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May 01, 2013

Upending Human Dignity and Shattering the Fourth Amendment: Strip Searches

by John W. Whitehead

[S]trip searches involving the visual inspection of the anal and genital areas [are] demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.

Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983)



During a routine traffic stop, Leila Tarantino was allegedly subjected to two roadside strip searches in plain view of passing traffic, while her two children—ages one and four—waited inside her car. During the second strip search, presumably in an effort to ferret out drugs, a female officer “forcibly removed” a tampon from Tarantino. No contraband or anything illegal was found.

A North Carolina public school allegedly strip-searched a ten-year-old boy in search of a $20 bill lost by another student, despite the fact that the boy, J.C., twice told school officials he did not have the missing money. The assistant principal reportedly ordered the fifth-grader to disrobe down to his underwear and subjected him to an aggressive strip search that included rimming the edge of his underwear. The missing money was later found in the school cafeteria.

Suspecting that Georgia Tech alum Mary Clayton might have been attempting to smuggle a Chick-fil-A sandwich into the football stadium, a Georgia Tech police officer allegedly subjected the season-ticket holder to a strip search that included a close examination of her underwear and bra. No contraband chicken was found.

Sixty-nine-year-old Gerald Dickson was handcuffed and taken into custody (although not arrested or charged with any crime) after giving a ride to a neighbor’s son, who police suspected of being a drug dealer. Despite Dickson’s insistence that the bulge under his shirt was the result of a botched hernia surgery, police ordered Dickson to “strip off his clothes, bend over and expose all of his private parts.” No drugs or contraband were found.

In Chicago, a fifteen-year-old boy accused by an anonymous tipster of holding drugs was taken to a locker room by two security guards, a Chicago police officer, and a female assistant principal and made to stand against a wall and drop his pants while one of the security guards inspected his genitals. No drugs were found.

Four Milwaukee police have been charged with carrying out rectal searches of suspects on the street and in police district stations over the course of several years. One of the officers is accused of conducting searches of men’s anal and scrotal areas, often inserting his fingers into their rectums. Half-way across the country, the city of Oakland, California, has agreed to pay $4.6 million to thirty-nine men who had their pants pulled down by police on city streets between 2002 and 2009.

What these incidents show, as varied as they are, is that while strip searches may span a broad spectrum of scenarios, the common denominator remains the same: humiliation and degradation at the hands of government officials and a complete disregard for privacy and human dignity. Unfortunately, in a judicial and bureaucratic environment in which human dignity has been given short shrift and largely discounted, most discussions about strip searches begin and end by attempting to balance Fourth Amendment privacy concerns against the interests of law enforcement officials. Even when called in to referee a particular debate about when a search has gone too far, the courts have increasingly erred on the side of giving government officials—especially the police—vast discretion in carrying out strip searches for a broad range of violations, no matter how minor the offense and no matter how degrading, demeaning, or offensive to one’s human dignity the search is.

Examples of minor infractions that have resulted in strip searches include individuals arrested for driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, riding a bicycle without an audible bell, making an improper left turn, and engaging in an antiwar demonstration (the individual searched was a nun, a Sister of Divine Providence for fifty years). Police have also carried out strip searches for passing a bad check, dog leash violations, filing a false police report, failing to produce a driver’s license after making an illegal left turn, having outstanding parking tickets, and public intoxication. A failure to pay child support could also result in a strip search.

What Constitutes a “Strip Search” and When Is It Permissible?

The experience of disrobing and exposing one’s self for visual inspection by a stranger clothed with the uniform and authority of the state . . . can only be seen as thoroughly degrading and frightening.

Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir. 1993)

The lack of any bright-line distinction for what constitutes a strip search coupled with the absence of clear-cut guidelines for what would permit a government official to subject an otherwise law-abiding citizen to a strip search further complicates any attempt to defend individuals against what is tantamount to state-sponsored humiliation and visual rape. Cases decided by lower courts involve mixed results and largely depend on the context of the search. Courts had historically taken a dim view of strip searches of arrestees for minor or traffic offenses, ruling generally that this level of intrusion must be supported by at least reasonable suspicion. Mary Beth G. v. Chicago, 723 F.2d 1263 (7th Cir. 1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981).

That said, while there has been no universally established protocol for strip searches, three distinct rulings by the U.S. Supreme Court have specifically addressed overreaching strip searches, both in detailing what generally constitutes a search and what is permissible.

