`Strip-search’ ruling lacks guidance

By The Des Moines Register

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Law enforcement officials will be disappointed if they were looking for guidance from the U.S. Supreme Court on the matter of “strip-searching” suspects entering jail. The court took on the issue in a New Jersey case but left more questions unanswered than answered.

The court was asked whether the Constitution permits persons brought to jail on minor charges to be stripped and searched. The court ruled that the Fourth Amendment does not bar such searches, but the ruling is frustratingly imprecise about the definition of strip searches and under what conditions they may be unconstitutional.

Fortunately, state law in several states, including Iowa, goes further than this ruling to protect suspects' rights. Iowa law requires that, in the case of minor charges, authorities must have probable cause to believe a person is concealing a weapon or contraband before conducting a strip search.

But state laws can be changed, so the court's strip-search jurisprudence must be considered a work in progress.

The most that can be said is a slim five-justice majority held that persons committed to the general population of a jail may be subjected to a visual-only strip search, even without probable cause that the suspect is carrying weapons or contraband.

Left unanswered is whether that means persons brought in on, say, minor traffic violations could be subject to such a strip search if they are not admitted to the general jail population. Also, the court saved for a future case the question of under what conditions a strip search may include touching by jail officers, such as probing body cavities.

Those unanswered questions caused Chief Justice John Roberts and Justice Samuel Alito to write separate concurring opinions to emphasize that the ruling does not preclude future exceptions.

Unfortunately, Justice Anthony Kennedy's opinion for the majority was not so nuanced. He stressed the need to defer to jailers no fewer than 15 times in his opinion while giving no hint of deference to the Fourth Amendment rights of the accused.

That was left to Justice Stephen Breyer, writing for the four dissenters. He said a strip search - described in this case as a visual examination of the naked body, oral, anal and vaginal openings, arm pits, bottoms of feet and beneath testicles and breasts - is a “serious invasion of that person's privacy.” Such searches are illegal under the Fourth Amendment, in Breyer's view, unless jail authorities have reason to suspect a detainee possesses drugs or other contraband.

Because the majority was not willing to make an exception for minor offenses, anyone taken to jail may be strip searched, even for something as trivial as a seat belt violation that does not even carry a penalty of jail time. An exception could be made for those taken to jail but held separately from the general population until they have been before a judge.

That distinction prompted Justice Alito to write separately to make clear the court did not say strip searches are always reasonable, regardless of the offense. “Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate,” Alito wrote. “In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable.”

Every year more than 13 million people are admitted to jails in this country. Many, if not the majority, are guilty of no crime when they enter. All have constitutional rights. Unfortunately, that is not clear from reading the Supreme Court's strip-search decision.