I’ve pulled out some gems from the oral argument in Stafford Unified School District v. Redding, the student strip search case now pending in the Supreme Court. Even non-attorneys may enjoy this. Read on for a discussion about what kids do with permanent markers, the “ick factor” of “crotching” drugs and, maybe, an over-share from Justice Breyer. Get the full transcript here (pdf).
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JUSTICE SCALIA: Any contraband, like the black marker pencil that — that astounded me. That was contraband in that school, wasn’t it, a black marker pencil?
MR. WRIGHT: Well, for sniffing.
JUSTICE SCALIA: Oh, is that what they do?
MR. WRIGHT: It’s a permanent marker.
JUSTICE SCALIA: They sniff them?
MR. WRIGHT: Well, that’s the — I mean, I’m a school lawyer. That’s what kids do, Your Honor, unfortunately, Your Honor. But –
JUSTICE SCALIA: Really?
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JUSTICE SCALIA: Could I come back to your distinguishing a strip search from a cavity search. What would you require before you would allow a cavity search?
MR. WRIGHT: Nothing at all. A bright line rule. I would not allow it.
JUSTICE SCALIA: No cavity search in school, no matter what?
MR. WRIGHT: We’re not even clinically trained to do that, Your Honor. I would submit that if a child has something stuffed up one of their cavities — and I assume we mean private parts, the very private parts — that the first thing to do would be to send them to the hospital. I mean, we just don’t have that clinical training.
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JUSTICE SCALIA: Now, if — if you have a reasonable suspicion that the student has drugs and you search every other place, you search in the student’s pack, you search the student’s outer garments, and you have a reasonable suspicion that the student has drugs, don’t you have, after conducting all these other searches, a reasonable suspicion that she has drugs in her underpants?
MR. O’NEIL: No, Justice Scalia, we believe that you don’t –
JUSTICE SCALIA: All right.
MR. O’NEIL: — without — without –
JUSTICE SCALIA: Your logic fails me.
MR. O’NEIL: Well, Justice –
JUSTICE SCALIA: You — you reasonably suspect the student has drugs. You’ve searched everywhere else. By God, the drugs must be in her underpants.
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MR. O’NEIL: No, because we believe that where you have reasonable suspicion that there is contraband in the underwear, then you could go directly to that location, and you wouldn’t have to work from the outside in. But, Justice Scalia, it takes –
CHIEF JUSTICE ROBERTS: Oh, surely not. You are saying if you have reasonable suspicion that it’s in the underwear, you shouldn’t even bother searching the pack or the pockets. You should go straight to the underwear. That can’t be right.
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JUSTICE SOUTER: But you are — you are saying basically there is — there is no general understanding that people carry ibuprofen in — in their undergarments.
MR. O’NEIL: That is — that is true.
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MR. WOLF: Well, I mean, to start, that’s not what T.L.O. said. T.L.O. said that there needs to be a reasonable –
JUSTICE SOUTER: I’m — I’m saying it.
(Laughter.)
JUSTICE SOUTER: We — We’ve got a new case.
(Laughter.)
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JUSTICE GINSBURG: Do you agree with Mr. O’Neil when he said if the drug had been cocaine, and it’s well known that cocaine is carried in underwear, that then this would not run afoul of the Fourth Amendment? He gave an example of a drug where there was a custom of carrying it in a certain way.
MR. WOLF: Right. I think if it were readily known that this student had previously been suspected of — to use the term that’s used in the court of appeal cases — “crotching” that drug, well, then, perhaps that would have been appropriate.
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MR. WOLF: Well if there’s probable cause and they want to call the police officers in, then they can do that. But that’s not what happened here. What this school official did was act on nothing more than a hunch, if that, that Savana was currently concealing Ibuprofen pills underneath her underpants for other’s oral consumption. I mean there’s a certain ick factor to this.
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JUSTICE BREYER: It’s not like you have any studies on this. But I mean, I hate to tell you, but it seems to me like a logical thing when an adolescent child has some pills or something, they know people are looking for them, they will stick them in their underwear. I’m not saying everyone would, but I mean, somebody who thinks that that’s a fairly normal idea for some adolescent with some illegal drugs to think of, I don’t think he’s totally out to lunch, is he?
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JUSTICE BREYER: So what am I supposed to do? In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear –
(Laughter.)
JUSTICE BREYER: Or not my underwear. Whatever. Whatever. I was the one who did it? I don’t know. I mean, I don’t think it’s beyond human experience, not beyond human experience.
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