About that SCOTUS strip search ruling

posted at 8:30 am on April 3, 2012 by Jazz Shaw

While it wasn’t attracting as much attention as the Obamacare debate or a few other high profile features, I had been wondering how the Supreme Court was going to rule in the case of Albert Florence of New Jersey. It’s one of those glossy cases that the media loves to latch on to because it involves privacy issues, strip searches and “Cops out of Control.” Well, as the NY Times reports, now we know.

The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs but also public health and information about gang affiliations…

The Supreme Court case arose from the arrest of Albert W. Florence in New Jersey in 2005. Mr. Florence was in the passenger seat of his BMW when a state trooper pulled his wife, April, over for speeding. A records search revealed an outstanding warrant based on an unpaid fine. (The information was wrong; the fine had been paid.)

Mr. Florence was held for a week in jails in two counties, and he was strip-searched twice. There is some dispute about the details but general agreement that he was made to stand naked in front of a guard who required him to move intimate parts of his body. The guards did not touch him.

While I generally am reluctant to try to take on Dr. James Joyner when it comes to matters of the court, this is one of those cases where I’m going to have to. But first, let’s get to the key aspect of his disagreement with this decision.

This is just appalling.

The 4th Amendment declares that “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.” How is a strip search under the conditions of Florence’s arrest–for a crime that had no relation to violence or hiding of small objects–reasonable? In what sense is there probable cause? When was a warrant issued? What particular thing were they looking to seize?

Well, he’s certainly quoted the Bill of Rights accurately, as we should expect. But sometimes I think things can be oversimplified. This is a complex question, but I think Joyner’s argument may come up short both on the particulars of the Florence case specifically and of the consequences of a different ruling in the broader sense. (For today, we’ll leave out the entire “5-4 ruling means the court is broken” argument and take that back up another day.)

The behavior of the local authorities in the Florence case was obviously beyond the pale once it got to the one or two week mark. But in the initial arrest scenario, there was a reason the car was pulled over originally. And once that happened, any further information which turned up – such as the indication of an outstanding warrant, correct or not – leaves the door open for the officers to continue their inquiries. Obviously police do not require a warrant to pull over a vehicle if they observe an infraction and if, in the course of pursuing that, they find probably cause (such as an outstanding warrant) they can and should investigate further. They went absolutely too far with Mr. Florence, but the initial question of taking the case beyond the original traffic stop level was not out of bounds.

But that’s not the most worrisome part of this case. A ruling in the other direction would, I think, have a broadly chilling effect on police in future cases where suspicion is clearly warranted. If a decision in this case leads to every person who winds up being searched bringing a lawsuit, you’re leaving open the door to crippling law enforcement efforts.

This is not to say that there aren’t bad cops or even bad departments. Police are only human beings like anyone else, and we have to be aware of that. But perhaps there’s a bit more of a “free market” remedy available. If one cop or one department comes up in the news too often abusing strip searches or any other sort of abusive behavior, the public can and will be made aware of it and corrective action can be taken at the local level rather than handcuffing everyone in the nation with a badge. A similar thing happened just last month in California where a large settlement had to be paid for the legal fees of two men who were treated in an equally obvious inappropriate fashion.

No, all things considered, I’m going to have to disagree with the good Dr. Joyner on this one. I think a ruling in favor of Albert Florence could have had a far more chilling effect on law enforcement than the poor outcome he faced as an individual. I wish it hadn’t happened, but this ruling could have created a separate and greater wrong by diving off the cliff in the opposite direction.


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Comment pages: 1 2

THIS IS WHAT A POLICE STATE LOOKS LIKE.

SWalker on April 3, 2012 at 10:35 AM

No, in a police state, they would beat the snot out of him for complaining and sentance him to a term in prison for defaming the state as a lesson to any others not to open their yap and bellyache about being mistreated. You need to learn more about how police states operate.

KW64 on April 3, 2012 at 10:47 AM

Look, let’s get this straight. He was not strip searched for a misdemeanor traffic violation. He was strip searched because he was about to be admitted to the general population of a jail and it’s standard operating procedure for all jail facilities.

Trafalgar on April 3, 2012 at 10:44 AM

What a complete and total load of BS. No it is not standard procedure. It’s an intimidation tactic usually reserved for known felons and gang members.

SWalker on April 3, 2012 at 10:50 AM

No, in a police state, they would beat the snot out of him for complaining and sentance him to a term in prison for defaming the state as a lesson to any others not to open their yap and bellyache about being mistreated. You need to learn more about how police states operate.

KW64 on April 3, 2012 at 10:47 AM

And this is what brainwashed looks like. Police states do not happen over night, they develop by stages.

SWalker on April 3, 2012 at 10:52 AM

I’ve even never heard of a Ron Paul supporter who thinks guns are evil…

jamesjtyler on April 3, 2012 at 10:00 AM

There. I fixed your comment for you.

TKindred on April 3, 2012 at 10:53 AM

A warrant for someone’s arrest provides a reasonable basis for a search subsequent to that arrest. That the warrant was an error does not mean that the officer, who was unaware of this error, or those booking the individual into the system violated the 4th amendment.

This is a case of dig into why the fine being paid was not properly recorded and do what can be done to fix what caused the error. Meanwhile, compensate the individual wrongly held for any wages he lost. That would be both justice and public interest being served.

KW64 on April 3, 2012 at 10:28 AM

It is only because in 2009 the same SCOTUS ruled that passengers in a vehicle are subject to search merely by being a passenger.

If you don’t see this as indicative of a police state, then you are an apologist.

Dante on April 3, 2012 at 10:54 AM

I’ve even never heard of a Ron Paul supporter who thinks guns are evil…
jamesjtyler on April 3, 2012 at 10:00 AM
There. I fixed your comment for you.

TKindred on April 3, 2012 at 10:53 AM

I may be ignorant (according to some), but even I see what you did there!

Good on ya!

The Honey Badger

The Honey Badger on April 3, 2012 at 10:56 AM

What a complete and total load of BS. No it is not standard procedure. It’s an intimidation tactic usually reserved for known felons and gang members.

