Jim PorterSpecial to the Sun

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April 20, 2012
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Jim Porter: Are strip searches allowed in all arrests?

TRUCKEE, Calif. — The Fourth and Fourteenth Amendments prohibit unreasonable searches and seizures. If you are pulled over for a traffic stop, and the officer discovers there is an old warrant stemming from a decade-old minor criminal matter (which was cleared but the warrant inadvertently stayed on the statewide computer database), can you be arrested, held for six days and strip searched? The U.S. Supreme Court says YES.Outstanding WarrantIn 1998, Albert Florence was arrested in New Jersey for fleeing from peace officers. He entered a plea of guilty and was sentenced to pay a fine in monthly installments. He did so, but in 2003 fell behind in his payments and a bench warrant was issued for his arrest. Immediately afterwards he paid the outstanding balance of the fine, yet somehow the warrant remained in the New Jersey computer database.Two years go by. Albert Florence and his wife are stopped for a traffic violation and, based on the outstanding warrant, he is arrested. He stays in a detention center for six days, then is transferred to another facility and finally released — with apologies. That was after two humiliating full-body strip searches by the New Jersey jail authorities.DelousingNew Jersey requires every arrestee, before being placed in a general jail population, to shower with a delousing agent. Arrestees take off all of their clothes and are checked for scars, marks, gang tattoos, and contraband. They have their mouths (and other orifices) thoroughly inspected. Mr. Florence was required to lift his genitals, turn around, and cough in a squatting position. That brings back ugly memories of high school physical exams by nurse Whatshername: “Turn your head and cough while I lift.” Fortunately she didn’t seem too interested in my equipment. And she was not exactly a cheerleader-type.Unreasonable SearchMr. Florence sued claiming a violation of his Fourth and Fourteenth Amendment rights — arguing that people arrested for a minor offense should not be required to remove their clothing and be subject to close visual inspection as a routine part of the jail intake process. That kind of strip search may only be maintained if there is some reason to suspect a particular inmate of concealing a weapon, drugs or other contraband. That was the argument.Drugs, Weapons, ContrabandThe trial court ruled in favor of Mr. Florence; the Court of Appeal reversed, ruling for the jailers. The U.S. Supreme Court took the case on appeal. The Court discussed the need to protect against lice entering into jail facilities, and the importance of looking for wounds and injuries and other physical attributes manifesting a need for medical attention. Plus there is a need to look for tattoos and other signs of gang affiliation, so gang violence can be managed. And of course the obvious need to look for drugs and other contraband like knives, guns, scissors, razor blades, glass shards and in at least one case, a pen. And don’t forget hairpins that can open handcuffs, wigs that conceal drugs and weapons, chewing gum that can be used to block locking devices, pills and medications that enhance suicide risk, plus the obvious: lighters, matches and cell phones. And in a jail, money and cigarettes, which can be used for any variety of reasons, are considered contraband. But should everyone that is arrested be subject to a strip search? In one case discussed by the Court, a woman who was arrested for not wearing her seatbelt was subject to a thorough search, not quite a strip search. That was upheld.In a 5-4 Supreme Court ruling, with Justice Kennedy (who else?) writing the majority opinion, the Court’s conservative majority wrote, “County jail procedures struck a reasonable balance between inmate privacy and the needs of the institutions. “A case-by-case evaluation of the seriousness of particular crimes (would be) a difficult task for which officers and courts are poorly equipped.”The strip search policy was upheld.DissentThe four liberal-leaning Justices’ Dissenting Opinion was summarized in this paragraph: “In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence — say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor — is an “unreasonable search” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possess drugs or other contraband.” Free AdviceSo here is my advice. Don’t get arrested. If somehow you can’t accept that advice and you get arrested, take care of the matter, even if it is a very minor crime that may stay on the books and years later cause you to get arrested, thrown in jail and strip searched. Call that the Albert Florence Take Care of Old Business Rule.Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governor's appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com-or at the firm’s website www.portersimon.com.


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Tahoe Daily Tribune Updated Apr 20, 2012 12:14PM Published Apr 20, 2012 12:11PM Copyright 2012 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.