All Your Cavities Are Belong To Us

Monday, April 2nd, 2012

The Supreme Court gives the thumbs-up (sorry) to strip searches for any arrest, including misdemeanors. Examples cited in the briefs included violations of leash laws and unpaid parking tickets.

The five conservative justices who made up the majority cited public safety and terrorism, among other justifications. That they don’t think this will be routinely abused as extra-judicial punishment for contempt-of-cop, having brown skin, or some other imaginary infraction is more evidence of how these decisions are continually undermined by the fact that only two justices on the current Court have any criminal law experience, and none have any experience in criminal defense. (The last Supreme Court justice who did any criminal defense work was Thurgood Marshall, who retired more than 20 years ago.)

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52 Responses to “All Your Cavities Are Belong To Us”

  1. #1 |  BamBam | 

    One more reason to never clear your ass and taint.

  2. #2 |  BamBam | 

    clear=clean

  3. #3 |  Scott Lazarowitz | 

    When one of Justice Scalia or Justice Kennedy’s granddaughters tells him of being strip-searched for parking violations, the justice might then regret his vote.

    It may take personal experiences to get these lettered imbeciles to have some common sense of what liberty is all about.

  4. #4 |  Fay | 

    I’m so glad we re-elected GWB so we could get more of these “smaller, less intrusive government” conservatives onto the Supreme Court. Freedom is on the march!

  5. #5 |  Warlord | 

    Degradation by cop. Just like TSA, the people must be subdued for safety,and their own welfare. Just a little bit more control by threat
    of humiliation.

  6. #6 |  Burgers Allday | 

    This was entirely predictable as soon as the Ninth Circuit case came down a couple years ago.

    The dissent in that case (Kozinski’s I think) is the only thing I consider as required reading on the strip searching of arrestees issue.

    But, it was clear at the time that the dissent in the Ninth Circuit was going to end up being the dissenting side when the issue hit SCOTUS.

    PS: I realize that the Ninth Circuit case is not the same case that ended up being “granted cert” and decided by SCOTUS. Still, I am firmly convinced that the Ninth Circuit opinion is what got the Supemes moving on this issue so quickly (there hadn’t been many strip search abuses between 1980 and the time the Afghanistan war vets started coming back for combat training and/or combat — then suddenly there were multiple cases in each circuit.)

  7. #7 |  Burgers Allday | 

    One thing people need to realize. the black (IIRC) plaintiff was arrested for an unpaid fine that he had already paid, and he had documentation in his vehicle from the court that the fine had been paid.

    In this case, there wasn’t just no crime, but there was avery very probable affirmative reason to believe that no crime had been committed. Probable cause wasn’t just absent, it was negated.

    If SCOTUS is okay with a strip search occasioned by an invalid (and downright ridiculous) arrest, then getting strip searched for at least not wearing your seatbelt begins to seem like a good deal. Better than getting strip searched for no crime, like in the “present” case under discussion.

  8. #8 |  Supreme Court: Strip Searches Always Permissible | 

    [...] Radley Balko observes that “these decisions are continually undermined by the fact that only two justices on the current Court have any criminal law experience, and none have any experience in criminal defense. (The last Supreme Court justice who did any criminal defense work was Thurgood Marshall, who retired more than 20 years ago.)” Tweet FILED UNDER: Crime, James Joyner, Law and the Courts, Quick Picks, US Politics [...]

  9. #9 |  Whim | 

    When Ruth Bader Ginsburg, Elena Kagan or Sonia Maria Sotomayor get arrested and hauled in, then forced to totally strip, and then Squat and Cough so that their respective vagina and anus can be visually inspected by a cretinous stranger, then this will be the end of the strip search gratuitous humiliations inflicted by jailors.

    On the other hand, every gratuitous humiliation inflicted on the American public by the Oppressors and their agents serves a useful purpose:

    Lifelong hatred of the Oppressors and their agents engendered by the actions of the Oppressors.

    P.S. Don’t forget to fart.

