Supreme Court ‘Strip Search’ decision strikes a blow against personal privacy and constitutional rights of citizens arrested for minor offenses.

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George Clooney was recently arrested along with his father for their part in a protest outside the Sudanese Government Embassy.  Clooney, when asked about the arrest was quoted as saying, “It’s actually a humiliating thing to be arrested no matter what you do, but I’m proud to be standing here with my father…”  The reality of an arrest is always humiliating.  The police have the power to physically prevent your movement; to handcuff you; to transport you away from a scene in a marked police vehicle with lights flashing and sirens screaming on the basis of their determination that you have broken the law. People oftentimes spend at least a night or two in jail prior to their release after such an arrest and regardless of the minimal nature of the offense charged; the experience takes a certain toll.

Now imagine that Mr. Clooney, after peacefully demonstrating was not only arrested; but was also subjected to a strip search by corrections officers and in front of other inmates prior to an entry into a pretrial detention center.  With today’s Supreme Court decision in Florence v. Board of Chosen Freeholders of the County of Burlington et al., any person, arrested for any reason, minor non-drug/ non-violent offense, civil offense, etc. could be subjected to a visual strip search prior to their entry into the general population of any jail/pre-trial detention center. So, what, exactly, is a visual strip search? According to a prison manual referenced in a 2003 New York Federal case and cited by the dissenting opinion in this case; a strip search is:

“‘a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.’” Dodge v. County of Orange, 282 F. Supp. 2d 41 (SDNY 2003).

That description would make most of us cringe, but to the majority in today’s opinion, such searches are now warranted for every single person entering the general jail population even if they have been arrested for the most minor, non-drug/non-violent offense and without any showing of reasonable suspicion that such an intrusive search is necessary.

The petitioner, Albert Florence, (pictured above) was arrested on a warrant from a prior traffic stop which had resulted in a fine. The warrant was issued when he failed to appear for a hearing to enforce the unpaid portion of the fine. He did in fact pay the remaining balance of the fine after the warrant was issued; however, an error within the court system failed to erase the warrant.  So, years later, during a routine traffic stop, he was taken into custody based on the incorrectly outstanding warrant.  Although the matter was eventually cleared; Mr. Florence was subjected to two different visual strip searches at Burlington County Detention Center in New Jersey and Essex County Correctional Facility.

The majority opinion claims that the safety concerns of jails justify the intrusion on our civil rights; but as the dissent so rightly points out, they simply lack the actual empirical data to prove that these types of strip searches in all cases are necessary to maintain security and order in our nation’s jails. Justice Breyer writing for the dissent makes the point that metal detectors; pat-frisks; mandated showers with delousing agents (to protect inmate populations and officers from lice infestations); and searches of clothing are already being used to detect the potential contraband, illness, and tattoos signifying gang affiliation of a new inmate in the name of facility safety and security. The heightened level of intrusion of a visual strip search is not necessary to maintain those standards of facility security. The dissent cites a California case which showed that of 75,000 new inmates who were strip searched over a five year period, only 16 searches led to the discovery of contraband and in 13 of those searches the contraband found would also have been detected during a patdown or search of shoes/outer clothing. So contrary to Justice Kennedy’s apparent belief; the majority of citizens who are arrested and detained unexpectedly on minor matters are not secreting weapons and/or drugs inside their nether regions.

It is interesting that two of the examples that the majority uses to make the claim that even those arrested for non-violent offenses may be harboring some more deviant and dangerous tendencies are both emotional and fear-laden cases of terrorism on U.S. soil. The majority states that Timothy McVeigh; the Oklahoma City bomber, was stopped hours after the bombing for driving without a license plate and that one of the 9/11 terrorists received a speeding ticket just two days before the tragic and deadly events. Although what good a strip search would have done in either situation is unclear; the majority uses these two events to help create a justification for civil liberty intrusions based on fear rather than rationale. We have seen this time and time again when it comes to the woefully ineffective and overzealous Transportation Security Administration and today’s decision strikes yet another blow against constitutional rights in the name of fear and governmental overreaching.  Read the entire Supreme Court opinion here

For more information on Clooney’s arrest and why he was protesting the Sudanese Government watch his interview on PBS Newshour here.

This post was originally published on April 2, 2012 by the author, Jessica Horani, on http://horanilaw.blogspot.com and has been edited for content.

Kentucky v. King, or, how the Supreme Court thinks people should respond when the police bang on their door…

The Honorable Barry Kamins gave a great update on New York Search and Seizure Law last night for us lucky New York defense attorneys. One key Supreme Court case he discussed was Kentucky v. King, which states the Courts’ test for warrantless searches in ‘exigent circumstances’.  The case involved a pursuit of a suspect who disappears into an apartment building leaving the police, who are following closely behind, to decide which of two apartments the man has entered.  They smell marijuana coming from one apartment and bang on the door shouting, “Police, police, police!” No one comes to the door in response but the officers claim they hear the sounds of people moving and items being moved about. Determining that criminal evidence is about to be destroyed they announce they are coming in and knock down the door and enter the apartment.  The suspect they were originally chasing is, of course, not in this apartment at all, however they do find a few people, one smoking marijuana, as well as visible quantities of marijuana and cocaine inside.  In their decision determining whether the police created the exigent circumstances of the sounds of evidence possibly being destroyed, thereby nullifying the exception and creating a suppressible search, the court looked to whether the police violated or threatened to violate the 4th amendment prior to the exigency.  The Court framed it’s decision finding the warrantless entry by the police to be okay by narrowly focusing on the test to be used to determine when exigent circumstances have been caused by the police.  Here, they determined that the occupants of the apartment created the exigent circumstances prompting the police to enter by making the noises which suggested the destruction of evidence rather than answering the door and demanding a warrant or a reason for the police presence.  A  witty and critical review of the Court’s finding and the reality of how everyday citizens interact with the police can be found in Linda Greenhouse’s NY Times article, Justice in Dreamland. We as criminal defense attorneys advise people to ‘know your rights’ when dealing with the police, however, as many cases show us those rights are not always so clear and the black letter of the law versus how it is placed into practice and exercised in the real world is oftentimes quite different.  Police have incredible power in our society and sometimes a good offense, such as staying away from situations where the police may question you, obeying laws, etc. is not enough.  In that case, a call to your attorney and a great defense is your next best bet!

This post was originally published on June 14th, 2011 by the author, Jessica Horani, on http://horanilaw.blogspot.com and has been edited for content.