NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Monday, April 2nd, 2012

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.

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