Category Archives: Search and Seizure

Misplaced Outrage: Defending the Supreme Court’s Decision On Inmate Strip Searches

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Justice Kennedy and the Strip Searchers,”[i]Embarrass the Future?,”[ii]Strip Searches: The Supreme Court’s Disturbing Decision.”[iii]

This sampling of titles from blogs run on major news sources, along with an endless number of articles with less catchy titles, exhibits what seems to be a united sense of public outrage regarding the Supreme Court’s recent decision in Florence v. Board of Chosen Freeholders of County of Burlington.[iv] The decision confirmed the legality of strip-searching of all individuals taken into custody upon intake into jails, even in the absence of reasonable suspicion. While the decision permits results that are certainly troubling, such as the searching of arrested individuals who may not even be charged with misdemeanors, the outrage of opponents is misplaced towards a correct decision rather than at the underlying problem that placed these individuals in custody in the first place.

The concern is that this decision subjects individuals who have committed nothing more than a misdemeanor to a degrading and unnecessary process.  Indeed, the underlying offense leading to Mr. Florence’s arrest was a failure to pay a fine.  This offense creates absolutely no legitimate concern for officers to suspect him to be concealing weapons or drug contraband. Mr. Florence claimed that an invasive search of inmates, such as himself, without reasonable suspicion constituted an unreasonable search forbidden by the Fourth Amendment.

The process subjected Mr. Florence to shower with delousing soap. While he was undressed, officers checked for scars, marks, gang tattoos, and contraband. He was asked to open his mouth, lift his tongue, hold his arms out, and lift his genitals turn around and cough in a squatting position. All of this is done without touching by jail officials.

This is no doubt a humiliating and embarrassing process.  However, the appropriate standard for reviewing policies comes from the Supreme Court decision Turner v. Safly that says infringing on inmate’s constitutional rights is that it must be upheld “if it is reasonably related to legitimate penological interests.”[v] In other words, jail officials have broad discretion related to the creation of effective prison management and security. The primary concern of the process is maintaining safe and sanitary conditions for inmates. The intake of inmates is a prime source of risks with relation to these concerns. Incoming inmates into general population must be screened for contagious diseases, wounds needing medical attention, and contraband which any one of which would compromise the safety and sanitation of the jail’s general population.

With respect to individuals brought in on minor offenses, there are still concerns of contagious disease, lice and gang-affiliated tattoos that require a full inspection. With respect to inspection for contraband, the only reason to excuse individuals brought in for minor offenses would be if one’s offense is truly a proper indicator of their likelihood to carry contraband.

Particularly with respect to gang-members, it is not far-fetched for a low-ranking member who, for the purpose of this example has no gang tattoos or history of violence, to create reasonable suspicion for inspection, to drive around town at 100 miles per hour until he is arrested and then use smuggled weapons to kill a member of a rival or sneak drugs in for a fellow member serving longer time. Outside of gang-related examples, as Justice Kennedy comments, the seriousness of an offense can be a poor predictor of who has contraband or a tendency for violence. Despite Mr. Florence’s request that officers only inspect an individual who poses a reasonable suspicion, the task of drawing this line is difficult, if not impossible, and the consequences of drawing it incorrectly can be severe.

The difficulty of the task is exhibited by administrative costs, lack of information and fears of racial profiling.  With respect to information, officers often know little about an individual upon taking him into custody.  He may be carrying a fake ID or lie about his identity thus making it difficult to immediately access criminal history.  Additionally, if inspections are not routinely made, then it is difficult to justify any inspections in the absence of an arrest for a drug or violent offense. Outside of inspections upon these motivations, there would likely be claims of officers inspecting based upon an inmate’s race, or, in the alternative, there could be a hesitancy on the part of officers to inspect a reasonably suspicious individual due fear of such claims.

In light of the infeasibility of drawing an appropriate line, the considerable consequences of failing to inspect an individual who poses a threat to the health and safety of the prison population, and the generally broad discretion afforded correctional facilities in forming policies to solve problems, the Supreme Court’s decision is legally correct.

Somehow, the fact that the decision was based upon correct constitutional analysis does little to remove the absurdity of a situation such as a 90-year old grandmother being strip-searched for failing to wear a seat belt or having an expired car registration.  However, the problem lies with the underlying system in which this otherwise law-abiding old lady is put into custody in the first place.

In Atwater v. Lago,[vi] a case cited by the majority, the court allowed for a situation in which individuals arrested for minor offenses might be detained in jails. In an offense even lesser than Mr. Florence’s, Ms. Atwater was arrested for not wearing her seat belt. Despite the fact that this offense could not include jail time, the court found that officers may arrest her upon probable cause that she “committed a criminal offense in their presence.” In the name of investigating the crime, the police could bring her in for a minor crime just easily as for a major one.

