Supreme Court Authorizes Strip Searches for Any Criminal Offense
By Kellen Russoniello, George Washington University Law School and NORML legal intern
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.
By Kellen Russoniello, student, George Washington University Law Center and NORML legal intern
[Update: A federal judge ruled on April 26, 2012 that Florida's drug testing law for unemployment benefits is unconstitutional.]
As several states are considering or implementing policies that require recipients of government benefits such as welfare to undergo drug tests, the federal government has shown approval for the same flawed rationale. Last week, President Obama signed into law an agreement reached by Congress which maintains the payroll tax cut and extends unemployment benefits, but also allows states to drug test people who seek unemployment benefits if they were fired from their previous job for using drugs or if they are seeking a job that would ordinarily require drug tests.
The Middle Class Tax Relief and Job Creation Act of 2012, H.R. 3630, was signed on February 22, 2012. Section 2105 amends the Social Security Act by allowing states to drug test applicants for unemployment benefits and deny those benefits in the case of a positive result.
What percentage of those applying would be forced to pee in a cup? Although the numbers are unclear, Republicans had cited a study claiming 84% of employers required new hires to pass a drug test. Initially, Republicans had pushed for drug testing all applicants, but this was opposed by Democrats. In order to extend the payroll tax cut and unemployment, however, Democrats caved on the issue of drug testing.
A columnist for Time pointed out several flaws in this policy. First, a single failure of a drug test does not treat addiction or even determine if treatment is necessary. In fact, because marijuana can stay in the body’s system for extended periods of time, drug tests are likely to disqualify cannabis users even though it is one of the least addictive drugs. Second, people may shift their use to other drugs, such as K2 or Spice, which are more difficult to detect in a urine screen but may be more detrimental to the person’s health. Third, creating obstacles for the unemployed to get back on their feet may actually worsen drug use, as it fosters anger and resentment.
Further arguments against this policy include that although the government estimates drug use among unemployed to be about twice that of the employed population, the rates of drug use among those applying for welfare benefits were found to be equal to the general population in Michigan when it tried to implement a drug test law, and much less than the general population in Florida. Not to mention, this type of policy is most likely unconstitutional.
Hopefully states will come to their senses and not opt to implement this policy. If your state is one of the 23 states considering mandatory drug testing for welfare benefits, contact your legislators and tell them to oppose these unsound and unconstitutional policies.
Florida’s Drug-Testing of the Poor Proves a Failure, but Some States Still Want to Follow their ExampleFebruary 18, 2012
By Kellen Russoniello, George Washington University Law student and NORML Legal Intern
The recent push for implementing drug testing for potential welfare recipients across several states has revealed at least two things: 1. The policy is not economically sound; and 2. It really brings out the hypocrisy in some elected officials.
Last summer, Florida implemented a law requiring all welfare applicants to submit to a mandatory drug test before receiving any benefits (Applicants had to pay the $30 for the test themselves, only to be reimbursed later if they passed. For more information, see this NORML blog post.). Not surprisingly, the program was brought to a quick halt. Back in October of 2011, a federal judge ruled that the Florida drug testing law was unconstitutional.
Further, in the few months that the program was up and running, it was shown that only 2% of welfare applicants tested positive for drugs. About 9% of the general population reports using drugs in the past month. So much for Governor Rick Scott’s theory that the poor use drugs more often than the rest of the populace.
Even more striking is the amount of money that Florida lost from this poorly designed policy. The Tampa Bay Online estimated that $3,400 to $8,200 in savings would be recognized every month from drug testing welfare applicants. As it turns out, the program is estimated to have cost Florida over $200,000. From any perspective, this policy can be regarded as a failure.
Despite the lessons that can be learned from Florida’s debacle, several states are still considering implementing programs to subject their impoverished population to drug tests. The Huffington Post reported that twelve states attempted passing legislation in 2011 that would require drug tests for welfare applicants. Florida, Missouri, and Arizona were the only three that succeeded. However, Pennsylvania has just begun a pilot program in Schuylkill County that subjects certain applicants to drug tests. By tailoring their laws to apply only to applicants that have aroused reasonable suspicion, these states are hoping to avoid constitutional problems like those that ultimately invalidated the Florida law and a similar Michigan law in 2000 (which was affirmed in 2003). Several states have also tried to drug test those who seek unemployment benefits, state employees, and private sector employees, including the passage of an Indiana law that requires drug testing for those in a state job-training program.
