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.

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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