TRI In The News
Government Convenience vs. a Person’s Sense of Dignity
From Vindy.com
Original article available here
Conventional wisdom holds that when conservative justices on the Supreme Court of the United States are forced to choose between individual rights and government power, they err on the side of individual rights.
Try telling that to Albert Florence, who had a Sunday afternoon in March 2005 rudely interrupted by a New Jersey state trooper. Florence, his wife and their four-year-old daughter were quite literally on the way to Grandma’s house for Sunday dinner when Mrs. Florence was stopped for a traffic violation. Florence, in the passenger seat, identified himself as the owner of the BMW they were traveling in.
At that point, the trooper advised Florence that there was an outstanding warrant for his arrest for failure to appear on an old traffic violation. Florence explained that the fine had been paid, but that the warrant hadn’t been cleared from the computer. He even carried a letter to that effect and showed it to the trooper. The trooper remained unconvinced, and Florence was taken to jail.
Logic would suggest that such a misunderstanding could be quickly resolved, even on a Sunday, rather than lock up a man who had done nothing more than ride in his own car while his wife committed a traffic violation. But logic does not always prevail.
Several very long days
It took several days before the record was corrected and Florence released, and during that time Florence was subjected twice to the indignity of a strip search. And it was those strip searches, not the wrongful arrest or detention, that brought Florence to the Supreme Court of the United States.
The premise presented to the court by his lawyer was straightforward. Under the Fourth Amendment to the Constitution, which prohibits unreasonable searches or seizures, an American citizen should not have his or her privacy violated by a strip search without good cause. Someone arrested during a violent encounter might give jailers cause to worry for their safety. Someone arrested on a drug possession charge might be reasonably suspected of harboring contraband in a bodily crease or cavity. But someone with no record of drugs or violence arrested while going to Sunday dinner at his mother-in-law’s house did not provide probable cause for an invasive strip search.
And the procedure, as described by Justice Stephen Breyer in his dissent is invasive. It involves a visual inspection of the inmate’s naked body. A man must spread and/or lift his testicles to expose the area behind them and bend over and/or spread the cheeks of his buttocks to expose his anus. Women must squat to expose the vagina.
Millions are at risk
Every year, 13 million people are booked into U.S. jails. And now, according to the Supreme Court, each is subject to such an examination – career criminal arrested for a bank robbery and mother arrested for driving without her children being seat-buckled alike. Some states have laws prohibiting blanket strip searches and good for them. But with the Supreme Court now announcing that anyone and everyone can be strip searched at the time of arrest, it’s not hard to guess which way the trend will be going.
John W. Whitehead, a constitutional attorney and founder of The Ruthersford Institute, a libertarian think tank, makes an interesting observation: “Frankly, I doubt that Anthony M. Kennedy, John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — the five justices who seemed to have no trouble inflicting such humiliations on the populace — would be inclined to condone such dehumanizing treatment were there even the slightest possibility that they might be subjected to it. It is a testament to the elitist mindset that prevails in our judicial system today that these five men can rest easy knowing that they will never be subjected to any such violation of their persons.”
In that context, the danger in this finding by the court is twofold. It not only shows that the court is willing to subvert the intent of the Fourth Amendment in the name of government expediency; it also promotes the perception that the court has lost sight of what its rulings may mean to millions of average Americans.
