Are Strip Searches Special?
A New York Appellate Court Says Yes, But the U.S. Supreme Court's Views Remain Unknown

On December 4, in People v. Mitchell, an appellate court in New York held that NYPD officers violated the Fourth Amendment right against unreasonable searches and seizures when they stripped a suspect in the street, in front of a church, in the absence of "circumstances that pose potentially serious risks to the arresting officer or others in the vicinity." In other words, according to the court, the simple fact that police had probable cause to arrest a suspect did not alone authorize them to perform a public strip search.

The most surprising thing about the New York court's ruling is that it is not already a well-established constitutional principle. The notion, to paraphrase Gertrude Stein, that "a search is a search is a search," and that police can accordingly do whatever they like to a suspect once they have a sufficient basis for a search, is not some bizarre belief held by rogue cops. Instead, it is--alarmingly--a plausible understanding of existing Supreme Court precedents.

The Fourth Amendment provides: "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."

The U.S. Supreme Court has repeatedly construed this provision to require, with some exceptions inapplicable here, that police have probable cause (and often a warrant as well) before searching or seizing any suspect. In a few select cases, however, the Court has ruled that more than probable cause would be necessary.

In Winston v. Lee, for example, the Court said that probable cause alone is an insufficient justification for surgery on a suspect to locate incriminating evidence inside his body. The Justices there cited, among other things, the unknown medical risks as precluding an equation between the search of a house or a suitcase, on the one hand, and the performance of a surgical procedure, on the other.

In a second such extraordinary case, Tennessee v. Garner, the Court held that the police may not invariably use deadly force on a fleeing suspect, even though they have probable cause to authorize an arrest (a "seizure" of the person under the Fourth Amendment). Because life is a distinct fundamental right--quite apart from the liberty and privacy interests ordinarily associated with Fourth Amendment safeguards--the Court refused to authorize the use of deadly force in the absence of any threat to the police or the public.

But in other cases in which one might expect a heightened standard to apply, the Supreme Court has declined to infer one. In Zurcher v. Stanford Daily, for example, the Court said that the Fourth Amendment does not extend any extra protection for the privacy of newspaper offices or for the privacy of innocent third parties who are not suspected of any crime but in whose possession there might nonetheless be some evidence of others' guilt.

In trying to guess what the Supreme Court might say about People v. Mitchell, we are therefore left with the following, somewhat strange, question: Is a strip search, performed on a public street in front of a church, more like surgery and getting shot or more like having one's closet or vehicle inspected?

The answer depends a great deal on what aspects of a strip search (and of the potential analogous intrusions) we choose to focus.

The Supreme Court has defined a "search" as an invasion of a reasonable expectation of privacy. If a person ought to be able to maintain privacy in a particular place or context, says the Court, then the Fourth Amendment protects that expectation by imposing a requirement that government authorities provide an adequate basis for investigation on any given occasion.

No one would deny, of course, that a strip search invades a reasonable expectation of privacy. The crucial question, however, is whether it does so in a way that qualitatively differs from what occurs during an ordinary search.

According to the appellate court in People v. Mitchell, the answer to this question is yes, particularly when the strip search occurs in public, where men, women and children who may be neighbors or co-workers of the target, can watch. At its core, the right to avoid "exposure" of what is private seems spectacularly violated during a public strip search.

To the Supreme Court, however, strip searches may not seem so special. By comparison to surgery and deadly force, a strip search (without a body cavity component) involves no bodily penetration and no significant risk of death or injury.

Granted, the Court in Winston v. Lee discussed the privacy implications of surgery, which exposes one's internal organs without consent. But the Court also treated surgery as special because of the medical risks involved in anaesthetizing people and cutting them open. Because such risks do not ordinarily accompany strip searches, such searches would seem to be outside the category of extraordinary intrusions that the Court has held demand more than probable cause.

In a different legal context, moreover, the Court has treated strip searches as nothing special. In Bell v. Wolfish, the Court rejected a Fourth Amendment challenge to a policy of performing not just strip searches but visual body cavity searches of pre-trial detainees, following contact visits with people from outside the institution. (Note that pretrial detainees -- like arrestees -- have not been convicted of any offense, and may be innocent and wrongly accused.)

Although there might not be any reason to suspect particular visitors of smuggling drugs or weapons to a presumptively innocent loved one, the Court said that these searches of the detainees--like the random cell inspections that occur within the jail--were reasonably related to a legitimate nonpunitive governmental objective, namely, keeping drugs and weapons out of the hands of detainees.

To be sure, we cannot necessarily generalize that much from Bell v. Wolfish, because almost all constitutional rights receive far less exacting protection within the walls of a prison or jail. Nonetheless, it is hard to imagine that the Court would similarly approve a policy of operating on all pre-trial detainees after contact visits, no matter how helpful to institutional order.

There is a way of thinking about strip searches that makes them more like surgery and death than might at first appear. Consider a strip search from the perspective of the suspect.

Several police offers stop you, grab you, throw you against the hood of a car, and then unzip your pants and pull them and your underpants down to the ground. You, the suspect, are helpless, traumatized and humiliated. You are also scared. Though there is no penetration, you have no reason to assume that there won't be. You are therefore in the position of a man who has been sexually assaulted and may be raped.

If this sort of thing happened but the people involved were anyone other than police officers, you would likely be authorized to used deadly force to defend yourself. Moreover, in being stripped publicly by the police--an occurrence that is relatively uncommon--you have reason to fear that you are dealing with rogue cops. If you have heard of Abner Louima or other victims of police brutality, the fact that the assailants are police officers may be cold comfort.

On the other side of the balance is the possibility that the suspect--of whom the police have probable cause to suspect criminal behavior--has a weapon concealed in his clothes. To protect themselves and the public, police could argue, they should be allowed to perform even a strip search, if necessary.

But that is, of course, all that the New York appellate court asks--that a strip search truly be necessary, and that it be avoided "absent the most compelling circumstances." To classify (public or private) strip searches as special does not eliminate them as legitimate law enforcement techniques under all circumstances.

Treating strip searches as legally distinctive does, however, recognize the reality that even in the absence of physical injury, a strip search will be experienced by a suspect as a frightening, traumatic and even life-threatening event. As the New York court correctly held, strip searches should therefore be treated as a departure from the norm, requiring a greater justification than simply probable cause to believe that a crime has been committed.