  10. #10 |  Radley Balko | 

    When Ruth Bader Ginsburg, Elena Kagan or Sonia Maria Sotomayor get arrested and hauled in, then forced to totally strip . . .

    All three were on the correct (but losing) side in this case.

  11. #11 |  Burgers Allday | 

    @9: all three of those justices wrote in the dissent.

    Anyone remember when Sotomayor was supposed to be a bad pick because she had too much “empathy”?

    Full disclosure: I thought she was going to be bad bcs she was a prosecutor and further bcs Biden sed she had copz backs — shee has turned out not bad, and my prediction was incorrect.

  12. #12 |  Personanongrata | 

    That they don’t think this will be routinely abused as extra-judicial punishment for contempt-of-cop, having brown skin, or some other imaginary infraction is more evidence of how these decisions are continually undermined by the fact that only two justices on the current Court have any criminal law experience, and none have any experience in criminal defense.

    While the currrent supreme court may not have any justices experienced in criminal defense, it most certainly is staffed with justices practised in the lowly-art of legal-contortionism where jurisprudence and precendent are twisted into ever tightening knots of ideological-hypocrisies.

    Pretzel-logic.

  13. #13 |  Bob Mc | 

    Most of the contraband in jails is brought in by corrupt guards.

    Does this mean all the jail employees will now be subject to strip search?

    I mean if “There is a substantial interest in preventing” anybody, “either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk”, then why exclude the one group that has historically been the most likely to introduce contraband from this preventative measure?

  14. #14 |  Coises | 

    Isn’t the glaring problem here the *arrest*, not the subsequent search?

    According to http://www.nytimes.com/2011/03/08/us/08bar.html this man was held for eight days for something that was not chargeable as a crime… and which, as it turns out, he didn’t even do, which the state *should* have known.

    For whatever reason, I guess his attorneys decided the strip search was the thing to pursue in court, so that’s what led to a ruling.

    To anyone who has ever been inside a jail, it should be obvious that the search makes sense. (Absent probable cause, anything found in such a search should not be admissible as evidence in a criminal proceeding, but that’s a different question.) What doesn’t make sense is that the guy went to jail *at*all*.

  15. #15 |  Difster | 

    We’re suddenly going to see police departments all over the country strip searching everyone they arrest unless state laws are passed to prevent it.

    By the way, the “Thumbs Up” pun was awesome.

  16. #16 |  Burgers Allday | 

    Isn’t the glaring problem here the *arrest*, not the subsequent search?

    One recent trend is that courts sometimes now allow policeman and their dispatchers to ignore all exculpatory evidence when determining probable cause in the field. My guess is that is what happened here — the lower court probably said (or at least hinted to counsel) that the police man is legally entitled to ignore that letter from the court as he hauls you in to jail.

    This is basically the same as when Sgt. Crowley was allowed to ignore exculpatory evidence when breaking into Professor Gates’ house and then arresting him on his front porch. The caller said that SHE didn’t think the men were breaking in the house (an unidentified old lady with no phone thought that). the caller apparently tried to intercept Crowley on his way to the front door of the house (he dismissed her summarily) — probably to re-iterate that she didn’t think there was a problem. But, the point is that evryone expected that if the case ever got to court then the evidence pointing away from Professor-Gates-as-burglar amounted to exactly zero. And, frankly, if you ignore all the evidence that Gates was not a burglar it really does begin to look like he probably was a burglar, so the law makes sense to the extent that makes sense.

  17. #17 |  Len | 

    The reasoning is actually sound here, the problem here is that people should not be arrested for most of these “offenses”. Leash law, really??

  18. #18 |  Jamie | 

    @17-

    The reasoning is not sound. You live with the laws you have, not the ones you pick and choose. Kennedy chose to allow strip searches for people who did not even commit crimes. (We knew the other four would.)

    Welcome to the land of the free.

  19. #19 |  Judas Peckerwood | 

    “…only two justices on the current Court have any criminal law experience, and none have any experience in criminal defense.”

    Didn’t realize that. We are so fucked.

