Wisconsin Lawyer: President's Message: The Importance of Clean Underwear:

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  • Wisconsin Lawyer
    May
    08
    2012

    President's Message: The Importance of Clean Underwear

    James M. Brennan

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    The U.S. Supreme Court opinion in Florence v. County of Burlington sets a low threshold for strip-searches under the U.S. Constitution and reinforces what all mothers teach: always wear clean underwear, because you never know what can happen. Fortunately, Wisconsin law affords greater protections from intrusive searches.

    Wisconsin LawyerWisconsin Lawyer
    Vol. 85, No. 5, May 2012

    James M. BrennanWhat a great spring afternoon, sunny and warm, great for biking! I take the Oak Leaf Trail south along the Lake Michigan shore through Milwaukee County parklands and four southern suburbs. Crossing into St. Francis, I realize I have forgotten my helmet but forge ahead. I am reminded that my bell does not work as I pass walkers on the bike trail leading into Sheridan Park. When I see a Cudahy Police Department cruiser, I am instantly gripped by paranoia. No helmet, no bell. Will I be stopped, questioned, taken into custody, strip-searched, and jailed?

    In a 5-4 ruling on April 2, 2012, the U.S. Supreme Court held it was acceptable for jail personnel to strip search any person arrested on even minor offenses, without reasonable suspicion that the person may be concealing contraband. The case, Florence v. County of Burlington, began with the 2005 arrest in New Jersey of Albert Florence, who was a passenger in a car his wife was driving when state police pulled the vehicle over to issue her a speeding ticket. When officers learned there was an outstanding warrant for Florence on an unpaid traffic fine, he was arrested. Although records found later showed that the fine had been paid two years earlier, Florence was held for a week in two jails and subjected to multiple strip-searches in each facility.

    In its ruling, the Court held that persons placed into a jail's general population for minor offenses – such as not stopping at a red light, nonpayment of library fines, or riding a bicycle without an audible bell – can be stripped of their clothing and have their body cavities searched by jail guards. Writing for the majority, Justice Kennedy said courts should not second-guess jailors' weighing of security and liberty interests in this post-Oklahoma City world.

    In a post-9/11 America, where even the Justices stand in stocking feet awaiting a search of their persons and property before boarding a plane, Justice Kennedy's opinion reflects an unprecedented public acceptance of the notions that police power and public safety trump individual personal liberty interests like bodily integrity and privacy. It seems that 4th and 5th amendment values are in general decline, while values derived from the 1st and 2nd amendments are ascendant. Lawyers and engaged citizens will continue to play important roles in shaping the freedoms we enjoy in America.

    The Florence Court sets a very low threshold for strip-searches under the U.S. Constitution and reinforces what all mothers teach: always wear clean underwear, because you never know what can happen.

    Fortunately, states can afford greater protections from intrusive searches to anxious citizens and raise the bar for police and jailors when individual dignity is at stake. Wisconsin has done so by enacting Wis. Stat. section 968.255, which permits strip searches to be performed only on people arrested for felonies and a short list of misdemeanors or when there is probable cause of concealment of a weapon or evidence of a crime. Needless to say, I am now much relieved to bike the Oak Leaf Trail, even if my bell is inoperative, with little worry of strip search. The Florence holding, particularly for individuals subject to racial profiling and strip searches in crowded jails across the country, adds insult to injury.