Friday, 20 April 2012 00:00
Our brilliant Supreme Court Justices do not live in the real world. They live in the ivory or at least marble tower of the Supreme Court, far removed from the streets, precincts and jails where arrests are made. Our justices need to descend from their lofty positions in the high court and come into our neighborhoods, riding shotgun with defense lawyers and even law enforcement to see what life in the real world is like. Their learning curves seem to have stopped once confirmed.
A 5-4 decision that allows for strip searches even for minor offenses is a ludicrous defilement of the Fourth Amendment of the Constitution, a document whose tenets they are sworn to uphold. The Fourth Amendment prohibits all searches but those based upon probable cause to believe that a crime is being committed. Traffic infractions; building code violations; disorderly conduct; a failure to pay fines and spitting on the sidewalk are not crimes. Similarly, the court made no distinction between so called malum prohibitum crimes, which require no intent or mens rea (the evil mind) prior to arrest and malum in se crimes where intent is required.
The Fourth Amendment was given second place to security in the court’s decision. Now anyone placed under arrest, for any reason, women and children included, are subject to the proclivities of law enforcement favoring search and seizure or to be more blunt, invasion of the anal, oral and vaginal cavities, at the time of arrest. Hello, Supreme Court Justices, wherever you are.
In nearly every criminal case, probable cause becomes an issue. If it is determined that there is no probable cause, then everything seized thereafter becomes the product of an illegal search; for example, drugs found in the trunk of a car discovered after a search and without consent may be suppressed and hence there is no case, at least not a drug case.
None of our Supreme Court Justices have ever been subjected to a strip search or even seen one. Perhaps if Justice Thomas were stopped for “driving while black” and forced to undergo a strip search, he would have a better understanding of why these practices are often abused by law enforcement; then generating a cavalcade of civil rights litigation and damage awards for false arrests and imprisonment. The alleged literalists in our Supreme Court need to go back and read the Fourth Amendment. There they will find no mention of strip searches but they will find that: “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.” Unless the names of our Supreme Court Justices have changed to those of the founders, they are not privileged to re-write the Constitution.
Thomas F. Liotti
Village Justice, Westbury Attorney, Garden City