Occupy and political protesters beware. The U.S. Supreme Court on Monday held that local police can strip-search anyone who is arrested for minor offenses if they are to be held within the jail’s general population before being released. 

 

The 5-4 decision, with the Court’s conservative majority overruling its four moderates, is a further erosion of the Fourth Amendment’s protection from unlawful search and seizure. It overturns laws in 10 states that place limits on suspicionless strip-searches and upholds a technique used by some local police forces against Occupy protesters last fall, prompting protesters to sue.

 

Among the jurisdictions seeking expanded authority to strip-search anyone arrested were the City of Chicago, where the NATO summit will be held this May and where protests have been planned, as well as the state of North Carolina, where the Democratic National Convention will be held in early September in Charlotte.

 

“The Supreme Court ruling today continues a dangerous trend expanding law enforcement intrusion into our lives and our bodies, on the pretext of security, in a curtailment of fundamental Fourth Amendment rights,” said Mara Verheyden-Hilliard, attorney and executive director of the Partnership For Civil Justice Fund, who is representing many of the Occupy protesters in police brutality suits filed since last fall. 

 

“The majority opinion's logic is that any person arrested even for a minor, nonviolent, infraction may be subject to such an extreme search, because all human beings in the abstract are capable of criminal conduct,” she said. “The alleged underlying offense need not ever correlate with the magnitude of all potentially dangerous human conduct.”

 

Verheyden-Hilliard said the Supreme Court’s expansion of strip-searches could be used to punish or humiliate anyone arrested, but seemed destined to unfairly target communities of color because of law enforcement racial profiling. 

 

“While falsely arrested demonstrators who may be put into the general population now also face this possibility, the reality is that this humiliating, unnecessary and abusive tactic will be used against those disproportionately and wrongfully swept into the criminal justice system on the basis of race and income,” she said. “The justices who supported such widespread strip-searches are probably not concerned that they or their loved ones will be subject to this degradation.”

 

The Supreme Court’s conservative majority said the strip-searches were needed, however, to protect anyone arrested from other dangerous people, as well as to protect law enforcement officials and to maintain order in jails. 

 

“Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies,” wrote Justice Anthony Kennedy, for the majority, saying that jailers need to be able to search for anything from weapons and drugs to contraband, chewing gum and pens, and determine if anyone has an infectious disease that needs medical treatment. 

 

Not doing the strip-searches would lead to “the risk of increased danger to everyone in the facility, including the less serious offenders,” Kennedy wrote. “Jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity. The officers conducting an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete.” 

 

Justice Steven Breyer, writing the dissent that was agreed to by Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg, strongly disagreed, said, “In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable searc[h]” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband.” 

 

“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. “The basic question before us is whether such a search is nonetheless justified when an individual arrested for a minor offense is involuntarily placed in the general jail or prison population.”

 

Chief Justice John Roberts and Associate Justice Samuel Alito agreed with the majority, but said there might be some circumstances where a person who was arrested and not placed with the jail population did not have to be strip-searched. But Roberts said the circumstances in this case were different, because the man who sued was not a newcomer to the correctional system. 

 

The history of this case starts in 1998, when a New Jersey man, Albert Florence, was arrested after fleeing from police in Essex County, New Jersey. He was charged with obstruction of justice and use of a deadly weapon, but pleaded guilty to two lesser charges and was fined. When he fell behind in monthly payments in 2003, he never showed up at a court hearing and an arrest warrant was issued. He paid the fine a week later but the arrest warrant remained in a statewide criminal database—a mistake by court officials. When he was pulled over for a traffic stop, he was arrested, taken to jail, strip-searched, and then released the next day.

 

When he was taken to the Burlington County jail, he was stripped naked and forced to shower with chemical delousing agent. Officers looked for scars, gang tattoos and contraband on his body, the court records said. “He was also instructed to open his mouth, lift his tongue, hold out his arms, turn around and lift his genitals.” The police also looked at his “ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits and other body openings.” He was also told to squat and cough, apparently to dislodge anything he might have tried to conceal between his legs.

 

Justice Kennedy took the hard-line view of many law enforcement agencies and attorney generals from 12 states that filed pro-strip-search briefs, writing, “Something as simple as an overlooked pen can pose a significant danger. Inmates commit more than 10,000 assaults on correctional staff every year and many more among themselves… Jails can be even more dangerous than prisons because officials there know so little about the people they admit at the outset.”

 

But Justice Breyer said this perspective went too far. “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 mentioned,” his dissent said. “And there are strong reasons to believe they are not justified.”

 

Breyer wrote that the Supreme Court decision will affect laws limiting “suspicionless strip-searches” in 10 states: Missouri, Kansas, Iowa, Illinois, Kentucky, Tennessee, Colorado, Florida, Michigan and Washington. 

 

It is notable that the attorney generals brief seeking to expand strip-searches—written by Michigan’s attorney general—argued to reverse the law limiting suspicionless searches in that state, which also was the case in Colorado. The other states that wanted more authority for strip-searches were Alabama, Idaho, Kentucky, Ohio, Michigan, Louisiana, Maine, North Carolina, Oklahoma, Pennsylvania, and Utah.

 

Other jurisdictions seeking the expanded authority for the strip-searches were Maine, Texas, several New Jersey counties, the National Sheriffs Association, Cook County—or Chicago, where the NATO Summit will be held this May -- and the city of San Francisco.