A Story of Magnitude: High Court Stripping Away at Privacy, Civil Rights

April 3rd, 2012 · No Comments · Uncategorized

By Denise Tessier

On Monday, the U.S. Supreme Court ruled 5-4 that routine strip searches are acceptable in the United States – for even the most minor of offenses.  Recognizing the magnitude of this ruling, Journal reporter Scott Sandlin got together a local angle on the story in time for its publication this morning; fittingly, Journal editors put it on the front page.

This is good journalism, as the story (“MDC May Alter Strip Search Policy”) answered almost immediately the question on the minds of those Americans who heard the news Monday: Would our local jails and prisons actually increase the use of strip searches in light of this ruling?

Sandlin got us our answer by putting that question to Tom Swisstack, Deputy County Manager for Public Safety, who said the Metropolitan Detention Center in Albuquerque plans to look into it.

According to the story, Swisstack:

. . .will meet with the county legal department, risk management and the New Mexico Association of Counties to analyze the legal fallout from the ruling and whether the MDC policy should be revised to make strip searches another tool available to manage safety.

For those who hadn’t heard about the court ruling, Sandlin’s story combined the local angle – and the fact that in Bernalillo County, strip searches were more common before a wave of civil rights lawsuits – with the national story that prompted the Supreme Court’s ruling, using reportage from the Associated Press.

Current practice at the local jail? From Sandlin’s story:

Nataura Powdrell, MDC public information officer, said strip searches are not employed “unless we have indicators that the (inmate) may be a threat to themselves or to others.” Even if the detention center has reason to believe an inmate has hidden drugs somewhere in their body, “we’ll put them in medical unit to allow them to pass.”

So, searches are not routine at present. What if they do become routine? From the story:

Santa Fe attorney Robert Rothstein, who has represented strip-searched prisoners in New Mexico class actions from Lordsburg to Santa Fe as well as in Arizona and California. . . said research on jails shows that pat-downs and other procedures are far more likely to yield contraband than a strip search.

“The jail literature is that you don’t get any bang for buck. It really isn’t a safety measure. …What do you get from a strip search other than indignity? The answer is nothing. Most contraband is brought in by jail personnel,” he said.

He said the big question arising from the high court’s ruling is the extent to which courts will simply defer to prison officials.

And here’s what prompted the nationwide ruling by the Supreme Court:

In the New Jersey case, Albert Florence’s nightmare began when the sport utility vehicle driven by his pregnant wife was pulled over for speeding. He was a passenger; his 4-year-old son was in the backseat.

He wasn’t driving when the alleged speeding took place. He was a passenger. But the Supreme Court ruled against Florence, who the story said had been “strip searched in two county jails following his arrest on a warrant for an unpaid fine that he had, in reality, paid.”

The ruling majority’s justification, according to the story:

Justice Anthony Kennedy said the circumstances of the arrest were of little importance. Instead, Kennedy said, Florence’s entry into the general jail population gave guards the authorization to force him to strip naked and expose his mouth, nose, ears and genitals to a visual search in case he was hiding anything.

Kennedy also:

. . .gave three reasons to justify routine searches – detecting lice and contagious infections, looking for tattoos and other evidence of gang membership and preventing smuggling of drugs and weapons.

Kennedy also said people arrested for minor offenses can turn out to be “the most devious and dangerous criminals.”

So, if the circumstances of the arrest are of little importance, it is conceivable that any person in the United States – whether citizen, tourist or immigrant of any status – could be strip searched with impunity if they end up in jail after allegedly jay walking, speeding or having one’s dog off leash.

Kennedy said entry into the general jail population gives guards, basically, carte blanche.

This decision should be a wake-up call, even for those who think what happens in the jails is of little consequence or “won’t happen to me.” It’s not a stretch to assume that jailers will not only use this now-sanctioned-by-the-Supreme-Court tool, they will sometimes overuse it.

One would hope that the majority of New Mexico’s jailers and law enforcement officers would be above getting their jollies at an unfortunate detainees’ expense. But the reality is that New Mexico has had repeated reports of rapes in its jails. And stories appear with alarming frequency about police officers abusing their power by pulling over young women and forcing them to expose their breasts, or worse.

As for the Supreme Court dissent:

In a dissenting opinion joined by the court’s liberals, Justice Stephen Breyer said strip searches improperly “subject those arrested for minor offenses to serious invasions of their personal privacy.” Breyer said jailers ought to have a reasonable suspicion someone may be hiding something before conducting a strip search.

It makes one wonder whether we will hear an outcry of dissent from “conservatives” outside the court, specifically those who militantly denounce the nation’s loose sexual mores, and might not condone routine strip searches of their wives and daughters.

In his minority dissent in this case, Breyer is probably thinking about that pesky “unreasonable search and seizure” clause in the Fourth Amendment to the U.S. Constitution:

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.

Americans should think hard about the implications of this decision, and the justices who have imposed it.

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