VoteKansas.org

SCOTUS to the People: "Lift 'em and spread 'em."

The Fourth Amendment does not require jail officials to have reasonable suspicion that a person arrested for a minor offense possesses a concealed weapon or other contraband in order to subject him to a routine strip search prior to introducing him into the general jail population. (per BNA) Florence v. Board of Chosen Freeholders of County of Burlington, 2012 U.S. LEXIS 2712 (April 2, 2012) (5-4):

JUSTICE KENNEDY delivered the opinion of the Court, except as to Part IV, concluding that the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions, and thus the Fourth and Fourteenth Amendments do not require adoption of the framework and rules petitioner proposes. Pp. 5-18, 19.

(a) Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems. A regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U. S. 78, 89. This Court, in Bell v. Wolfish, 441 U. S. 520, 558, upheld a rule requiring pretrial detainees in federal correctional facilities “to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution[s],” deferring to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items.In Block v. Rutherford, 468 U. S. 576, 586-587, the Court upheld a general ban on contact visits in a county jail, noting the smuggling threat posed by such visits and the difficulty of carving out exceptions for certain detainees. The Court, in Hudson v. Palmer, 468 U. S. 517, 522-523, also recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions when it upheld the constitutionality of random searches of inmate lockers and cells even without suspicion that an inmate is concealing a prohibited item. These cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities, and that “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters,” Block, supra, at 584–585. Persons arrested for minor offenses may be among the detainees to be processed at jails. See Atwater v. Lago Vista, 532 U. S. 318, 354. Pp. 5-9.

(b) The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of new inmates creates risks for staff, the existing detainee population, and the new detainees themselves. Officials therefore must screen for contagious infections and for wounds or injuries requiring immediate medical attention. It may be difficult to identify and treat medical problems until detainees remove their clothes for a visual inspection. Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process. Additionally, correctional officials have to detect weapons, drugs, alcohol, and other prohibited items new detainees may possess. Drugs can make inmates aggressive toward officers or each other, and drug trading can lead to violent confrontations. Contraband has value in a jail’s culture and underground economy, and competition for scarce goods can lead to violence, extortion, and disorder. Pp. 9-13.

(c) Petitioner’s proposal that new detainees not arrested for serious crimes or for offenses involving weapons or drugs be exempt from invasive searches unless they give officers a particular reason to suspect them of hiding contraband is unworkable. The seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption. Even persons arrested for a minor offense maybe coerced by others into concealing contraband. Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility.

It also may be difficult to classify inmates by their current and prior offenses before the intake search. Jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity. The officers conducting an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete. Even with accurate information, officers would encounter serious implementation difficulties. They would be required to determine quickly whether any underlying offenses were serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics of individual detainees also might prove to be unworkable or even give rise to charges of discriminatory application. To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population. While the restrictions petitioner suggests would limit the intrusion on the privacy of some detainees, it would be at the risk of increased danger to everyone in the facility, including the less serious offenders. The Fourth and Fourteenth Amendments do not require adoption of the proposed framework. Pp. 13-18, 19.

KENNEDY, J., delivered the opinion of the Court, except as to Part IV. ROBERTS, C. J., and SCALIA and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to all but Part IV. ROBERTS, C. J., and ALITO, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

This serves utterly no purpose other than humiliate minor offenders. It will lead some state courts to find their state constitutions provide more protection. I thought Lago Vista was wrong; this just compounds that error. See HuffPo: Lift 'Em and Spread 'Em: High Court Greenlights Search Without Suspicion; NYTimes: Justices Approve Strip-Searches for Any Offense.

Because of the following story, NYC can now humiliate more minor offenders by strip searching them for the hell of it.

The great irony of Florence is that Mr. Florence was strip searched when jailed because of an erroneous record of an unpaid ticket. If his car was searched, he'd have no recourse there, either, because the erroneous record isn't subject to the exclusionary rule. So, what remedy do the people have to protect against careless police and officious bureaucrats who just don't care that you were arrested and searched based on wrong information, but allegedly in good faith? Apparently none, now.

