THE BLOG

Strip Searching Americans Without Cause: A Blow to Personal Privacy

Jun 06, 2012 | Updated Aug 06, 2012

Say what you will about police strip searches, they're invasive and degrading. They require individuals to undress and submit to a thorough visual examination. They often span many minutes and are performed under the watchful eye of multiple officers and, in some cases, other detainees. They have repeatedly been shown to cause indignation, shock, and trauma, not to mention, shame and humiliation.

Yet, in a 5-4 decision this term, the Supreme Court upheld the authority of jail officials to strip search individuals arrested for minor offenses absent even an iota of suspicion. Any other rule, the high court suggested, would be "unworkable" in protecting the nation's jails from disease, gang violence, and contraband.

The overwhelming evidence belies the Court's assertion. Numerous states and correctional agencies, including the U.S. Marshals Service, U.S. Immigration and Customs Service, and U.S. Bureau of Indian Affairs, in fact, prohibit suspicion-less strip searches. Instead most require that officials have facts suggesting that an individual might be carrying drugs or weapons prior to performing an invasive search. Reasonable suspicion, as it's often called, gives officers considerable discretion, allowing them to consider the background of the offender, the type of crime, and the facts of the arrest, when deciding whether to perform a strip search. Details that might ordinarily elude an everyday bystander including subtle attempts at concealment, excessive anxiety, even an awkward gait, are weighed appropriately by specialists in the field.

The success of these states and agencies in protecting inmate populations from security and health risks isn't surprising. In briefs submitted to the Supreme Court, community violence experts and physicians repeatedly denied the necessity of suspicion-less strip searches, arguing that they fail to curb gang activity and the spread of disease. Gang tattoos, they suggested, are usually publically visible and often appear on multiple parts of the body, while detection of skin infection requires a bona fide medical test administered by a trained professional.

Nor will strip searching minor offenders derail the smuggling of contraband. This is because officers are already permitted under existing law to pat-down all arrestees, a practice usually sufficient in determining whether an individual is carrying drugs or weapons. Individuals arrested for minor offenses after all are typically taken by surprise leaving little time to hide contraband in their body cavities.

Statistical evidence bears this out. Over a five-year period, the Nassau County Correctional Center in New Jersey strip searched all new detainees, performing a total of 75,000 searches. Only 16 searches uncovered contraband. In 13 of those searches, contraband was found in either the prisoner's shoes or outer clothing, and would have been detected in a pat-down. Drugs were found underneath clothes or inside body cavities in just three cases. In each of those cases, the suspect had a drug history or a prior felony that would have supported a strip search based on reasonable suspicion.

Recent history also demonstrates that jail officials exercise poor judgment when afforded unfettered discretion. Minor offenses that have subjected individuals to the shame and degradation of a strip search include speeding, not using a turn signal, not paying parking tickets, and violating a dog leash law.

Civil rights aren't absolute. But they sure are close. The Constitution guarantees that they be protected unless an important interest justifies their infringement. That's why courts are so important. They are the guardian of last resort, the last check against those that threaten our liberty. They can humble a reckless municipality, even an overreaching president.

So, when our nation's highest court decides that citizens can be stripped of their dignity and self-respect without a grain of suspicion, it should cause every American to pause. When it lets a hypothetical threat contradicted by statistical and expert evidence to justify the shock and humiliation of a strip search, it should cause every American to grumble. And, when it considers a policy that is embraced by states and others as unworkable for the rest of the country, it should cause every American to gasp. Our guardian has lost its way.