March 19, 2014 – Amidst multiple pending lawsuits alleging illegal body cavity searches by Milwaukee police officers, the Wisconsin Legislature is proposing a bill that would expand the power of corrections officers to conduct preconviction strip searches in jails.
In some 12 federal civil lawsuits that are pending, about 20 plaintiffs are alleging police officers conducted illegal strip searches during drug investigations in Milwaukee.
Last year, several officers were convicted on criminal charges. One officer was sentenced to 26 months in prison, convicted on felony charges of misconduct in office.
Meanwhile, AB 556 is working its way through the Wisconsin Legislature. The bill creates a new category of persons who may be strip searched when they come into contact with county jails, which house many persons who have been arrested but not convicted.
The Assembly passed an amended version of the bill last month, and the Senate's Judiciary and Labor Committee passed a companion bill, with minor amendments, on March 17. It's now ready for a full Senate vote.
Under the proposed law, arrested persons who will be jailed in general population for more than 12 hours can be asked to disrobe for visual strip search inspections, whether or not authorities have reasonable suspicion that a person his hiding contraband.
Currently, jail officials need probable cause to conduct a strip search, unless a person is suspected of a felony or certain violent or weapon-related misdemeanors.
But the U.S. Supreme Court opened the door for expanded strip search jail policies in 2012 when it ruled (5-4) that “[e]very detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed.”
Probable Cause Not Necessary
Under AB 556, a person who is jailed with others may be asked to strip down so authorities can “visually” inspect their genitals, breasts, pubic area, buttocks or anus.
The bill does not require probable cause as a prerequisite to strip searching persons detained for noncriminal offenses such outstanding parking or traffic tickets.
For strip searches without probable case, authorities cannot touch a detainee “unless the touching is necessary to gain the detainee’s cooperation” or to assist disabled detainees who need help in order to cooperate with the strip search.
Thus, a person who was arrested on a warrant for unpaid parking tickets and could not pay the tickets or make bail could be strip searched under the proposed law.
The proposed law does not change Wisconsin’s strip search provisions with regard to juveniles, who are currently only subject to strip searches if arrested for suspected commission of felony offenses and certain violent misdemeanors.
In addition, AB 556 applies to “municipal prisons” and “rehabilitation facilities,” but not “lockup facilities,” which are temporary holding cells at local police stations.
Police and sheriff associations support the bill to deter the introduction of contraband in jails by persons who may not otherwise be suspected by of possessing it, and to stop the spread of disease or gang-related violence within closely confined jails.
At least one jail official said the law would not be used to punish or embarrass anyone. But the Wisconsin State Public Defender has raised some concerns that this new authority could be abused, and there are less invasive ways to address the problems.
“The vast majority of jailers and jail staff are doing a good job and following the letter and the spirit of the law,” said Adam Plotkin, legislative liaison for the Wisconsin State Public Defender. “But with so many arrests per year, I lot of problematic behavior could result from even those one percent or less who don’t follow proper procedure.”
Plotkin, who testified before the Assembly’s Judiciary Committee, said some 340,000 people are arrested every year in Wisconsin, including nearly 69,000 juveniles.
Bill amendments have eased the State Public Defender’s major concerns, including an amendment that clarifies jailors cannot touch a detainee during inspection and another that ensures juveniles are exempt, but Plotkin says there’s still room for abuses.
“As a cautionary tale, we recall the recent convictions of several former Milwaukee Police Officers accused of conducting illegal strip searches of suspects in criminal investigations,” Plotkin told lawmakers in a public hearing in December 2013.
“While this is clearly an extreme case, by expanding the ability to perform physical strip searches the possibility for abuse under the guidelines expands as well,” he said.
U.S. Supreme Court Decision
AB 556 is grounded in the U.S. Supreme Court’s controversial decision in Florence v. Board of Chosen Freeholders of County of Burlington et al., 132 S.Ct. 1510 (2012).
In that case, the majority ruled that visual strip searches without probable cause do not violate the Fourth Amendment right to be free of unreasonable searches and seizures.
In 2005, Albert Florence was arrested on a warrant for an unpaid fine in New Jersey, even though the fine had actually been paid. Seven years earlier, he had been charged for fleeing police and using a deadly weapon but pleaded guilty to a lesser offenses.
The court ordered him to pay a fine in monthly installments. He fell behind and a court issued a bench warrant. But the warrant was never cleared when he ultimately paid the balance. Two years later, police uncovered the warrant during a traffic stop.
Florence, arrested on the false warrant, was held in jail for a week and strip searched at two county jails. No one touched him, but he was required to stand naked in front of guards, who ordered him to “spread his cheeks” and cough while squatting.
Ultimately, Florence and other detainees filed a federal class action, arguing that the strip searches of persons arrested for noncriminal offenses without probable cause violates constitutional rights. The case made its way to the U.S. Supreme Court.
The 5-4 majority, in an opinion by Justice Anthony Kennedy, concluded that the strip searches were “reasonably related to legitimate penological interests.”
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The majority said visual inspections and the removal of clothing may be necessary to address the introduction of lice and other diseases that can affect jail staff and the general jail population. “It may be difficult to identify and treat these problems until detainees remove their clothes for a visual inspection,” Justice Kennedy wrote.
The majority also noted that visual inspections may be necessary to identify gang affiliated tattoos and markings, and to stop the introduction of contraband.
The dissenters, led by Justice Stephen Breyer, argued that strip searching individuals suspected of minor crimes that don’t involve drugs or violence is unconstitutional unless authorities have a reasonable suspicion that the person is concealing contraband.
“I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests mentioned,” Justice Breyer wrote.
The dissent also noted a question not answered by the U.S. Supreme Court: whether it is reasonable to admit persons arrested for minor offenses to the general jail population and to “subject them to the humiliation of a strip search” prior to judicial review.
What’s Next for AB 556?
AB 556 passed the Assembly in February. The companion bill, SB 447 passed the Senate’s Judiciary and Labor Committee March 17 by a 5-0 vote, so the bill is available for a full Senate vote. The Senate is expected to end its session on April 1.