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.