The Pittsburgh Post-Gazette/Ipso Facto
April 6, 2012
This week, the U.S. Supreme Court ruled that a general corrections department
policy to strip search all incoming detainees, regardless of the nature of the
charges, does not violate the Fourth Amendment ban on unreasonable search and
Justice Anthony M. Kennedy penned the 5-4 decision in
Florence v. County of Burlington. He joined the conservative wing of the
court including Chief Justice John Roberts and Justices Samuel Alito, Antonin
Scalia and Clarence Thomas.
Just last week, the court issued a 5-4 ruling extending constitutional
protections to plea bargaining. Justice Kennedy wrote that opinion as well,
aligning himself with the liberal wing of the court, including Justices Sonia
Sotomayor, Stephen Breyer, Elena Kagan and Ruth Bader Ginsberg.
The Court’s rationale in Florence is based on the premise that a jail’s
interest in safety and security outweighs the interests of a detainee.
The court noted that strip searches are necessary to detect concealed weapons
and drug smuggling. The search is also important to detect lice or other
contagious conditions, untreated wounds, and gang-related tattoos.
“Something as simple as overlooking a pen can pose a significant
danger,” Kennedy wrote. “Inmates commit more than 10,000 assaults on
correctional staff every year and many more among themselves.”
Justice Kennedy provided a series of examples of contraband smuggled into
jail. A person arrested for disorderly conduct in Washington State “managed to
hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal
cavity.” In San Francisco, officials “have discovered contraband hidden in body cavities of people
arrested for trespassing, public nuisance and shoplifting.”
What does this opinion mean for the average citizen? To start with, thirteen
million people are admitted to jail each year.
Justice Breyer writing on behalf of the dissenting justices said the decision
would legitimize searches conducted to harass or humiliate people for their
political views, such as an arrested government protester. He mentioned
instances in which individuals were searched 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.”
According to the New York Times, people have been strip-searched after
arrests for violating a leash law, driving without a license and failing to pay
child support. A nun was strip-searched after an arrest for trespassing during an
Justice Kennedy’s opinion makes it clear that correction officials “must have
substantial discretion to devise reasonable solutions to the problems they
The alleged murderer, as well as the bicyclist without a bell, and everyone
in between, will be required to remove their clothing while an officer examines
their ears, nose, mouth, hair, scalp, fingers, hands, arm pits, and other body
openings including lifting their genitals and being
directed to turn around, and cough while squatting.
If you want to avoid such humiliation -- renew your license, keep your dog on
a leash, support your children and for goodness sake fix your muffler.
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Michael Gargiulo, Pretrial Hearing 45
3 weeks ago