Expose thyself, all ye who enter jail

by Atty. Emmanuel Samonte Tipon

"Abandon hope, all ye who enter here" is the warning emblazoned at the gates of hell, according to Dante’s Inferno. A similar warning is believed inscribed, albeit invisibly, at the gates of American jails. “Unless you get an excellent lawyer,” is an invisible footnote.

“Expose thyself, all ye who enter jail,” is a new sign that can now be sketched at the entrance to American jails. On April 2, 2012, the United States Supreme Court effectively gave the go-signal for such a sign when it ruled that “strip-searching” of people brought to jail does not violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Florence v. Bd of Chosen Freeholders, No. 10-945, 04/02/12.

Florence was arrested during a traffic stop by a police officer after checking a computer database which showed a bench warrant for his arrest after he failed to appear at a court hearing. At the first jail, Florence disrobed, showered, and was checked for scars, marks, gang tattoos, and contraband. He opened his mouth, lifted his tongue and genitals. At the second jail, he removed his clothes, showered, lifted his genitals, an officer looked for body markings, wounds, and contraband, looked at his ears, nose, mouth, and other body openings. He was released when jailers discovered the fine had been paid.

Florence filed a 42 USC § 1983 action in the Federal District Court against the government entities operating the jails and others, alleging that his rights under the Fourth and Fourteenth Amendments to the U.S. Constitution were violated. He argued that persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband. A summary judgment was rendered in his favor, the court ruling that “strip searching” of nonindictable offenders without reasonable suspicion violates the Fourth Amendment. The Third Circuit of Appeals reversed the decision. The U.S. Supreme Court affirmed.

SAFETY VS. PRIVACY 

Justice Kennedy and four other justices concluded that the search procedure at the jail struck a reasonable balance between inmate privacy and the needs of the institution, and thus the Fourth and Fourteenth Amendments were not violated. Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems. The inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items. The admission of new inmates creates risks for staff, the existing detainee population, and the new detainees themselves. Officials must screen for contagious infections and for wounds or injuries requiring immediate medical attention. The argument that new detainees not arrested for serious crimes or offenses involving weapons and drugs be exempted from invasive searches is unworkable. The seriousness of the offense is a poor predictor of who has contraband.

INVASION OF PRIVACY

Justice Breyer and three other Justices dissented, saying 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. “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution” “A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy.”  It is “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, [and] repulsive, signifying degradation and submission.”

RECOMMENDATION. Don’t commit any offense if you wish to avoid jail and exposing yourself. If you have a court hearing, you must attend it, even though you have paid the fine. Show the receipt to the judge and ask him to dismiss the case so that it will be reflected in the computer.

QUERY:  Since lawyers have to visit clients in jail, can we now be subjected to “strip searches” on the theory that it is necessary to maintain safety?  As an Ilocano lawyer told a urologist wanting to conduct exploratory surgery on his privies to determine why he frequented the bathroom at night “Only my wife and girl friend can see my private parts.” (The lawyer went to another doctor who told him, among other things, to avoid coffee after dinner and it cured the problem. The lawyer won’t say what “other things” the doctor told him to avoid.)

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)