In Bell v. Wolfish, 441 U.S. 520 (1979), the Court upheld a federal prison rule requiring all pretrial detainees to expose body cavities for visual inspection after having a contact visit with a person from outside the institution. The Court deferred to the judgment of corrections officials that this was needed to prevent the introduction of weapons and contraband into the facility, despite evidence that visitors were subject to a search and that there had been only a single incident of a prisoner attempting to bring contraband into the institution.

In Safford Unified School District v. Redding, 557 U.S. 364 (2009), the Court concluded that a search of a thirteen-year-old girl by school officials not only constituted a strip search but was a violation of the eighth-grader’s Fourth Amendment rights. As part of the “search,” Savana Redding, who officials suspected of possessing ibuprofen, was forced to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, she was told 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.

The Supreme Court’s characterization of the school’s treatment of Savana Redding as a “strip search” is consistent with lower court precedent. Thus, a police officer’s directive that a person strip down to her underwear was deemed a “strip search” in Justice v. City of Peachtree City, 961 F.2d 188, 190 (11th Cir. 1992). The Fourth Circuit considered a search of an arrestee in his boxer shorts to be a strip search in Amaechi v. West, 237 F.3d 356, 363 (4th Cir. 1997). And the First Circuit has recognized that a person does not need to be fully disrobed in order for a search to be considered a strip search. Wood v. Hancock Cnty. Sheriff’s Dep’t, 354 F.3d 57, 63 n.10 (1st Cir. 2003).

What constitutes a strip search is also the subject of legislative definition in several states. As noted in the lower court opinion in Redding:

California, for instance, defines the term as “requir[ing] a person to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of such person.” Cal. Penal Code § 4030 (emphasis supplied); see also, e.g., Conn.Gen. Stat. § 54-33k; 725 Ill. Comp. Stat. 5/103-1; Mo. Rev. Stat. § 544.193; N.J. Stat. Ann. 2A:161A-3; Va. Code Ann. § 19.2-59.1; Wash. Rev. Code § 10.79.070. The Fourth Circuit has recognized that this definition of a strip search is “uniform” throughout the Union.See Amaechi, 237 F.3d at 365 n.15.

Redding v. Safford Unified Sch. Dist. No. 1, 531 F.3d 1071, 1080 (9th Cir. 2008), aff’d in part, rev’d in part, 557 U.S. 364 (2009).

Any hope that the Court was prepared to protect privacy and human dignity in the wake of Redding quickly dissipated in the wake of its ruling in Florence v. Board of Chosen Freeholders of County of Burlington, 132 S. Ct. 1510 (2012), which struck a blow to any long-standing protections against blanket strip searches, declaring that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials without reasonable suspicion that the arrestee is carrying a weapon or contraband. The five-man majority rationalized their ruling as being necessary for safety, security, and efficiency, the government’s overused and all-too-convenient justifications for its steady erosion of our freedoms since 9/11.

The Florence ruling stemmed from the case of Albert Florence, who was erroneously arrested for failing to pay a traffic fine and forced to submit to two egregious strip and visual body-cavity searches at two different county jails. Ironically enough, the supposed crime for which Florence was arrested (having an unpaid traffic fine) is not a criminal offense in New Jersey, while being strip searched for something other than a crime is a criminal offense. Florence, an African-American man in his mid-thirties, was on his way to Sunday dinner in 2005 with his then-pregnant wife and four-year-old son when they were stopped by a New Jersey State Police trooper. Florence’s wife was driving. However, after showing his ID, Florence found himself handcuffed, arrested, and taken to jail. After spending six days in jail, Florence was finally able to prove his innocence. Outraged, Florence sued the jail officials who had needlessly degraded his bodily integrity.

A federal appeals court sanctioned the blanket strip-search policy, which was then affirmed by the high court. In a nutshell, what Justice Anthony M. Kennedy, writing for the majority, concluded was that it is impractical—“unworkable” was the phrase used—to expect overworked jail officials to have to take the time to distinguish between harmless individuals guilty of nothing more than driving without a seatbelt and those who pose a true threat and may be reasonably suspected of carrying drugs or weapons. Consequently, any person who is arrested, no matter how minor the alleged criminal act, can now be subjected to a degrading strip search. Examples of minor violations that could now lead to a strip search are many and include “violating a leash law, driving without a license and failing to pay child support.”

