Opinion: Of Strip Searches and Immigration Stops

OPINION

Of Strip Searches and Immigration Stops

By Barbara Armacost '89

On October 12, 2011, the Supreme Court heard oral arguments in Florence v. Board of Chosen Freeholders of County of Burlington. The case arose out of the events of March 3, 2005, when April Florence was driving her husband, Albert, and their three children to her mother’s house for a family celebration and was pulled over by state police in Burlington County, New Jersey. During the stop, police confirmed that Albert Florence was wanted on an outstanding arrest warrant in Essex County. They arrested him, took him to the police station for booking and then to the Burlington County Detention Center (BCDC) to await transfer to Essex County. The normal intake process at the BCDC requires inmates to strip naked, apply delousing soap, and shower while being supervised by guards who visually observe the undressing to make sure inmates are not armed.

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As Albert Florence described the process, guards stood an arm’s length away and directed him to stick out his tongue, raise his arms, turn in all directions, and lift his genitals. After six days in jail, Florence was transferred to Essex County Correctional Facility (ECCF), one of the largest jails in New Jersey. Intake procedures at ECCF require inmates to enter the shower area, strip, and shower under supervision of jail employees. Florence alleges that in addition to stripping and showering, he was required to open his mouth, lift his genitals, turn around with his back to jail officials, squat, and cough. Approximately 24 hours later, an Essex County Judge dismissed the charges (the arrest warrant had been withdrawn but not removed from the computer file) and ordered Florence’s immediate release.

A little over 1,000 miles away, police officers in Alabama have just begun enforcing a tough new immigration law, most of which has been upheld against constitutional challenge by a federal court of appeals. One provision requires police to investigate the immigration status of any individual who has been lawfully stopped, detained, or arrested and whom officials have “reasonable suspicion” may be an illegal alien (similar provisions have been enacted in Arizona, South Carolina, Georgia, and Utah). Supporters of such immigration policing provisions argue that permitting state and local officers to investigate the immigration status of individuals stopped for other offenses is a badly-needed “force multiplier,” swelling the ranks of federal agents by nearly 800,000 state and local police officers across the country. In addition, it brings into the range of immigration enforcement the thousands of individuals who are stopped daily by state and local police in routine law enforcement encounters. As supporters are fond of pointing out, two of the 9/11 hijackers were stopped for traffic violations during the week prior to the World Trade Center bombing and, if local officials had been authorized or required to investigate their immigration status, the officers would have discovered that both had overstayed their visas.

At this point, dear reader, you are probably asking, “What do strip searches in prison and immigration enforcement by state and local police have in common?” The answer is that both implicate an important (and sometimes troubling) feature of the criminal justice system, which is well-known to criminal justice scholars and practitioners but less known to those unfamiliar with criminal procedure: Fourth Amendment rules for conducting searches and seizures of criminal suspects make no distinction between serious crimes and minor crimes when it comes to the actions police can take in investigating these crimes. Let me explain. At first glance the actions taken by prison officials in the Albert Florence case, though uncomfortable and intrusive, seem justified. BCDC houses some 450 male inmates who have committed all manner of crimes. ECCF, where Florence was eventually moved, is the largest and one of the most dangerous county jails in the state, with a daily average of over 1,900 inmates (including some 1,000 gang members). It is located in a large urban area with a high crime rate and tends to house individuals charged with violent crimes or drug related offenses than other county jails. Prison officials can’t be expected to introduce potentially dangerous inmates into the general prison population without making sure they are not hiding weapons or contraband on their persons or in their clothing and without the opportunity to look for gang tattoos. Under these circumstances the strip search of Albert Florence looks justified.

But the case is easy only if we assume that Albert Florence belonged in jail in the first place. Recall that Florence was arrested on an outstanding bench warrant. This might sound serious, but the arrest warrant resulted from a civil contempt order for failure to pay a fine in connection with an earlier offense. (In fact, Florence paid the fine in full within a week after the arrest warrant was issued but the warrant was not removed from the police computer system.) Thus, the real question is not whether prison officials should be permitted to strip search inmates who will be placed in the general prison population. Arguably they should. Rather, the question is whether persons who commit minor offenses (such as traffic violations or fine-only misdemeanors) should be subject to arrest and detention in the first place. Arguably they should not. But Fourth Amendment law, as currently construed, applies the same rules for arrests and searches in connection with minor offenses as it does for serious ones such as murder, drug dealing, or armed robbery.

