Are body cavity searches constitutional? In the recent Supreme Court, decision Florence v. County of Burlington, the Court ruled 5 to 4 that law enforcement may strip search those arrested for even minor infractions before incarceration, “even if the officials have no reason to suspect the presence of contraband” (Adam Liptak, Supreme Court Ruling Allows Strip Searches for Any Arrest, New York Times, April 2, 2012).

This is not particularly new, as the Supreme Court had previously ruled in 1979 that “visual body cavity searches of all detainees after they had contact with outsiders,” was permissible. In practice, however, lower courts had ruled “the prison had to have a reasonable suspicion that the arrestee was concealing contraband before subjecting him to a strip search upon entering the facility” (Glenn Greenwald, The Obama DOJ and Strip Searches, New York Times, Apr. 3, 2012).

But the Obama Department of Justice and five conservative justices (strange bedfellows) both wanted a blanket, more universal policy. When you have a rule that treats everyone the same you don’t have folks that are singled out. You don’t have any security gaps,” argued Justice Department lawyer Nicole A. Saharsky. So now everyone arrested is subject to possible strip searches on the discretion of law enforcement alone.

The Fourth Amendment to the U.S. Constitution reads in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Clearly the states, who initiated the Bill of Rights as a condition of their acceptance of the Constitution, had had negative experiences with government overreach with respect to “unreasonable searches” and wanted no such practices from the new government they were creating.

The issue of naked body searches for minor infractions came to a head when Albert W. Florence, a passenger in a car cited for speeding, was arrested and detained for an unpaid fine (which, unknown to the arresting officer, he had in fact paid). In the process of confinement over the next week he twice was made to remove his clothing and squat, cough and “spread your cheeks.” He found it humiliating and sued. Certainly he did not feel “secure in his person” as guaranteed by the Fourth Amendment.

He is not the only victim of this practice. Unfortunately, “according to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support.” In his minority argument Justice Stephen G. Breyer “wrote that people have been subjected to ‘the humiliation of a visual strip search’ after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.” He even noted that “a nun was strip-searched…after an arrest for trespassing during an anti war demonstration” (Liptak).

With respect to the Fourth Amendment a list of areas of potential wrongs is sandwiched between the words secure and reasonable, with person being the first area noted. If government can force one to open butt cheeks, he decidedly, is not secure in his person. Also notice the passion exemplified by the words, “shall not be violated.” There is no give on this Justices. If the Founders felt so strongly with respect to their effects, obviously they would have even stronger feelings about their own bodies. As far as I can tell the British government never required a naked search. This is excessive and unreasonable.

So to answer the question, “Are body cavity searches constitutional?” No! Neither the republican dominated justices nor the democratically controlled Department of Justice have any constitutional right from the Fourth Amendment to force body cavity examinations for any purpose, more especially for minor infractions that have nothing to do with contraband. Government must return to the states, as prescribed in Article V of the Constitution, and get ¾ th of the states to agree upon a new amendment that authorizes this practice. In the process there will be much debate and other courses of action found that can work to keep contraband out of our prisons without emasculating the Fourth Amendment of the U.S. Constitution and searching fecal cavities.

Harold Pease

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