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When is it legal to strip search a criminal suspect?

When is it legal to strip search a criminal suspect?

Being subjected to a strip search can be embarrassing and extremely unpleasant, but strip searches are one way that law enforcement ensures they have discovered all hidden evidence and to prevent the passage of contraband in jails and prisons. While most of us don't like to think about it, there is a possibility we could be searched invasively, especially after the U.S. Supreme Court expanded the right of law enforcement to perform jail strip searches, even in the case of minor offenses.

The case was 2012's Florence v. Board of Chosen Freeholders of County of Burlington, and it involved Albert Florence, who was arrested on a warrant for unpaid citations. In 1998, seven years before the incidents at issue, petitioner Albert Florence plead guilty to two offenses and was sentenced to pay a fine in monthly installments. In 2003, after he fell behind on his payments and failed to appear at an enforcement hearing, a bench warrant was issued for his arrest. He paid the outstanding balance less than a week later; but, for some unexplained reason, the warrant remained in a statewide computer database. Two years later, in Burlington County, New Jersey, petitioner and his wife were stopped in their automobile by a state trooper. Based on the outstanding warrant in the computer system, the officer arrested petitioner and took him to the Burlington County Detention Center. He was held there for six days and then was transferred to the Essex County Correctional Facility. It is not the arrest or confinement but the search process at each jail that gives rise to the claims before the Court.

Even though Florence's alleged offense was very minor and his arrests were demonstrably in error, the U.S. Supreme Court held that the jails were completely justified in subjecting him to uncomfortable, humiliating check-in procedures, including:

  • Mandatory shower with an anti-lice agent
  • Nude visual checks for tattoos, scars, wounds, marks and contraband
  • A nude visual check of ears, nose, mouth, scalp, hair, hands, fingers, arms, armpits and bodily openings
  • Strip searches in which he was instructed to open his mouth, lift his tongue, turn, lift his arms, etc., and ultimately lift his genitals to the view of the officers

The reason this was all considered legal was that law enforcement has "a responsibility to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies." In other words, this type of search is justified, the high court ruled, to prevent the introduction of possible diseases, weapons, drugs and other contraband into the jail.

Could you be strip searched upon being arrested by mistake, or for minor charges?

Washington State is more protective of minor offenders' privacy in jail searches

After litigating several cases in the 1980s where women were strip searched while being booked into jail on minor charges, the ACLU-WA and other advocacy groups successfully had a law passed restricting jail strip searches in minor criminal cases.

The statute prohibits strip searches of people jailed prior to trial unless there is reasonable suspicion that the defendant has a weapon or contraband, or unless there is probable cause to believe they have hidden evidence on their person. It does not apply to drug or DUI arrests, but it does protect most people arrested for minor offenses, including civil disobedience charges arising from protests.

In fact, Washington's law was cited by the dissent in Florence v. Burlington as proof that limiting strip searches does not jeopardize jail security.

Are there other situations when you can be strip searched?

Yes. Besides the jail search, there is a possibility you could be strip searched by the police who initially arrest you. A "search incident to arrest" is simply a search that occurs at the time of a lawful arrest. A strip search can be performed incident to arrest, but only under limited circumstances.

First, the arrestee must be in custody, meaning that they have been handcuffed or that they understand they are not free to leave. Second, the police must generally perform any strip search or partial strip search in a private location. The U.S. Supreme Court has specifically ruled that "the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street."

Third, police officers are not allowed to touch arrestees under their clothing or to touch their breasts, buttocks or genitals. Doing so is considered extreme, and courts may exclude evidence from trial if it was obtained via an unreasonable search. The police must respect arrestees' legitimate interest in privacy.

For more information about your legal rights in Washington, contact Pewitt Law, PLLC.

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