Supreme Court says police can strip-search anyone they arrest without probable cause

Fed­er­al, state, and local author­i­ties may force any per­son they arrest to sub­mit to a strip-search, whether or not there is prob­a­ble cause for such an inva­sion of a sus­pec­t’s pri­va­cy, the Supreme Court ruled this morn­ing, set­ting a dan­ger­ous and unwel­come prece­dent that NPI strong­ly condemns.

In a five-to-four deci­sion, Jus­tices Antho­ny Kennedy, John Roberts, Samuel Ali­to, Antonin Scalia, and Clarence Thomas — col­lec­tive­ly, the court’s con­ser­v­a­tive wing — declared that it’s okay for police to require any per­son they detain to under­go a “close visu­al inspec­tion while undressed” (in oth­er words, a strip-search).

Jus­tice Brey­er filed a strong­ly word­ed dis­sent­ing opin­ion, joined by Jus­tices Gins­burg, Sotomay­or, and Kagan. (Togeth­er, they com­prise the court’s lib­er­al wing).

“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. “We have recent­ly said, in respect to a school­child (and a less intru­sive search), that the ‘mean­ing of such a search, and the degra­da­tion its sub­ject may rea­son­ably feel, place a search that intru­sive in a cat­e­go­ry of its own demand­ing its own spe­cif­ic suspicions.’ ”

“Even when car­ried out in a respect­ful man­ner, and even absent any phys­i­cal touch­ing, such search­es are inher­ent­ly harm­ful, humil­i­at­ing, and degrad­ing,” Brey­er added lat­er in his opin­ion. “And the harm to pri­va­cy inter­ests would seem par­tic­u­lar­ly acute where the per­son searched may well have no expec­ta­tion of being sub­ject to such a search, say, because she had sim­ply received a traf­fic tick­et for fail­ing to buck­le a seat­belt, because he had not pre­vi­ous­ly paid a civ­il fine, or because she had been arrest­ed for a minor trespass.”

Brey­er’s dis­sent goes on to com­plete­ly destroy the the flim­sy ratio­nale Antho­ny Kennedy used to prop up the major­i­ty’s deci­sion. He notes that nei­ther the Supreme Court’s con­ser­v­a­tive major­i­ty nor the respon­dents in the case (who were sued by the plain­tiff for vio­lat­ing his Fourth Amend­ment rights) have cit­ed any exam­ples where rea­son­able sus­pi­cion require­ments for strip-search­es have inter­fered with pre­serv­ing order inside pris­ons, or pre­vent­ing con­tra­band from being smug­gled into pris­ons. Brey­er fur­ther notes that at least ten states have actu­al­ly cod­i­fied restric­tions on strip-search­es into law… includ­ing Wash­ing­ton.

The rel­e­vant RCW is 10.79.130:

Strip, body cav­i­ty search­es — War­rant required — Exceptions.

(1) No per­son to whom this sec­tion is made applic­a­ble by RCW 10.79.120 may be strip searched with­out a war­rant unless:

(a) There is a rea­son­able sus­pi­cion to believe that a strip search is nec­es­sary to dis­cov­er weapons, crim­i­nal evi­dence, con­tra­band, or oth­er thing con­cealed on the body of the per­son to be searched, that con­sti­tutes a threat to the secu­ri­ty of a hold­ing, deten­tion, or local cor­rec­tion­al facility;

(b) There is prob­a­ble cause to believe that a strip search is nec­es­sary to dis­cov­er oth­er crim­i­nal evi­dence con­cealed on the body of the per­son to be searched, but not con­sti­tut­ing a threat to facil­i­ty secu­ri­ty; or

(c) There is a rea­son­able sus­pi­cion to believe that a strip search is nec­es­sary to dis­cov­er a health con­di­tion requir­ing imme­di­ate med­ical attention.

(2) For the pur­pos­es of sub­sec­tion (1) of this sec­tion, a rea­son­able sus­pi­cion is deemed to be present when the per­son to be searched has been arrest­ed for:

(a) A vio­lent offense as defined in RCW 9.94A.030 or any suc­ces­sor statute;

(b) An offense involv­ing escape, bur­glary, or the use of a dead­ly weapon; or

(c) An offense involv­ing pos­ses­sion of a drug or con­trolled sub­stance under chap­ter 69.41, 69.50, or 69.52 RCW or any suc­ces­sor statute.

[1986 c 88 § 2.]

Brey­er con­clud­ed: “I have found no con­vinc­ing rea­son indi­cat­ing that, in the absence of rea­son­able sus­pi­cion, invol­un­tary strip search­es of those arrest­ed for minor offens­es are nec­es­sary in order to fur­ther the penal inter­ests. And there are strong rea­sons to believe they are not justified.”

The Amer­i­can Civ­il Lib­er­ties Union issued a state­ment crit­i­ciz­ing the deci­sion.

“Today’s deci­sion jeop­ar­dizes the pri­va­cy rights of mil­lions of peo­ple who are arrest­ed each year and brought to jail, often for minor offens­es,” said Steven R. Shapiro, legal direc­tor of the ACLU.

“Being forced to strip naked is a humil­i­at­ing expe­ri­ence that no one should have to endure absent rea­son­able sus­pi­cion. Jail secu­ri­ty is impor­tant, but it does not require rou­tine­ly strip search­ing every­one who is arrest­ed for any rea­son, includ­ing traf­fic vio­la­tions, and who may be in jail for only a few hours. ”

We con­cur. Allow­ing the police to strip-search any­one they have arrest­ed, with­out rea­son­able sus­pi­cion or prob­a­ble cause, is not con­sti­tu­tion­al. The Fourth Amend­ment, repro­duced below, is hard­ly ambiguous.

The right of the peo­ple to be secure in their per­sons, hous­es, papers, and effects, against unrea­son­able search­es and seizures, shall not be vio­lat­ed, and no War­rants shall issue, but upon prob­a­ble cause, sup­port­ed by Oath or affir­ma­tion, and par­tic­u­lar­ly describ­ing the place to be searched, and the per­sons or things to be seized.

The right of the peo­ple to be secure in their per­sons… against unrea­son­able search­es and seizures… shall not be vio­lat­ed. The peo­ple of this nation can­not be secure in their per­sons if they can be arrest­ed on some pre­text and then strip-searched with­out a war­rant, or with­out even jus­ti­fi­ca­tion of any sort.

That’s what hap­pened to Albert Flo­rence, the plain­tiff in this case. And unfor­tu­nate­ly, thanks to this rul­ing, that’s what is going to con­tin­ue to hap­pen all over the coun­try. The Supreme Court could have put a stop to such egre­gious civ­il lib­er­ties vio­la­tions, but instead, they have giv­en police forces all over the coun­try the okay to strip search any­body they arrest. Includ­ing pro­test­ers. It does­n’t take much imag­i­na­tion to envi­sion such pow­er being abused.

For­tu­nate­ly, Wash­ing­ton has a law explic­it­ly for­bid­ding sus­pi­cion­less strip-search­es, which state and local police are be bound by. Our state law does­n’t seem to be affect­ed by today’s deci­sion, since the court’s opin­ion con­cerns only whether sus­pi­cion­less strip-search­es of arrest­ed indi­vid­u­als vio­lates the Fourth Amend­ment. While that is com­fort­ing, we nonethe­less believe this deci­sion could have far-reach­ing con­se­quences. It isn’t mere­ly a bad deci­sion, it is a dan­ger­ous deci­sion. If it can­not be over­turned in the near future, we hope it can at least be mitigated.