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Column: Strip Searches — State Constitution to the Rescue? (New York Law Journal)

By Christopher Dunn

In early April the United States Supreme Court turned its back on the Fourth Amendment interests of those charged with minor offenses when it held they could be routinely strip searched when admitted into jail populations. That ruling, in Florence v. County of Burlington, came just ten weeks after the Court had delivered its groundbreaking and surprising endorsement of Fourth Amendment rights when it ruled in United States v. Jones that police use of GPS devices on cars were searches governed by the Constitution.

The strip-search decision in Florence, which swept away contrary rulings from many Circuits (including the Second Circuit), was widely criticized by those concerned about the degrading nature of strip searches. And its impact is greatly magnified by the Court’s 2001 ruling in Atwater v. Lago Vista that police can arrest and process (rather than simply issue a summons and release) people for the most trifling of offenses (in that case, seat-belt violations by a mother and her children). Remarkably, Chief Justice Robert and Justice Alito, each of whom joined the majority in Florence and each of whom is a reliable supporter of law-enforcement officials, penned concurring opinions attempting to mitigate the damage of Justice Kennedy’s harsh opinion for the Court.

Nonetheless, the damage has been done and jail officials have now been freed from virtually all federal constitutional constraints when it comes to strip searches. But all is not lost. Florence presents an important opportunity for the New York courts to take advantage of the oft-stated but infrequently acted-upon principle that the New York Constitution can extend beyond the federal Constitution. And People v. Weaver, where the New York Court of Appeals in 2009 struck down warrantless GPS tracking by police officials well before the Supreme Court’s decision in Jones, provides a promising precedent.

Strip Searches in the Supreme Court

The strip search case the Supreme Court decided in early April arose out of a traffic stop by a New Jersey state trooper. A warrant check of the driver, Albert Florence, revealed an open warrant for his having failed to pay a fine from an earlier case. The trooper then arrested Florence and took him to a local detention center. Six days later, having still not been arraigned, he was taken to a large county jail. Florence was strip searched at both the local center and the county jail. Finally, he was arraigned, and all charges were dismissed when officials realized the warrant was erroneous since Florence in fact had paid the earlier fine.

Florence then sued, challenging under the Fourth Amendment the policies that provided that every person admitted to the facilities would be strip-searched, regardless of how minor the offense for which the person had been arrested and regardless of whether there was any reasonable suspicion the person was secreting a weapon or other contraband that a strip search might discover. After certifying the case as a class action, the District Court held that the strip-search policies violated the Fourth Amendment. The Third Circuit reversed, and the Supreme Court granted the plaintiffs’ request for review.

In affirming the Third Circuit, the Court divided 5-4. In an opinion by Justice Kennedy and joined by the normal block of Chief Justice Roberts and Justices Scalia, Thomas, and Alito, the Court rejected the Fourth Amendment challenge to the policies. In doing so, it painted an alarming picture of the threat posed by those charged with the most minor of offenses. The dissenters — consisting of the usual block of Justices Breyer, Ginsberg, Sotomayor, and Kagan – effectively attacked the majority’s approach, pointing out that the threats invoked by Justice Kennedy, while real, did not support blanket strip-searching.

Justice Kennedy’s opinion is notable not because of its legal analysis — everyone seemed to agree on the controlling legal standards — but instead for its factual presentation. In particular, it goes to great lengths to minimize the degrading nature of the searches at issue and to demonize those who might be subject to it.

Starting with the search procedure, the Court’s approach is apparent in the very first paragraph of the opinion, where Justice Kennedy posited that “ the controversy concerns whether every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed”(emphasis added). Subsequently elaborating on this, he eschewed the term “strip search” as “imprecise” and described the relevant procedures as follows:

It may refer simply to the instruction to remove clothing while an officer observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to raise arms, to display foot insteps, to expose the back of the ears, to move or spread the buttocks or genital areas, or to cough in a squatting position.

Working from this view of the disputed procedures, Justice Kennedy reviewed the relevant Fourth Amendment jurisprudence and then turned to a review of the correctional officials’ significant interest in “a thorough search.” On this point, he identified three specific interests: (1) the danger of introducing lice or contagious infections; (2) the need to inspect for certain tattoos and other signs of gang affiliation; and (3) the need to detect contraband, such as weapons or anything else barred by jail rules. No one disputed the significance of these interests.

