Strip Searches For Everyone
by: Mhsu • April 15, 2012 • no comments
InFlorence v. Board of Chose Freeholders of the State of Burlington, the United States Supreme Court decided that the Fourth Amendment permits suspicionless strip searches of every person arrested for any minor offense who is entering a jail's general population. However, Oregon case law and dicta suggest that Article I, section 9 provides strong protections against suspicionless strip searches of persons pre-conviction. See State v. Sanders, 343 Or 35 (2007); State v. Hartman, 238 Or App 582 (2010).
In Florence, Justice Kennedy writing for the majority holds that "courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security." Kennedy's opinion justifies its holding based on the difficulties and dangers of operating jails and detention centers and the need to defer to correctional officials in matters related to jail safety. It should be noted that Kennedy's opinion did leave room to challenge a search if "there is 'substantial evidence' demonstrating [a correctional official's] response to the situation is exaggerated." In addition, Justice Roberts wrote a concurring opinion that leaves open the possibility of exceptions to the holding, and Justice Alito stressed that the opinion is limited to arrestees who are committed to the general population of a jail.
Justice Breyer, writing for the dissent, would have held that "a search of an individual arrested for a minor offense that does not involve drugs or violence-say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor-is an 'unreasonable search' forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband." The dissent points out that those confined in prison have basic constitutional rights. It then analyzes the privacy interest at stake and emphasizes the potential for a person to be demeaned and dehumanized when subjected to a strip search that, for males, involve lifting the testicles and spreading the cheeks of the buttocks, and for females, squatting to expose the vagina.
Luckily, in Oregon, we have Article I, section 9, of the Oregon Constitution. In State v. Hartman, 238 Or. App. 582 (2010), the Oregon Court of Appeals determined that individuals who had not yet been convicted of a felony is entitled to Article I, section 9 protections and any search or seizure must be conducted by warrant or an exception to the warrant requirement. In Hartman, the court ruled that defendant's rights were violated when an officer entered the holding cell where defendant was lodged, removed defendant's boots, and photographed those boots in order to compare the photograph to a boot print found at a recent crime scene. Then there is this important passage from the Oregon Supreme Court in State v. Sanders, 343 Or. 35 (2007):
We think that there are constitutionally sound reasons to distinguish between suspicionless searches of and seizures from the general public and such searches of and seizures from the far more narrowed class of prisoners, probationers, and other conditional releasees who have been convicted of felonies. The first group is made up of presumably law-abiding citizens who are entitled to all the rights afforded by our constitution, but the other is composed of lawfully adjudicated criminals whose proven felonious conduct substantially heightens the government's interest in identifying and monitoring them. That conduct can and does properly carry lasting consequences. It follows that what we may view as constitutionally unreasonable when done to those in the first group we appropriately may view as permissible when done to those in the second.
The court in Sanders determined that collecting blood or buccal samples from all persons convicted of felonies does not violate Article I, section 9 because the government has a heightened interest in identifying and monitoring those convicted of felonies. However, for those that have not been convicted of felonies, the court writes that they are "entitled to all the rights afforded by our constitution." Presumably, the protection against demeaning and dehumanizing strip searches is one of those rights.
