Unless you’ve been hauled off to jail lately, you may be unaware that your chance of being strip searched has increased in recent years.
The Associated Press reported today on today’s Supreme Court decision that appears to expand the authority to strip search people for minor infractions.
In 1979, the Supreme Court upheld a blanket policy of conducting body cavity searches of prisoners who had had contact with visitors on the basis that the interaction with outsiders created the possibility that some prisoners got hold of something they shouldn’t have.
For the next 30 or so years, appeals courts applying the high court ruling held uniformly that strip searches without suspicion violated the Constitution.
But since 2008 — and in the first appellate rulings on the issue since the Sept. 11, 2001, terrorist attacks — appeals courts in Atlanta, Philadelphia and San Francisco decided that authorities’ need to maintain security justified a wide-ranging search policy, no matter the reason for someone’s detention.
The court ruled today in the case of a man who was stopped for an unpaid fine, taken to jail and strip searched.
In today’s ruling, Justice Anthony Kennedy provided an illuminating glimpse on how to provide a strip search:
The Essex County Correctional Facility, where petitioner was taken after six days, is the largest county jailin New Jersey. App. 70a. It admits more than 25,000 in- mates each year and houses about 1,000 gang members at any given time. When petitioner was transferred there, all arriving detainees passed through a metal detector and waited in a group holding cell for a more thorough search.When they left the holding cell, they were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at their ears,nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings.
This policy applied regardless of the circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history. Petitioner alleges he was required to lift his genitals, turnaround, and cough in a squatting position as part of the process. After a mandatory shower, during which his clothes were inspected, petitioner was admitted to the facility.
He was released the next day, when the charges against him were dismissed.
“People detained for minor offenses can turn out to be the most devious and dangerous criminals,” Kennedy wrote in the decision, which — not surprisingly — was made on a 5-to-4 vote, with conservatives lining up against the liberal members.
Justice Stephen Breyer wrote the dissent, which — once you get past the legal niceties — amounts to “are you kidding me?”
Amicus briefs present other instances in which individuals arrested for minor offenses have been subjected to the humiliations of a visual strip search. They include a nun, a Sister of Divine Providence for 50 years, who was arrested for trespassing during an antiwar demonstration. Brief for Sister Bernie Galvin et al. as Amici Curiae 6. They include women who were strip-searched during periods of lactation or menstruation. Id., at 11-12 (describing humiliating experience of female student who was strip searched while menstruating); Archuleta v. Wagner, 523 F. 3d 1278, 1282 (CA10 2008) (same for woman lactating). They include victims of sexual violence. Brief for Domestic Violence Legal Empowerment and Appeals Project et al. as Amici Curiae. They include individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.Brief for Petitioner 11, 25; see also Mary Beth G., supra, at 1267, n. 2 (considering strip search of a person arrested for having outstanding parking tickets and a person arrested for making an improper left turn); Jones v. Edwards, 770 F. 2d 739, 741 (CA8 1985) (same for violation of dog leash law). They include persons who perhaps should never have been placed in the general jail population in the first place. See ante, at 2 (ALITO, J. concurring) (“admission to general jail population, with the concomitant humiliation of a strip search, may not be reasonable” for those “whose detention has not been reviewed by a judicial officer and who could not be held in available facilities apart from the general population”).