According to Justice Kennedy’s opinion, jails alone, not including prisons, admit roughly 13 million inmates a year. Considering this number, it is beneficial for correctional officers to have standard procedures for inspecting inmates. Indeed, it is infeasible and ill-advised to adopt a different approach. The much more reasonable and feasible solution to preventing stories of strip-searching for failure to wear a seat belt is for policy makers to address what are offenses truly merit jail time.

As long as individuals are being brought to jail on minor charges, it is appropriately within the jail’s authority to have flexibility in providing for the inmate’s safety, the safety of the jail population and the correctional officers. While certainly an inmate has a concern of being strip-searched, on the other-hand there is a concern of being thrown into a jail, where other inmates have not been strip-searched.  As Justice Scalia explains it, “the same people who are suing [jails] for the strip search would be suing them for being stabbed by someone with a shiv.”[vii]

Florence v Board of Chosen Freeholders of County of Burlington.

“Justice Kennedy and the Strip Searchers.”  The New Yorker.

“Embarrass the Future?”  New York Times

“Strip Searches: The Supreme Court’s Disturbing Decision” Time

“Siding with Security Needs over Privacy Right” MSNBC

Atwater v. Lago Vista, 532 U.S. 318.

“Scalia Defends Strip Search Decision in USM Talk.”  Clarion Leadger   


[vii] http://www.clarionledger.com/article/20120404/NEWS/120404033/Scalia-defends-strip-search-decision-USM-talk?odyssey=nav%7Chead

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Drones: Soon Coming To A Sky Near You

The technology used for air traffic control is changing and so is the civilian aviation landscape. Last month,

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Congress approved a plan that would phase out radar as the means of tracking planes and shifted to a system using GPS-satellite tracking.

Under this plan, the FAA would be required to phase in unmanned drone flights in currently-restricted U.S. airspace.[1] At the present time, the United States military maintains an arsenal of roughly 7,500 remote-controlled drones. With the end of combat operations in Iraq and the scale-back of combat operations in Afghanistan, there will be more drones back in the United States. Under current FAA regulations, remote-controlled drones are not allowed in U.S. airspace without special permission. This restriction is in place because the technology is not compatible with manned aircraft. The FAA is unsure of how the unmanned aircraft will interact with manned aircraft in U.S. cities.[2] To test how to integrate the drone force into the current civilian airspace, the FAA must establish a testing ground by June 30th of this year. The manufacturers of the drone fleet will have to create technology that allows the drones to sense they are flying too close to commercial or other manned aircraft and react accordingly. The FAA has yet to create guidelines as to how the technology needs to be developed and what the technology must contain.[3] Furthermore, there are broader questions as to how military technology used on the battlefield will be implemented back on the home front.

Several organizations have come out against the creation and implementation of these new policies by the FAA. Groups, such as the American Civil Liberties Union, have petitioned the FAA to ensure that the privacy rights of citizens are included in the analysis of allowing drones to be used domestically. The group warns in their petition that drones can easily intrude on the privacy of everyday people, and that this intrusion is a violation of the Fourth Amendment.[4] The ACLU’s petition states that these drones can “track up to 65 different targets across a distance of 65 square miles.” In addition, in the near future, these cameras may soon include facial recognition technology that would make it possible to remotely identify individuals at parks, schools, and political gatherings.”[5] The petition further urges that drones offer the user the ability to survey an area undetected by persons below. The drones can provide constant surveillance that previous technology could not sustain. Additionally, the petition argues that once facial recognition software is available for use on the drones, the FBI and other monitoring agencies could use that same technology against political dissidents. This use would, according to the ACLU, violate the would-be dissident’s First Amendment rights. The petition goes on to urge the FAA to evaluate the available options and conduct a study balancing the public and private interests in drone usage.

According to a recent Rasmussen poll, “that despite a willingness on the part of Americans to see the use of drones by the military in overseas situations, 52% oppose the use of surveillance drones by private entities, police agencies, and government agencies inside the US. Just 30% said they were in favor of the use of drones in the US.”[6] Jay Stanley, of the ACLU’s Speech, Privacy and Technology Project, says, “the FAA should be rightly concerned about ‘the safety effects of filling our skies with flying robots.’”[7] The concerns of these groups can be summed up in an additional quote by Stanley where he stated, “Congress — and to the extent possible, the FAA — need to impose some rules (such as those we proposed in our report) to protect Americans’ privacy from the inevitable invasions that this technology will otherwise lead to. We don’t want to wonder, every time we step out our front door, whether some eye in the sky is watching our every move.’”