  20. #20 |  CyniCAl | 

    #3 | Scott Lazarowitz — “When one of Justice Scalia or Justice Kennedy’s granddaughters tells him of being strip-searched for parking violations, the justice might then regret his vote.”

    Lulz. That was the funniest thing I’ve read in a while Scott. As if some little white girl (privileged or not) would have to worry about being strip-searched!!!!

  21. #21 |  CyniCAl | 

    I too agree that the primary matter is the wrongful arrest. It made no sense to challenge the strip-search.

    Assuming the facts of the case are not in dispute (and wouldn’t they have to be for it to go all the way to the Supreme Court?), the arrest was clearly wrongful. Why no suit? Why the strip-search suit?

    The people under U.S. jurisdiction are now worse off for this suit having been brought. Strip searches are now codified procedure and the cops know it.

  22. #22 |  Burgers Allday | 

    I too agree that the primary matter is the wrongful arrest. It made no sense to challenge the strip-search.

    You can’t go after the “database error” because those aren’t considered as the fault of the police or the government, but as something more akin to an Act Of God.

    If you go after the police based on the letter from the court, then the police will argue that they can ignore exculpatory evidence, including that letter. Police will probably win on that theory, too.

    Then there are other factors to consider. Did the plaintiff “act the fool” when handing over the letter? If so is there dashcam? Did the letter look legit? Why would the court issue the letter and not clean the database it is responsible for maintaining. Do you really want to go in there and tell the judge that it is actually the judge’s team (and not the police) who did the biggest messups in this mess of messups? I wouldn’t!

    Also, at the time this case was brought, strip search 4a law was much, much more favorable to section 1983 plaintiffs.

    What I am trying to say is there we are in no position to second guess the litigation strategy here. You can’t get that kind of a basis just from reading the opinions.

  23. #23 |  Puzzling | 

    I think this becomes the biggest escalation in preferred methods of extra-judicial punishment since the Taser.

  24. #24 |  CyniCAl | 

    Understood, Burgers. Thanks for the clarifications. So they went the only route they felt they had a chance on. Thought I read they might try the wrongful arrest next.

  25. #25 |  Danny | 

    Notice that the Obama administration was on the wrong side of the argument, but the liberal justices were on the right side of the argument.

    This happens a lot in civil liberties cases, and it’s the main thing that the “Libertarians” don’t get about liberal voters and the Supreme Court: we know that the more liberal presidents are more likely to nominate the good judges, even if the more liberal presidents can’t themselves be counted on to make the good arguments in court.

    In other words, if you want judges who will stand up for people who have been railroaded by prosecutors, bullied by traffic cops, strip-searched for non-offenses and had their homes smashed up by SWAT teams, you can’t let conservative Republicans have control of the judicial selection process.

    Granted, you can’t count on the liberals to strike down the individual mandate or keep a row of tract houses from being eminent-domained for a solar panel factory. So, you have to make a choice — which is more important:

    Clearing the way for DNA exonerations? …Or judicially-roadblocking the imminent broccoli mandate?

    Keeping first-graders from getting tasered? … Or chipping away at Wickard?

    Applying Section 1983 effectively against police brutality? …Or making sure that Exxon gets to lard Citizens-United cash onto its favored political candidates with pre-dividend profits?

    2012 is going to be a very big deal for the judiciary, and for the nation overall, and Libertarians are going to have to grapple with the concept that is toughest for them: priorities. They can sell their souls again for the usual thin gruel of tax cuts that are never paid for and a deregulation bonanza that never happens…

    … or they can stick to the slow, boring and incremental work of putting judicial review on the side of basic human and civil rights.

