If you've never run a red light, never accumulated a bunch of unpaid parking tickets, never missed a final notice in the mail from a bill collector and never had a computer make a mistake about you, then maybe you need not be concerned about the U.S. Supreme Court's strip-search decision earlier this week.
But if you've been in those situations or others like them or can see how easily you might be, you should be very concerned.
What the court ruled in Florence v. Board of Chosen Freeholders is this: If you are arrested for any reason, no matter how innocuous or even absurd, the people running the detention facility may legally require you to strip naked in front of jail personnel and other arrestees and lift and spread your genitalia and excretory openings for visual inspection at close range.
It doesn't matter if you are arrested for a minor traffic violation or if you've never previously been arrested, charged with or convicted of any kind of crime. It doesn't even matter if the arrest itself was based on an out-of-date computer record. Jail intake officers do not need even one molecule of suspicion that you might have something hidden in your most personal places.
According to five justices of the Supreme Court, if you are going to be held with other arrestees or prisoners for even a brief period, your Fourth Amendment right to freedom from unreasonable search is outweighed by how jail administrators want to run their facility. If they want you to strip down and move your body parts around so they can get a good close look, the Constitution now is on their side.
It seems peculiar that the five conservative justices — Anthony Kennedy wrote the majority opinion — felt so obliged this week to defer to the judgment of jail and prison operators, yet appeared so disinclined last week to defer to the judgment of the people's elected representatives about how to structure health care reform.
Still, there were glimmers of hope in the 5-4 majority decision written by Justice Kennedy and in the record of the case. Justice Kennedy noted, for example, that these humiliating invasions of personal dignity might not be constitutional if an arrestee were not going to have much contact with other detainees. However, he wrote, the facts of the Florence case did not offer an opportunity to consider such exceptions.
Chief Justice John G. Roberts Jr. concurred, writing that Justice Kennedy was wise to leave open the possibility of later exceptions "to ensure that we not 'embarrass the future,'" a phrase Justice Roberts borrowed from a 1944 decision.
The briefs filed with the court for this case also make clear that U.S. jailers don't routinely strip-search people held for minor offenses unless the jailers have reasonable suspicion that the arrestee might be hiding something. That's mainly because there is no evidence that such suspicionless searches substantially improve discovery of hidden weapons, drugs or other contraband.
The policies of the U.S. Marshals Service and Department of Homeland Security require reasonable suspicion before allowing a strip search. Eighteen states require it by law. The American Correctional Association, which represents corrections professionals and accredits detention facilities, likewise endorses a requirement of suspicion.
Nevertheless, this week the fears of five conservative justices undermined our personal security. Drive carefully.
Copyright St. Louis Post-Dispatch. Reprinted with permission.