Posted on April 23, 2009 by Walter Reaves

Keep your hands out of their pants

The Supreme Court heard arguments this week in the case of a 13 year old girl who was strip searched for drugs based on a tip from another student. Some of us are well beyond 13, and its easy to lose site of modest kids are at that age. If you have, or have had a teenager, you know the lengths they will go to make sure no one sees them without their clothes. So you can imagine how humiliating and traumatic it must have been for this young girl to have to remove her undergarments in front of stangers; all to see whether she had a couple of tylenol.

During arguments it appears the Court lost sight of what is actually involved. Instead, they talked about what kids will put in their undergarments. One justice even wondered if there was a difference between panties and a bra. If it was anyone else talking about these things they  investigation would be launched.

What I am having a hard time understanding is the rational for such a search. The court talked about the need to protect school officials and other students. I can't argue with that; we know too well what can happen when students bring weapons to school. What I don't understand is why you need to search their underwear for weapons. Unless there is something I don't know, can't you determine whether some has a weapon by patting them down. I thought that was why we had Terry stops, so officers could be sure a suspect wasn't armed. Is there some weapon so small you couldn't find it in through a pat down.

What is really sad to me about this case is that we are even debating it. We are talking about violating a 13 children here. Have we come to the point where even that is sacrificed to the war on drugs?

I'm not suggesting a full body is never proper. However, I think you need something more than unsupported hunch, or speculation. Before you go to those lenghts, you should be sure that you are going to find something.

Students still have some rights at school. Let's hope the court recognizes that.

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Posted on April 22, 2009 by Walter Reaves

What does Gant really mean?

I have been recovering from several trials, so I'm weighing in a little late (as in 1 day - you gotta love the blawgosphere). Others have already discussed what the decision in Arizona v. Gant really means, and its implications. I join those who suggest that you have to look at the specific facts, especially the fact the car was parked on private property. What I want to address are what I think are the broader implications of the decision.

The court has been engaged in a steady attack on the Fourth Amendment for several years. Every time they have taken up a Fourth Amendment case, they have used it to chip away at its protections. It was only a few months ago that they decided it didn't matter if the warrant you were being arrested on had been withdrawn, and not removed from the computer system. So to me the decision here was a welcome surprise; the Court took the opportunity to hold that the Fourth Amendment still means something. For those who have suggested its ultimate demise, this is a welcome sign.

This was far from a cut and dried case; in fact, the vast majority of courts that have have addressed the issue (i.e. searches of vehicles incident to arrest) held contrary to the court's ultimate decision. I don't think I was the only one that predicted the Court would take this opportunity to affirm that interpretation, and broaden the authority to search. I'm happy to be wrong!

The other thing I take from this case is the acknowledgement that police officers do not always act as they should. The court acknowledged it's prior holdings had been used to trample on individual rights, to the extent that anyone stopped for a minor traffic violation was subject to a full vehicle search. They also recognized that police are not above manipulating the situation to do what they want. In fact, Justice Scalla argued for a different rule because he suspects police will now manipulate the arrest to ensure they can still search the car. Perhaps this is a broader trend in society as a whole. Personally, I think it is because it is because efforts to bring to light those situations where officers abuse their power. Many people - including now the court - now believe those are no longer isolated incidents.

I don't expect great changes, and don't believe we we are going back to the era of the Warran court. However, I do think it is a positive development. Citizens still have rights, and the court has recognized that those rights sometimes trump the interests of law enforcement. It's a good start.

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