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Author Topic: Supreme Court rules 5-4 in favor of Big Government  (Read 2248 times)
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« on: April 02, 2012, 03:52:56 pm »
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WASHINGTON — The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs but also public health and information about gang affiliations.

About 13 million people are admitted each year to the nation’s jails, Justice Kennedy wrote.

Under Monday’s ruling, he wrote, "every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed."

Justice Stephen G. Breyer, writing for the four dissenters, said strip-searches were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

http://www.nytimes.com/2012/04/03/us/justices-approve-strip-searches-for-any-offense.html?_r=1&hp

You can now be strip searched for failure to pay child support.
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« Reply #1 on: April 02, 2012, 04:00:29 pm »
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Probable cause? What's that?
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J. J.
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« Reply #2 on: April 02, 2012, 04:15:41 pm »
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Probable cause? What's that?

There would, obviously, be probable cause when the person is arrested.  Frankly, it would be a safety issue as well.  The person might have something that he/she could use to cause personal injury.

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« Reply #3 on: April 02, 2012, 07:19:58 pm »
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Ah, in my Civil Liberties and Rights class we had this case during our Moot Supreme Court exercise last week. My court, after some heated and illuminating discussion, ended up voting to unanimously overturn the law.

Probable cause? What's that?

There would, obviously, be probable cause when the person is arrested.  Frankly, it would be a safety issue as well.  The person might have something that he/she could use to cause personal injury.


These strip searches actually occur before a magistrate even determines whether their arrest had probable cause. And in this specific case, there certainly wasn't probable cause of anything: Mr. Florence was arrested only because a computer error had failed to purge an invalid arrest warrant from years before.

As for the safety argument, it's honestly bollocks; even before the strip search, the detainees have to go through metal detectors and face extensive pat downs.  There's no reason a prison detainee should be forced, absent probable cause, to be stripped naked when such security measures are already in effect.
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« Reply #4 on: April 02, 2012, 09:44:57 pm »
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So the government can strip you naked before it has even been proven you did anything wrong but it can't force you to buy health insurance and not game the system? It's just absolutely ridiculous.
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« Reply #5 on: April 02, 2012, 11:34:01 pm »
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I'm not sure I see the big deal about this? If we're putting people in a jail cell, even if it's only over night or something, shouldn't the correctional officers (or whatever the equivalent is) at the jail have the discretion to ensure that whoever is going in is not carrying with them a weapon, drugs, etc. ?
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« Reply #6 on: April 03, 2012, 03:33:51 am »
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So the government can strip you naked before it has even been proven you did anything wrong but it can't force you to buy health insurance and not game the system? It's just absolutely ridiculous.

I haven't developed an opinion on this yet but comparing this situation to health care is ridiculous especially considering the realities low percent of the population that gets arrested and the circumstances are completly differnt in the two situations.
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« Reply #7 on: April 03, 2012, 05:16:23 am »
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Ah, in my Civil Liberties and Rights class we had this case during our Moot Supreme Court exercise last week. My court, after some heated and illuminating discussion, ended up voting to unanimously overturn the law.

Probable cause? What's that?

There would, obviously, be probable cause when the person is arrested.  Frankly, it would be a safety issue as well.  The person might have something that he/she could use to cause personal injury.


These strip searches actually occur before a magistrate even determines whether their arrest had probable cause. And in this specific case, there certainly wasn't probable cause of anything: Mr. Florence was arrested only because a computer error had failed to purge an invalid arrest warrant from years before.
When that happens in Germany, police are supposed to call the court in question to verify before proceeding. This has happened to a friend of mine twice (over the same retracted warrant). The first time it happened, I was with him.
Whether they actually do that right away might depend on the circumstances of the arrest / id check / whatever it was and how credible you sound in telling them, obviously.
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« Reply #8 on: April 03, 2012, 03:33:43 pm »
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I'm not sure I see the big deal about this? If we're putting people in a jail cell, even if it's only over night or something, shouldn't the correctional officers (or whatever the equivalent is) at the jail have the discretion to ensure that whoever is going in is not carrying with them a weapon, drugs, etc. ?

