Police unions want power to poke, DPS changed written policy to forbid roadside body-cavity searches

Grits this morning listened online to a public hearing of the Texas House Criminal Jurisprudence Committee on Monday regarding legislation by Rep. Harold Dutton (HB 49) requiring a warrant for body-cavity searches. The Governor has not added the bill to "the call" so as things stand the legislation cannot become law, but the hearing raised the issue's profile. Interestingly, the cadre of folks testifying in favor of the bill seemed to be mostly students. The one who received the most questioning from the committee regarding constitutional privacy principles was a high-school kid in his Sunday-go-to-meeting suit who couldn't name a Supreme Court case to save his life. Too bad, Grits would have loved to answer Rep. Matt Schaefer's questions about the origins and current state of constitutional privacy protections under the Fourth Amendment. Some other time.

The text of Dutton's bill would require warrants for body cavity searches of any "person arrested or detained during the investigation of a criminal offense unless a magistrate has issued a search warrant ... authorizing the body cavity search." As written, that would not only include body-cavity searches on the side of the road, like those performed by DPS troopers that spawned the bill, but also searches of defendants held in the jail pretrial, potentially overriding legislatively, for Texas, a recent US Supreme Court decision holding strip searches constitutionally allowable for all arrestees.

Steve McCraw from DPS pointed out that county jails can presently perform cavity searches without a warrant. The practice is against DPS policy, he said, and officers who performed such searches in the field have been terminated. "If we find others we'll terminate them as well," he told Rep. Schaefer. In response to questioning from Rep. Terry Canales, McCraw said DPS changed its policy within "the last couple of weeks" to specifically clarify that body cavity searches are not allowed. That shouldn't have been necessary, said McCraw, because you shouldn't have to write a policy telling troopers not to violate the law (referring to the Fourth Amendment), but the new policy would make that clear.

Though not much discussed at the hearing, the bill as written would also side with the four-member minority in a US Supreme Court case from 2012 that narrowly approved strip searches in detention facilities for minor offenses including traffic violations. I'm always glad to see such "legislative override" bills on Fourth Amendment topics. The courts have so denuded it with exceptions that, if we rely only on the judiciary for protection, the Fourth Amendment has become all but an empty gesture outside the confines of the home. But legislators, just like judges, take an oath to uphold and defend the Constitution and IMO have an equal obligation to bolster and protect Fourth Amendment rights through legislation as judges do to uphold it in the courtroom.

Though it may not seem like a labor issue, the only entities signed up in opposition to requiring warrants for body cavity searches were the state's two largest police unions - the Combined Law Enforcement Associations of Texas (CLEAT) and the Texas Municipal Police Association (TMPA) - both of which registered against the bill. I've never understood why those groups feel the need to promote regressive policy stances like roadside anal and vaginal searches when there are plenty of wage and working conditions topics on which they could and should focus. Protecting the right of a cop to stick his or her gloved finger up my behind is not exactly improving working conditions. I would have understood county sheriffs opposing the bill (which they didn't), but unions I just don't get.