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Can right to privacy bar a strip search in jail? Supreme Court hears case.

A motorist jailed for a minor offense in 2005 says two New Jersey jails violated his privacy rights by subjecting him to a strip search. The jails told the Supreme Court that security justifies the practice.

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His wife showed the document to the trooper. But Essex County had failed to remove the warrant from its computer system. Florence was arrested and taken in handcuffs to the Burlington County Jail for transfer to Essex County on the pending warrant.

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Once at a jail, officials instructed Florence to remove his clothing. They conducted a visual inspection of his body, instructing him to open his mouth, lift his tongue, lift his arms, and then lift his genitals.

Arrestees are supposed to be given a prompt hearing before a magistrate – but Florence was held at the jail for six days. On the sixth day, he was transferred to Essex County Jail where he was subjected to another strip search. This one was conducted in a shower area with several other detainees. He was instructed to open his mouth, lift his genitals, turn around, squat and cough.

The next day – a week after his arrest – Florence appeared before a judge who ordered his immediate release.

Florence filed a lawsuit against the two jails charging that the suspicion-less searches violated his Fourth Amendment right to privacy.

A federal judge ruled for Florence and for a class of similarly situated individuals who had been detained on minor charges at the jails and subjected to strip searches.

On appeal, the Third US Circuit Court of Appeals reversed. The majority said the jails’ interest in safety and security outweighed the privacy interests of arriving arrestees. The appeals court added that judges must defer to the policy judgments of jail officials.

During the Wednesday argument, several justices questioned whether jails are facing a significant problem from contraband smuggling.

“This is a serious problem and it is not less a serious problem than it was 30 years ago,” Phillips said, referring to an earlier prison contraband decision by the high court.

Assistant Solicitor General Nicole Saharsky urged the justices to embrace the narrower reading of the Fourth Amendment suggested by the jails. She said the jails’ blanket policy of subjecting all incoming detainees to visual strip searches was reasonable given the potential dangers.

A case by case determination, in contrast, might pose problems. “If they guess wrong, those mistakes could be deadly,” she said.

In his rebuttal, Goldstein noted that every year 700,000 Americans are sent to jail for minor offenses. “This is a lot of people,” he said.

The case is Florence v. Board of Chosen Freeholders of Burlington County (10-945). A decision is expected by late June.

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