SWalker on April 3, 2012 at 10:50 AM

No true at all. It’s SOP for every jail in Maine. If you are being booked into the jail you get strip-searched, showered, and given a jumpsuit and slippers and your bedding. The only thing they let you keep are your underwear and tee shirt.

TKindred on April 3, 2012 at 10:57 AM

It is only because in 2009 the same SCOTUS ruled that passengers in a vehicle are subject to search merely by being a passenger.

If you don’t see this as indicative of a police state, then you are an apologist.

Dante on April 3, 2012 at 10:54 AM

I really hate having to agree with you, but on this, you are 100 percent right.

SWalker on April 3, 2012 at 10:58 AM

No true at all. It’s SOP for every jail in Maine. If you are being booked into the jail you get strip-searched, showered, and given a jumpsuit and slippers and your bedding. The only thing they let you keep are your underwear and tee shirt.

TKindred on April 3, 2012 at 10:57 AM

Who would have thought that Maine would be even more of a fascist state than California. I’m going to go with, you either don’t really know what you’re talking about or Maine has lost it’s mind.

SWalker on April 3, 2012 at 11:00 AM

I don’t see what the problem is…. Nekked show and tell is my favorite part of getting arrested!!

StompUDead on April 3, 2012 at 11:00 AM

No, in a police state, they would beat the snot out of him for complaining and sentance him to a term in prison for defaming the state as a lesson to any others not to open their yap and bellyache about being mistreated. You need to learn more about how police states operate.

KW64 on April 3, 2012 at 10:47 AM

This!

Happy Nomad on April 3, 2012 at 11:04 AM

If you don’t see this as indicative of a police state, then you are an apologist.

Dante on April 3, 2012 at 10:54 AM

I really don’t have a clue as to why this took two weeks to clear up so I have no apology to offer on that. My point was just that the initial arrest and search at time of being booked into the system was not “unreasonable” and thus a violation of the 4th amendment.

KW64 on April 3, 2012 at 11:10 AM

God help me, I do so love these threads when the civil libertardians bring the crazy in not just buckets, but in 55 gallon barrels.

1. He was not strip searched by the police on the side of the road for a misdemeanor traffic offense. He was strip searched by corrections officers after he was arrested upon probable cause for warrants later found to be in error. The strip searches were performed at the detention centers where he was going to be long- term incarcerated in general population.

2. The Supreme Court has not said that it is legitimate for police to strip search people on the side of the road for minor traffic offenses.

3. Generally speaking, the polce do not strip search very many prisoners, even during search incident to arrest. Strip searches as part of booking into a detention center are also not common unless the person is going to be housed there.

4. The amount of ignorance about how the world really works expressed by civil libertardians is appalling.

Flame away, goofballs. Ask somebody whose fled North Korea or Cuba what a real police state looks like.

Dukeboy01 on April 3, 2012 at 11:10 AM

What a complete and total load of BS. No it is not standard procedure. It’s an intimidation tactic usually reserved for known felons and gang members.

SWalker on April 3, 2012 at 10:50 AM

Ever worked in a jail? Managed a jail? Been confined in a jail? Written policies for a jail? Worked with lawyers to ensure your jail operations are in compliance with the law?

I’m going to go with you don’t really know what you’re talking about.

Trafalgar on April 3, 2012 at 11:11 AM

Let me see if I have this right. I can be riding in the car with a friend who is speeding. The police pull over my friend and me. For some reason they decide that I should be searched and a warrant check run on me. They find an old warrant (which has been cleared entirely) and arrest me and take me down to the jail and hold me for a couple of weeks. In the meantime, I have to be strip searched and put in jail with a bunch of miscreants who might stab me. The police who arrested me spend the next couple of weeks living a normal life, while my work is disrupted, my family life is in chaos, and everything else normal is upset. In fact I may lose my job because heck, all my employer knows is that I was arrested. Sometime later someone finally checks to find out that “oops, we made a mistake,” and I get to go home and try to put my life back together. And all of this because I was riding in the car with a friend who has a lead foot.

So to recap: I have to provide security personnel with my identification. I can be arrested based on false information. I can be detained, strip searched, and have my life entirely disrupted.

I’m sorry, this is the kind of thing they told us we were fighting against in the Cold War.

theblackcommenter on April 3, 2012 at 11:12 AM

3. Generally speaking, the polce do not strip search very many prisoners, even during search incident to arrest.

Dukeboy01 on April 3, 2012 at 11:10 AM

This. The restrictions on searches incident to arrest are very strong. The standard for conducting a strip search incident to arrest is so high that it is very rarely done, and even then it must be done with regard to the person’s privacy.

Trafalgar on April 3, 2012 at 11:14 AM

strip searches are not “standard procedure” in all jails. for the few jails where it is, those policies are (or should be) unconstitutional. a person’s body is still subject to the 4th amendment. while police are able to do searches incident to arrest, this does not include strip searches.

if strip searching was so necessary that the necessity overrode the 4th amendment and permitted us to just ignore the Constitution, then why is it that most jails, especially the largest ones in the most populous counties, do NOT do these searches and yet don’t seem to suffer for it?

people also don’t seem to understand what a “police state” is. A police state is any country where the police are allowed to exercise power without serious accountability. considering the extremely pathetic weakness of the 4th amendment in our country right now, which happens to me the primary constitutional constraint on police power, I would say that yes, the US certainly does resemble a police state.

any country where someone can be pulled over for a minor traffic violation and subjected to weeks of imprisonment including humiliating treatment that, if it was done to POWs, would arguably violate the geneva convention, is absolutely a police state. it might not be the WORST police state out there, but that doesnt change the fact that it is one, and that if you piss off the wrong person who pulls the strings of law enforcement, that person can use law enforcement to make your life a living hell.

kaltes on April 3, 2012 at 11:15 AM

Ever worked in a jail? Managed a jail? Been confined in a jail? Written policies for a jail? Worked with lawyers to ensure your jail operations are in compliance with the law?

