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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