Supreme Court Returns to Consider Health Care, GPS Technology, Strip Searches and More

Oct 3, 2011 -- A day after a majority of justices attended Washington's traditional "red mass," to note the start of its new term, the full Supreme Court took the bench to begin the 2011 term today, the first Monday of October.

Looming over the start of the 2011 term is the question of when the justices might hear a challenge to the signature legislative achievement of the Obama administration: the health care law.

But the court is already set to hear an interesting range of other cases, including law enforcement's use of global positioning systems, the government's policy of indecency on the broadcast airwaves and the constitutionality of strip searches for minor offenses.

Health Care

Lower courts are divided on the issue of whether the health care law's key provision—the individual mandate requiring individuals to buy health insurance by 2014 or pay a tax penalty—is constitutional.

On Wednesday night the Obama administration asked the Court to review the case it lost in the 11th Circuit Court of Appeals.

Because the government is asking the Supreme Court to step in an address a major act of Congress that has divided the lower courts, the Justices are likely to take up the issue this term and decide it before the next election.

Collison: New Technology vs. Unreasonable Search and Seizure

In the court's most important Fourth Aendment case in a decade, the justices will weigh an individual's expectation of privacy against law enforcement's use of increasingly sophisticated technology to follow suspects on public property.

In 2008, Antoine Jones, who owned and managed a nightclub in Washington, D.C., was convicted on drug charges. Law enforcement used a variety of techniques to link Jones to other co-conspirators. One technique was a global positioning system, or GPS device, installed secretly without a valid warrant on a jeep used by Jones in order to track his movements by satellite.

An appeals court in Washington, D.C., reversed Jones' conviction, finding that the evidence obtained with the GPS device violated the Fourth Amendment's protection against unreasonable search and seizure.

Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the District of Columbia, differentiated between a conventional 24-hour surveillance conducted by law enforcement on public streets and the GPS technology that tracked Jones' movements 24 hours a day for nearly a month.

"Here the police used the GPS device not to track Jones' movements from one place to another but rather to track Jones' movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place," Ginsburg wrote.

The judge said that the use of GPS is much more invasive than traditional surveillance.

"It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements and chores that make up that person's hitherto private routine," he wrote.

Lawyers for the Obama administration have appealed the decision, arguing in court papers that all the jeep's movements were "unquestionably exposed to public view," and therefore Jones did not have a "justifiable expectation that his public movements would remain invisible to private or government observation."

The court will also consider whether the act of actually attaching the device onto the car was a violation of the Fourth Amendment.

Lawyers for Jones say that the government could not justify violating Jones' privacy by arguing that it was doing something that any member of the public could do on public property.

"You may understand that your neighbor can observe you on a public street, " said Walter Dellinger, a lawyer for Jones, "but what you cannot expect is that a neighbor would attach a GPS to your car and disclose your every movement."

Fleeting Expletives and the Government's Policy on Indecency

The Supreme Court will hear a challenge brought by broadcast television against the government's policy on indecency on the airwaves from 6 p.m. to 10 p.m.

At issue are the "fleeting expletives" uttered by celebrities such as Cher and Nicole Richie televised during prime time on Fox Television, as well as an episode of "NYPD Blues" on ABC that showed a woman's unclothed backside.

The Federal Communications Commission, charged with regulating indecency over public airwaves, ruled in both instances that the broadcasters had violated its policy.

But the broadcasters struck back in court, arguing that the policy was confusing and inconsistently applied. They pointed out, for example, that while the FCC bans some expletives in some instances, it sanctioned the use of pervasive expletives during a World War II film, "Saving Private Ryan."

A lower court sided with the broadcasters and struck down the policy, ruling that it was unconstitutionally vague. The Supreme Court will review the policy at a time when broadcast networks are no longer the only show in town. Audiences sometimes actually fail to differentiate between broadcasts and the programming shown on cable networks and the Internet.

"The ever-increasing forms of media communication obscure the fact that there are differences in how and when government may regulate some content," said Stephen Wermiel of American University Washington College of Law.

"For example, the FCC still had authority to regulate the broadcast media, under the longstanding theory that the airwaves are a scarce valuable government owned resource that TV and radio are allowed to use through licenses. This subjects TV and radio to controls that cable, and Internet providers don't have to deal with."

In court briefs the government defended the FCC's policy, arguing the "pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children."

Strip Search: Balancing Individual Privacy Against the Need for Prison Security

Several years ago, Albert Florence was arrested for a minor violation and was late in paying the accompanying fine. A warrant was issued for his arrest. He eventually paid off the fine. But when his car was stopped for a driving violation a few years later, the officer could find no evidence in his computer that the fine had been paid, and arrested Jones pursuant to an outstanding warrant.

Despite the fact that Florence carried with him a certified receipt showing that the fine had been paid, he was taken to two different jails, strip searched and held for several days until the charges were dismissed.

Florence sued the jail, arguing that his constitutional rights were violated when he was taken in for a minor offense and subjected to a humiliating strip search.

Florence said during the search he was directed to remove all his clothing, then open his mouth and lift his tongue, hold out his arms and turn around and lift his genitals. He said that jails and prisons should not be allowed to strip search individuals brought in for minor offenses in the absence of reasonable suspicion that they are carrying contraband.

Lower courts have split on the issue as to whether reasonable suspicion is needed before strip searching an individual entering the prison population.

In 1979, the Supreme Court ruled that in the interest of security, prisons could conduct visual body cavity searches of all detainees after they had contact with outsiders. For years after that ruling, lower courts ruled that the prison had to have a reasonable suspicion that the arrestee was concealing contraband before subjecting him to a strip search upon entering the facility.

But in recent years, courts have begun to allow a blanket policy to strip search all arrestees. The Obama administration has filed a friend of the court brief in support of the jails involved in Jones' arrest. In briefs it argued that the need for security in the jails outweighs the individual privacy rights regarding strip searches.

It points out that the Federal Bureau of Prisons houses more than 216,000 pretrial detainees and convicted inmates, and subjects them all to visual body-cavity inspections before they can be placed in the general prison population.

"Prisons and jails are unique place[s] fraught with serious security dangers," Solicitor General Donald B. Verrilli Jr. argued in court papers, "where the smuggling of weapons, drugs and other contraband poses a serious threat to inmate and officer safety and institutional security."