Where the real dispute arose, however, was the connection between these concerns and those arrested on minor offenses and the need for blanket strip search policies. On this point, Justice Kennedy uncharacteristically lapsed into alarmism. Without any explanation as to how it justified blanket strip searches, he invoked terrorists and serial killers in his defense for the claim those detained for minor offenses “can turn out to be the most devious and dangerous criminals”:

Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93. Reasonable correctional officials could conclude these uncertainties mean they must conduct the same thorough search of everyone who will be admitted to their facilities.

He also argued that strip searching those charged with minor offenses would actually protect them from being taken advantage of by predatory criminals: “A hardened criminal or gang member can, in just a few minutes, approach the person and coerce him into hiding the fruits of a crime, a weapon, or some other contraband.”

Given these concerns, he concluded for the Court, across-the-board strip-search policies were reasonable under the Fourth Amendment. In a closing section, however, he left the door open on two issues not addressed in the opinion: the searching of arrestees who did not have “substantial contact with other detainees” and strip searches that involved “the touching of detainees.”

The dissent, written by Justice Breyer, took issue at the outset with the majority’s sanitized view of strip searches:

A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy. . . . Even when carried out in a respectful manner, and even absent any physical touching, such searches are inherently harmful, humiliating, and degrading. And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass.

Turning to Justice Kennedy’s analysis, the Justice Breyer did not dispute the difficulties that jail officials face in controlling the environment in jails. He argued, however, that the available evidence indicated that blanket strip search policies were not needed to maintain that control. Most importantly, he pointed to extensive studies from two cases from New York – one in the Second Circuit and one in the Southern District — that looked at searches of 75,000 and 23,000 inmates, respectively. In the larger study, unconstrained strip searches led to only sixteen instances in which contraband was found secreted on the detainee’s body or in a body cavity, thirteen of those sixteen would have been searched under a reasonable-suspicion standard. In the 23,000-person study, there were five instances in which strip searches yielded contraband, and four of them involved of situations in which reasonable suspicion otherwise would have existed.

Interestingly, Chief Justice Roberts and Judge Alito, though they joined the majority, each wrote a concurrence that sought to take a softer position than staked out by Justice Kennedy. Referring to the majority’s saving for another day possible exceptions for arrestees not admitted to jail populations or for strip searches involving physical contact, Chief Justice Roberts commended the Court for leaving open “the possibility of exceptions, to ensure that we do not embarrass ourselves.” And Justice Alito wrote “to emphasize the limits of today’s holding” to the extent it did hold that strip searches were “always” permissible.

The New York Constitution

Notwithstanding the reservations suggested by Chief Justice Roberts and Justice Alito, reliance on the federal Constitution to protect those charged with minor offenses from strip searches has been lost, at least for the foreseeable future. That does not mean, however, that the cause is lost. As the Florence dissenters pointed out, at least ten states have enacted statutes banning suspicionless strip searches, and many agencies on their own have adopted policies or regulations barring such searches. Beyond these legislative and regulatory reforms, however, the courts remain an option by virtue of the New York Constitution, with the New York Court of Appeals’ decision in People v. Weaver serving as the beacon.

In Weaver, decided in 2009, the Court of Appeals held that, regardless of the scope of the Fourth Amendment, the counterpart provision of the New York Constitution — Article I, section 12 — treated the use of a GPS device by police as a search. In doing so, the Court observed that “we have on many occasions interpreted our own Constitution to provide greater protections when circumstances warrant and have developed an independent body of state law in the area of search and seizure.”

Weaver is important to the strip-search controversy not just because it represented a significant and recent extension of the New York’s search protections beyond those of the Fourth Amendment. Rather, what makes Weaver so promising is the fact that it turned on the Court’s notable concerns for privacy, the issue that lies at the core of the strip-search debate:

One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits.

A court starting with these concerns about privacy is a court that might look very differently at routine strip searches of people charged with minor offenses like seat-belt violations. We likely will find out in the next few years if the New York Court of Appeals is that court.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

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