  26. #26 |  Ian | 

    Funny that this should come when progressives were mad that the court’s conservatives were being too activist, and overriding the people’s will. Here’s a great example of the court’s conservatives refraining from overriding the “will” of the people (as expressed through the elected oversight of law enforcement agencies) and the liberal wing is unabashed and willing to substitute their judgement for the judgement of the people. As well they should be, of course, I’m just tired of liberals and conservatives pretending to hate on judicial activism whenever a court case overrides a decision by voters or officials that they favor. A case was either rightly or wrongly decided, the law or policy is either constitutional or unconstitutional. Rational basis is an embarrassingly low bar to clear and should be sufficient assurance that the will of voters is being respected. If you think courts are interpreting incorrectly, quit whining and elect some senators and presidents. And I say this as someone very unlikely to elect a senator or president whose judicial philosophy I agree with.

  27. #27 |  rapscallion | 

    Only a matter of time now before someone gets taken to jail and probed in every orifice for filming the police.

  28. #28 |  Ian | 

    Oh, just saw your comment Danny. I agree. I really would like to see federalism make a comeback. But finding the NDAA unconstitutional would be much more important. Problem is, I see Romney as unlikely to appoint anyone willing to roll back on Gonzales v. Raich, let alone Wickard. And Obama’s the guy who signed the NDAA. Does anyone know how Kagen and Sotomayor voted on the case where they denied al-Awlacki’s father the standing to sue?

  29. #29 |  Burgers Allday | 

    Only a matter of time now before someone gets taken to jail and probed in every orifice for filming the police.

    This has almost certainly happened many times over.

    For every videography arrest we hear about there are still probably 100 that we don’t hear about. There are many, many people in this world whom you would have no idea have been arrested because they simply don’t share that info out of a sense of privacy.

  30. #30 |  Bill Roberts | 

    Being a corrections officer at a county jail myself, and speaking only for the jail where I work, I can tell you that body cavity searches are very rare. At no time is anything inserted into the cavity during the search. And when something is detected (or suspected to be there), the person is taken to a local hospital to have the object extracted.

    Strip searches are also seldom used, but the way we search everyone coming into the jail, they really are not needed. If something is hidden in the crotch, sewn into the clothing, or anything else, we’ll find it. It’s certainly not a pleasant experience for the person being searched, but that’s the way it goes. And it doesn’t matter if the person has been arrested for mass murder or for jaywalking, the search is conducted the same way. That’s because the person conducting the search DOES NOT KNOW WHY THE PERSON WAS ARRESTED.

  31. #31 |  Len | 

    Jamie according your flawed logic, we then also live with the decisions made by SCOTUS, forget whether a law actually protects person and property. One could then argue that were a law allowing the police to publicly beat anyone mouthing off to them, then we also live with that.

  32. #32 |  Burgers Allday | 

    That’s because the person conducting the search DOES NOT KNOW WHY THE PERSON WAS ARRESTED.

    This is kind of unrelated, but I was wondering if I could buy the Brooklyn Bridge off you. I would like to collect a toll, so I am willing to pay a whole lot.

    More seriously, they may not know the jaywalkers from the loiterers, but they know the murderers from the jaywalkers. We don’t need to work at a prison to know thatWe weren’t actually born yesterday.

  33. #33 |  Chris in AL | 

    FTA: “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

    How did this fucking idiot get on the Supreme Court? So, is he advocating strip searches for speeding tickets or insinuating that the hijacker had the plans for the entire Sept 11 attack in his ass on Sept. 9th?

  34. #34 |  Other Sean | 

    Don’t be fooled #25. As with any political body, there’s a ton of posturing on the court. Lefty justices will line up against something like this when they know its already got the requisite 5 votes. Rightish justices like Thomas and Scalia will take the occasional brave stand when they’re safe in the expectation that its 7-2 against their position. What neither seem anxious to do, is cast a genuinely decisive vote on an issue which is not heavily prejudiced one way or another.

    If there was any danger in this case that the state might actually lose its power to treat all arrestees like convicts at will, Kagan or Sotomayor or Ginsburg would surely have found their way to the other side.

  35. #35 |  Burgers Allday | 

    If there was any danger in this case that the state might actually lose its power to treat all arrestees like convicts at will, Kagan or Sotomayor or Ginsburg would surely have found their way to the other side.

    the whole reason that the states thought they were forbidden from strip searching was a SCOTUS decision from 1979 called Bell v. Wolfish.

