Wednesday, April 4, 2012

Strip Search: the Supreme Court's Attack on the Fourth Amendment

nude- nomadic politicsby Nomad
In yet another questionable ruling, the Supreme Court has decided in a 5-4 vote that police departments have every right to demand a strip search from any person they arrested, even for minor offenses, “before admitting them to jails even if the officials have no reason to suspect the presence of contraband.” 
To clarify (somewhat) the meaning of the terms: According to Daphne Ha, writing for the Fordham Law Review:

A strip search is “[a] search of a person conducted after that person’s clothes have been removed, the purpose usu[ally] being to find any contraband the person might be hiding.”
Strip searches generally do not involve scrutiny of body cavities. However, policies in correctional facilities tend to include visual body cavity searches under the broad term “strip searches,” and only distinguish between visual and physical body cavity searches. This definitional problem is aggravated when courts describe strip search policies without clarifying whether a search includes a visual search of body cavities.
Another point worth noting, the decision does not also apply to prison inmates who have been tried and convicted but by any person who has been incarcerated. And for whatever reason.
An article in the New York Times reports,
According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, 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.
When your 17-year old son is stripped and searched for skipping school, or your 78-year old mother is ordered to strip for making a scene at a Walmart, then people will understand the full implications of such rulings. Justice Kennedy attempted to justify the decision with this bit of faulty logic.
Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.
Most people would easily see this statement for what it is - just another attempt to play on public fears of terrorism to steal away a little bit of everybody’s civil liberties. How a strip search of Timothy McVeigh or any of the 911 hijackers would have prevented the attacks, the Justice fails to mention. McVeigh wasn’t carrying the explosives in his armpit or in his rectum, after all.   And  no amount of flashlight-shining onto people's privates would have revealed the terrorists' plan to crash jet liners into the Twin Towers. 

In fact, what the judge is actually justifying is something far different: the sacrifice of due process in the name of security. Full submission to the whims of an officious police state is what the judge is attempting to sell the American people.

Still the constitution is pretty clear, despite what the Justices say:
"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."
What does the Court think the term "unreasonable" actually means? If violations to our own bodies cannot be deemed unreasonable without probably cause, without even the suspicion, then how can our houses, papers and effects.

The original authors of the fourth amendment would probably be outraged to think that the Supreme Court could have found a judicially approved way to obliterate the entire meaning of the protection.
Once police officers are allowed this permission, it becomes harder and harder to draw the line. Take a look at this case in Georgia from last year.

When Georgia Tech alum Mary Clayton attempted to enter a football game with a chicken sandwich. she was stopped by security guards and told it was a violation of policy to bring food into the area. After properly disposing of the food as ordered, Clayton stated that she again attempted to get to her seat. Again she was stopped. WSBTV Atlanta reported what happened next:
“People were saying I had a chicken sandwich hidden in the front of my pants,” Clayton said and consented to a search. “I believed at the time a reasonable search was they would pat my pockets down.” Instead she said a female Georgia Tech police officer took her into a bathroom stall and ordered her to drop her pants.“She then examined my underwear closely, all the way around, and when she didn’t find anything I was told to lift my shirt and bra and expose myself,” Clayton said.
nude male man nomadic politicsImportantly, this woman was not even arrested for anything. For a chicken sandwich? Does anybody seriously think that a chicken sandwich is enough of a threat to public safety to warrant a strip search? Probably not, but many people would see it as a means of humiliating punishment for disobedience.

Interestingly this Supreme Court ruling flies in the face of an earlier 2009 Supreme Court case, Safford Unified School District v. Redding. In that decision, the court held that “a strip search of a middle schooler violated the Fourth Amendment where the school lacked reasons to suspect either that drugs (Ibuprofen) presented a danger or that they were concealed in her underwear.” 

Parents of 13-year-old Savanna Redding were outraged by what they felt was a violation of their daughter’s right to privacy. According to the lawsuit, in a search for illicit drugs, school officials told the girl “to pull her bra out and to the side and shake it and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found." According to CBS News Andrew Cohen,
The school officials who conducted the search, he noted, knew at the time that they were looking for Ibuprofen pills (or other, equally innocuous pills) and not for weapons or illegal drugs. Nor was there any reason for them to believe that Redding (or any of the other students) was hiding any pills in their underwear. No pills were found in the earlier searches of the other students, none of whom were willing, as Redding was, to make a federal case out of the matter.
Justice Ginsburg cited the concept of a “reasonable” search.
"Any reasonable search for the pills would have ended when inspection of Redding's backpack and jacket pockets yielded nothing," Justice Ginsburg wrote, and, "to make matters worse, [the school official] did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity."
Justice Clarence Thomas saw things quite differently. In the dissenting opinion, he wrote that the search did not violate the child’s civil rights. In his opinion the school administrators had a reasonable suspicion that the student could be concealing drugs and therefore this "justified a search extending to any area where small pills could be concealed." Presumably, Thomas would be advocating body cavity searches by school officials of thirteen-year-old girls. 
Just think about that for a second.

History exposes Clarence Thomas a true hypocrite of the first order.

At his confirmation hearing back in 1991, Thomas defended his own right to privacy easily enough when he told the Senate panel that enough was enough. When quizzed about allegations that he had engaged in the repeated sexual harassment of an employee, that he graphically discussed pornography while at work and enjoyed telling his workers about the size of his penis, he drew the line to intrusions into his private life. He defiantly told the Senate confirmation committee:
I am not going to engage in discussions, nor will I submit to roving questions of what goes on in the most intimate parts of my private life or the sanctity of my bedroom. These are the most intimate parts of my privacy, and they will remain just that, private.
Even simple questions were, on that particular occasion and for that particular man, too too intrusive.  Yet, when it comes to other people’s right to privacy, Clarence Thomas is more than willing to defend the authorities’ right to strip little girls and search every nook and cranny.