Strip-searching the Fourth Amendment

If you’re given a speeding ticket and forget to pay it for long enough, you may now be subject to a strip search. That’s a rather extreme example, but one that’s now legally allowed thanks to a split 5-4 U.S. Supreme Court decision made Monday that allows corrections officials to strip search anyone arrested for any reason.

Considering that America has the largest population of incarcerated residents in the world, that’s an awful lot of humiliation about to happen.

About 13 million people are jailed each year in the United States, wrote justice Anthony Kennedy, who drafted the majority opinion on the ruling, which split directly down political lines with the court.

Don’t think you’ll be among them? Not so fast. The ruling comes from a seemingly unlikely case. In 2005 Albert W. Florence was arrested and strip-searched for not paying a fine. Funny thing about that: He had paid it. Due to a clerical error by a New Jersey court, the paid fine had not been processed. He found out the hard way what a clerical error can cost.

Florence seemed an unlikely arrestee. A finance manager at a Philadelphia car dealership, he was riding in his BMW, driven by his wife, when she was pulled over for speeding. When police noticed he had an outstanding warrant for not paying a fine from a traffic infraction, he was arrested, even though he had a court document in his possession proving he’d paid it. He’d kept it, he told the New York Times, precisely to prevent this type of mix up. Standing alongside the highway, with proof that he should be free to go, he was arrested in front of his wife and 4-year-old son anyway.

When he arrived at jail, he was strip-searched. When he was moved to another jail in another county, he was strip-searched again. “It was humiliating,” Florence told the New York Times. “It made me feel like less of a man.”

He was in jail for more than a week before he was finally set free when the courts discovered the clerical error. He filed a suit, stating that his Fourth Amendment right against unlawful search was violated.

Despite the obvious incompetence displayed in the arrest and treatment of a non-criminal in this case, Kennedy wrote that the courts “are in no position to second-guess the judgments of correctional officials.” Actually, they are. They are some of the very few in a position to second guess the judgment of corrections officials — particularly in this case. They simply failed to do so.

Citing some of the more dangerous examples on hand, Kennedy noted that prior minor traffic-arrestees-turned-big-fish included terrorist bomber Timothy McVeigh and a 9/11 conspirator. The implication being that since we have examples of arrestees committing worse crimes than those they were arrested for, anyone who is arrested for any reason — even non-criminal reasons — is immediately suspected of being in the act of committing more crimes. So why not strip search everybody who’s put in handcuffs?

Dissenting judge Stephen G. Breyer wrote about his own examples: a nun who was strip-searched after being arrested at an anti-war protest, a driver strip searched after driving with a noisy muffler and a bicycle rider strip searched after riding a bicycle without an audible bell.

In states with some stricter laws, someone could conceivably be strip searched after feeding the homeless, for violating a leash law or for not using a turn signal.

Florence thought police went too far in searching his naked body for drugs and weapons after he was wrongly arrested for a civil infraction he hadn’t even committed. According to the Supreme Court, simply falsely arresting him wasn’t far enough.