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Wednesday, April 04, 2012

Thoughts on the "Strip Search" Case and Crime Severity Distinctions in Criminal Procedure

Some reaction to Monday's decision in Florence v. Bd. of Chosen Freeholders has been somewhat overblown, given the fairly narrow issue resolved by the case. Florence had conceded that "strip searches" (for lack of a better term) were constitutonally permissible for those detained for serious offenses, even absent any individualized supsicion. His sole claim was that, as someone detained on a minor offense, jail officials could not strip search him absent reasonable suspicion that he had weapons or other contraband. The Court rejected the claim.

Florence is another in a line of cases in which the Supreme Court has refused to calibrate constitutional criminal procedure rules to the severity of the crime at issue. In Atwater v. City of Lago Vista, for example, the Court held that police could arrest for any offense for which they had probable cause, even one that was a "fine-only" offense, i.e., did not have any possible jail time attached. In part, the Court refused to adopt Atwater's proposed distinction between serious and minor offenses because of the hardship it would place on the police in some cases in determining which had occurred: whether drug quantity, or the value of a stolen item, was just over or just under the threshold amount for a "serious" offense, or whether it was the suspect's first or fifth offense. Likewise, in Berkemer v. McCarty, the Court rejected the State's contention that statements made in the absence of Miranda warnings were admissible where the police arrest for a traffic violation.

The one outlier is Welsh v. Wisconsin. There, the Court held that, while police could generally enter a home without a warrant to obtain evidence that would otherwise be destroyed, the same was not so for minor offenses. The police had entered Welsh's home without a warrant to arrest him and get his blood tested after they had probable cause to think he had just driven while intoxicated. Had they waited to get a warrant, the alcohol in his blood might have dropped below the critical level necessary to show he was intoxicated when he drove. Nevertheless, the Court held that, because "Wisconsin has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible," police could not enter the house without a warrant even though there were exigent circumstances. How the officers there were supposed to know that this was Welsh's "first offense" is unexplained.

One thing that caught my eye when I read Florence is that it cites Welsh. Well, it cites Justice White's dissent in Welsh, for the proposition that police should not be called upon to make on-the-spot determinations of crime severity. Just further proof that Welsh remains exceptional and, perhaps, vulnerable. If I were a prosecutor, and the right case came up, I would not hesitate to argue that Welsh has been undermined by later cases and ought to be overruled.

Posted by Michael J.Z. Mannheimer on April 4, 2012 at 11:12 PM in Constitutional thoughts, Criminal Law | Permalink


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The New Mexico courts have taken this ball and run with it already. They've been disregarding not only Welsh but also 10th circuit precedent in a string of State cases all premised on the theory that "since the cop doesn't know, he has to assume the worst." They've upheld warrantless search/arrest in the home on the theory that if police can't be "certain" if the person their after hasn't committed a felony, then all such arrests automatically become 'serious' offenses. They've also been erasing a string of related protections, such as the misdemeanor arrest rule etc. once again on the theory that police often can't be "certain" if it is a misdemeanor. They fly the banner of Driving Under the Influence (which is a felony in New Mexico if there are thee prior convictions), but of course the concept is applicable to a wide variety of other crimes.

I would suggest there is an even more important underlying premise: in the past, the police needed at least some threshhold of knowledge to justify a stop, warrantless arrest, etc. The courts seem to have been shifting to a rationale that if the cops simply don't know, that is enough. In New Mexico there have been several recent cases where the State's argument is "The cop doesn't know anything!" and the courts have adopted that as a rationale. If the police have no reason to investigate/arrest, that is itself a reason to investigate/arrest. Not only is there not a presumption of innocence, but when the police are involved there seems to be a growing "presumption of dangerousness" and "presumption of hiding something."

Posted by: Steve | Apr 16, 2012 10:00:14 AM

Why has there been no questioning the attorney's on the decision to bring the case in the first place. The case sets horrible precedent, and the lower court ruling was upheld. Why petition this particular USSC when such horrible precedent is at stake?

Posted by: Michael Rehm | Apr 10, 2012 9:26:58 PM

How the officers there were supposed to know that this was Welsh's "first offense" is unexplained.

See FN6 but I'm not sure why they could not do a background check, particularly before entering a person's home w/o a warrant.

Posted by: Joe | Apr 5, 2012 11:59:25 AM

Jeff, all good points, and I should have directed readers to your recent Iowa piece: http://www.uiowa.edu/~ilr/issues/ILR_97-1_Bellin.pdf.

Posted by: Michael J.Z. Mannheimer | Apr 5, 2012 11:48:35 AM

Great post. I find the crime-severity variable (or more often its absence) in 4A case law fascinating, and also wonder about the tension between Welsh and other cases in this respect. I would add Tenn. v. Garner as another 4A case where the Justices endorsed crime-severity-dependent “reasonableness” assessments; the Court also hinted at the prospect in Banks (no-knock entries) and Hensley (stale Terry stops), but as you note this citation to the dissent in Welsh suggests movement in the opposite direction. There is at least one more recent data point – five justices who signaled a potential interest in distinguishing between crimes for 4A purposes in a little-discussed component of the recent Jones GPS case, where Justice Alito wrote: “longer term GPS monitoring in investigations of *most offenses* impinges on expectations of privacy,” a statement which Justice Sotomayor quoted with apparent approval in a separate opinion.

Posted by: J Bellin | Apr 5, 2012 11:10:20 AM

Giving Heller says the 2A is particularly clear in the "home" and Lawrence v. Texas doing so for the individual right to intimate association, I wonder if it would be treated somewhat differently than a jail cell for 4A purposes too, even with the selective quotation there.

Posted by: Joe | Apr 5, 2012 12:51:23 AM

How much did Roberts and Alitos concurrences matter?

Posted by: Joe | Apr 5, 2012 12:46:11 AM

Excellent post, Michael.

Posted by: Orin Kerr | Apr 5, 2012 12:19:01 AM

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