    Are you saying that SCOTUS now is different than SCOTUS then?

    Until two years ago, the smart money was that searches like this were illegal. That is why there was so little data on how often suspicionless prison admittance searches find contraband there weren’t many. And the whole reason that there weren’t many was US supreme court, class of 79 (this was during Carter’s first term).

  36. #36 |  Matt I. | 

    28 -> 33:

    Exactly. There is a remarkable trend of Supreme Court decisions allowing something being followed by that same thing becoming routine within a few years, see: DUI Checkpoints, Warrantless data interception.

    I mean, it’s pretty much over now isn’t it? After all, this is the same court that has ruled that the police can make ‘innocent mistakes’ to gather evidence and prosecute people. It’s the same court that’s then ruled that you have no recourse to sue the city, police or prosecutors who did this to you, and that you have no recourse to even find out any of the policies that put you there.

    As a matter of fact, if you didn’t know, just TODAY along with the strip search opinion, the court issued an opinion in Rehberg v. Paulk saying that the police are basically immune from any civil liability for flat out lying to the grand jury in order to put you in jail.

    The way I see it. Police at this point could randomly issue warrants on ANYBODY they don’t like and arrest, strip search, hold without access to legal counsel that person. What are they going to do? They have no recourse to even find out what put them in jail, as long as the police claim it was a ‘clerical error’.

    I am really scared.

    I mean,

  37. #37 |  Whim | 

    I look forward to the day when the granddaughter of one of the SUCO justices tearfully relates to one of the five YES vote justices their jail strip search.

    Including relating vivid details of the ubiquitous squat, spread and cough requirement to inspect their vagina, subsequent to an arrest for some minor misdemeanor.

    It would be a priceless epiphany for the SUCO justice.

  38. #38 |  Burgers Allday | 

    So, is he advocating strip searches for speeding tickets or insinuating that the hijacker had the plans for the entire Sept 11 attack in his ass on Sept. 9th?

    Of course this is layered onto the absurdity that law enforcement has Moussoaui’s laptop, which probably did have the plans on it (although they haven’t actually come out and sed that yet).

  39. #39 |  Other Sean | 

    But that’s just it Whim…part of what makes all this madness possible is the class element in crime and criminal justice these days. The type of person who makes it to the supreme court can’t even imagine what it would be like to have a family member arrested and charged. That’s some misfortune which only visits white trash and blacks without advanced degrees.

    Even if one of their kids did get picked up, it would happen in some small county or municipal department where things aren’t too bad once they’ve established “who you are”. Their brats would never get arrested in one of the major city nightmare factories, where people find out everyday just how little the constitution can do to protect them.

    (Also, Just a couple of things to answer #33: 1. There is no “smart money” anymore, especially not in the realm of constitutional or criminal law. The system is too absurdly non-objective for anyone to predict what it will do next. 2. Of course the court today is different than the court in 1979. That was pre drug war hysteria, pre terror hysteria, etc.)

  40. #40 |  bob ABBOT | 

    it was reported yesterday that 4 8 & 9 year olds were arrested at school for fighting, in Baltimore and put in jail for 12 hours. According to the SC it is OK to strip search them

  41. #41 |  Strip Search Sammy Comes Through For Authoritarianism - Lawyers, Guns & Money : Lawyers, Guns & Money | 

    [...] “the kind of logic that can turn a democracy into a police state.” More from Balko and [...]

  42. #42 |  Boyd Durkin | 

    I encourage our overlords to begin arresting everyone (since everyone is a criminal thanks to the millions of laws) and strip searching us all. Maybe, just maybe, it’ll hasten the revolution.

    Countdown begins on the first rape committed by police who claim it was just a search.

    America #1.

  43. #43 |  Boyd Durkin | 

    …it’s the main thing that the “Libertarians” don’t get…liberal presidents are more likely to nominate the good judges

    I love this format…every time I see it. Lemme try:

    Here’s the thing “Liberals” don’t get, but libertarians are extraordinarily gifted at understanding: this is all theater. Your definition of “good” is different than someone else’s and depends on what issue you are discussing. Your clown in a suit is no better than the other team’s clown in a suit and you have a hard time admitting that.

    and Libertarians are going to have to grapple with the concept that is toughest for them: priorities.

