Wednesday, October 8, 2008

Southampton strip-search may violate the Constitution

A woman in Suffolk County, New York, was arrested and strip-searched at the Village of Southampton police station after she was pulled over for a traffic violation and the officer saw marijuana in the truck. Although the police had no reason to believe that she had drugs on her person, she was strip-searched by a female officer pursuant to police policy to strip-search all arrested females. The evidence suggested that the search was telecasted through the police department. The Court of Appeals says that can sue the Village as well as the police officers.

The case is Hartline v. Gallo, decided on October 8. The policy of strip-searching all female arrestees even without individualized suspicion that they are carrying contraband violates the Fourth Amendment prohibition against unreasonable searches and seizures. Hunches are not allowed under Second Circuit case law which, really, every law enforcement agency should know after all these years.

The Second Circuit (Wesley, Calabresi and Leval) reinstate the case which the district court dismissed. The Court is perplexed at what happened to the plaintiff, stating:

It is hard to imagine how the facts of this case could have led a reasonable officer in Officer Gallo’s position to suspect that Hartline was illicitly concealing drugs on her person. Officer Gallo had no reason to believe that Hartline was under the influence of narcotics at the time of her arrest. Officer Gallo found no useable narcotics in Hartline’s vehicle, nor did he see Hartline take any suspicious actions which might have suggested she was hiding something as he approached her vehicle. Officer Gallo did not notice anything about Hartline’s physical appearance that suggested she was secreting drugs on her person, nor did he engage in a less invasive pat down search that suggested the presence of contraband. Hartline answered every question that Officer Gallo asked her about drugs truthfully, yet Gallo did not even ask Hartline if she had any drugs on her person. Furthermore, Hartline had been arrested for nothing more serious than a B-misdemeanor.

The Circuit shot holes through the defendants' justifications for strip-searching this woman, concluding that these searches would be commonplace if the police department got away with the search here. "That result would be unacceptable in any society that takes privacy and bodily integrity seriously," the Court observes.

The only way out for the officers at this point is qualified immunity, which protects the police from lawsuits if the law was not clearly established at the time of the violation. But the Court of Appeals has been ruling against blanket strip-searches for two decades. Qualified immunity protects good-faith public officials who are not expected to be legal scholars in predicting what the court would do under unique circumstances. While the Second Circuit has never before held that a strip-search like this is illegal, it has never before suggested that it might be legal. Therefore, no qualified immunity for the officers.

1 comment:

Zemo said...

MIGHT violate the constitution??

Why would it ever be in question?

People had better wake up or they will end up like this woman or one of the MANY others abused under the 'color of law'.