , , ,


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