NYTimes Editorial: Examining Marijuana Arrests:

The New York State Legislature showed good sense when it exempted people convicted of low-level marijuana possession from having to submit DNA to the state database, unless they have been convicted of a previous crime. Still, the state must do more to curb the arrests of tens of thousands of people each year in New York City for minor possession of marijuana, despite a 1977 state law that decriminalized it.

KANSAS CITY, Mo. — A Minnesota family and some friends were taking a spring break vacation to see a motocross race when the motor home in which they were traveling crashed in northeast Kansas, killing five family members, a family friend said Monday.

The crash, which also injured 13 people, ...

KANSAS CITY, Mo. — A Minnesota family and some friends were taking a spring break vacation to see a motocross race when the motor home in which they were traveling crashed in northeast Kansas, killing five family members, a family friend said Monday.

The crash, which also injured 13 people, ...

WASHINGTON — Jailers may perform invasive strip searches on people arrested even for minor offenses, an ideologically divided Supreme Court ruled Monday, the conservative majority declaring that security trumps privacy in an often dangerous environment.

In a 5-4 decision, the court ruled against a New Jersey man who was strip ...

WASHINGTON — Jailers may perform invasive strip searches on people arrested even for minor offenses, an ideologically divided Supreme Court ruled Monday, the conservative majority declaring that security trumps privacy in an often dangerous environment.

In a 5-4 decision, the court ruled against a New Jersey man who was strip ...

NEW YORK — When the 1940 census records are released Monday, Verla Morris can consider herself a part of living history.

Morris, who is in her 100th year, will get to experience the novelty of seeing her own name and details about her life in the records being released by ...

NEW YORK — When the 1940 census records are released Monday, Verla Morris can consider herself a part of living history.

Morris, who is in her 100th year, will get to experience the novelty of seeing her own name and details about her life in the records being released by ...

The I-19 checkpoint south of Tucson is a constitutional immigration checkpoint per the Ninth Circuit. Occasionally vehicles are “flushed” through the checkpoint as vehicles build up. When that happens, that does not change the legal standard of suspicion necessary to stop a vehicle for an immigration check. Also, the fact all the officers working the checkpoint are cross-designated as drug officers does not make the checkpoint unconstitutional, despite the fact that 300-400 drug smuggling cases are made there a year. United States v. Ruiz-Perez, 2012 U.S. Dist. LEXIS 44505 (D. Ariz. March 30, 2012), R&R 2011 U.S. Dist. LEXIS 154502 (D. Ariz. October 6, 2011):

Agent Kouris' subjective belief that Defendant's vehicle may be smuggling drugs does not affect the analysis the reasonableness of the stop. Although subjective intent has been considered in evaluating the subjective intrusiveness of a checkpoint stop, the key consideration is the subjective belief of the traveler, not the officer. See e.g. United States v. Hawkins, 249 F.3d 867, 874 (9thCir. 2001) (stating "in some instances, the failure to stop every vehicle could raise concerns over subjective intrusiveness," but finding no Fourth Amendment violation where Defendant was not treated differently from other drivers and no law-abiding motorist would have been unduly surprised or afraid because of this stop). In fact, the Supreme Court has indicated that some discretion and motive is inherent and permissible in routine checkpoint operations. ...

Defendant’s consent was voluntary, with the court evaluating numerous factors. Also, defendant signed a written consent. It was after a protective sweep. United States v. Salgado, 2012 U.S. Dist. LEXIS 44682 (N.D. Ga. March 12, 2012).*

An arrest for trespass at a housing project did not justify a search incident and seizure of the bicycle the defendant was riding. It wasn’t an offense for which there would be evidence. Commonwealth v. Holloway, 2012 Mass. App. LEXIS 162 (March 30, 2012).