When pressed, legislators that support this policy try to justify their position by claiming that the taxpayers should not subsidize drug addiction. But taxpayers pay for much more than just welfare. Some of their money goes towards paying their legislators’ salaries. Wouldn’t this same rationale justify drug testing legislators? This has been the tactic of many Democratic state legislators to thwart Republican efforts to test welfare applicants. In fact, a Republican State representative in the Indiana General Assembly recently pulled a bill after another representative amended it to include drug testing for legislators. The bill was reintroduced and passed by the Indiana General Assembly the following week, which included a section requiring legislators to submit to random drug tests. Missouri and Tennessee currently have bills that would require legislators to submit to drug tests. These were introduced in reaction to a slew of bills aimed at requiring drug tests on different areas of the population. It seems that the legislators who want to drug test the poor aren’t really convinced of the merits of the program when applied to themselves.
Hopefully, state politicians will come to their senses as knowledge about the failure of Florida’s policy becomes more well-known. But given this country’s track record on drug policy, I wouldn’t recommend holding your breath.
To see a hilarious summary of Florida’s drug-test-the-poor policy, watch this Daily Show clip, which includes Florida State Representative Scott Plakon’s and Governor Rick Scott’s reactions to being asked to take a drug test.
In a case decided yesterday, Kentucky v. King, the US Supreme Court has ruled that cops who smell marijuana coming from your home can break down your door and arrest you, just as long as they knock first and claim to have heard you destroying evidence.
They don’t need a warrant or probable cause, either. Today in America, police can now randomly patrol neighborhoods and apartment complexes sniffing around for pot. When they smell it, they can knock on your door and then break it down, claiming they heard noises from within.
The 4th Amendment to the US Constitution plainly states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Writing for the Supreme Court in a 1980 case called Payton v. New York, Justice Stevens reiterated:
In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
The smell of a burning flower and the sound of “scurrying” are now the “exigent circumstances” needed to “reasonably” cross that “firm line” without a warrant.
(Los Angeles Times) Ruling in a Kentucky case Monday, the justices said that officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.
Residents who “attempt to destroy evidence have only themselves to blame” when police burst in, said Justice Samuel A. Alito Jr. for an 8-1 majority.
In her dissent, Justice Ruth Bader Ginsburg said she feared the ruling gave police an easy way to ignore 4th Amendment protections against unreasonable searches and seizures. She said the amendment’s “core requirement” is that officers have probable cause and a search warrant before they break into a house.
“How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and …forcibly enter?” Ginsburg asked.
The Supreme Court ruled in Kentucky vs. King that the officers’ conduct “was entirely lawful,” and they were justified in breaking in to prevent the destruction of the evidence.
Note to self and advice to others: When you’re smoking pot in your home and the cops come a-knockin’, be very, very quiet. I’m only half-kidding, for as Justice Alito writes:
When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. Cf. Florida v. Royer, 460 U. S. 491, 497-498 (1983). (“[H]e may decline to listen to the questions at all and may go on his way”). When the police knock on a door but the occupants choose not to respond or to speak, “the investigation will have reached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.”
If you make noise when the cops knock, police can interpret that as you attempting to hide or destroy evidence (drugs), which creates the “exigent circumstance” needed to break down your door. Which leads me to ask, what does hiding or destroying cannabis sound like? I suppose the sounds of garbage disposals, trash compactors, and flushing toilets would be obvious answers. In King’s case, “scurrying” was enough; I guess cops could argue that he was running to the window throw out a baggie. Of course this all depends on taking the police at their word when they testify that they heard the “scurrying”.
In the King case, the cops weren’t even looking for King. They were conducting a sting operation on a street-level crack dealer. When he ran upstairs to his apartment on the right, the police followed, but they lost him. As they reached the apartment on the right, they smelled marijuana from King’s apartment on the left. The police knocked loudly on the apartment on the left. They then heard “scurrying”, so they broke down the door and caught King with marijuana and cocaine.
The smell of marijuana burning does give police indication there is a crime taking place behind that door – the possession of at least a joint or a bowl of marijuana. In Kentucky, such a first offense would be a crime worthy of a misdemeanor with a max of one year in jail and a $500 fine. It would take more than eight ounces on a first offense for felony charges. The police, not knowing King or having any probable cause to go after King, essential beat down his door on the “exigent circumstance” he may be destroying evidence of a misdemeanor. Is it “reasonable” to violate a man’s 4th Amendment rights over a potential misdemeanor?
