On January 23, 2012, the Supreme Court unanimously decided that allowing the police to affix a GPS tracking device to your car, without your permission, so they could track you electronically was a violation of your Fourth Amendment right to be secure in your person and effects from unreasonable searches and seizures. The case was United States v. Jones, and I applauded the decision. Not because I’m all that worried about having my local police department stick a Garmin under my fender, but because it was nice to know the conservative wing of the court could still give at least a cursory nod to individual (non-corporate) rights.
Then along came Mr. Florence. Albert Florence ran from the Essex County cops back in 1998. He got caught because you always get caught when you run from the cops. He pled it down, apparently to some sort of misdemeanor, received a fine to be paid on a payment plan, and went on his way. Then in 2003 he fell behind in his payments, and compounded that mistake by failing to show up for an “enforcement hearing.” Judges universally don’t like people who blow off court appearances; Albert’s judge responded predictably by issuing a bench warrant. He paid his fine off less than a week later (warrants possess amazing motivational capacity), and presumably thought the matter was behind him.
But no. Somebody forgot to quash the warrant in the computer.
So when Albert was in a car that was stopped in 2005, the warrant turned up when the officer ran his license. He was arrested, taken into custody, and booked at the Burlington County Detention Center. As a guest there, you’re treated to a shower with a delousing agent. While undressing prior to your shower, the guards on duty look you over for scars or tattoos that could be used to identify you as a gang member. At this point, according to Albert, you open your mouth, lift your tongue, hold out your arms, turn around, and lift your genitals so the officers can look for contraband. Understandably, Albert didn’t like this very much.
If that weren’t bad enough, Albert got moved to the Essex County Correctional Facility – after six days in the Burlington jail (and remember, he’d paid his fine – he shouldn’t even have been there). This is, apparently, the largest county jail in New Jersey admitting more than 25,000 inmates a year. While being processed, Albert was run through a metal detector, then told to remove his clothing while he was again observed for distinctive body markings. At this point, they checked his mouth, his hair, his ears, looked under his genitals, peered into his ass, and finally made him cough in a squatting position just to make extra sure his rectum wasn’t doubling as a weapons cache.
He was released the next day, humiliated – albeit lice free. The prosecutor dismissed all charges.
Albert sued. He brought a civil claim under 42 U.S.C. § 1983 claiming his Fourth Amendment rights had been violated. He won, more or less, at the District Court level, lost at the Third Circuit, and ended up at the Supreme Court. The issue he brought to the Court is whether the Fourth Amendment permits a suspicionless strip search of those arrested for any minor offense. By one of those 5-4 votes, the Court said, sure, if you’re picked up for littering, and the cop is so bored he wants to stick you in jail, then you’re going get strip searched if the jailer feels like it. Thanks for stopping by, Albert.
So, let’s recap. In Jones, the Supreme Court ruled that a GPS on your car violates your Fourth Amendment rights; in Florence, Court held that the same Fourth Amendment says it’s perfectly okay, when arrested for a nothing offense, to have your body cavities ogled. Your car bumper, off limits; your taint, fair game.
The majority decision reads forced. You can almost see Justice Kennedy’s face all scrunched up as he wrote the opinion. He’s not comfortable with what he’s saying, and you have to question whether he really believes his own words. In those circumstances where you don’t really like what you’re saying, it’s always easier to just adopt somebody else’s logic. In Florence, Justice Kennedy found that somebody else in the form of all the jailers who wrote amicus briefs urging the court to ignore Albert. Those briefs apparently droned on about all the contraband new inmates secret into their facilities and the danger it brings about. The judge gobbled it all and went back for seconds.
Kennedy recounted a story from one of the amici about a guy who smuggled in two bags of marijuana, a pack of rolling papers, a book of matches, and five sleeping pills – by taping it all to his scrotum. Clearly, the man loved his weed. Few people will give themselves a ball sack Brazilian over a little marijuana. Weapons, too, get smuggled in. Knives, scissors, razor blades, and glass shards were all discovered, according to Justice Kennedy, in peoples’ asses.
But it wasn’t just the array of contraband clanging about in body cavities that had Kennedy worried. He was also cinched up about the very class of people this case was about – people arrested for minor offenses. Why? Because those very misdemeanants, ostensibly average folks, “can turn out to be the most devious and dangerous criminals.”
That’s right. Jaywalkers, loiterers, and public urinaters can turn out to be criminal masterminds bent on wreaking havoc in our county jails by busting out the array of weaponry and narcotics stored in their backsides. How does he know? Because Timothy McVeigh drove without a license plate; serial killer Joel Rifkin did too; and a 9/11 hijacker got a speeding ticket on 9/9.
Honest to God, that’s what he said.
There’s two problems with the theory that minor offenders are also devious and dangerous, at least in the context of the issue presented in Florence. First, there’s no mention that McVeigh, Rifkin, or the 9/11 hijacker with the lead foot had any contraband taped to their balls. Second, it ignores the more important fact that many, many thousands of decent, upstanding citizens of America get speeding tickets, or dog at large citations, or lose their parking tickets under their car seats and inadvertently end up with a suspended license. And these people do not deserve to have to bend over and spread their butt cheeks for some sheriff’s deputy. Neither did Albert.
The dissent, by the bookish Justice Breyer, is elegant and simple and gently seasoned with common sense. He references a case from 2001 with data showing that 75,000 strip searches yielded 16 discoveries of contraband. Of those 16 pieces of contraband, 13 of them would have been uncovered through a routine patdown search of shoes or clothing. This leaves 3 productive strip searches. 3 of them out of 75,000. Those 3 individuals all had drug or felony histories that would have warranted a strip search in the first place. In other words, the safety issue so heavily relied upon by the majority is much ado about not much of anything.
Breyer also plays the vagina card. The majority, the five squeamish boys, seemed to have forgotten that girls get arrested too. Breyer didn’t. Strip searches, he reminds the majority, will necessarily involve female genitalia when it’s a girl getting thrown in jail. And, as if that weren’t enough to get Alito and Scalia all nervous and unhinged over what they’re going to say to their wives if asked how their day was, Breyer points out situations where women were strip searched – while menstruating. You can almost see them, apoplectic, brows furrowed, teeth gnashed, fists clinched, snarling: “Damn those vaginas!” But instead of tackling these little nuances, the boys just ignored them. Actual numbers applied to the claims of security breaches, real women degraded, these have no room when you’re forging an ideological decision.
The Court held, as did the Third Circuit, that a strip search on an individual incarcerated for even a minor offense does not violate the Fourth Amendment. Albert’s case got dismissed. What the holding really says is: We don’t give a shit what happens to anybody who gets arrested anywhere, anytime. Period.
That may sound a little harsh, but consider this. What Breyer wanted in his dissent was for the court to rule that it is unreasonable for the state to strip search a person arrested for a minor offense unless the jail authorities have reasonable suspicion that the individual possesses drugs or other contraband. That’s all. He just wants the cop to have to grunt out some sort of justification before making you lift up your scrotum, spread your ass, and do your squats.
And here’s the real kicker. I know guys who work in jails. They don’t want to have to do these searches. They’re only going to do something that disgusting if they feel it’s really necessary. That means, speaking practically, there’s little distinction between the dissent and the majority. But even given that narrow difference, the majority felt compelled to hand whatever power the government wanted to the government after having yanked it away from the individual.
Albert got stripped searched, so can you. And there’s nothing you can do about it except avoid getting arrested by behaving perfectly, and hoping that whoever is in charge of the computer in your jurisdiction doesn’t forget to push the right button to show your warrant is quashed.
Good luck with that.