The right to strip search.
Prepare to disrobe.
Well, not right this moment. But if and when you ever have the misfortune to be arrested, be forewarned: The U.S. Supreme Court has ruled that the police have unlimited power to conduct strip searches of people who have been arrested. No matter how minor the charge. No matter how long you are in custody. If the police want you to remove your clothes and submit to a "close visual inspection," they may require you to do so. They don't even need reason to suspect you might be carrying drugs or weapons in an, ahem, undisclosed location.
In a 5-4 decision that reflected the court's ideological split, the court said Monday a strip search of a person accused of a minor offense does not violate the Fourth Amendment's ban on unreasonable searches and seizures when a detainee is to be housed within a general jail population.
Writing for the majority, Justice Anthony Kennedy said neither the Fourth Amendment's privacy protections nor the 14th Amendment's equal treatment mandate require jail officials to change their policy of demanding strip searches for all detainees. "The search procedures struck a reasonable balance between inmate privacy and the needs of the institutions," he wrote.
Does Kennedy really believe allowing officers to conduct strip searches, which can also involve body cavity searches, strikes a "reasonable balance"? It would be interesting to know if the justice would feel that way if he had been arrested for a traffic violation and subjected to a strip and cavity search.
Kennedy and his conservative colleagues should remember an individual's constitutional rights don't disappear once they're behind bars. As Justice Stephen Breyer noted in a dissent, strip-searches are "a serious affront to human dignity and to individual privacy" that should be used only for good reason.
Citing examples from briefs submitted to the court, Breyer noted that people have been subjected to "the humiliation of a visual strip-search" after being arrested for driving with a loud muffler and riding a bicycle without an audible bell. In one case, a nun was strip-searched after an arrest for trespassing during an anti-war demonstration.
Breyer is right. The court should have ruled that the Fourth Amendment bars strip searches of people arrested for minor offenses not involving drugs or violence, unless officials have reason to suspect that people are concealing contraband.
Thankfully, the ruling does not prevent states from prohibiting such searches and the majority at least acknowledged "that strip searches may still be unconstitutional under certain circumstances." But the ruling remains disturbing, especially given the reality that even the best of police officers can make mistakes.
That's what happened in the case that prompted Monday's ruling. Albert W. Florence was in the passenger seat of his BMW when a state trooper stopped his wife for speeding. A records search, later shown to be inaccurate, revealed an outstanding warrant for Florence's arrest based on an unpaid fine. He was held for a week in two jails and was strip-searched in each. In an interview last year, Florence said he was ordered by jail guards to "turn around," "squat and cough" and "spread your cheeks."
That's what Justice Kennedy calls a "reasonable balance."