Score one for sanity.  The Town of Southampton on the eastern end of Long Island has a policy of strip searching (with extreme prejudice) all arrested females.  Not all males, mind you, but just women, and without regard to the reason for, or seriousness of, the charge against the women.  But then, it also has a policy of turning on a video camera whenever they strip search females, and broadcast the strip search throughout the police station.  Kinda like cheap entertainment for the troops.

But Stacey Hartline, 21 at the time, was not amused.  Via Newsday, Stacey was arrested for a “B” misdemeanor possession of marihuana (in New York, the law spells marijuana with an “h” instead o a “j”).

According to court papers, Hartline was stopped by a village officer because her truck was missing a rear license plate. The arresting officer said he saw a stem of a marijuana plant on the truck floor and a search found other bits of marijuana. Hartline said the officer never asked her if she had any marijuana or other contraband before arresting her.

Before moving on, let’s consider the claim that the officer observed a “stem of a marijuana plant on the truck floor.”  Anybody want to explain how the officer was capable of discerning that the stem was from a marijuana plant rather than some other plant?  But it appears that nobody discusses the possibility that this allegation is utterly ludicrous, and a wholesale fabrication.  But hey, this is the law, and even nonsense like this becomes real if no one complains about it.

So Stacey, whose stepfather just happens to be a detective in the neighboring town, decides to sue for violation of her civil rights.  The case goes to Eastern District Judge Dennis Hurley, who grants summary judgment to the Town and cops under the theory that they possessed a reasonable individualized suspicion that Stacey had secreted contraband so as to justify the need for a strip search.

Let’s make another pit stop at this point, for those who are confounded by the seeming anomaly between the fact that this strip search was not conducted because of any actual reason, but merely because of a blanket policy.  One of the joys of federal caselaw is that it ignores the real reason things are done, and allows the cops to come up with a pretend reason that never applied in order to justify their conduct.  This is another of those fabulous legal truths that bear no connection to reality, but rather give the police as many possible outs for this misconduct as possible.  Any excuse in a storm.

Despite this judicial largess, the Second Circuit reversed Judge Hurley in Hartline v. Gallo, rejecting Judge Hurley’s conclusion that there was “individualized suspicion” and concluding that there was essentially no basis at all for believing that Stacey should be strip searched. 

Ultimately, if the facts of this case amount to reasonable suspicion, then strip searches will become commonplace. Given the uniquely intrusive nature of strip searches, as well as the multitude of less invasive investigative techniques available to officers confronted by misdemeanor offenders, that result would be unacceptable in any society that takes privacy and bodily integrity seriously.

While the Circuit never says so, my read is that Judge Hurley tacitly crafted the drug/strip search exception to the 4th Amendment, meaning that any time someone is busted for possession of any drug, and here it was merely some alleged marijuana twigs and seeds, this alone provides a legitimate basis to look into dark places where the cops otherwise shouldn’t go. 

Another small detail within the decision, which the Circuit finds sufficient to include but never specifically discusses further, is this exchange between Hartline’s stepfather, Detective Stephen Wilson, and Southampton Chief of Police Jim Sherry:

This evidence included an official report of the incident submitted by Officer Donovan in which she described the strip search of Hartline as done “in the same manner that the undersigned conduct[s] searches of all defendants that are female,” and an affidavit of Hartline’s stepfather Stephen Wilson, who was a detective in a neighboring town attesting that when Wilson spoke soon after the incident to Southampton’s Chief of Police, Jim Sherry, Sherry acknowledged that all female prisoners are strip searched. In response to Wilson’s astonishment, Sherry added, “Steve, you are a cop, you should know . . . . [Y]ou know the guys do it.”

This reflects the part that disgusts me, and hopefully disgusted the Circuit panel as well.  No, strip searches of 21 year old women are not a perk of the job for the police.  This is just plain nasty, and the Circuit did well to reverse Judge Hurley and hold that Stacey Hartline was entitled to a trial.  Let’s hope that every ugly, nasty, disgusting aspect of this diseased policy is thoroughly aired, and let’s hope that the district court doesn’t try to hide the “irrelevant” aspects of what happened here from public scrutiny.