An Unreasonable Search for Justification

(AP Photo/Mel Evans)

Albert Florence, right,with his attorney Susan Chana Lask. Yesterday, the Supreme Court denied Florence’s claim that strip searches in two county jails violated his constitutional rights, in an important test of the privacy rights of people who have been arrested.

Under the Fourth Amendment of the Constitution, searches and seizures must be "reasonable." Albert Florence was subjected to an invasive search—including an inspection of his genitals—after being detained following a routine traffic stop for an outstanding arrest warrant (that turned out to be invalid) before being moved to a correctional facility. The state had no evidence that he was carrying any dangerous contraband. Not only did it not have a warrant, not only did it not have the probable cause that would have been necessary for a warrant, it had no individualized suspicion at all. Florence had no reason to believe he would be arrested, and hence no reason to have weapons hidden in his body cavities. Surely such an intrusive search under these circumstances is "unreasonable," right?

Not, alas, if you're a Republican appointee to the Roberts Court. Yesterday, a bare majority of the Court, split along familiar party an ideological lines, held that the strip-search of Florence was "reasonable" under the Fourth Amendment. Obviously, the state has wider latitude to search prisoners than it does to search people in their homes or on the street, but how can this possibly extend to searching someone who had no idea he was about to be arrested for a nonviolent offense?

The majority's sleight of hand, as I feared in a preview of the case I wrote last year, involves combining "drugs and weapons into a generic 'contraband' category" that "allows the state to pretend there’s a more compelling justification for intrusive, humiliating searches than there actually is." Obviously, prisons have compelling interest in assuring that people being held to not bring weapons into prison, but it is implausible that people unexpectedly arrested for a minor offense will posses weapons that cannot be discovered through a less-intrusive patdown.

This implausibility is reflected in the majority opinions. The most serious weapon cited by Justice Anthony Kennedy's majority opinion is a tattoo noodle; the other handful of anecdotes involve prohibited intoxicants. Prisons have the authority to prohibit and confiscate drugs, of course, but they do not pose the danger to other inmates that would justify a suspicionless search. Some of the other justifications are almost ludicrously inadequate. Justice Samuel Alito—who famously voted to uphold a warrantless strip search that even George W. Bush's former head of Homeland Security found illegal as a Third Circuit judge—noted that "some detainees may have lice." This is undoubtedly true. What is not clear is why this justifies a close inspection of someone's anus.

As Justice Breyer's dissent notes, it is not surprising that the majority is forced to rely on a few examples of detainees in such situations smuggling in non-dangerous items along with a great deal of bare assertion. After all, "those arrested for minor offenses are often stopped and arrested unexpectedly. And they consequently will have had little opportunity to hide things in their body cavities." Nor did the majority show any greater danger in the 10 states that ban suspicionless strip searches, or the many other prison facilities that do not use them.

The state faces a very high burden of proof when seeking to justify an invasive, humiliating search of people it has no reason to believe are hiding dangerous items. New Jersey did not come close to meeting this burden. But the Court's Republican majority continues its indifference to the explicit, fundamental protections of the Fourth Amendment.

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