January 01, 2013

Civil Rights: Suspicionless Strip Searches—What’s Next?

Daniel R. Karon

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A flawless driver and exemplary citizen, Rosemary Munyiri never expected this nightmare to happen to her.

It was a rainy April night in 2008 when a Baltimore police officer stopped Rosemary, a petite 5’ 2” Johns Hopkins Hospital cardiac nurse. The officer ordered her from her car at gunpoint, handcuffed her face down on the wet pavement, and arrested her.

The reason? On Rosemary’s way home after a 12-hour shift—and while still in her pink nursing scrubs—she mistakenly drove past flares that the officer had placed, blocking her customary exit. When the officer pulled up behind her with lights flashing, Rosemary thought they were for someone else and she continued onward, looking for a safe place to park on the side the highway.

But the lights weren’t for someone else; they were for her. So when Rosemary continued driving, the officer concluded she had taken flight. And though the officer found no weapons or contraband in Rosemary’s car—indeed, he found nothing—he arrested her on three misdemeanor charges (negligent driving, failure to pull to the curb upon a police vehicle’s signal, and attempt to elude uniformed police by failing to stop) and hauled her down to Baltimore’s Central Booking and Intake Center. Once there, guards ordered her to strip naked in front of other detainees, to spread her buttocks, exposing her anus and vaginal areas, and to squat and cough.

After 24 hours in a holding cell, Rosemary was released on bond. Eventually, she entered a nolle prosequi plea, meaning the prosecutor voluntarily discontinued her criminal charges after the officer—the state’s only witness—failed to appear for trial.

So was Rosemary’s humiliating and suspicionless strip search, based on no probable cause to believe she possessed weapons or contraband, legal? According to the Supreme Court, yes.

In Florence v. Board of Chosen Freeholders of County of Burlington, 131 S. Ct. 1816 (2011), the Court held that detainees admitted to a prison’s general population are required to submit to mandatory strip searches in the name of “jail security.”

But aren’t searches of people arrested for minor offenses that involve neither drugs nor violence—like traffic offenses, regulatory offenses, or similar misdemeanors—unreason­able searches forbidden by the Fourth Amendment, given that prison guards lack reasonable suspicion to believe those people possess the weapons or contraband that are the very items that should justify the strip searches in the first place? The four-justice dissent thought so. After all, even prisoners have basic constitutional rights, including, of course, the Fourth Amendment right to be free of unreasonable searches and seizures.

As Justice Breyer explained for the dissent, “[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.” Indeed, the harm to privacy interests is especially acute when the person searched has no expectation of being subject to such a search because, for example, she simply received a traffic ticket for failing to buckle her seatbelt.

What’s more, when considering the empirical evidence supporting the extraordinarily low incidence of weapons or contraband actually discovered in prisoners’ body cavities, little reason exists to permit blanket strip searches absent probable cause for suspecting weapons or contraband. And this conclusion is only amplified by the majority’s failure to have identified any clear example of weapons or contraband smuggled into a jail during intake that could not have been discovered had the jail used a reasonable-suspicion standard.

Perhaps most frightening, though, is the prospect that prisons will use Florence to justify compulsory medical procedures by untrained, nonmedical prison guards for such things as diagnosing and treating lice and other physical conditions. But as broad as Florence’s decree undoubtedly is, it can’t possibly be understood to legalize these additional practices. Compulsory medical diagnoses and treatment by nonexpert personnel—delousing, for example—do not trigger Florence’s concern with and focus on violence-inducing weapons and contraband because such diagnoses and treatment necessarily don’t reveal weapons or contraband.

Florence legalized mandatory and suspicionless searches for weapons or contraband, and that’s all that it did. Florence did not legalize compulsory medical diagnoses and treatment by nonmedical personnel, and such practices do nothing to advance the Florence Court’s expressed directive. As a result, civil rights lawsuits for those offenses should remain viable.

Indeed, in his concurring opinion, Chief Justice Roberts cautioned “to leave open the possibility of exceptions [to the Court’s new blanket rule], to ensure that we not embarrass the future.” But allowing prison officials to broaden Florence’s already expansive, new pronouncement to legalize compulsory medical diagnoses and treatment by nonmedical personnel wouldn’t merely embarrass the future; it would cause far worse damage than simply that.

Daniel R. Karon

The author is with Goldman Scarlato Karon & Parry PC, Cleveland.