I’m going to go with you don’t really know what you’re talking about.

Trafalgar on April 3, 2012 at 11:11 AM

Yes, I actually have been booked into jail before, so, you would be wrong, but why doesn’t that surprise me.

SWalker on April 3, 2012 at 11:16 AM

I pretty much agree with SCOTUS on this one. It is a clear safety measure against a real and not uncommon threat. Banning strip searches for misdemeanors would open an easy weapons/drug smuggling route to the general population. There is no other way to solve the problem. On the other hand, the state should not have immunity if there is an element of deliberate humiliation as either policy or individual initiative by guards.

An official list or notifications of rights at a traffic stop should be issued to all motorists or made available on the net. The police refuse to police themselves allowing individual cops and/or departments to continue to violate laws and court rulings that protect citizens. The only way to force change is to litigate the states and cities until they bleed green. Even then the culture of tolerating corruption and brutality won’t end quickly unless govt bodies strip the judgements out of the police pension funds. Yes, good cops could get hurt, but they will have a choice bad cops or good citizens.

deadman on April 3, 2012 at 11:18 AM

kaltes on April 3, 2012 at 11:15 AM

Yes, but when your entire argument is based upon ignorance and emotion and what you “feel” is right or wrong, and it utterly ignores the law, court precedent, and actual police and jail opearting procedures, it tends to fail.

Trafalgar on April 3, 2012 at 11:19 AM

I really don’t have a clue as to why this took two weeks to clear up so I have no apology to offer on that. My point was just that the initial arrest and search at time of being booked into the system was not “unreasonable” and thus a violation of the 4th amendment.

KW64 on April 3, 2012 at 11:10 AM

The man was a passenger in his own vehicle. His wife was pulled over for speeding. The man was arrested. That you think the arrest was not unreasonable – hell, that you think the man was even able to be arrested given any lack of RAS – makes you an apologist.

Dante on April 3, 2012 at 11:19 AM

Yes, I actually have been booked into jail before, so, you would be wrong, but why doesn’t that surprise me.

SWalker on April 3, 2012 at 11:16 AM

Sorry, what would I be wrong about? I asked you some questions, you answered one of them. Where am I wrong?

Trafalgar on April 3, 2012 at 11:20 AM

Yes, I actually have been booked into jail before, so, you would be wrong, but why doesn’t that surprise me.

SWalker on April 3, 2012 at 11:16 AM

So, you have been booked into jail. Why doesn’t that surprise me.

KW64 on April 3, 2012 at 11:22 AM

I can be arrested based on false information. I can be detained, strip searched, and have my life entirely disrupted.

I’m sorry, this is the kind of thing they told us we were fighting against in the Cold War.

theblackcommenter on April 3, 2012 at 11:12 AM

They didn’t know the information was false. Is your point that they should have known the information was false? Is your point that they shouldn’t be able to search people before incarcerating them with the general prison population?

Yes, if someone makes a false complaint it can disrupt your life-see the Duke Lacrosse players, etc.

That’s why charges for false arrest can be filed and civil actions can be commenced under certain circumstances. This ruling stated that when the police arrest and incarcerate someone based on probable cause they can search them. That’s not a police state.

talkingpoints on April 3, 2012 at 11:25 AM

“They went absolutely too far with Mr. Florence, but the initial question of taking the case beyond the original traffic stop level was not out of bounds.” – Jazz

Excuse me, BUT
When you gain the experience of administering a correctional or detention facility, get back to us. Especially if one of your staff is killed by a deranged inmate who will hide anything anywhere.
Would you sleep well?
~(Ä)~

Karl Magnus on April 3, 2012 at 11:26 AM

God help me, I do so love these threads when the civil libertardians bring the crazy in not just buckets, but in 55 gallon barrels.

1. He was not strip searched by the police on the side of the road for a misdemeanor traffic offense. He was strip searched by corrections officers after he was arrested upon probable cause for warrants later found to be in error. The strip searches were performed at the detention centers where he was going to be long- term incarcerated in general population.

2. The Supreme Court has not said that it is legitimate for police to strip search people on the side of the road for minor traffic offenses.

3. Generally speaking, the polce do not strip search very many prisoners, even during search incident to arrest. Strip searches as part of booking into a detention center are also not common unless the person is going to be housed there.

4. The amount of ignorance about how the world really works expressed by civil libertardians is appalling.

Flame away, goofballs. Ask somebody whose fled North Korea or Cuba what a real police state looks like.

Dukeboy01 on April 3, 2012 at 11:10 AM

Your disdain for freedom and liberties enables the state to grasp more power. Your disdain for those who desire limited government and cherish our freedoms and liberties is disgusting.

1. Location of the search is irrelevant. There was no probable cause because the man was merely a passenger in a vehicle. His wife – not him – was pulled over for speeding. There was no evidence that he had committed a crime or was about to commit a crime. He was a citizen going about his private business.

2. Again, irrelevant.

3. Number of prisoners searched is also irrelevant.

4. You, sir, are the ignorant one.

Dante on April 3, 2012 at 11:30 AM

They didn’t know the information was false. Is your point that they should have known the information was false? Is your point that they shouldn’t be able to search people before incarcerating them with the general prison population?

talkingpoints on April 3, 2012 at 11:25 AM

There was no reason for them to have the information at all or to even know who he was. His wife was the one who was speeding.

Dante on April 3, 2012 at 11:32 AM

Sorry, what would I be wrong about? I asked you some questions, you answered one of them. Where am I wrong?

Trafalgar on April 3, 2012 at 11:20 AM

You must be a cop, only cops and democrats can be that intellectually dishonest.

I’m going to go with you don’t really know what you’re talking about.

Trafalgar on April 3, 2012 at 11:11 AM

Having actually been booked into a jail in a major metropolitan area, I would know that strip searches are not standard procedure.

Standard procedure is:

Surrender your shoes, belt, wallet and any articles of jewelry.
Surrender your clothing and put on a jail issue jumpsuit.