Metal detectors and thorough pat-downs already do a pretty good job of ensuring that contraband doesn't enter jails. Also, the Supreme Court has previously ruled that even convicted prisoners (let alone pretrial detainees) still  have a Constitutional right to privacy, although limited when security demands do reasonably outweight and override the privacy violations that occur.

I think that one's right to privacy, insofar as it extends to not being forced to display the underside of your genitals or stretch open your anus for the observing corrections officers (which is all actually part of the procedure in question) is more important than the security concern that inmates who have already "passed" several security checks and have earned no individual suspicion  still have to be strip searched, "just in case." The fact that even someone arrested wrongfully (or, for that matter, even someone arrested for a minor non-violent offense that only warrants a single night in jail) has to go through such a search just makes it all the more egregious.

When that happens in Germany, police are supposed to call the court in question to verify before proceeding. This has happened to a friend of mine twice (over the same retracted warrant). The first time it happened, I was with him.
Whether they actually do that right away might depend on the circumstances of the arrest / id check / whatever it was and how credible you sound in telling them, obviously.

I don't know the standard practice for something like this, but there was no such discretion in this case, ftr. Mr. Florence always carried with him the documentation that showed his warrant had been expunged, just to be on the safe side. The arresting officer ignored his explanations and also disregarded his wife when she showed him the documents. He was arrested and placed in the jail of Burlington County, NJ until officers from Essex County, NJ (where the bad warrant was from) could arrive to resolve his status. He was strip-searched at the Burlington jail, was detained for a week until Essex County officers finally arrived, transferred to the Essex jail, was strip-searched again there, and was then promptly taken to the Essex County Courthouse where the judge ordered his immediate release. Honestly, a bit of a horror story.
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« Reply #9 on: April 03, 2012, 05:04:30 pm »
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So the government can strip you naked before it has even been proven you did anything wrong but it can't force you to buy health insurance and not game the system? It's just absolutely ridiculous.

I haven't developed an opinion on this yet but comparing this situation to health care is ridiculous especially considering the realities low percent of the population that gets arrested and the circumstances are completly differnt in the two situations.

Obviously the two cases are separate from each other, but it's just interesting where they draw their lines on what constitutes constitutionally protected freedom. So if they rule the healthcare law unconstitutional they would basically be saying that the government can't force you to buy health insurance, which everyone does need considering how pricing works in American hospitals and the healthcare system in general, but it can force you to strip naked and have your asshole examined without even having a day in front of a jury. Also don't be so sure you won't ever be put in this position. Could they do this to you if you get caught for a DUI? Could they do this to you when you haven't even done anything wrong, and won't even have a chance to prove your innocence before they inspect behind your testicles? I associate this sort of behavior with fascist, authoritarian nations, not America.

Lief, I think BK explained pretty well why this is unnecessary. You can get highly sensitive metal detectors and do thorough pat downs to make sure nothing metallic, however small, gets through. This is only useful in finding drugs I would think. And it's not such a high priority that we have to strip search possibly innocent individuals.
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« Reply #10 on: April 03, 2012, 07:15:39 pm »

I hope we can all agree that in a mixed security lockup facility it makes sense to inspect for contraband at a degree consistent with the highest level of security.

As I see it, the fault here, if any, is not with the treatment of the individual at the detention facilities, but whether such a mixed security facility is reasonable and/or whether the individual was locked up in a facility appropriate to the offense the police had reason to believe the individual committed.

Both Burlington and Essex Counties in New Jersey are large enough that segregating minor offenders from major offenders (either at separate facilities or segregated sections of the same facility) should not impose an undue burden.

However, for the offense for which he was detained (not the traffic offense, but the outstanding warrant that was in error but which the police had no way of knowing was in error) I would conclude that being housed in a more secure facility was reasonable.