These blanket strip searches are not for the faint of heart. A typical strip search, as described in a prison manual and cited by Justice Stephen Breyer in his dissent, involves a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.

Shattering the Fourth Amendment

The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official.

—Herman Schwartz, The Nation

In the past, strip searches were resorted to only in exceptional circumstances when police were confident that a serious crime was in progress. In recent years, however, strip searches have become routine operating procedures in which everyone is rendered a suspect and, as such, is subjected to treatment once reserved for only the most serious of criminals. For example, in one instance, a woman was arrested at her home and forced to strip upon her arrival at a jailhouse. She was told to lift her breasts, expose her genitalia, and squat and cough. Her charge? Neglecting four dogs left at her previous home, which her ex-husband had promised he would care for.

Instead of correcting these abuses, lawmakers and the courts have too often given their tacit consent to these violations of Fourth Amendment rights. As the Associated Press observed, for roughly thirty or so years after the Supreme Court’s 1979 ruling in Bell v. Wolfish, “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.” Similarly, courts have recognized that strip searches at the scene of an arrest are not forbidden by the Fourth Amendment, ruling that such a search only requires a “reasonable basis for supposing that the particular kind of search will be fruitful.” United States v. McGhee, 627 F.3d 454 (1st Cir. 2010).

This brings us to the present day, where any attempt to engage in a rational discourse about the need to limit overreaching strip searches is inevitably drowned out by the cacophony of those who prize security over liberty, pointing to the 9/11 terrorist attacks, a decades-long spate of school shootings, and government-directed wars on terror and drugs as justification for any and all manner of violations of Americans’ civil liberties, especially their Fourth Amendment rights.

This distressing trend that privacy must be sacrificed at the altar of security is plainly evident in the public schools. While strip searches of students must meet the Fourth Amendment’s standard of “reasonableness,” which requires consideration of both the object of the search and the level of suspicion that the student is secreting contraband in his or her clothing, courts have upheld strip searches where the object of the search was a controlled substance or a weapon. Cornfield v. Consolidated H.S. 230, 991 F.3d 1316 (7th Cir. 1993); Williams ex rel. Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991); Singleton v. Bd. of Educ., 894 F. Supp. 386 (D. Kan. 1995). On the other hand, courts have been less willing to uphold strip searches of students when money is the object of the search.Thomas v. Roberts, 261 F.3d 1160 (11th Cir. 2001); Oliver v. McLung, 919 F. Supp. 1206 (N.D. Ind. 1995). Nevertheless, despite the Supreme Court’s clear prohibition on strip searches in Redding, strip searches continue to be meted out upon unsuspecting youth by school officials woefully ignorant about the law. Hence, reports continue to surface of students being stripped naked by school administrators based on specious and unfounded accusations of drug or weapons possession, usually by vengeful fellow students.

Virtual Strip Searches and Voyeuristic Futuristic Technologies

Making matters worse, government agencies are increasingly exploiting cutting-edge technologies that allow probing and examination of the intimate aspects of persons that are for all intents and purposes equivalent to the excessive intrusion inflicted by a strip search. One such technology that is even now enjoying widespread use is the backscatter x-ray or millimeter wave technology employed for airport security screening by the Transportation Security Administration (TSA) in order to obtain more detailed images of possible threats to safety. Likened to a virtual strip search, the “pictures are of near-pornographic quality and amount to a black and white strip search. . . . Appearing in the image are not only concealed weapons, explosives, wallets, and coins but also rolls of fat, the size of breasts and genitals, and catheter tubes.” Note, Are Emerging Technologies in Airport Passenger Screening Reasonable Under the Fourth Amendment?, 41 Loy. L.A. L. Rev. 385, 391 (Fall 2007).

Those who refuse to submit to these strip searches are forced to undergo enhanced pat downs, egregious violations of privacy and bodily integrity meted out with singular frequency upon elderly and disabled passengers. For example, in June 2011, TSA employees reportedly ordered a ninety-five-year-old leukemia patient in a wheelchair to remove her adult diaper so that agents could search her. Ninety-year-old Marian Peterson, also confined to a wheelchair, was pulled out of line for a random security check and according to her son, Joe, TSA agents “groped her. All of her body: her crotch, her breasts and everything else.” She was also made to get out of her wheelchair and stand with her arms outstretched for over ten minutes.