Are the fears of the ACLU and other civil rights and watchdog groups well-founded? Will law enforcement in the United States be able to capitalize on this drone technology to decrease the amount of privacy we as Americans enjoy? In a world filled with security cameras and electronic monitoring of our activities such as credit card purchases, how much further can (should) the government go? The ACLU cites facial recognition software as a concern on these drones if used for domestic surveillance. This technology has already been used at large events such as the Super Bowl (since 2001) to target suspected terrorists in the crowd.[8] While it is apparently still in the development stages for use on aircraft, the fact of the matter is that we as Americans already subject ourselves to the use of this technology in some areas of our lives already. Additionally, police helicopters already have the technology to track individuals using infrared sensors. In this day and age, it is nearly impossible to get away from a police helicopter that is equipped with the most up-to-date technology.

Technological developments generally make their way from military use to civilian use, just look to cell phone technology and sport utility vehicles. Why aren’t drones just the next step of technology in a long stream of innovations that have traveled through the military to civilian use cycle? While the ACLU uses a “parade-of-horribles” for their scenario, it does make a valid point. If the police already have the technology to pursue criminals with infrared from a helicopter, why do the police need to be able to track people up to over 65 square miles? If the FAA program is successful in implementing the use of drones, strict limits will have to be put in place. Battlefield technology does not need to be implemented in whole on the home front. There should be certain exceptions allowed for entities such as the Department of Homeland Security and the FBI; however, these exceptions should have to go through the highest levels of authority to be approved.

The FAA has the opportunity to upgrade our air traffic systems to the highest level. The future of shipping could one day be changed because some of these drones can carry such large payloads. While helicopter pilots will not be replaced, there could be fewer deaths from helicopter crashes. While few and far between when compared to the number of helicopters flying every day, there are frequent helicopter and even small aircraft crashes in the United States. If a news crew needs to get a shot of morning traffic, no longer will a helicopter have to take the camera man to the scene. A drone could take off, circle the city, and relay the images of the interstate back to the station to be broadcast. The possibilities for new innovative uses are endless; however, the possibilities for government use against the people are endless, as well, and must be closely monitored to ensure that our right to privacy is not infringed upon by a piece of technology that the eye cannot even see.


 [8] http://www.usatoday.com/news/washington/2007-05-10-facial-recognition-terrorism_N.htm

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Every Move You Make May NOT Be Protected

Alyssa Enzor, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Can the government put a GPS tracking device on your car and monitor your movements for a month without violating your Fourth Amendment rights? The Supreme Court is currently deliberating this question.

On November 8th, the Court heard oral arguments in U.S. v. Jones. Antoine Jones was suspected by the FBI of trafficking drugs. To confirm these suspicions, agents secretly attached a GPS tracking device to his car without first obtaining a warrant. Well, more correctly, agents had a warrant, but they let it expire before they managed to get the device on the vehicle. The warrant said ten days, they took eleven. As a result, we have a potentially momentous Supreme Court case. The GPS device that was attached to Mr. Jones’ car was advanced. Whenever the car was in motion, the device sent detailed location information every ten seconds via remote satellite to agents. These agents were then able to track the vehicle by logging into a remote computer system. The major issue before the Court is whether the use of this device implicates Fourth Amendment protections.

A search without a warrant is per se unreasonable under the Fourth Amendment. However, Mr. Jones must establish that a search actually occurred by meeting the two-part test outlined in Katz v. U.S. Mr. Jones must show: (1) first, that he exhibited an actual subjective expectation of privacy, and (2) second, that his subjective expectation of privacy is “one that society is prepared to recognize as reasonable.” If he proves both prongs of this test, then he is entitled to Fourth Amendment protection.

Furthermore, the Court must also determine whether U.S. v. Knotts is applicable, and if so, to what extent. In Knotts, the Court held that the installation and use of a beeper device to track a drug suspect across state lines was not a search in violation of the Fourth Amendment. In particular, the Court held that a person has no reasonable expectation of privacy in his movements from one place to another. The Court noted in Knotts that a “car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.”

The issue in U.S. v. Jones is whether Mr. Jones can demonstrate a reasonable expectation of privacy concerning his travel over public roads. More accurately, does society reasonably expect that every time an individual climbs into his car, his movements may be monitored by the police or other enforcement agencies? If the Court rules that Mr. Jones had no expectation of privacy, and thus, there was no need to obtain a warrant to attach and use the GPS device, then that decision potentially opens the door for twenty-four/seven surveillance of people traveling in their vehicles.