With the exception of Thomas, the majority justices left open the possibility that strip-searches for those held for less serious offenses would not be warranted.
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« Reply #11 on: April 03, 2012, 09:37:08 pm »
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here's to praying we have a 4th amendment renaissance/revolution in the US like we had for the 1A in the 60s.  I guess as a to-be-lawyer this is what I'll have to bleed for.
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« Reply #12 on: April 04, 2012, 08:07:40 am »
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Ah, in my Civil Liberties and Rights class we had this case during our Moot Supreme Court exercise last week. My court, after some heated and illuminating discussion, ended up voting to unanimously overturn the law.

Probable cause? What's that?

There would, obviously, be probable cause when the person is arrested.  Frankly, it would be a safety issue as well.  The person might have something that he/she could use to cause personal injury.


These strip searches actually occur before a magistrate even determines whether their arrest had probable cause. And in this specific case, there certainly wasn't probable cause of anything: Mr. Florence was arrested only because a computer error had failed to purge an invalid arrest warrant from years before.

As for the safety argument, it's honestly bollocks; even before the strip search, the detainees have to go through metal detectors and face extensive pat downs.  There's no reason a prison detainee should be forced, absent probable cause, to be stripped naked when such security measures are already in effect.

The arrest determines that there is probable case.  Now, if Mr. Florence wants to sue on the basis that the original arrest did not have probable cause (and I'd agree that it didn't) that is fine.  The strip search is only a consequence of that arrest.

I think the idea that there should be judicial review prior to an arrest and processing is lunacy.

A person could have non metallic weapons, conceivably, i.e. a garrote of some type.  There is also the possibility of contraband. 
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« Reply #13 on: April 05, 2012, 10:38:43 am »
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So the government can strip you naked before it has even been proven you did anything wrong but it can't force you to buy health insurance and not game the system? It's just absolutely ridiculous.

I haven't developed an opinion on this yet but comparing this situation to health care is ridiculous especially considering the realities low percent of the population that gets arrested and the circumstances are completly differnt in the two situations.
It's not as low a percentage of the population as you might think.
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« Reply #14 on: May 25, 2012, 12:34:30 am »
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Speaking as someone prosecuting a guy on his fifth drug charge (most of the others involve dealing) and said drugs were only found up the guy's butt when he was arrested on suspicion of other charges and searched, I was and am REAL happy about this decision.

That, and what Lief said. Metal detectors are expensive, and don't detect plastic weapons or drugs.
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« Reply #15 on: May 27, 2012, 09:27:57 am »
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Speaking as someone prosecuting a guy on his fifth drug charge (most of the others involve dealing) and said drugs were only found up the guy's butt when he was arrested on suspicion of other charges and searched, I was and am REAL happy about this decision.

That, and what Lief said. Metal detectors are expensive, and don't detect plastic weapons or drugs.

As a prosecutor, is there anything that diminishes the rights of the accused you would not be happy with?
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« Reply #16 on: May 27, 2012, 04:12:16 pm »
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Speaking as someone prosecuting a guy on his fifth drug charge (most of the others involve dealing) and said drugs were only found up the guy's butt when he was arrested on suspicion of other charges and searched, I was and am REAL happy about this decision.

That, and what Lief said. Metal detectors are expensive, and don't detect plastic weapons or drugs.

Ah yes, now you can get payed to send more people to jail for things that shouldn't be illegal.
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« Reply #17 on: May 31, 2012, 07:50:46 pm »
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Well i guess this is one time I agree with the left
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« Reply #18 on: June 04, 2012, 02:06:10 am »
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Speaking as someone prosecuting a guy on his fifth drug charge (most of the others involve dealing) and said drugs were only found up the guy's butt when he was arrested on suspicion of other charges and searched, I was and am REAL happy about this decision.

That, and what Lief said. Metal detectors are expensive, and don't detect plastic weapons or drugs.

As a prosecutor, is there anything that diminishes the rights of the accused you would not be happy with?

     I can think of certain extreme scenarios where diminishing the rights of the accused would be a negative for prosecutors.
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« Reply #19 on: July 06, 2012, 08:52:48 pm »
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@ Shua and falling morgan: Your smartassed self-rightousness comments aside, I assure you both I've done more to fight government over-reaching than either of you have.