NO strip search involved…

SWalker on April 3, 2012 at 11:33 AM

There was no probable cause because the man was merely a passenger in a vehicle.

Dante on April 3, 2012 at 11:30 AM

Stop trying to make arguments about legal terms that you don’t understand. Get back to us once you learn the legal definition of “probable cause”.

Trafalgar on April 3, 2012 at 11:33 AM

The main problem with this decision, as the liberal justices pointed out, is that it gives too much power and discretion to the corrections officers and administrators, which can be abused.

Strip searches of every person taken in to a jail is wrong, and it not even effective. This strip search procedure would not catch anything smuggled in that had been swallowed or inserted in their anus. In other words, it wont catch someone who is actually trying to smuggle in contraband.

The search incident to arrest already checks pockets and pats the person down. During processing, officers can take other measures to check for contraband without resorting to a strip search.

It is not like we have a problem in this country of people hiding drugs under their scrotum.

kaltes on April 3, 2012 at 11:35 AM

There is a difference in being booked into jail for a long term stay and being booked into jail for a short term stay. It’s a two- step process. Most people arrested for minor offenses are expected to either be bonded out or released on their own recognizance within 24 hours of being arrested and taken to the detention center. In practice, at least around here, these people will be patted down and searched while clothed (pockets emptied, shoes removed and searched, etc.) and then placed in what is locally called passive intake until they speak with a pre- trial court clerk. At this point in the game, they are still in their street clothes and are allowed to retain most of their personal property. At my local detention center there is a waiting area with plastic chairs, phones, coke machines, and a TV where the prisoners wait for their turn in front of the clerk. As long as they behave themselves, they get to sit out there. If they act up, they will be placed in a holding cell.

This part of the procedure is the same for people charged with Felonies who everyone knows (or at least, assumes) won’t be getting out for a very long time. Initially they will be placed in passive intake as well. Once the determination is made that they won’t be leaving the jail anytime soon, they are searched again, their personal clothing and other items are taken from them (this is when the “strip search” occurs) they are given a county jumpsuit, undies, and shower flip flops and then assigned to a “pod” or “tier” in general population. Even then, the search is usually not a “latex glove” penetrative search by the corrections staff. It is a passive visual inspection in which the prisoner removes his clothing (which he has to do anyway to get his jumpsuit and issued underwear), raises his genitals to expose the underside of his scrotum himself, spreads his own butt cheeks to expose the anus, and (if female) lifts her own breasts and spreads her own labial folds.

Now, strip searches of the first group of prisoners can and do occur, but it is usually only done if 1.) contraband is located during the first initial search or 2.) if there is probable cause to believe that they may be in possession of such contraband due to the offense charged (i.e., drug offenses.)In practice, this is very rare, even in the second scenario, at least in my area.

The most invasive “strip searches” are those performed upon probable cause and, in my experience, exclusively with the issuance of a search warrant for evidence in a sexual assault case. If it is known that the suspect has not had the opportunity to shower or otherwise clean himself since the alleged offense occurred, an in depth examination and collection of evidence from the suspect’s person will occur. This may include the photographing of genitalia, penile and anal swabs, the collection of hair (including the collection of pubic hair), and the collection of blood and saliva.

That’s not going to happen to you if you’re arrested for DUI 1st offense or shoplifiting and released after your pre- trial interview. “Strip searches” as a general rule, only occur when you’re going to be an extended guest of the state.

Dukeboy01 on April 3, 2012 at 11:36 AM

SWalker on April 3, 2012 at 11:33 AM

I’m a retired police officer yes, and a republican conservative. Whether you were booked into a jail in a city or a tiny county is irrelevant. Standard procedure on admission to the jail pre-booking area is surrender your shoes, belt, wallet and any articles of jewelry, etc. and submit to a pat search. Standard procedure on admission into the general jail population is to be strip searched. Any jail that does not follow this procedure is grossly negligent in its responsibilities to ensure the safety of inmates and staff.

Trafalgar on April 3, 2012 at 11:38 AM

Stop trying to make arguments about legal terms that you don’t understand. Get back to us once you learn the legal definition of “probable cause”.

Trafalgar on April 3, 2012 at 11:33 AM

Says the guy who wasn’t even a citizen, joined the military as a non-citizen (which is appalling), and had everything handed to him on the backs of the taxpayers, but thinks he’s an expert on America.

Dante on April 3, 2012 at 11:39 AM

BULLSHIT JAZZ!

He was going into CONFINEMENT. End of story.

You remind me of one of our wonderful state senators. Seems the senator’s son had a bad habit of getting tickets, then failing to appear in court. Well Jr got pulled over and hauled off to jail when it was found he had something like SIX outstanding warrants for failure to appear. While in jail, awaiting his court appearance, Jr was attacked by Bubba. Daddy was appalled. Oh, but not because Jr failed to take care of the tickets. So Daddy had a law passed saying that officers COULD NOT take someone into custody for failing to appear, UNLESS they had FOUR or more FTA warrants.

GUESS what happened to the FTA rate in our fair state?

GarandFan on April 3, 2012 at 11:39 AM

I’m a retired police officer yes,
Trafalgar on April 3, 2012 at 11:38 AM

Yup, pretty much explains the Gestapo fascist mentality.

SWalker on April 3, 2012 at 11:41 AM

In glancing over the other comments I haven’t seen the real reason this happened. Criminals smuggle things into prison; weapons, drugs, etc. Prison officials discovered this and began strip searches of the hardcore criminals. After this process was put in place and tracked, it was discovered that minority prisoners were being strip searched at a higher rate than white prisoners. Since the courts have ruled such data is proof of racial profiling, the prison officials have a choice to either search everyone or search no one. This ruling is wrong in a vacuum but under the backdrop of the politics of race baiting, it is the only possible decision. Only a good liberal judge could possibly rule that strip searching likely criminals is racist but to search all prisoners is illegal, too.

Hopeless Future on April 3, 2012 at 11:43 AM

There was no probable cause because the man was merely a passenger in a vehicle.