The most decisive holding on this point is the 2001 case, Atwater v. Lago Vista, in which Ms. Atwater was arrested for failing to wear her seatbelt, an offense punishable by a fine. Under then-current Fourth Amendment law, the arrest triggered an automatic search of her person and the passenger compartment of her automobile. She was then taken to the police station, booked, made to remove her shoes, jewelry, and eyeglasses and to empty her pockets, photographed, and placed in a jail cell. In her suit against the police department, Ms. Atwater argued that police should not have been permitted to arrest and jail her for an offense that could not result in jail time even if she had been convicted of the offense. The Supreme Court rejected this argument, upholding warrantless arrests for any criminal offense, regardless of how minor. The implications of this holding are dramatic. Atwater means that individuals who are stopped for minor, fine-only traffic violations can be removed from their cars, arrested, searched for weapons and contraband, booked, photographed and placed in a jail cell for up to 48 hours before being brought before a magistrate. In addition, under some circumstances their cars can be searched on the spot or impounded and searched at the police station.

It is Atwater that makes Albert Florence’s case hard. Although the officer who arrested Florence had an (expired) warrant, police actually needed no warrant to arrest Mr. Florence. They could simply have waited for him to commit a traffic offense. Atwater permits warrantless arrests (and temporary detentions) for any criminal offense, including the most minor traffic violation such as failing to put on a turn signal or failing to pay attention to the road. In other words, anyone who is stopped and arrested for a minor, fine-only crime could be required (consistent with the Fourth Amendment) to undergo the strip-search procedures routinely used by detention facilities such as Burlington County and Essex County. This brings us to the connection between Mr. Florence’s case and the newly-enacted Alabama immigration law.

Recall that the Alabama immigration statute—and similar provisions in at least four other states—provides that police officers who make a “lawful stop, detention, or arrest” are required to investigate the immigration status of any person they have “reasonable suspicion” may be an illegal alien. In response to the concern that such provisions lead to racial profiling or harassment of law-abiding immigrants, supporters argue that immigration investigations are strictly limited to those who are suspected of breaking some other criminal law, which is the primary reason for the stop, detention, or arrest. This might be persuasive until one realizes that the most common category of police stop is a traffic stop and that most traffic offenses, while nominally criminal, regulate the kinds of conduct we all engage in from time to time. In addition, traffic laws are routinely under-enforced. For example, many of us assume we can go five or even ten miles over the speed limit without being ticketed, although police could (and sometimes do) ticket drivers for these infractions. Laws that are under-enforced invite police officers to pick and choose who they stop based on other considerations and it is a well known police strategy to use minor traffic offenses as pretexts to investigate drug crimes. An officer who suspects drug activity can simply follow the suspect’s car until the driver speeds, fails to signal, or rolls through a stop sign. The officer can then look for evidence of the drug offense in “plain view” inside the car or arrest the suspect for the traffic offense and get an automatic search of the arrestee’s person and, in some circumstances, a search of part, or all, of the automobile. Evidence found during these post-arrest searches is admissible in a criminal trial.

The claim that immigration policing will be directed only at criminal aliens is related to another important—but ultimately false—assumption. Provisions like the one in Alabama have been read by supporters as if the primary stop, detention, or arrest will be viewed by police as independent from the mandate to enforce the immigration laws and thus will not lead to ethnic profiling. In other words, police officers will decide whether to stop, detain, or arrest suspects under “other state laws” without any consideration of their ethnicity or their illegal status. There is no reason to be confident this will be any truer in the immigration context than it is in policing ordinary street crime. Even in the case of serious crimes such as drug dealing, non-white suspects are more likely to be investigated, arrested, and prosecuted and, in some cases, sentenced more harshly than other populations. Such targeting is even more probable in the context of ordinary street stops and arrests.

Consider the following scenario: an Alabama police officer clocks a driver going 45 mph in a 40 mph zone. Speed limits, like many traffic laws and other low level criminal offenses, are routinely under-enforced, so the decision whether to stop a speeding automobile will necessarily depend upon other factors, which may or may not be related to road safety. For example, the police officer may not have reached her quota” of traffic tickets or the automobile is a make and model often used by drug dealers. Suppose that at the same time the officer clocks the vehicle’s speed she also notices that there are five men in the car, all Hispanic. The officer now has an additional reason to stop the speeding driver. She suspects that the car packed with Hispanic men is on its way to a site where illegal immigrants hire themselves out as construction day laborers. This may not add up to reasonable suspicion but it doesn’t matter because the officer already has probable cause to stop the driver for speeding. Once the automobile is stopped the officer can ask the occupants for identification and, finding none, may have “reasonable suspicion” to believe they are in the country illegally. This then obligates the officer to detain the men in order to verify their immigration status under Alabama law.

