# Opposition Brief — Maryland v. Gadson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0680%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 517 U.S. 1203 ## Text NO. 95-1407 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 STATE OF MARYLAND, Petitioner TYRONE JEROME GADSON, Respondent ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI STEPHEN E. HARRIS Public Defender of Maryland JULIA DOYLE BERNHARDT Assistant Public Defender Counsel of Record Office of the Public Defender Appellate Division 6 St. Paul Street, Suite 1302 Baltimore, Maryland 21202-1608 (410) 767-8544 Counsel for respondent QUESTION PRESENTED Whether the Court of Appeals of Maryland correctly held that a prospective visitor to a prison has the right to leave the premises rather than submit to a detention for the purpose of being sniffed by a drug-detection canine where such a scan is conducted, without individualized suspicion, as a condition precedent to admission to the prison. TABLE OF CONTENTS Page eee ae Gy ag aa vu WMO SE ioe kee eee i ee hay ciao an Veen ot we Ve ba dere ened nee 6 has 2 REASONS FOR DENYING THE WRIT ..... 2. ccc cece cece cece scene 4 CN ee arly Peels Wiel a ale The Court of Appeals of Maryland had earlier upheld such checkpoints in Little v. State, 300 Md. 485, 479 A. 2d 903 (1984). 4 roads to screen cars for the presence of controlled dangerous substances. The so- called “checkpoint” at the Maryland House of Correction is nothing more than a screening device for visitors. Thus, the real issue in this case is whether a prospec- tive visitor who finds the conditions precedent to entry to a prison intrusive or otherwise objectionable can leave without submitting to them. It has nothing to do with whether or not officials must select the least intrusive alternative possible when screening actual visitors. Respondent concedes that when it comes to actual visitors (those who have chosen to enter the prison), prison officials may select any reasonable screening method. In arguing that this Court’s opinions are inconsistent in their treatment of a - “less intrusive means analysis,” petitioner creates a false dichotomy in the Court’s cases and cites indiscriminately to cases involving both suspicionless searches and those based on some degree of suspicion, be it probable cause or articulable sus- picion. This Court has consistently held that “whether a particular search meets the reasonableness standard ‘ “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” ’ ” Vernonia School District 47J v. Acton, — U.S. —, 115 S. Ct. 2386, 2390, 132 L. Ed. 2d 564 (1995) (quoting Skinner v. Railway Labor Executives’ Assn., 489 U. § . 602, 619, 109 S. Ct. 1402, 103 L. Ed.2d 639 (1989), quoting Delaware v. Prouse, 440 U. S. 648, 654, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979)); Sitz, 496 U.S. at 449-52: Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979). In this context, the degree of the intrusion is a component of the determination of reasonableness. For example, should petitioner prevail, whether the prison officials required a pat-down or a strip search of those who would enter a prison would be irrelevant to the reasonableness analysis, an absurd situation. To say that this Court’s cases are inconsistent because they say both 1) that the Fourth Amendment does not always require the least intrusive means available and 2) that the degree of intrusiveness is a factor to be considered in assessing reasonableness is nothing but a transparent effort by petitioner to create a conflict in this Court’s cases where none, in fact, exists. The basis for the search is also relevant to the reasonableness analysis, a point missed by petitioner. Where a search is based on probable cause, a greater level of intrusion will be permitted. Thus, where there is reason to suspect the presence of controlled dangerous substances on the person of a prison visitor, a strip search is permitted but a strip search cannot be required of all visitors. See Spear v. Sowders, 33 F. 3d 576, reh. granted, (6th Cir. 1994); Daugherty v. Campbell, 935 F. 2d 780 (6th Cir. 1991); Long v. Norris, 929 F. 2d 1111 (6th Cir. 1991); Hunter v. Auger, 672 F. 2d 668 (8th Cir. 1982); Thorne v. Jones, 765 F. 2d 1270 (Sth Cir. 1985); Blackburn v. Snow, 771 F. 2d 556 (1st Cir. 1985); State v. Garcia, 116 N. M. 87, 860 P. 2d 217 (1993). The correct standard to be applied in cases of suspicionless searches or seizures, the balancing of governmental need against the level of intrusion, was applied by the Court of Appeals of Maryland in respondent’s case. (A. 10a-20a.) Applying this standard, the Court of Appeals found, consistent with virtually all of the lower courts that have considered the issue, that the government simply lacked a sufficient need to conduct suspicionless detentions and scans of non-visitors and that no level of intrusion into the privacy rights of the non-visitors was thus justified.