Dante on April 3, 2012 at 11:30 AM

Stop trying to make arguments about legal terms that you don’t understand. Get back to us once you learn the legal definition of “probable cause”.

Trafalgar on April 3, 2012 at 11:33 AM

Actually Trafalgar, he is right in a sense. As a passenger in a vehicle, Mr. Florence had no obligation to identify himself or hand over his license. He could have simply refused to do so, and the officer could not have arrested him. Drivers are obligated to show their license and proof of insurance on request, but not passengers.

Of course Mr. Florence did not know his rights, and thought there was no harm in cooperating with the police… and look what happened!

You should never, ever cooperate with police unless (1) you or someone you care about is a victim of the crime the police are investigating, or (2) it is a crime to remain silent (the very narrow “Hiibel” example where some states have laws forcing you to identify yourself, though these laws are still limited by the 4th and 5th amendments).

Police pretty much exist to make arrests. Odds are that if a cop is asking you questions, he or she is fishing for probable cause to either search or to arrest. Either way, it is almost never in your best interest to cooperate, even if you believe you have done nothing wrong.

kaltes on April 3, 2012 at 11:43 AM

‘Probable cause’ is the standard applied for a police officer to make an arrest without a warrant. There is no probable cause requirement for a police officer to conduct a search. The standard for conducting searches without a warrant in the field (I’m not talking custodial searches here), is ‘reasonable suspicion’ (that the officer will find contraband). The reasonable suspicion standard is much lower than the probable cause standard for arrests. Just pointing this out for commenters who want to make their arguments based on legal definitions they apparently don’t understand.

Trafalgar on April 3, 2012 at 11:44 AM

I’m a retired police officer yes,
Trafalgar on April 3, 2012 at 11:38 AM

Yup, pretty much explains the Gestapo fascist mentality.

SWalker on April 3, 2012 at 11:41 AM

That is uncalled for. Trafalgar brings a different perspective you might not agree with. I hate how people on these comments viciously personally attack alternative points of view, which only results in the kind of echo chamber that makes liberals seem so clueless, for example when they gasp that the mandate might be unconstitutional.

kaltes on April 3, 2012 at 11:46 AM

kaltes on April 3, 2012 at 11:43 AM

I agree with you totally and, as a retired police officer, I always tell my family and friends to never cooperate with the police, unless they have a legal obligation to do so. The best example is field sobriety tests (walk the line, count backwards from 100, etc.). The police can’t make you give blood or breathalyzer samples unless you’re under arrest and they must have probable cause to arrest you. What police are looking for with field sobriety tests is the probable cause. Don’t give it to them, let them develop it on their own. Of course, that’s not the case here. Mr. Florence did provide his information to the police even though he may not have had to.

Trafalgar on April 3, 2012 at 11:47 AM

Why didn’t they just take him to the local airport for a full body scan?

The general public is suspected of being terrorists so, surely, lesser suspects should be able to get the same treatment…

ajacksonian on April 3, 2012 at 11:48 AM

‘Probable cause’ is the standard applied for a police officer to make an arrest without a warrant. There is no probable cause requirement for a police officer to conduct a search. The standard for conducting searches without a warrant in the field (I’m not talking custodial searches here), is ‘reasonable suspicion’ (that the officer will find contraband). The reasonable suspicion standard is much lower than the probable cause standard for arrests. Just pointing this out for commenters who want to make their arguments based on legal definitions they apparently don’t understand.

Trafalgar on April 3, 2012 at 11:44 AM

If you bothered to pay attention, you would see that I mentioned RAS above. I used probable cause in answer to a poster because it was the term he used, but my statement is still correct: “There was no probable cause because the man was merely a passenger in a vehicle.” There was no warrant for the passenger.

Dante on April 3, 2012 at 11:50 AM

That is uncalled for. Trafalgar brings a different perspective you might not agree with. I hate how people on these comments viciously personally attack alternative points of view, which only results in the kind of echo chamber that makes liberals seem so clueless, for example when they gasp that the mandate might be unconstitutional.

kaltes on April 3, 2012 at 11:46 AM

People who have never actually been arrested by a cop who invented “Probably Cause” out of thin air always think like that. A cop in America can arrest anyone they want on “Probable Cause” at any time they want and the worst thing that will happen is that the individual is released. Think it doesn’t happen every single day in America, think again.

Ya, I was arrested, for not having a front license plate on my brand new Corvette and refusing to submit my car to the police officers search. I told him NO you do not have permission to search my vehicle, so he arrested me and searched it anyways.

So no, I do not think what I said is in any way shape or fashion uncalled for. I have personal experience with this kind of police mentality, and it is a fascist totalitarian mentality.

SWalker on April 3, 2012 at 11:54 AM

There is no probable cause requirement for a police officer to conduct a search.

Trafalgar on April 3, 2012 at 11:44 AM

You need to get a warrant. To get a warrant, you need to submit a statement of probable cause to a magistrate together with the warrant. This is really basic criminal procedure…

The standard for conducting searches without a warrant in the field, is ‘reasonable suspicion’ (that the officer will find contraband).

Warrantless searches are presumptively invalid, and only allowed in certain situations, such as incident to arrest, objects in plain sight, exigent (emergency) circumstances, or consent searches.

“Reasonable suspicion” is the legal standard for a brief detention like a traffic stop, not for a search or arrest. Cops use detentions in order to ask questions they plan to use as a basis for claiming probable cause later on.

If you used reasonable suspicion to search for contraband when you were a cop, any half-awake defense attorney would have been able to get the evidence suppressed most of the time.

kaltes on April 3, 2012 at 11:56 AM

Having worked in corrections, it is common procedure to strip search all detainees and prisoners for health and contraband reasons. The individual was not treated any differently than any one else. Police officers made the arrest but more than likely they did not process the man as a detainee. In most areas the sheriffs department does that. Having an individual move their body parts is standard to avoid any degree of sexual harrasment, unlike Airport Security.

danrshaw on April 3, 2012 at 12:02 PM

Trafalgar on April 3, 2012 at 11:44 AM
kaltes on April 3, 2012 at 11:46 AM

Suddenly neither one of you have anything to say… ya, I thought as much.

