April 3, 2012; Source: New York Times
If you wind up getting arrested for anything in the U.S.—even failing to use a turn signal or disturbing the peace at a peace rally—you are now eligible for a strip search. In a controversial 5-4 decision, the U.S. Supreme Court decided that strip searches for those arrested can be lawfully conducted after any alleged offense whether law enforcement has suspicions of contraband on the arrested person’s body or not.
“Every detainee who will be admitted to the general population [of a jail or prison] may be required to undergo a close visual inspection while undressed,” wrote Justice Kennedy for the court’s majority. The question at hand was whether the Fourth Amendment ban on unreasonable searches prohibits such a policy. And as the New York Times notes, there have already been no shortage of what we would consider highly unreasonable searches along these lines: “Citing examples from briefs submitted to the Supreme Court, [dissenting] Justice Breyer wrote that people have been subjected to ‘the humiliation of a visual strip-search’ after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell. A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.”
In response, Justice Kennedy defended the majority decision by arguing that “people detained for minor offenses can turn out to be the most devious and dangerous criminals,” pointing out that Timothy McVeigh was arrested for not having a license plate on his car before the Oklahoma City bombing. However, Kennedy’s logic baffles us on this point. Unless he is suggesting that figures like McVeigh are walking around day and night with schematics for their violent intentions planted (forgive us for being crass) up their butts—and we will assume he isn’t suggesting this, since he doesn’t appear to be insane—then how would a strip search in the wake of a minor traffic offense make any preventative difference?
In the Court majority’s defense, it seems clear that the five justices were concerned with not saddling law enforcement with a difficult situation: that is, how does one determine who is under suspicion of carrying contraband and who is not? But in trying to help law enforcement avoid this sticky question, the majority has instead saddled the American people—at least those who are correctly or wrongfully arrested—with a significantly lower expectation of personal privacy. The majority justices seem to intuitively recognize flaws in the decision as they carve out, as Chief Justice John Roberts’ concurring opinion states, “the possibility of exceptions, to ensure that we ‘not embarrass the future.’”
All eyes have been on the U.S. Supreme Court recently for its upcoming decision on the fate of President Obama’s Affordable Care Act, but it seems to us that too little attention has been given to the strip search decision, which may severely erode the value of the Fourth Amendment. After all, if a U.S. citizen may legally be forced to remove all of his or her clothes before a law enforcement official, no matter what the alleged offense or whether there is any suspicion of contraband, then what the heck is an “unreasonable search?” Many NPQ readers are involved in criminal justice system reform work, prisoner advocacy, and/or civil and human rights work. Does this ruling strike you as an affront to human dignity? –Mike Keefe-Feldman