    “Liberals” just don’t get it (and this is why they are never taken seriously and laughed at routinely…er…in academia). What every libertarian learns at a very early age is government is the problem, not the answer. So, libertarians rightly (and smartly) don’t sit on their hands or bury their heads in the sand like “Liberals”. Instead, they set about championing all that is righteous and good for people…but especially libertarians fight for the children.

    Reading these posts is like reading mad libs templates. OMG! “Mad Libs” = “Mad Liberals” = Use Templates. Mind blown.

  44. #44 |  Boyd Durkin | 

    If you think courts are interpreting incorrectly, quit whining and elect some senators and presidents.

    LOL. The answer is to vote! Or, maybe sign a petition and send a strongly worded letter to my Congressman.

  45. #45 |  timb | 

    Here’s a great example of the court’s conservatives refraining from overriding the “will” of the people (as expressed through the elected oversight of law enforcement agencies)”

    This is insane. Congress is directly by the People. Executive branch decisions at the local level are made by bureaucrats who may or may not be elected and, in any event, have about as much to do with their elections as the weather in Bali does.

    Put it this way, in 2008 a Congressional majority and a President were elected and one of their main promises was to reform health-care insurance. No Chief of police, sheriff, or mayor in America ran on a platform of “Increasing strip searches.”

    The idea that internal policies enacted with no input from the People represents direct democracy sort of makes one wonder why Ian was screaming “Kill the Bill” in a tri-corner hat instead of defending us where are liberty from arbitrary state power is actually in danger.

  46. #46 |  Boyd Durkin | 

    Put it this way, in 2008 a Congressional majority and a President were elected and one of their main promises was to reform health-care insurance.

    Dem-Congress and Obama were elected to collectivize health care, not reform health care insurance.

  47. #47 |  Jay | 

    #33-

    I can understand a strip search where there is a possibility of bringing in contraband to the facility, but not to this extent.

    Not surprising you didn’t mention the fact that your peers are the biggest source of bringing contraband into prisons. Kind of makes the statement, ‘there are no good prison guards (or cops), just bad ones and those who cover up for them’.

    I have a brother who had a pill in his pocket when arrested for public intoxication. Since they couldn’t (read: refused) to acknowledge it was an advil, he was strip searched at lockup.

    Also, bending over, spreading your ass cheeks with your hands, then coughing, while someone with gloves and a flashlight watches, is over the line. That’s what you call a ‘strip-search’ right?

    Can you explain ‘the way you search’ and how a strip search is then not needed? Is it because they’re the same thing?

  48. #48 |  lynfree | 

    Forget about karma catching up with these justices or anyone in their family. Judges, justices, and others with clout don’t get hassled by the police. They’re the elites. They don’t deal with law enforcement in the same way we do. It is sick that people would want to strip search & otherwise degrade human beings for slight infractions. This country’s police state is obscene.

  49. #49 |  Bergman | 

    Did the SCOTUS decision specify police arrest, or did it actually say any arrest?

    Would be interesting if the justices would be so in favor of strip searches if their ruling didn’t make the distinction. Watch the ones who voted for it until they break a law that a citizen’s arrest can be made for, then strip them down for “citizen safety.”

    Re: Chris in AL, #33:

    And to make the stupidity worse, all that that hypothetical strip search would have uncovered would have been, at worst, a box cutter. Which is legal to possess.

  50. #50 |  Heron | 

    @ 36: Yup. What’s really infuriating in Scalia’s typical defense of this trend; “It makes less paperwork for judges.” Due Process is less important than municipal filing policy to these people.

  51. #51 |  M | 

    Best damn headline I’ve seen in a while, thanks RB

  52. #52 |  CharlesWT | 

    How To Conduct a Strip-Search: A top-to-bottom guide.

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