SWalker on April 3, 2012 at 12:05 PM

SWalker on April 3, 2012 at 11:54 AM

I am well aware that cops arrest people without probable cause. You can be jailed for 2-3 days or so without being charged.

I told him NO you do not have permission to search my vehicle, so he arrested me and searched it anyways.

Yep, and you know why? Because:

1. People in your position who have “nothing to hide” always give consent, so whenever consent is withheld, the cop automatically thinks there must be contraband. In other words, people giving up their rights screw over the minority of people who actually exercise their rights.

2. The worst that happens for the cop is that he finds some contraband, and it gets suppressed, but you can bank on the fact that the cop will lie at the suppression hearing and claim he had all kinds of probable cause. He might say you were nervous, agitated, and sweating profusely, or he might lie in other ways to justify the search in hindsight. In the cops mind, you are a criminal who is trying to get out of your crime on a technicality, and it is his duty to stop you. Ends justifies the means.

3. People like you, who have their privacy violated and committed no crime, DID NOT SUE. The only way to stop cops from laughing at the 4th amendment is to sue them every time they violate it, with a federal civil rights “1983″ lawsuit. Thing is, people don’t want to sue cops because they are afraid of the cop retaliating, or they don’t want to spend any money. Either way, people who are wronged and could possibly hold the cops accountable, don’t.

And that is why the cops laugh at the 4th amendment and search your vehicle even when they know it’s illegal to do so. They know if they find something, there is a good chance they can beat the suppression, and they know it is almost unheard of that they’d actually get sued for it.

kaltes on April 3, 2012 at 12:11 PM

I Must Say …
The comments, as well as the column, displays remarkably unsettling opinions from those who have no experience as LEOs or COs.
You anarchists (über-libertarians) are so naíve – until it hits home.

QUESTION: What’s the definition of a conservative?
ANSWER: A Liberal who’s been mugged.

~(Ä)~

Karl Magnus on April 3, 2012 at 12:14 PM

There was a time in American history where no could have guessed the outcome of a supreme court decisions.

Those days are gone. It is now a political court.

liberal4life on April 3, 2012 at 9:09 AM

Awww. What’s the matter, cupcake? Anticipatin’ the decision from the court on obamacare?
Yeah. Well, so is your master – and it’s really got his panties in a wad. That’s why he’s trying to threaten the SCOTUS – and politicize their decision.

Solaratov on April 3, 2012 at 12:15 PM

3. People like you, who have their privacy violated and committed no crime, DID NOT SUE. The only way to stop cops from laughing at the 4th amendment is to sue them every time they violate it, with a federal civil rights “1983″ lawsuit. Thing is, people don’t want to sue cops because they are afraid of the cop retaliating, or they don’t want to spend any money. Either way, people who are wronged and could possibly hold the cops accountable, don’t.

And that is why the cops laugh at the 4th amendment and search your vehicle even when they know it’s illegal to do so. They know if they find something, there is a good chance they can beat the suppression, and they know it is almost unheard of that they’d actually get sued for it.

kaltes on April 3, 2012 at 12:11 PM

What makes you think I didn’t try to sue? I did, case was dismissed before it even got to court, Lack of Standing they said. I then spent the next 5 years getting pulled over every single time a cop saw me driving ( at one point I was even getting pulled over when riding with someone else), I finally had to have my congressman intervene. (Thank god Congressman Duncan Hunter Sr didn’t find what was happening acceptable or even remotely amusing)

SWalker on April 3, 2012 at 12:19 PM

Let me see: you have a car in violation of the law, and then find that passengers are also in violation of the law, and you couldn’t search them? Maybe the police in this case were overzealous, but did they break any laws? No, just ‘embarassed’ a bad guy. I think the new search law is good, but that police should still be held liable and responsible for obeying the law themselves.

dahni on April 3, 2012 at 12:23 PM

Sue the police for monetary damages? No.

Fire the copo(s) that blatantly abuse their power, and abuse an innocent citizen? Hell yes.

iurockhead on April 3, 2012 at 12:27 PM

Oops.

copo(s) = cop(s)

iurockhead on April 3, 2012 at 12:28 PM

I Must Say …
The comments, as well as the column, displays remarkably unsettling opinions from those who have no experience as LEOs or COs.
You anarchists (über-libertarians) are so naíve – until it hits home.

Karl Magnus on April 3, 2012 at 12:14 PM

I don’t need to be a mechanic to know how to change the oil or to even know that it needs to be changed. This is a country in which the citizens are sovereign and government answers to us. Yours is a very unwise way of thought.

Dante on April 3, 2012 at 12:31 PM

I’ll always side with the Constitution over partisanship and side with the 4th amendment on this case. It’s too bad that more Republicans won’t do the same but too many of them get high on the police-state. Many of them love busting in doors to make people conform, even imprisoning people for pursuing their happiness smoking MJ. Santorum and a lot of his supporters back anti-sodomy laws that make consenting sex between gay Americans a criminal offense.

Republicans try to use SCOTUS appointments as a reason we should vote for them instead of the Democrats, but truth be told, conservatives are not the champions of the Constitution that they pretend to be, and especially they don’t seem to care much about checks and balances on police power, like the 4th amendment.

The Republican Party is despicable, they recently voted overwhelmingly for the NDAA, which grants unconstitutional powers to the president and military that clearly violates everything America is about. It even violates rights that predate the Constitution, going back to the Magna Carta a least, yet almost every Republican in Congress voted for the NDAA, without hardly a peep from the Republican rank and file. Disgusting!

Both parties are the diseased and need to be eradicated!

FloatingRock on April 3, 2012 at 12:33 PM

What makes you think I didn’t try to sue? I did, case was dismissed before it even got to court, Lack of Standing they said.

