Okay, I understand that in modern society there are areas where a person is searched as a course of business. Flying on an airplane, going into a courthouse, etc. I’ve been told that the reason these examples aren’t in violation of the 4th amendment is because there is a choice involved.
In other words, I have no right to fly on a commercial aircraft. If I choose to fly on an airplane, I must make a choice to give up my right to privacy and submit to a search. If I wish to visit the County Clerk, I likewise have to submit to a metal detector screening as a condition of entry to the building. There is an element of choice involved.
Which brings me to my next question. I have jury duty next week and the paper says to be mindful about what I bring because I will be screened by a metal detector. Now, I am forced to be there under penalty of law. I cannot refuse to go, yet I will still be searched. How is this not a violation of my 4th amendment rights?
(Again, another exercise as I don’t intend on challenging this).
The 4th amendment says “unreasonable searches and seizures”. Making sure you don’t bring prohibited items to jury duty doesn’t seem unreasonable. Jury Duty is one of the requirements of citizenship and a key component of our legal system.
The fourth amendment doesn’t protect you from involuntary searches–it protects from unreasonable searches. The classic example is a search warrant.
As you yourself say, it is not unreasonable to search those going into courthouses, or airports, or other such places. This is usually because you are treated as having “consented” to do so by choosing to enter. So the only question is whether it becomes unreasonable by your being “compelled” to do so.
In this case, it seems to me that the answer is clearly no–either on the theory that this is reasonably related to an important government interest (jury duty)–especially as the courthouse search looks more like a “reasonable suspicion” search–a quick pat down/a metal detector, rather than a full “probable cause” search—such as you get incident to arrest, or on a search warrant.
Another theory might be that you’re still technically “consenting” to enter the courthouse and be searched–just with a severe consequence of doing so. The fact of the matter is that in many cases, you’re effectively compelled to do so–for example, if you’re being sued. you could choose not to go to court (and hence lose the lawsuit), but that’s not a very palatable option. Similarly, we might in theory have the “choice” to drive rather than fly, but you try telling my boss it’ll take me three days to get cross-country and see how he reacts.
I think the first is a much better argument, but that the second has legs as well–that the jury summons isn’t a court order to submit to a search–it just happens that to comply with the court order, you’ll be subjected to one.
That doesn’t mean it doesn’t feel unpleasant, or feel like the court is “forcing” you to submit to a search–but I think it’s a big stretch to call it a constitutional violation.
So if the state passed a law saying that you must submit to weekly searches of your home and car, or else face 25 years in prison, then that is legit because you are free to refuse the search and do your prison time?!?
Also, I guess a follow up question. Are judges, lawyers, and other court personnel subject to these searches upon entry to the courthouse?
Since they warn you in advance of the search, doesn’t that help make the search less unreasonable? They say, look, you have to go to jury duty and we ARE going to search you. If you show up with a kilo of cocaine and a fully automatic weapon with the serial number removed, you can’t really claim that it was an unreasonable search. Since they warn that they will search you, you don’t have a reasonable claim to an expectation of privacy.
Missed the edit window: Also, so the only protection is that a search must be reasonable? Couldn’t the government just say that, “Gee, crime is pretty bad nowadays so we must have patdowns everywhere anytime a cop wants to do it.”
Under this type of thinking it doesn’t seem like the 4th provides much of a substantive guarantee of anything. Just a balancing test of “serious public menace” on one hand vs. “5 or 10 minute search of your person” on the other hand, a citizen will lose every time. It reduced the 4th to a curiousity.
Not in my jurisdiction, no. Lawyers have already gone through a screening process to become a lawyer, including some background checks, and we are officers of the court. That rationale applies with even more force to court workers and judges.
The Law Society issues all members with a card that identifies us to the sheriff’s officers doing the screening, allowing us to bypass the screening.
Don’t you find it ironic that they need probable cause to search someone they suspect of criminal activity, but not for someone that should be treated with presumption of innocence?
Depends on the courthouse. In my local area, lawyers are not required to submit to a search upon entering state court buildings. Most of the deputies know me by name and face, so I say good morning as I step around the metal detector and go about my business.
The federal courthouses, including the bankruptcy court, search everybody that isn’t an employee that works in the building. Frankly, I find it damn annoying. Lawyers should be able to avoid the search by showing a bar card, but the federal marshals do not play that. They will let me re-enter the building after smoking without a search, provided I remain in view while I smoke.
Finally, you would be amazed at how many people get arrested at the courthouse door for stupid shit. Usually women, who have drugs in their purse, and apparently don’t seem to think that the courthouse, with the big ass signs announcing the search, uniformed officers, and a line to wait for the search, is a really bad place to take drugs.
The SC has stated time and again, “The Touchstone of the 4th AM is reasonableness”.
This year the SC ruled that strip searches are permitted when one is booked into jail.
However, it would be UNreasonable to strip search a person entering a courthouse.
Now, a question for you, as a law student, have you ever come across any case law that specifically states that a scan of a metal detector IS a search?
If there is, has it been decided it is a “Minimal intrusion”, not really subject to full 4th AM scrutiny?
In Pennsylvania v Mimms, while the SC ruled, ordering a driver out of a car IS seizure, it is a “Minimal intrusion” on personal liberty, therefore, the 4th is satisfied, as a comparitive example.
Courthouse security searches, such as metal detectors and brief pat downs, are usually justified as administrative searches which can be conducted absent suspicion of criminal activity. Speaking very, very generally, because they’re considered necessary for the safe operation of the courts, they’re limited in intrusiveness, place and scope, they’re announced to the public and conspicous to the point where you’d have to be extremely careless, foolish or high to get caught with an illegal weapon or contraband in one, and because they’re conducted for a purpose other than gathering evidence for use in a criminal proceeding, they’re considered reasonable searches under the circumstances.
This article from the LA County Bar Association is California-centric, but will give you an idea of the rationales given for courthouse administrative searches,
Shoot, I bypassed the screening by having my VA id on when I went downtown to go to a traffic court hearing. I didn’t even realize I had it on until a security guard pointed at me and said, you can go on through, you don’t have to wait. I didn’t say a thing and just hurried on by with my eyes down so I wouldn’t see the faces of the pissed off people who were a head of me but who I now skipped just because I was wearing a government ID, and I was only an office manager at the VA. It seems like it is way too easy to avoid the search for any number of reasons.:smack:
There is still a presumption of innocence for a detainee, even if under arrest.
PRE arrest, a pat down for weapons known as a “Terry Frisk”, only requires a reasonable suspicion the person may be armed.
As there is no “Individualized” suspicion for such search when entering a courthouse, it is parallel in relation to a border search, ALL are subject to scrutiny.
I think a big part of the “reasonableness” of this type of search is that although you are required by law to enter the courthouse, you know very well that you will be searched and that you should probably leave all your unregistered firearms, illegal drugs, child pornography, and photos of all the gruesome murders you’ve committed in your basement at home. Heck, even if you DIDN’T know you were going to be searched, as soon as you entered the lobby and saw the screeners there is nothing stopping you from saying “Oh shoot, forgot something. Be right back,” and dumping the offending items in your car.