At NORML, we often get demands from legalization supporters to “sue the government” to end the improper and unconstitutional prohibition of cannabis. It has been tried and tried again, including our own NORML v. DEA suit, and certainly there are many more suits to be tried. But given this 8-1 decision and the current makeup of the Supreme Court that promises a solid 5-4 majority of Chief Justice Roberts and Justices Scalia, Alito, Thomas, and Kennedy against any meaningful reforms, it seems clear to me that the path to legalization does not lead through the judiciary. This is a federal court system that has twisted precedent and the intent of the Constitution in the name of eradicating marijuana by recently deciding:
- that intrastate personal non-commercial medical use of marijuana is controlled by interstate commerce (Raich v. Gonzales);
- that police can sneak up onto your driveway on your private property and secretly place a GPS tracking device on your car to follow you to grow shops (USA v. Juan Pineda-Moreno);
- that merely being in possession of a firearm while growing marijuana is a crime (USA v. Somkhit Thongsy);
- that an 18-year-old student standing on a public sidewalk can be expelled by his high school for holding a sign with the word “bong” on it (Frederick v. Morse);
- that religions using Schedule I ayahuasca or Schedule I peyote as a holy sacrament should have a First Amendment exception to drug law prosecution (Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal), but religions that use Schedule I cannabis made the mistake of choosing too popular an illegal holy sacrament (USA v. Quaintence);
- and that police who’ve stopped your vehicle may run a drug-sniffing dog around your car even without any probable cause to believe the driver is involved with drugs in any way (Illinois v. Caballes).
So long as the law says marijuana is contraband and its possession and cultivation a crime, the federal courts will always find a way to rule to maintain marijuana prohibition. The solution lies in Congress (depressing as that may be) and changing the law.
UPDATE: NORML Legal Intern Kellen Russoniello examines this SCOTUS decision and muses about some undiscussed aspects of the decision that need greater light cast upon them
Ray of Hope in Kentucky v. King
Although the 8-1 decision of the Supreme Court in Kentucky v. King strikes many as a full-on frontal assault to the Fourth Amendment, the decision is more nuanced than has been popularly portrayed and there is still a small chance that the decision is not as bad as many think. This is not to say that the decision does not create grave concerns, but there is a way to limit the holding of this case in future litigation.
The question answered in Kentucky v. King was whether the knocking and announcement of police presence at a home, when the police decided not to get a warrant, created the exigent circumstances needed to enter the home without a warrant. If it had, then the police entry would not have been justified because they had created the emergency. Although some, including Justice Ginsberg, have answered this in the positive, the majority determined that the police did not create an exigency by announcing their presence, however aggressively this was conducted. Although in a causal sense the vociferous announcement of the police created the supposed exigency by causing King, who assumedly was just sitting in his living room, to move, either destroy the evidence or just answer the door, the court ruled that in legal sense the police did not create the emergency. Knocking on a citizen’s door without a warrant and announcing police presence is a reasonable mode of operation, according to the majority. Because the police acted reasonably before the existence of the supposed exigency, their actions of kicking the door in after they heard what sounded like destroying evidence was also reasonable and justified by the destruction of evidence exception to the warrant requirement. (Of course, this raises other questions including: When does police conduct become the cause of exigent circumstances in the eyes of the law?)
Although this decision is subject to criticism, the real question in this case went unanswered. Both the Kentucky Supreme Court and the United States Supreme Court assumed when undertaking this analysis that exigent circumstances actually existed. This means that both courts took it as given that the movement heard inside the house after the police made their presence known was sufficient to justify a warrantless entry based on the suspicion that evidence was being destroyed.
The question thus remains: Does the shuffling heard inside the house constitute an exigent circumstance justifying warrantless entry into the home? This will be decided on remand to the Kentucky Supreme Court.
Defenders of the Fourth Amendment must be prepared to argue that the sound of movement inside a home is not enough to justify the existence of exigent circumstances. This is where the real issue regarding personal freedom in the home lies.
When the courts officially proclaim that scurrying or noise made inside a home constitutes exigent circumstances, then we will truly know that the judiciary has traded the gavel for the battering ram. For now, there remains a shred of hope.
[Editor’s note: Kellen’s brief review of a new organization dedicated to bringing attention to the numerous life sentences in America for cannabis-only related offenses is apropos as a 35-year-old father of a young child was sentenced in Louisiana Thursday for life in a cannabis possession case (the life sentence was triggered by the state’s controversial ‘three strikes and you’re out’ mandatory minimum sentences).
Regrettably, and discernibly, the greater south of the United States is the hotbed for these kind of insanely long prison sentences for supposedly criminal acts that many citizens in fact no longer believe are crimes whatsoever.