SWalker on April 3, 2012 at 12:19 PM

Based on what you’ve said, I find that hard to believe. If you allege that a cop searched your vehicle in violation of the 4th amendment, you clearly have standing to sue.

The only time standing becomes an issue is when the cops search someone ELSE in order to look for evidence on YOU. In such cases, the courts say that the other person must sue, not you.

Let me see: you have a car in violation of the law… and you couldn’t search them?

dahni on April 3, 2012 at 12:23 PM

That is correct: a cop can’t search someone just because that person was speeding. The cop is supposed to just write a speeding ticket and leave.

kaltes on April 3, 2012 at 12:35 PM

God help me, I do so love these threads when the civil libertardians bring the crazy in not just buckets, but in 55 gallon barrels.

1. He was not strip searched by the police on the side of the road for a misdemeanor traffic offense. He was strip searched by corrections officers after he was arrested upon probable cause for warrants later found to be in error. The strip searches were performed at the detention centers where he was going to be long- term incarcerated in general population.

2. The Supreme Court has not said that it is legitimate for police to strip search people on the side of the road for minor traffic offenses.

3. Generally speaking, the polce do not strip search very many prisoners, even during search incident to arrest. Strip searches as part of booking into a detention center are also not common unless the person is going to be housed there.

4. The amount of ignorance about how the world really works expressed by civil libertardians is appalling.

Flame away, goofballs. Ask somebody whose fled North Korea or Cuba what a real police state looks like.

Dukeboy01 on April 3, 2012 at 11:10 AM

Karma demands that you be arrested in error and repeatedly strip searched. Although I’m an atheist, I pray this happens.

ElectricPhase on April 3, 2012 at 12:35 PM

If we can’t dislodge the D and R parties from the halls of power; if we can’t turn them away from the cliff and take us all right over the edge, we’re going to need to start over from scratch, including the SCOTUS. We need justices that have no affinity for socialism on the left or fascism on the right, we need Americans who will uphold the Constitution the way the founders intended it, and clearly they meant the 4th amendment to mean what they wrote.

FloatingRock on April 3, 2012 at 12:38 PM

1. He was not strip searched by the police on the side of the road for a misdemeanor traffic offense. He was strip searched by corrections officers

Dukeboy01 on April 3, 2012 at 11:10 AM

He was strip searched by agents of the state, that’s all that matters. It doesn’t matter when his rights were violated, it matters that they were violated.

FloatingRock on April 3, 2012 at 12:41 PM

Says the guy who wasn’t even a citizen, joined the military as a non-citizen (which is appalling), and had everything handed to him on the backs of the taxpayers, but thinks he’s an expert on America.

Dante on April 3, 2012 at 11:39 AM

What’s even more apalling are American citizens who can’t be bothered to join the military – and still get everything handed to them on the backs of the taxpayers, and believe that they’re some kind of legal expert because they worship at the feet of ronpaul.

Solaratov on April 3, 2012 at 12:51 PM

Yup, pretty much explains the Gestapo fascist mentality.

SWalker on April 3, 2012 at 11:41 AM

Well, well. Today’s winner of the Godwin Award.

Why do all paulbots hate the police and military in America?
It truly makes one wonder how many of the #owsers are paulbots.

Solaratov on April 3, 2012 at 12:56 PM

Solaratov on April 3, 2012 at 12:51 PM

Solaratov on April 3, 2012 at 12:56 PM

Better question is why can you only create straw man arguments?

Dante on April 3, 2012 at 1:02 PM

Dante on April 3, 2012 at 1:02 PM

So, tell us — why do you paulbots hate cops and the American military?

Solaratov on April 3, 2012 at 1:09 PM

He had been arrested after fleeing from police, and was charged with obstruction of justice and use of a deadly weapon.

I wasn’t aware of this when writing with my earlier vehemence.

The fact remains, though, that a certain portion of people on the right, maybe a third, love the police state and use it to meddle in people’s private lives, imprisoning them for Marijuana, for example, and even criminalizing gay sex in extreme cases, such as Santorum.

And Romney for people like Romney who use the police state to force people to buy the products and services of his corporate cronies, Obama too.

FloatingRock on April 3, 2012 at 1:15 PM

ROTFLMAO,

Seems someone hasnt gotten the memo that Godwins law has been revoked because liberals kept misusing and abusing it.

P.S… Im sure the Ron Paul xupporter here like Floating Rock and Dante will be amused to see someone stupid enought to call me a Ron Paul supporter

SWalker on April 3, 2012 at 1:27 PM

Suddenly neither one of you have anything to say… ya, I thought as much.

SWalker on April 3, 2012 at 12:05 PM

Two reasons for that:

1. I actually have a job and had work to do. Interestingly my job involves expandding rule of law and democratic policing principles in countries which actually were police states.

2. Your ad hominem attacks as a form of discussion – I believe Gestapo was thrown in there, accusations of Nazism and/or racism being the lowest form of attack and sure signs of liberal desperation – pretty much exclude you from being someone I’d care to engage in further discussion about anything with.

Have a blessed day!

Trafalgar on April 3, 2012 at 1:45 PM

Says the guy who wasn’t even a citizen, joined the military as a non-citizen (which is appalling), and had everything handed to him on the backs of the taxpayers, but thinks he’s an expert on America.

Dante on April 3, 2012 at 11:39 AM

Awww, how sweet, you remembered me! So please tell us what it is that you have against people who follow the legal path to immigration and citizenship. And against people who serve in the United States military.

Trafalgar on April 3, 2012 at 1:48 PM

QUESTION: What’s the definition of a conservative?
ANSWER: A Liberal who’s been mugged.

~(Ä)~

Karl Magnus on April 3, 2012 at 12:14 PM

It’s certainly true for some, but it could also be said that some libertarians are former conservatives who were mugged (of their rights) by a cop or the government in general.

FloatingRock on April 3, 2012 at 2:10 PM

Kaltes, while police can not search you for contraband without a warrant or incident to arrest, it is important for people to realize that they can search you for weapons based on reasonable suspicion if their “pat down” reveals something that could be a weapon.

