Defense attorney explains confusion over high court's strip search ruling

CEDAR RAPIDS - A Cedar Rapids defense attorney says a U.S. Supreme Court ruling this week which allows any person arrested for a minor offense to be strip searched before being booked into jail is "bad but not as bad as it could be."

Dave O'Brien, of Willey and O'Brien, said the court's 5-4 decision, which would subject a person with even a traffic ticket or driving without a license, to a strip search without reasonable suspicion of contraband, has caused some confusion about who could be affected. The ruling applies to any minor offender who will be admitted to the "general population" of a jail after they have gone before a judge.

"Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed," Justice Anthony Kennedy wrote Monday.

O'Brien points out this ruling doesn't include minor offenders who are detained waiting to see a judge. Those offenders usually aren't put into the general population. Iowa Code 804.30 forbids strip searches of those in custody for routine traffic violations or simple misdemeanor unless there is probable cause to believe a person is concealing a weapon or contraband.

"If they're going into the general population, then they (jail officials) probably have a stronger argument - there's the possibility they could bring in contraband," O'Brien said.

Strip searches in minor crimes are forbidden by statute in many other states and are against policies of federal authorities, according to a supporting brief. Atlanta, San Francisco and Philadelphia appeals courts recently ruled to allow strip searches for minor offenders being admitted into the general jail population. But several other appeals courts have ruled searches were only proper if there was reasonable suspicion of contraband.

While the Iowa statute provides some protection, it may not prevent a strip search of someone being admitted into the general population of the jail, according to this ruling.

Even the Iowa statute has proven fallible. O'Brien knows that better than most. He defended two former Cedar Rapids school teachers who were arrested during a President George W. Bush rally in 2004. The two women were illegally strip searched after being detained at the Linn County Jail.

Evidence during a federal civil trial in 2009 showed a jailer went against the jail's policy and the Iowa statute by strip searching the women for the minor offense. After two trials, many arguments and motions and a successful 8th Circuit appeal in 2010, the women were finally awarded $440,385 plus attorney fees.

O'Brien has another case involving a woman arrested for OWI in Woodbury County, who was strip searched and paraded naked in front of some of the jail personnel. She was only being detained and hadn't seen a judge, but the jail officials didn't follow the statute. Damages were awarded to the woman but the case will be retried because jurors didn't follow the jury instructions on damages. The retrial was put on hold until this ruling was made in the event it would affect this case.

Ben Stone, executive director of the ACLU of Iowa, said Tuesday in a news release the ACLU will fight any attempts to alter the Iowa law regarding strip searches of minor offenders because of this decision. He said the ruling was "shocking" and "truly appalling."

"It will enable police and jail personnel in most states to search the body cavities of protesters taken into custody for simple trepass - a practice which has profound and grave implications for freedoms protected by the First Amendment," Stone said.

Monday's ruling came from a 2005 case involving Albert Florence in New Jersey who was a passenger with his wife and child on their way to dinner at his parent's. A state trooper pulled his wife over for speeding and a records search showed an outstanding warrant for Florence's arrest on an unpaid fine.

Florence had paid the fine and showed the receipt to the officer but the officer said he would still have to take him in.

Florence was then held in jail for seven days and strip searched twice. The state later admitted it hadn't properly purged the arrest warrant. Florence sued, contending strip searching a person arrested for a minor offense violates the Constitution's ban on unreasonable searches.

The court concluded the Fourth Amendment's prohibition of unreasonable searches doesn't forbid jail or correctional officials from conducting a strip search because they must consider the possibility of smuggled weapons and drugs, and public health, according to the ruling.


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