I have a great sympathy for the plaintiff here, and feel he should've been allowed to sue for false arrest and the humiliation he suffered as a result of the cavity search taken into account for damages. But that doesn't effect whether someone actually placed in incarceration post-arrest (most dui's, for example, wind up released after citation and non-jail booking) can smuggle in drugs or weapons to a jai. This is a VERY common occurrence. The results would be disastrous.

The number of break-ins, robberies and other crimes directly related to heroin, opiate, and other illegal hard drugs is staggering in my experience, and little of it has 5o do with 'black market economics' inflating the price, but rather the raw physically addicting nature of these substances that far outstrips even alcohol (an also highly addictive substance, of course).

Some substances are too dangerous to expose the public to; that's not nanny stateish, but simple consumer protection. If the government can rightly ban asbestos, non-flame retardant children's pajamas, or DDT to protect the public from it's unquestionably dangerous effects, then why not heroin?
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« Reply #20 on: July 06, 2012, 10:09:24 pm »

Yes, heroin is fiendishly addictive, but other than the need to procure it, it does not turn people into criminals.  It would be cheaper for society to treat this and most other drug addictions as a health issue rather than a criminal issue.  That we are unwilling to do so is because of our society's foolish insistence on treating addiction as a moral failing and because we don't have a universal health care system that we could place the costs on.
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« Reply #21 on: July 06, 2012, 11:16:43 pm »
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I partially agree with what you say, ernest, but disagree as well. Saying heroin turns someone into a criminal 'other than the need to procure it' is kind of like saying war isn't so bad other than all the killing. The crime almost invariably committed to support a heroinhabit is the root of the problem. Also, all the available treatment in theworld isn't going to dissuede a user who doesn't see sufficient consequences from their drug abuse to quit. The threat of incarceration and/or temporary incarceration often is the 'hitting bottom' necessary for an addict to want to make that change.

Simply put, there has to be a carrot as well as a stick to combat drug addiction.
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« Reply #22 on: July 06, 2012, 11:41:39 pm »

I partially agree with what you say, ernest, but disagree as well. Saying heroin turns someone into a criminal 'other than the need to procure it' is kind of like saying war isn't so bad other than all the killing. The crime almost invariably committed to support a heroin habit is the root of the problem. Also, all the available treatment in the world isn't going to dissuade a user who doesn't see sufficient consequences from their drug abuse to quit. The threat of incarceration and/or temporary incarceration often is the 'hitting bottom' necessary for an addict to want to make that change.

Simply put, there has to be a carrot as well as a stick to combat drug addiction.

Why would a heroin addict commit crime to get access to a drug that is provided to him through the public health system?

The cost to society of forcibly providing dissuasion is in most cases greater than providing a managed level of the addictive substance.  You're still approaching it from the viewpoint that addiction in itself is a moral failing and therefore society must correct them sternly because of that, no matter how much harm society itself suffers from applying that correction.
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« Reply #23 on: July 06, 2012, 11:52:53 pm »
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@ Shua and falling morgan: Your smartassed self-rightousness comments aside, I assure you both I've done more to fight government over-reaching than either of you have.

I have a great sympathy for the plaintiff here, and feel he should've been allowed to sue for false arrest and the humiliation he suffered as a result of the cavity search taken into account for damages. But that doesn't effect whether someone actually placed in incarceration post-arrest (most dui's, for example, wind up released after citation and non-jail booking) can smuggle in drugs or weapons to a jai. This is a VERY common occurrence. The results would be disastrous.

Your initial response sounded as though you were happy with the decision because it was in your professional interest as a prosecutor to charge people with drug possession. If your concern has instead to do with the safety of the jail environment, then I can respect that even if I disagree with your position on this decision.

It's likely you have done more to fight government over-reaching than I have (though you haven't given any examples in answer to my question) -  just as I imagine you have done more than I have to promote it, since I haven't been in a position to do much of either.
« Last Edit: July 07, 2012, 07:50:11 am by shua, gm »Logged

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