Another emerging technology is Terahertz Imaging Detection, which was adopted by the New York Police Department in January 2012. This camera-like device, mounted on police cars, detects the radiation produced by a human body, allowing officers to see what objects are blocking that radiation—for example, a gun. This technology allows officers to scan a person’s body from sixteen feet away, making it impossible for a person to know if he or she is being virtually probed. While Commissioner Ray Kelly has claimed that the scanner is only used in “reasonably suspicious circumstances,” the NYPD’s record with stopping and frisking people going about their business on public streets and thoroughfares gives little comfort to those who find themselves in the eyesight of NYPD officers on a daily basis.

Likewise, agencies of the state, from schools to police departments, are employing highly sophisticated biometric devices that can strip a person bare on a cellular level in order to quickly retrieve and store a staggering amount of intimate information no less personal and private than having one’s private parts exposed during a strip search. Incredibly, as the various nascent technologies employed by the government are incorporated into a complex, interwoven cyber network aimed at tracking our movements, predicting our thoughts, and controlling our behavior, we may find the discussion over what constitutes a strip search moving far beyond the physical realm into territory once reserved for science fiction. For example, the Department of Homeland Security is working on its Future Attribute Screening Technology, or FAST, which will utilize a number of personal factors such as “ethnicity, gender, breathing, and heart rate to ‘detect cues indicative of mal-intent.’”

Making the Case for Human Dignity

Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity.

Roper v. Simmons, 543 U.S. 551, 578 (2005)

Clearly, we have a long way to go in securing our privacy rights. It must be remembered that the Fourth Amendment to the U.S. Constitution was intended to protect the citizenry from being subjected to “unreasonable searches and seizures” by government agents. While the literal purpose of the amendment is to protect our property and our bodies from unwarranted government intrusion, the moral intention behind it is to protect our human dignity. Unfortunately, the rights supposedly guaranteed by the Fourth Amendment have been steadily eroded over the past few decades. Court rulings justifying invasive strip searches as well as Americans’ continued deference to the dictates of achieving total security have left us grasping for dignity.

Writing for the Wisconsin Law Review, attorney John D. Castiglione proposes that human dignity, as defined, should stand alongside privacy as a primary animating principle of the Fourth Amendment. As Castiglione rightly points out:

Privacy, an exceedingly broad concept encompassing a great many things, nevertheless does not encompass a number of core constitutional values that underlie the Fourth Amendment. Chief among these values is human dignity. As courts’ decisions have moved towards an almost exclusive focus on privacy as the counter-balance to the government’s law-enforcement interest, the government’s interests have increasingly prevailed and the sphere of protection afforded to the individual has shrunk. Simply put, it has become increasingly clear that privacy as a concept has proved itself an insufficient analytical tool to support an even moderately robust interpretation of the Fourth Amendment. Privacy alone is unequal to the task of providing a doctrinal framework that supports a truly protective Fourth Amendment.

If a more sound jurisprudence is to emerge, a value distinct from privacy must be articulated and incorporated into the reasonableness analysis. . . .

Privacy is a conditional concept; one has it only to the extent that one’s circumstances allow for it, as a matter of fact and law. While it is widely accepted that situations occur in which a person may cede, be legitimately stripped, or simply not have any privacy whatsoever, dignity (as I have attempted to define it here) is an inherent possession of every person, regardless of circumstance. Dignity is an immutable value, held in equal measure at all times by all people, a quality privacy does not share. Dignity arises at birth (perhaps even before) and continues until death (and perhaps even after). Indeed, of all core constitutional values, dignity is perhaps the only one that cannot be legitimately stripped entirely by the state under any circumstance. The state can take a person’s life, his liberty, or his property, all of which are accepted under the Constitution given sufficient justification. However, one would be hard-pressed to argue that the state has any interest whatsoever in attempting to strip a person entirely of his dignity. What possible benefit would accrue to the state or to the people from such an action? No court, to my knowledge, has ever held that a person may be lawfully stripped entirely of his dignity, whatever that would mean. In that sense, dignity is an inherently more stable value than privacy—perhaps narrower, but much deeper, because its boundaries do not depend upon the circumstance of the individual and the state cannot legitimately fully infringe upon it.



John W. Whitehead

John W. Whitehead is founder and president of The Rutherford Institute, a nonprofit legal and educational organization deeply committed to protecting the constitutional freedoms of every American and the integral human rights of all people.