A new interactive map from the Sentencing Project aptly demonstrates that deep southern states like Florida, Georgia, Mississippi, Alabama, Louisiana and Texas have the highest prison incarceration rates not only in America, but the world.]
By Kellen Russoniello, George Washington Law School student, NORML legal intern
To many of us, the idea of anyone spending life in prison for a nonviolent marijuana offense is absolutely ridiculous. Yet with the recent passage of a bill in the Oklahoma State Legislature making the manufacture of hash punishable by life imprisonment, it is clear that life sentences for nonviolent marijuana offenders do exist. In fact, a new website is drawing attention to this issue and has identified several people who are currently serving life sentences for nonviolent marijuana offenses.
LifeforPot.com focuses on finding individuals who have been sentenced to life imprisonment without the possibility of parole for federal nonviolent marijuana only offenses. Beth Curtis, the founder of the website, has identified eight people, each with a unique background and story of how they came to spend the rest of their lives in prison for nonviolent marijuana offenses.
Beth is very familiar with the subject: the first individual listed is John Knock, her brother. Since 2000, John has been serving two life sentences plus twenty years for his connection to a conspiracy to import multiple tons of marijuana and hashish from Pakistan and Lebanon into the United States and Canada, a sentence that Beth believes is the harshest ever for nonviolent marijuana crimes. When she talked to others about the severity of her brother’s sentence, she realized that people believed that nonviolent marijuana offenders could not receive such draconian sentences.
Despite having retired and living in Hawaii when law enforcement came knocking on John’s door he was extradited to Florida—a state that he’d never lived in or committed a crime. Instead, John was drawn into a sting operation because of his contacts with a San Francisco area smuggler who had been indicted. However, John was never seen by law enforcement committing any of the crimes he was convicted of, he was never found in possession of marijuana, and his prosecution rested only upon the testimony of informants. Criminal defense lawyers describe his as a ‘dry case’, and the full story is available at johnknock.com and grandmasmind.com
But how extraordinary is this sentence? Life for Pot lists some of the most famous drug kingpins and the sentences that they received, and it seems that John’s sentence was given special treatment. For example, “Freeway” Ricky Ross, the preeminent crack dealer of the Los Angeles area during the 1980s and early 90s was sentenced to life in 1996. His sentence was subsequently reduced to 20 years, and he was released in 2009. Manuel Felipe Salazar-Espinosa, deemed by the DEA to be one of the world’s most significant drug kingpins making up to $14 million in a week, was given 30 years for conspiracy to import cocaine into the United States and money laundering.
It is clear that there are differences in the sentencing of these individuals. Life for Pot seeks to identify and make others aware of these discrepancies. Beth notes that the creation of mandatory minimums at the federal level has resulted in the increase in power of the prosecutor to decide the sentence by choosing which charges to pursue. She specifically points out that the 11th Circuit, which encompasses Alabama, Georgia, and Florida, has given 6 of the 8 life sentences identified for nonviolent marijuana only offenses.
So where does this effort go from here? Although Beth has already received some feedback from politicians, attorneys, activists, and journalists, she hopes to start an organization focused on this issue soon. In order to do this, she explains that she will need advisers to help out, as well as a strong coalition. The roots of this coalition have already begun to take hold, with organizations like the November Coalition, Drug Policy Alliance, and Families Against Mandatory Minimums providing support, as well as media attention from a Columbia, Missouri NPR affiliate and High Times Magazine.
Beth would also like to broaden the focus by included those serving de facto life sentences for nonviolent marijuana only offenses, including where older individuals are sentenced to long sentences (e.g., a 50 year old sentenced to 20 years).
State sentences are another area that Beth would like to examine. Sentence reform efforts can be very successful at the state level. In order to do this, however, more resources must be available.
A group petition for clemency is also in the works for those prisoners that have been identified as part of this effort.
“The solution is political,” Beth declared. Legislative action is the best way to address the problem of egregious sentencing disparities. An organization focused on this issue would therefore be heavily focused on reaching legislators. So far, Life for Pot has sent out several cards and letters to federal congressmen and agencies. Beth also noted that advocacy efforts for the legalization of marijuana at the national level must be bolstered.
In these times where some jurisdictions are locking up nonviolent marijuana offenders for life, it is good to hear that someone is bringing the inconsistency and irrationality of these practices to light.
If you know someone that is currently serving a federal life sentence without parole for a nonviolent marijuana only offense, or would be able to assist Beth in her efforts, please contact her at firstname.lastname@example.org.