Supreme Court Considers Limits On Strip Searches After Arrest

The Supreme Court Tuesday heard arguments that it is unconstitutional to strip search someone who is arrested without reasonable suspicion that the person might be carrying contraband. The case stems from a 2005 arrest of Albert Florence during a traffic stop. The police computer showed Florence as having an outstanding warrant for failure to pay a fine even though Florence had paid it and had in his possession court documents showing he had paid it.

Nevertheless, the Burlington County, New Jersey police officer arrested Florence, who was held in jail for 6 days before he was taken before a judge who ordered him released. Florence was strip searched in Burlington County and went through the same process after being transferred to Essex County.

In the Court today, Florence’s lawyers argued that the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures, prohibits police from carrying out a strip search or other similarly-invasive search without reasonable, individualized suspicion that the person is carrying contraband.

Lawyers for the two counties argued that such searches are necessary to prevent weapons and drugs from entering the jails, pointing out that someone arrested on a minor offense could pass drugs to a more serious offender after being admitted to the general jail population. Further, they argued that the jails do not have the time or manpower to evaluate each arrestee, and the simple policy of searching everyone is easier to implement.

The Justices all seemed to agree that strip searches should be permissible for some offenders, such as those arrested for violent crimes. Florence’s lawyer argued that the arrest charge could serve as the reasonable suspicion justifying the search, meaning those people could be searched automatically, while police would need to show an additional justification for searching someone arrested on a minor offense.

Justice Stephen Breyer seemed especially skeptical of Burlington’s claim that the searches were necessary. He repeatedly referred to a California study that found that in only one instance, out of 26,000 arrestees, contraband would have been allowed into a prison if the prisons operated on a reasonable-suspicion standard for strip searches.

Even if the Justices agree with Florence that some kinds of searches require extra justification, they will still have to decide which kinds of searches are allowed, and that might be the hardest part of the case. Florence’s lawyer said that it would be constitutional for prison guards to watch a prisoner shower, for safety reasons, but an inspection of the prisoner’s genitals from arm’s length would be unconstitutional. Justice Sonia Sotomayor and others were skeptical of the distinction, asking why it would be fine for a guard to observe the prisoner naked from five feet away but not from two feet away.

One thing everyone—including Burlington’s lawyer—seemed to agree on was that allowing arrests for minor offenses, such as traffic violations or eating food in Washington’s subways, creates a host of constitutional and practical problems. Justice Sotomayor said that arrests for violations like this were “unsettling.” Burlington’s lawyer agreed, but he said the only question before the Court is the treatment of people after the arrest has already occurred.

The case will likely be decided later this year.

Court Looks For Privacy Right In SWAT Team Sexting Case

Does a government employee have a right to privacy in text messages received on a work-issued pager? That question was weighed today in the Supreme Court in a case that may have broad implications for employee rights and privacy rights in the digital age.

The case arose when the Ontario, California police department decided to find out why SWAT team officers were repeatedly going over their monthly message limit. The department requested and received a transcript of all messages sent and received by officers, and they discovered some officers had been using the pagers for personal use and had been sending and receiving sexually-explicit messages. Officers Jeff Quon and Steve Trujillo were referred to internal affairs to determine whether they had been wasting government resources.

When the officers found out the department had looked at their messages, they sued, claiming a violation of their constitutional right to privacy under the Fourth Amendment. Though there is some disagreement on the facts, the officers were apparently informed that they were not supposed to use the pagers for personal purposes and that they would be billed for any overage charges. The department requested a transcript of messages from the pager company after the officers went over their limit for several months.

Under Supreme Court precedent, Fourth Amendment rights are determined by asking whether the person had a reasonable expectation of privacy, but because of the newness of technology the Justices had significant trouble agreeing on what the officers might have expected. None of the Justices were apparently familiar with two-way pager technology, with Chief Justice John Roberts asking how these text messages differed from email. The lawyer for the officer said that while email messages go through the police department's mail servers and are read on a computer, the pager messages stayed within Arch Wireless's systems and were read on a device the officers could take home. "You can do that with e-mails," Roberts responded, presumably referring to Blackberries and other mobile devices. At another point, Quon's lawyer said that the messages go from a pager through Arch's server, not directly pager-to-pager, and that seemed to surprise Roberts and Scalia.

Perhaps the biggest point of contention was whether the police department's policy, which forbid personal use of computers "and all associated equipment" clearly covered the pagers. I'm going to watch for the transcript to get a quote on this, but at one point Roberts compared the policy to the legal terms you see on signs when driving into a parking garage. "We don't say that you are bound by that because nobody reads it," he said.

Quon's lawyers, on the other hand, had a lengthy dialogue with Justice Stephen Breyer about how the department could have figured out whether the pager overage charges were coming from personal use or just higher than expected official use. The easiest way to figure that out, everyone seemed to agree, was to look at the messages themselves. Quon's lawyer suggested that perhaps the department could have handed the transcripts to the officers and given them a chance to redact them before the department counted up the messages.

Several Justices seemed sympathetic to the argument that the officers have a privacy interest in the messages, but the Court may rule that the department's examination was a reasonable action even in light of that interest.

The case, Ontario v. Quon, will be decided by this summer.

Strip Search of Middle School Student Unconstitutional, Supreme Court Rules

By Matthew S. Schwartz — Talk Radio News Service

A 13-year-old girl's Constitutional rights were violated when school officials searched her bra and underpants for prohibited painkillers, the Supreme Court ruled today.

The Court did not go as far as banning school strip searches, but did state that officials must have a justified belief, based on suspected facts, that a strip search will reveal the hidden items.

"Nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear," wrote Justice David Souter in the 8–1 decision. Officials need to fear danger to students, and have a specific reason to look in a student's underwear, "before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts."

Because there was no reason to suspect the drugs presented a danger or were hidden in her underwear, the search violated the Constitution. The Fourth Amendment protects citizens from "unreasonable searches."

The highly anticipated case arose out of events that occurred at the Arizona middle school in October of 2003. Then assistant-principal of the school, Kerry Wilson, called Savana Redding into his office, where he showed her four white prescription-strength ibuprofen pills, and one over-the-counter naproxen pill, all used for pain but banned under school rules. Wilson told her he had received a report that she was giving the pills to students, but Savana denied it and agreed to let Wilson search her backpack.

After finding nothing, Wilson sent Savana to the school nurse, who searched her clothes for pills. Finding none, they then asked her to remove her clothes, pull her bra out and to the side and shake it, and pull out the elastic on her underpants. No pills were found.

Savan's mother filed suit against the the school district and officials for conducting a strip search in violation of Savana's Fourth Amendment rights.

Normally, for a search to be constitutional, a police officer must have "probable cause" to conduct the search. Probable cause exists where circumstances would "warrant a man of reasonable caution in the belief that an offense has been, or is, being committed," in the words of an oft-cited 1925 Supreme Court decision.

But the Court has also recognized that the Fourth Amendment must be applied differently in educational contexts, where schools are responsible for ensuring their students' safety. So in 1985, the Court required a less stringent standard — "reasonable suspicion" — and held that a student search is permissible if it is "reasonably related to the objectives of the search, and not excessively intrusive in light of the age and sex of the student."

The facts in this case did not justify such an intrusive search, the Court held.

"The suspicion of Wilson's was enough to justify a search of Savana's backpack and outer clothing," Souter wrote, adding that most reasonable suspicions would support searches of a student's backpack and outer clothes.

A strip search, however, is "categorically distinct" from a backpack and clothes search, Souter wrote. "Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. … [A]dolescent vulnerability intensifies the patent intrusiveness of the exposure."

Lawyers for the school had argued that the search was no more intrusive than what happens in school locker rooms. But the justices wouldn't buy it.

"Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be," Souter wrote.

The Court also held that the school officials who conducted the search are protected from liability, because it was unclear at the time whether the search violated the Fourth Amendment.

The lone dissenter, Justice Clarence Thomas, believed the search did not violate Savana's Constitutional rights. "The majority imposes a vague and amorphous standard on school administrators," he wrote, calling the decision a "deep intrusion into the administration of public schools."

The case is Safford Unified School District #1 v. Redding.

Government stopping terrorism, but at what cost?

On the subject of datamining and information-gathering to fight against terrorism, Senior Legislative Counsel for the ACLU Timothy Sparapani said the House Homeland Security Committee needs "to conduct real oversight." He said that while "no one objects to the purpose," many have a problem with the "results that are occurring."

At a discussion today in the Canon Office Building in Washington DC, Sparapani called the process of datamining for predicting potential terrorists "a categorical and unmitigated waste of taxpayer dollars." He said that predictive datamining programs are not sufficiently useful because they "will lead to a flood of false alarms." Sparapani added that any program the government uses to fight terrorism must be able to makes U.S. citizens safer in order to justify any "intrusion of privacy."

Former Chief Privacy Officer for the Department of Homeland Security Nuala O'Connor Kelly, remarked that while the government's job to "anticipate and prevent" terrorism is difficult, she said that not enough people in the government were determining whether datamining programs worked. She also chastised the government for ineffectively using "the information it already has."

Fred Cate (Distinguished Professor and Ben Dutton Professor of Law) called the fourth amendment a "paper tiger" against intrusions of privacy for the purposes of stopping terrorism. Cate said that the government should have a "stated purpose" for any datamining, and that the government should ask itself if it can get personal information for people with nothing in their past that would indicate possible terrorism. "There are no rules within the government," stated Cate. Cate added that the "national security exception has become the norm" in regards to potential privacy intrusions.

Supreme Court may rule against drug buy-bust technique

Pearson v. Callahan

The "consent-once-removed" is a doctrine which allows multiple police officers to enter a home once one police officer (generally an undercover officer) is invited in. The question in this case is whether the same doctrine applies to an undercover informer. In this case, an informant told police that Callahan was selling methamphetamine. Police set the informant up with money, a wire, and a signal for officers to enter. The informant went to Callahan's home and bought some meth, then signaled police to come in and arrest Callahan. Callahan argued at trial that his Fourth Amendment rights against unreasonable searches and seizures had been violated.

The lower courts agreed, and the Supreme Court today indicated it might uphold those decisions. Justice Souter took the lead in questioning, pointing out that exceptions to the warrant requirement for searches have in the past been granted due to necessity of some kind; in this case, police had two hours between the informant's contact and when they returned to the house, plenty of time to obtain a warrant. The officers claimed they suspected the meth might be sold or destroyed, so they didn't have probable cause to get a warrant, but Justice Souter incredulously said that was "not a serious answer." While Callahan's lawyer argued that the "consent-once-removed" rule was unconstitutional even in the case of undercover police, the Justices were hesitant to accept that view: Justice Alito in particular expressed concern that police going into a house to protect an undercover office would have to violate the Constitution to do so. Justice Breyer, on the other hand, expressed some doubt about the correctness of the consent-once-removed doctrine, indicating the Court may end up with a 3-way split: some Justices invalidating the rule for police and informants, some keeping it for police but not informants, and some expanding it to informants.