CalFed on April 3, 2012 at 2:15 PM

This is a hard one. Once you are arrested, you pretty much lose many of your rights while you are in custody, particularly the part about being secure in your person and items. Then again, I would consider a strip search a very invassive activity, thus, I would say the burden of evidence to arrest someone who will then be subjected to a strip search should be increased accordingly.

astonerii on April 3, 2012 at 2:18 PM

No, all things considered, I’m going to have to disagree with the good Dr. Joyner on this one.

“Any society that would give up a little liberty to gain a little security will deserve neither and lose both. He who gives up freedom for safety deserves neither.”

Benjamin Franklin

DannoJyd on April 3, 2012 at 2:39 PM

2. Your ad hominem attacks as a form of discussion – I believe Gestapo was thrown in there, accusations of Nazism and/or racism being the lowest form of attack and sure signs of liberal desperation – pretty much exclude you from being someone I’d care to engage in further discussion about anything with.

Have a blessed day!

Trafalgar on April 3, 2012 at 1:45 PM

Seriously, is it an ad hominem attack when individual “being attacked” is supporting a fascist expansion of governmental authority at the expense of individuals liberties? No, it really isn’t. Just like a typical authoritarian fascist, don’t want to talk with anyone who refuses to submit to your totalitarian worldview.

SWalker on April 3, 2012 at 3:02 PM

Seriously, is it an ad hominem attack when individual “being attacked” is supporting a fascist expansion of governmental authority at the expense of individuals liberties? No, it really isn’t. Just like a typical authoritarian fascist, don’t want to talk with anyone who refuses to submit to your totalitarian worldview.

SWalker on April 3, 2012 at 3:02 PM

Seriously, yes it is an ad hominem attack to accuse someone of Gestapo-like fascism or to call them an authoritarian fascist with a totalitarian worldview simply because you disagree with them. You need to learn some civility, and you need to learn and practice the art of debate. When you’re reduced to ad hominem attacks you reveal the shallowness of your position and stop adding to the discussion, so I think you’ve exhausted anything useful you have to contribute to this conversation. Have a nice day.

Trafalgar on April 3, 2012 at 3:48 PM

Seriously, yes it is an ad hominem attack to accuse someone of Gestapo-like fascism or to call them an authoritarian fascist with a totalitarian worldview simply because you disagree with them. You need to learn some civility, and you need to learn and practice the art of debate. When you’re reduced to ad hominem attacks you reveal the shallowness of your position and stop adding to the discussion, so I think you’ve exhausted anything useful you have to contribute to this conversation. Have a nice day.

Trafalgar on April 3, 2012 at 3:48 PM

ROTFLMAO… what complete and utter BS. Your position has never been anything other than “I’m right and you’re wrong, now shut up you ignorant little peon”. You are so mindlessly brainwashed into your fascist totalitarian worldview that having anyone point out to you how fascist and totalitarian your worldview is constitutes an ad hominem attack.

Mr. Bigshot Retired cop and Naturalized Citizen apparently never read or if you did, accepted the validity of any of the personal writings of America’s Founding Fathers. Believe this, they would have found you and your ilk to be an abomination and personal affront to the Republic they founded. They had no use for you or your kind and piled nothing but insults upon you and those who think like you.

From Benjamin Franklin’s admonishment:

Benjamin Franklin: Those who would give up essential liberty to purchase a little temporary
safety, deserve neither liberty nor safety.” (Nov 11 1755, from the Pennsylvania Assembly’s reply to
the Governor of Pennsylvania.)

To Sameul Adam’s

Sameul Adams:“If ye love wealth better than liberty, the tranquillity of servitude than the animating contest of freedom, — go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen!”

They spoke with a nearly universal voice. The United States Constitution does not and never did exist to grant power to the government, but to place serious and sever restrictions upon it while ensuring the maximum personal freedom and liberty of American Citizens. None of the founding fathers lied Police, that’s why so many of the original amendments are restriction directly place upon POLICE officers.

SWalker on April 3, 2012 at 4:26 PM

Seriously, yes it is an ad hominem attack to accuse someone of Gestapo-like fascism or to call them an authoritarian fascist with a totalitarian worldview simply because you disagree with them.

Trafalgar on April 3, 2012 at 3:48 PM

This is a straw man. He didn’t use those words simply because he disagrees with you; he used them because they apply.

Dante on April 3, 2012 at 4:33 PM

Mr. Bigshot Retired cop and Naturalized Citizen…

So which bothers you more, Walker…that he is a retired cop or a naturalized citizen?

CalFed on April 3, 2012 at 4:45 PM

So which bothers you more, Walker…that he is a retired cop or a naturalized citizen?

CalFed on April 3, 2012 at 4:45 PM

I’d say it’s bothering that he’s a defender of tyranny. Of course, the police are the footsoldiers of tyranny.

Dante on April 3, 2012 at 4:52 PM

“…the police are the footsoldiers of tyranny.”

Oh, brother. This from a guy that mocks someone who served in the military and earned his citizenship the hard way?

Other than post a lot of sniveling drivel and over-the-top hyberbole on the pages of Hot Air, what have you ever done to fight tyranny or defend freedom?

CalFed on April 3, 2012 at 5:55 PM

There is no justifying this decision, it is a raw power grab of our personal liberty. To hear “conservatives” explain it away as no big deal for whatever reason they can conjure up demonstrates they are just as detached from the concepts of liberty as the liberals are.
Apparently the only difference between conservatives and liberals is each thinks they can run the police state better than the other.

elkchess on April 3, 2012 at 8:18 PM

Just so I understand your argument, elk, is it your position that searching someone who is booked into jail is a violation of the 4th amendment?

CalFed on April 3, 2012 at 9:50 PM

I know I’m shocked that the HotAir police statists think it’s cool for cops to strip search anyone and everyone, no matter what the charge. /

The left pretends to want civil liberties. The right pretends to want economic liberties. Libertarians want both. We end up with neither.

Go team!

Rae on April 4, 2012 at 9:01 PM

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