At oral argument, the government relied heavily on Knotts. Michael Dreeben, Deputy Solicitor General of the United States, focused on the fact that in Knotts, the device allowed the police to relocate the suspect after he ditched the officers’ car that was tailing him. Chief Justice Roberts jumped at this chance to distinguish the case, noting that Knotts was “much more like traditional surveillance,” where the beeper just helped the cops follow the car from “a slightly greater distance.” This GPS technology, he said allows police to “just sit back in the station and . . . push a button whenever they want to find out where the car is.”

Chief Justice Roberts also elicited snickers from the rest of the panel when he asked Mr. Dreeben whether there would be a search if the police put a GPS device on each of the Supreme Court Justices’ cars for a month. Justice Breyer echoed this concern in even more sweeping language, stating “If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” He went on, focusing on the practical distinctions between the limited surveillance techniques that used to be available to police and the broad surveillance that is now possible through the use of advanced technology. “No one,” Justice Breyer stated, “at least very rarely, sends human beings to follow people 24 hours a day . . . but with the machines, you can.” A ruling in favor of the government would require no reasonable suspicion, no probable cause, in fact, no proof of any kind, for the police to attach a device to a person’s vehicle and find out where he or she goes each day.

Although all of the Justices expressed concern about whether the Fourth Amendment continues to protect citizens from the relentless advancement of technology which erodes individual privacy, Justice Scalia was the only one to truly show his hand. He came right out and denounced the Katz test, saying that it had shrunk the reach of the Fourth Amendment entirely too much. He emphasized his concern that the installation of the device itself was impermissible. He relied on the logic of technical trespass, rather than the more nuanced ‘privacy interest’ determination. He was profoundly disinterested in the entire discussion surrounding the monitoring of the device, suggesting that such concerns were the province of the legislature, not Fourth Amendment jurisprudence.

Jones’ attorney, Stephen Leckar, may have been right on target to capture Justice Scalia’s fancy, arguing for a narrow rule which holds that the installation of the device itself is a search or seizure requiring a warrant. However, he likely did not gain much support from the rest of the panel with this proposed rule, as the majority of the Justices seem to be seeking a broader standard. Justices Sotomayor and Ginsburg made repeated references to an Orwellian outcome and to Big Brother surveillance. Justices Alito and Kagan indicated that they are concerned with the long-term implications of advancing technology. Both Alito and Kagan criticized an approach centered on technical trespass, noting that new surveillance tools can always be developed to obtain the same information without committing a trespass. Justice Breyer was certainly not on board with the “installation only” approach, as he sought a standard to determine when GPS monitoring was reasonable and desirable. Unfortunately, Mr. Leckar seemed unable to offer a constitutional line in the sand that was satisfactory to the Justices. Upon his proffering one such proposal, Justice Sotomayor exclaimed, “What an unworkable rule tethered to no principle!”

After analyzing the progression of the oral arguments, it seems safe to say the Court is also not buying the mosaic or pattern theory advanced by the D.C. Circuit. This theory rests on the idea that there is a greater privacy interest in aggregated data gathered over a long period of time because all of the tiny pieces together create a larger, more complete picture of an individual’s life. Stealing a page straight from the playbook of Justice Sentelle’s dissent in the opinion below, Justice Scalia neatly countered this argument, saying “but zero times one hundred is still zero.” Counsel for Mr. Jones wisely abandoned the mosaic theory, and returned to his narrow approach—that the installation of a GPS device itself is a search or seizure requiring a warrant.

In summary, the Court seems quite uncomfortable with the idea of taking this type of broad digital surveillance completely out from under the Fourth Amendment’s umbrella. Although the government argues that state legislatures can act to prevent the much feared “1984 world,” the Justices seem skeptical about leaving the issue in the hands of the often-late-to-the-party legislative branch. On the other hand, the Court seems unable to come up with a workable principle on which to hang this case, without creating a landslide of Fourth Amendment precedent to come tumbling down around their ears. Placing the Fourth Amendment to the side, the issue is quite simple: is it really that hard to get a warrant, officers? Unfortunately, the Court is caught in the web of their own precedent. Those of us concerned with the ever-extending reach of the ‘long arm of the law’ must fervently hope they are able to disentangle themselves. We will know soon, as the Court is expected to issue a ruling at the end of June 2012.

Sources:

Katz v. United States, 389 U.S. 347, 357 (1967).

United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010).

United States v. Knotts, 460 U.S. 276 (1983).

http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1259.pdf

http://jolt.law.harvard.edu/digest/supreme-court/u-s-v-jones-oral-arguments

http://volokh.com/2011/11/08/reflections-on-the-oral-argument-in-united-states-v-jones-the-gps-fourth-amendment-case/

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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