In the space of 11 years, the Supreme Court has gone from allowing police to make a warrantless arrest of someone for a minor offense in which the worst penalty is a fine to approving a strip search of that person. Somehow that doesn’t sound like progress.
The first decision was debatable, but at least you could see the logic. By contrast, the latest opinion is a gross intrusion into personal privacy and the Fourth Amendment’s ban on “unreasonable searches and seizures.”
If you read only the court’s majority opinion, however, you might be lulled into thinking that local jailers need to peer into every body cavity just to keep the peace.
After all, “the difficulties of operating a detention center must not be underestimated by the courts,” Justice Anthony Kennedy reminds us, and the searches serve “not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items inside.”
If exceptions were made for strip searches — for someone, say, who’d forgotten to strap on a seat belt — “inmates would adapt” to the loophole and “undermine the security of the institution.” Why, if officers weren’t able to inspect the naked body of everyone headed, however briefly, for the general jail population, how would they know who was infested with lice, and who was wearing gang-related tattoos?
Kennedy even dragooned Timothy McVeigh and serial killer Joel Rifkin into the argument, noting that each was pulled over for driving without a license plate. “People detained for minor offenses can turn out to be the most devious and dangerous criminals,” he wrote.
It all sounds persuasive, but step back and draw a deep breath — because most of it’s bunk.
To begin with, people arrested for minor traffic or regulatory offenses or similar misdemeanors are in fact far less likely to be sociopaths like McVeigh or Rifkin than those arrested for violent crimes and felonies. Most, in fact, are likely to be very much like you or me — folks who could never imagine that a minor offense would result in their being forced to strip in front of jailers and then, as the majority opinion describes the ensuing action, “to move or spread the buttocks or genital areas or to cough in a squatting position.”
Indeed, as Justice Stephen Breyer pointed out in a dissent joined by three other justices, briefs in the case identified victims of strip searches who had been detained for nothing more serious than “driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.”
Yes, in some jurisdictions they’ll apparently arrest you for an inaudible bell.
Moreover, as Breyer notes, no one — including the man who sued in this case after being arrested for a fine he’d already paid and then being subjected to two strip searches — contests the ability of jails to pat-frisk every inmate and send them through a metal detector, including the sort that “identifies metal hidden within the body.” No one disputes that a jail can force inmates to shower using “particular delousing agents,” or maintains officers can’t, in the interest of security, view inmates showering or in their underwear.
No, the critics merely consider a formal strip search complete with inspection of every body orifice as an intolerable affront to human dignity when the alleged offense is minor and no reasonable suspicion exists.
“Those arrested for minor offenses are often stopped and arrested unexpectedly,” Breyer further explains. “And they consequently will have had little opportunity to hide things in their body cavities.”
It is the court’s duty to protect basic constitutional rights, not grant every benefit of the doubt to law enforcement and its convenience.
Among the majority, Samuel Alito seemed to have the most reservations, stressing in a concurring opinion that it is “not always reasonable to conduct a full strip search” of those arrested for minor offenses — at least if they can be held apart from the general jail population. And he notes that in the federal Bureau of Prisons, such offenders are subject to body cavity searches only under reasonable suspicion — and those not searched are housed separately from general inmates.
That civilized policy may be too costly for some local jails, but it still doesn’t mean they can run roughshod over constitutional rights.
E-mail Vincent Carroll vcarroll@denverpost.com. Follow him on Twitter @vcarrollDP.
