Supreme Court Makes It Even Worse To Be A Cannabis Consumer Under Prohibition

  • by Allen St. Pierre, NORML Executive Director April 18, 2012

    Supreme Court Authorizes Strip Searches for Any Criminal Offense

    By Kellen Russoniello, George Washington University Law School and  NORML legal intern

    If you are sent to jail, be prepared to get naked, squat, and cough.

    In Florence v. Board of Chosen Freeholders, a 5-4 decision drawn on party lines released on April 2, the Supreme Court upheld the practice of forcing detainees who would be entering the general jail population to undergo strip searches. The Court noted that they “must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or un-justified response to problems of jail security.” Despite the dissent’s assertions that the massive affront to human dignity that strip searches cause is not outweighed by the scant evidence that these procedures actually produce discovery of more contraband, the Court ruled that jails can force detainees to undergo an extremely close inspection while unclothed.

    The rationale for the decision is that corrections officers should have deference to deal with the serious problems faced by admitted new people to the general jail population. These dangers include: introducing contagious diseases or lice; the possibility that the detainee may have open wounds; the fact that a detainee may have gang tattoos, which could lead to violence within the jail; or the chance that the person may be carrying contraband (weapons or drugs) in places that are not visible from a general visual search. Additionally, jails are often more dangerous than prisons because little is known about the admitted offender.

    As if the breadth of the ruling was not striking enough, the case becomes more shocking when the facts are recounted. The case arose from the 2005 arrest of Albert Florence, a middle-aged African-American man. When Florence’s wife was pulled over for speeding, a records search revealed that Florence, who was in the passenger’s seat, had an outstanding warrant for failure to appear at an enforcement hearing as a result of unpaid fines from two years prior. In fact, the fine had been paid a few days after the issuance of the warrant, but the warrant was never taking off the system.

    Additionally, anticipating potential confusion and/or conflict with police during any future traffic stop or like encounter, Florence presented photocopies to arresting police of the paid receipts. To no avail, he was arrested on the spot.

    Florence was held for six days in Burlington County jail and then transferred to Essex County jail where he was held for an additional day. At each facility, detention officers forced Florence to strip naked while they examined him for tattoos, scars, and contraband. In the second jail, Florence had to lift his genitals, turnaround, squat, and then cough. After his release, Florence sued the government under 42 U.S.C. § 1983 for violating his Fourth and Fourteenth Amendment Rights.

    This ruling built on precedent set in Bell v. Wolfish, which held that prisoners detained in any correctional facility run by the Federal Bureau of Prisons could be forced to undergo a strip search after every contact visit with a person from outside the facility. Additionally, the Court cites favorably the decision of Atwater v. City of Lago Vista, which held that a person can be arrested and held in detention no matter how minor the criminal offense is (in that case, a woman was arrested for not wearing her seatbelt). Taken together, this means that a person can be detained for any criminal offense, and therefore forced to undergo a strip search for any criminal offense.

    Justice Breyer in dissent points out the absurdity of this approach. Under this ruling, minor offenses such as driving with a noisy muffler, failing to use a turn signal, riding a bicycle without an audible bell, or walking your dog without a leash, could subject the arrestee to a strip search.

    Breyer also notes that other procedures used by jails, including the jails in which Florence was detained, have not shown to be any less effective in finding contraband, gang tattoos, or removing lice than the strip search procedure. For example, both jails performed pat-down searches, made detainees go through metal detectors, made inmates shower with de-lousing shampoo, and searched the inmate’s clothing.

    Furthermore, a New York Times article summarizes the trend that states have taken so far regarding strip searches for newly admitted persons to jails:

    The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures . . . . Monday’s decision endorsed a recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, allowing strip-searches of everyone admitted to a jail’s general population. At least seven other appeals courts, on the other hand, had ruled that such searches were proper only if there was a reasonable suspicion that the arrested person had contraband.

    Although Justice Breyer argues that people who commit minor offenses should not be subject to strip searches unless there is reasonable suspicion to believe that they possess drugs or other contraband, he agrees that all people detained for drug offenses can be forced to undergo one.  As you may know, there were over 850,000 arrests made in 2010 for marijuana offenses alone. Although not all of these result in jail time, a significant proportion does, meaning that non-violent marijuana users could be subjected to strip searches. Even in states that have decriminalized to a certain extent, people could still be sent to jail while it is determined whether or not charges will be brought against them. The Court specifically pointed to this possibility in both this ruling and the Atwater case.

    As Justice Kennedy points out in his majority opinion, 13 million people are jailed annually.  This means that 4% of Americans could be subject to these humiliating procedures under this ruling every year. Pointedly, for cannabis consumers and patients, with 850,000 cannabis-related arrests annually in America–90% for possession only–many hundreds of thousands can now be readily exposed to multiple strip searches emanating from a single encounter with law enforcement that begin over an adult possessing no more than a single joint.

    Perhaps it is time to try and stop people, instead of contraband, from entering jails.

    45 Responses to “Supreme Court Makes It Even Worse To Be A Cannabis Consumer Under Prohibition”

    1. jed says:

      i gots a cell phone but i cant use it in cuffs

    2. Jeff says:

      the government is afraid of people growing there own thats why they wont make it legal there afraid they would lose money and not all the pot is taxable this is not entirely true if they made it illegal to grow but legal to buy they could tax it there you go you greedy mother nature suckers thats how you do it pay for advanced equippment on tracking non government grow opps and make it legal to buy for fuel, medicines,and all of the amazing uses such as the nutrients from the seeds them selves and the amazing other benifits that have already been proved and used but PLEASE CREATE A NON TOXIC LEGAL USE OF FUEL AND HEMP/MARIJUANA MEDICINES!!!!

    3. Jeff says:

      Hello the issue is how can the government say there with god when they take away his plant. The simple matter of the fact is alcohol , cigarette’s, pills and toxic fumes top every death out there if that’s legal and an amazing beautiful plant marijuana/hemp which has no death tolls is not, how is that even logical. Furthermore the gateway drug is prohibition so by not legalizing it, those who go against legalizing are creating the drug problem. If it was legal then people would not have to go to dealers where they would be introduced to new drugs creating the “gateway affect” look at all the benefits of the plant if you think the government will lose control you are wrong we must stop toxic fuels and we must reap the fruits of nature on these natural herbs, we must make the change before we do enough damage where we destroy our beautiful land and earth. Why are non toxic fuels not allowed? How can the government and certain others not see the natural non toxic way to live is the best way to use resources, you are simple going against nature and god by not saving our planet as long as possible your destroying it with your pollution and prohibition on plants!!!!!!

    4. Jerrod says:

      Supreme Cult

    5. Psu says:

      I’m allowed a lawyer when I’m questioned. Do I get an advocate when I’m strip searched. I think I need to have a pocket lawyer, just in case.

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