Defendant was stopped for suspicion of DUI and his car was searched without a warrant in violation of the state constitution. While the officer did all that he normally could, there is no good faith exception in Washington, and the search should have been suppressed. State v. Tamblyn, 2012 Wash. App. LEXIS 695 (March 20, 2012).*

In an appeal dismissed for lack of a dispositive question, the court added: “Defendant has failed to cite controlling authority, and we have found none, to support his assertion that ‘proof of actual attempts by law enforcement officers to obtain a lawful warrant must be placed on the record before the court may find that exigent circumstances exist.’” State v. Lands, 2012 Tenn. Crim. App. LEXIS 203 (March 29, 2012)

Defendant was visiting a house that was searched under a warrant. His car was in the garage and searched too. It was reasonable for the police to believe that the car in the garage was subject to search with the premises. United States v. Powell, 2012 U.S. Dist. LEXIS 43866 (S.D. W.Va. March 29, 2012):

The scope of a warrant to search an entire property or premises "includes automobiles on the property or premises that are owned by or are under the dominion and control of the premises owner or which reasonably appear to be so controlled." United States v. Patterson, 278 F.3d 315, 318 (4th Cir. 2002). Defendant argues that the searched vehicle at 228 North Queens Court could not have reasonably appeared to be owned or controlled by the owner of the searched property, James Meeks, because the searching officers were aware that the vehicle was registered to someone other than Meeks.

The Court disagrees. Although the vehicle was not registered to Meeks, it could still reasonably appear to be controlled by him, because it was within his attached garage. Courts have long considered attached garages to be part of the home. See Taylor v. United States, 286 U.S. 1, 6 (1932) (warrantless search of garage violated Fourth Amendment); ....

Police were called to an on-the-street argument and saw defendant and a woman. Defendant was questioned by the police, and his speech was slurred and he refused to remove his hands from his pockets. He was arrested for public intoxication and convicted. The police did not need reasonable suspicion to talk to him. Woodson v. State, 2012 Ind. App. LEXIS 140 (March 29, 2012).*

A lot of politicians are worrying about the Constitution these days.

Keith Olbermann and Al Gore find each other unbearable.

PolitiFact Florida: Are lawmakers protected by First Amendment against drug testing? by Katie Sanders:

Miami Herald columnist Carl Hiaasen torched Florida lawmakers for passing a drug-testing bill for state workers that excluded one class of government employees: the elected officials who passed the law.

Hiaasen took particular issue with the proposal's House sponsor Rep. Jimmie Smith, a Republican from Lecanto, and his explanation why the law excludes Gov. Rick Scott and legislators.

"It was found to be unconstitutional to drug test elected officials because it prevents us, as citizens, from having that First Amendment right," Smith said.

Smith's defense is novel — and wrong, it turns out.

Not just wrong: Off the wall. A de jure "speech and debate" defense to drug testing? Come on: That doesn't even pass the laugh test.

Only 10 percent of current union members voted to unionize at their place of employment.

Volokh Conspiracy: Magistrate Judge Rejects Mosaic Theory of Fourth Amendment For Cell-Site Information by Orin Kerr:

I have posted the short opinion (dated March 23) from Magistrate Judge Collings of the District of Massachusetts here. It largely adopts the reasoning of United States v. Graham from the District of Maryland, which I blogged about here. In my view, Judge Collings was correct to issue the order without probable cause for a second reason: The Fourth Amendment questions are not yet ripe for review, as I argue in this amicus brief I filed recently in the Fifth Circuit.

The case generated a lot of attention in the United Kingdom, and some headlines here. One place it didn't seem to register was at the White House.

The statistical gymnastics the Obama administration uses to make the jobless numbers look better than they are.

A day after seven members of a Michigan-based Christian militia were acquitted after some spent two years in jail on charges of trying to overthrow the government, people who watched their trial said the federal case against them was flawed.

Jack Kay, a professor of communication at Eastern Michigan University ...

The Washington Metropolitan Area Transit Authority's policy of forbidding employees from speaking to the media is at odds with a law designed to reduce impropriety at transit agencies by protecting insiders who bring concerns to light, an expert said.

The National Transit System Security Act of 2007, authored by Rep. ...