* See United States v. $124,570 U. S. Currency, 873 F. 2d 1240 (9th Cir. 1989) (airport); United States v. Davis, 482 F. 2d 893, 908 (9th Cir. 1973) (airport); United States v. Kroll, 481 F. 2d 884, 886 (8th Cir. 1973) (airport); United States v. Henry, 615 F. 2d 1223 (9th Cir. 1980) (airport); United States v. Moore, 483 F. 2d 1361 (9th Cir. 1973) (airport); United States v. Albarado, 495 F. 2d 799 (2d Cir. 1974) (airport); Gaioni v. Folmar, 460 F. Supp. 10 (M. D. Ala. 1978) (civic center); Jordan v. Wolke, 450 F. Supp. 213 (E. D. Wis. 1978) (prison); Stroeber v. Commission Veteran's Auditorium, 453 F. Supp. 926 (S. D. Iowa (1977) (audito- rium); Collier v. Miller, 414 F. Supp. 1357 (S. D. Tex. 1976) (university pavilion); | State v. Miller, 110 Ariz. 491, 520 P. 2d 1115 (1974) (airport); State v. Salit, 613 P. 2d 245, 251 (Alaska 1980) (airport); State v. White, 26 Ariz. App. 505, 549 P. 2d 600 (1976) (airport); Estes v. Rowland, 14 Cal. App. 4th 508, 17 Cal. Rptr. 2d * The intermediate appellate court of Illinois has upheld the suspicionless detention and search of those who would leave rather than submit to visitors’ screening procedures. See People v. Turnbeaugh, 116 Ill. App. 3d 199, 451 N. E. 2d 1016 (1983). The court’s reasoning was flawed by its assumption that only guilty visitors would want to leave rather than to submit, an assumption which the constitution does not permit, Florida v. Bostick, 501 U. S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991), and by its reliance on a case where there was reasonable articulable suspicion for a search of an airline passenger. United States v. Skipwith, 482 F. 2d 1272 (Sth Cir. 1973). 7 901 (1993) (prison); People v. Hyde, 12 Cal. 3d 158, 524 P. 2d 830, 115 Cal. Rptr. 358 (1974) (airport); Nakamoto v. Fasi, 64 Hawaii 17, 635 P. 2d 946 (1981) (arena); State v. Carter, 267 N. W. 2d 385, 387 (lowa 1978) (auditorium); People v. Whisnant, 103 Mich. App. 772, 303 N. W. 2d 887, 891 (1981) (prison); Bozer v. Higgins, 204 A. D. 2d 979, 613 N. Y. S. 2d 312 (1994) (court house); State v. Chipley, 29 Or. App. 691, 564 P. 2d 1096, 1098 (1977) (airport); Commonwealth v. Dugger, 506 Pa. 537, 486 A. 2d 382 (1985) (prison); Jacobsen v. Seattle, 98 Wash. 2d 668, 658 P. 2d 653 (1983) (arena).° The dissenters in the Court of Appeals of Maryland focused on the fact that wrongdoers might leave and return when the canine screening was not in place. As the majority noted, the problem of the wrongdoer would be resolved by consistent screening. (A. 19a.) Under the dissenters’ reasoning, persons who turned back upon seeing the first sign announcing screening policies could be chased down and detained. That reasoning imputes improper motives to the exercise of Fourth Amendment rights and unduly burdens average law-abiding citizens (including lawyers, clergy, tradespeople, as well as family members and friends of inmates) who would rather forego a prison visit than submit to a detention for a dog scan, search, or other invasion of privacy.° > As the Court of Appeals of Maryland noted in this case, cases holding that a prospective passenger or visitor no longer retained a right to leave rather than submit invariably involve situations where the passenger has already submitted to magnetometer or X-ray inspection and has triggered it in some fashion. (A. 17a.) ° Although it is clear that a prospective visitor’s refusal to consent to a detention and scan does not give the officer cause to suspect wrongdoing, that was one of the stated reasons for petitioner’s detention. In “Jorida v. Bostick, this Court reiterated, “We CONCLUSION This Court’s opinions are perfectly clear in establishing the standard to be applied in these cases. The lower courts have not been misled by them in concluding that to force a non-visitor to submit to visitors’ screening procedures is unreasonable. Consequently, there is no significant conflict in the decisions of the federal circuit courts nor the highest courts of the states on this issue. It follows that this case is not an appropriate one for certiorari review. Respectfully submitted, Stephen E. Harris Public Defender of Maryland Julia Doyle Bernhardt Assistant Public Defender Counsel for respondent have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” 501 U. S. at 437. SPST IN THE SUPREME COURT OF THE UNITED STATES STATE OF MARYLAND, & Petitioner * Vv. " No. 95-1407 TYRONE JEROME GADSON, : Respondent “ * x ke # & & tt CERTIFICATE Per, ICE I HEREBY CERTIFY that on this __ day of April, 1996, three copies of respondent’s Brief in Opposition and Motion for Leave to Proceed in Forma Pauperis were hand delivered to Gary E. Bair, Esquire, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, 200 Saint Paul Street, Baltimore, Maryland, 21202, (410) 576-6422, counsel for petitioner. oo RECEIVED : | \ < ~ Mes Nee XX APR 8 1996 Adlia Doyle Bernhardt Assistant Public Defender F THE CLERK pase te COURT, U.S. 6 St. Paul Street, Suite 1302 Baltimore, MD 21202 (410) 767-8544 Counsel for respondent --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0680%3A2. Public record. Not legal advice.