The relevant point is that the decision to stop, detain, or arrest in enforcement of “some other law” is not hermetically sealed from the decision to investigate a suspect’s immigration status. Alabama police officers will have strong incentives to stop any foreign-looking driver who is violating state traffic laws. Moreover, an officer who did so would not (at least not necessarily) be acting in bad faith. Faced with this combination of facts—a speeding car filled with Hispanic-looking men in an area where large numbers of illegal Hispanic aliens reside—the officer could plausibly believe she is required to stop the vehicle. Indeed, in a recent press report one of the primary drafters of a similar provision in Arizona suggested that this precise set of facts might, itself, be enough to prompt a stop.

Moreover, it is well documented that police officers routinely use stops and arrests for minor traffic violations in precisely this way: as a pretext for investigating other, unrelated criminal conduct. They do so because it is easy to justify a traffic stop and much harder to defend a stop based on probable cause or reasonable suspicion of criminal activity. The Alabama immigration law creates similar incentives both to use traffic offenses as a tool for investigating suspected violations of state and federal immigration law and to use suspected immigration offenses as a tool for investigating other criminal activity. And each of these circumstances poses the danger of racial profiling. Defenders of these laws argue that police cannot stop or arrest for the purpose of checking immigration status. It is a short step, however, from stopping a speeding car and secondarily verifying immigration status to waiting for a foreign-looking driver to commit a traffic offense in order to check his immigration status. And no one but the officer knows which came first—knowledge of the traffic offense or knowledge that the driver or passengers looked ethnically foreign. This means that police officers can pursue immigration violators by targeting foreign-looking drivers for traffic stops, an explicit example of racial profiling that the Alabama law’s supporters claim won’t happen.

One response to this scenario is, “So what?” If using traffic laws helps us catch immigration offenders who may be criminals or terrorists, why shouldn’t we? The first response is that most immigrants—legal or illegal—are neither criminals nor terrorists. Indeed, some data suggests that illegal immigrants are actually less likely to commit crimes. Moreover, even if illegal aliens did commit more crimes than other populations, police chiefs around the country (the majority of whom oppose state immigration enforcement) claim that such enforcement would not reduce crime. They argue that effective investigation and prevention of crime requires cooperation by members of the community who are a primary source of information about criminal activity in their area. If police become immigration enforcers in immigrant communities, where families and social groups include both legal and illegal immigrants, they lose their best sources of “intelligence” for fighting crime, including gang-related crime. In addition, while some defenders of state and local immigration laws consider it a victory when immigrants pack up and move out of the jurisdiction—what Arizona calls “enforcement by attrition”—it is not at all clear that such flight will actually reduce the illegal population nationally. And it will surely not do so without destructive (and perhaps irreversible) effects on our economy and the social fabric of our communities. In addition, we also need to ask hard questions about whether the strategy of “enforcement by attrition” is morally defensible and socially desirable.

So, what does the strip search of Mr. Florence have in common with state immigration enforcement? They each raise the question whether it makes sense for Fourth Amendment law to treat investigation of minor crimes such as traffic offenses the same way it treats investigations of serious crimes such as murder, rape, assault, burglary, and robbery. Doing so permits strip searches of detainees like Mr. Florence. It also encourages police in states with immigration policing provisions to use traffic violations to target foreign-looking individuals who may or may not be illegal immigrants and are probably not criminals or terrorists.

Let me end by saying that I hope I have engaged in a bit of “Stuntzian” analysis by identifying two, seemingly disparate phenomena and showing how comparing them illuminates a broader point about the law. If I have succeeded at all in that endeavor, I owe a huge debt to my friend and mentor Bill Stuntz, who was an illuminator-of-counterintuitive-insights extraordinaire and to whom the Law School has dedicated this issue. Thanks Bill, and I miss you!

Professor Armacost teaches civil rights litigation, criminal investigation, torts, legislation, and First Amendment (religion clauses) at the Law School. This essay is part of a larger project entitled, “Immigration Policing: Federalizing the Local” (forthcoming 2012).