Supreme Court "Strips" Fourth Amendment Protections

On April 2, 2012, the Supreme Court ruled, in a case entitled Florence v. Board of Freeholders, in a 5-to-4 decision to allow law enforcement officials to strip-search people arrested for any offense, however minor, before admitting them to jail. This decision would hold true even if the officials have no reason to suspect the presence of weapons, narcotics or any other dangerous or illegal item. This decision presents a certain degree of irony, especially in light of the current Affordable Health Care legislation pending before the High Court.

The irony lies in the fact that based upon many of the questions posed by the right-leaning justices of the Court (whose worldviews are mainly limited government and maximized freedom) during the Court's recent oral arguments on the health care legislation, it appears that the Supreme Court is prepared to state that mandating a fee to pay for health care could be ruled an unconstitutional infringement on personal liberty, but permitting a thoroughly humiliating strip search that involves a stranger peering at the most private portions of a person's naked body -- for the most trivial offense -- is not. The invasiveness of the search authorized under Florence cannot be understated. The Florence decision not only allows for law enforcement officials to strip you down and search the surface of your body, but allows for a full body and cavity search.

Let's put this into perspective: If you are arrested for even a traffic violation, the Supreme Court has now given law enforcement officials the green light to strip you down and search even your body cavities, regardless of whether or not they believe you possess any dangerous or banned substance. The Constitution, and in particular the Fourth Amendment, exists to protect American citizens from exactly this type of situation and the Supreme Court has severely damaged our Constitutional protections. Simply put, the Supreme Court got it wrong.

The Supreme Court did offer a rationale for its decision, obviously. The High Court concluded that such strip searches are needed to detect injuries, diseases and contraband and to identify tattoos or other gang affiliations. While I do not purport to understand the daily difficulties intrinsic in managing a jail or prison, I believe that this particular invasion of interests is a serious affront to human dignity and to individual privacy. Constitutionally, it is important to understand the act of being placed in a holding or jail cell do not (or, at least prior to this decision did not) strip you of your constitutionally protected rights. Even inmates that are convicted of what you and I might consider "serious" offenses, including violent crimes, are still entitled to be free of "unreasonable searches and seizures" as provided for under the Fourth Amendment, making the Court's decision here with regards to persons being held for minor offenses baffling.

Prior to the Florence decision, prison authorities were allowed to conduct such a search only when they had actual reasonable suspicion to believe that the individual possessed drugs or other contraband. Not only did this approach allow the prison official, who is the person in the best position to assess the situation, to use his or her discretion in applying the search but it limited the intrusion into individual's Fourth Amendment rights.

Now with the recent ruling in Florence, prison officials are given essentially unlimited authority to require these evasive searches for any minor offense with or without reasonable suspicion. The Supreme Court failed to provide any evidence that indicated that the current measures in place were inadequate and the Court did not convincingly articulate that the use of involuntary strip searches for those arrested for minor offenses, absent reasonable suspicion, are necessary in order to fur­ther the purported penal interests.

In fact, there are strong reasons to believe they are not justified as current practices (such as pat-frisking all inmates, making inmates go through metal scanners, making inmates shower and use particular delousing agents or bathing supplies, and searching inmates' clothing) are effective. The Court failed to provide a single exam­ple of any instance in which contraband was found on an individual through an inspection of their private parts or body cavities which could not have been found under a policy which allowed for such a search based upon reasonable suspicion.

Individuals may be subjected to such an invasive strip search even for the most minor of offenses. Briefs filed by various groups in what are referred to as "Amicus" (meaning "friend of the Court") briefs presented in Florence set forth other instances in which individ­uals arrested for minor offenses had been subjected to the humiliations of a visual strip search. They included individuals detained for such infractions as driving with a noisy muf­fler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell. That reminds me, I better get my muffler and headlight fixed or I might now be subject to a "Constitutional" strip search.

The examples provided in the case's amicus briefs also set out instances where women were strip-searched during periods of lactation or menstruation and even cited instances were victims of sexual violence and even a nun, a Sister of Divine Providence for 50 years, who was ar­rested for trespassing during an antiwar demonstration, were subjected to similar searches. Again, aren't these examples of abuse (there is no other way to describe these tactics) exactly why the Fourth Amendment exists? The Supreme Court does not think so, and in its 5-4 decision just stripped a significant portion of your Fourth Amendment protections away.