Supreme Court approves strip searches for minor offenses

Jail officials are justified in performing strip searches as a reasonable precaution to maintain safety and order at their facilities, the Supreme Court said Monday.

Mel Evans/AP/File
Albert Florence sits at his home in Bordentown, N.J., in this October 2011 file photo, with his attorney Susan Chana Lask. Florence filed a lawsuit against two jails charging that officials violated his Fourth Amendment right to privacy by subjecting him to strip searches without any suspicion that he was concealing a weapon or contraband.

The routine strip search of those accused of minor offenses does not violate the Fourth Amendment’s ban on unreasonable searches and seizures whenever the detainee is to be housed within a general jail population, the US Supreme Court ruled on Monday.

In a 5-to-4 decision, the high court said that officials at a jail or prison facility do not need individualized suspicion that a detainee is concealing a weapon or contraband before conducting a visual inspection of the most private areas of a person’s body.

Instead, when an arrestee is to be confined within the general population of prisoners, officials are fully justified in performing the same strip search procedures for all prisoners as a reasonable precaution to maintain safety and order at a detention facility, the court said.

“The search procedures [at two jails in New Jersey] struck a reasonable balance between inmate privacy and the needs of the institutions,” Justice Anthony Kennedy wrote in the majority opinion.

Neither the Fourth Amendment’s privacy protections nor the Fourteenth Amendment’s equal treatment mandate, he said, required jail officials to alter their policy of demanding strip searches for all detainees entering the general jail population.

Voting with Justice Kennedy were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

In a dissent, Justice Stephen Breyer denounced the routine strip search of those accused of minor offenses. It is a “serious affront to human dignity and to individual privacy,” he said.

“In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence ... is an unreasonable search forbidden by the Fourth Amendment,” Justice Breyer said.

Detention officials, he said, must first possess reasonable suspicion that the arrestee is concealing drugs or other contraband before conducting such an intrusive visual inspection.

“I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests,” Breyer wrote. “And there are strong reasons to believe they are not justified.”

Breyer was joined in dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

The case, Florence v. Board of Chosen Freeholders of Burlington County (10-945), arises at a time when Americans are being asked to increasingly forfeit their privacy to accommodate escalating government security requirements.

Prospective travelers are routinely forced to undergo the technological equivalent of a strip search as a condition of undertaking a journey by commercial aircraft. Entry into many government buildings now requires successful passage through a metal detector and a physical search of purses and briefcases. Some courthouses require visitors to sign in and present government-issued photo identification before permitting entry.

Every year, an estimated 700,000 individuals are sent to jail for relatively minor infractions.

Justice Alito, in a concurring opinion, said the majority decision is limited only to those detainees who are to be housed in a detention facility within the general population of prisoners.

“Undergoing such an inspection is undoubtedly humiliating and deeply offensive to many, but there are reasonable grounds for strip searching arrestees before they are admitted to the general population of a jail,” Alito said.

He added, however, “The court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.”

The decision comes in the case of a New Jersey man who was arrested during a traffic stop and ended up spending a week behind bars where he was subjected to two strip searches by jail officials.

The traffic stop, by a New Jersey state trooper, occurred on March 3, 2005.

Albert Florence was riding in the family car with his wife and three children when a police officer pulled the vehicle over. Mr. Florence was arrested for an outstanding warrant issued in Essex County.

The warrant had been issued years earlier for civil contempt, when Florence failed to pay a fine. After he paid the fine, the judge canceled the warrant, but somehow the computer entry was never updated to cancel the warrant.

Florence was placed under arrest and taken to a Burlington County jail for eventual transfer to Essex County on the pending warrant.

At the county jail, Florence was ordered to remove his clothing. Guards conducted a visual inspection of his body, instructing him to open his mouth, lift his tongue, lift his arms, and then lift his genitals.

Although the law provides for a prompt hearing, Florence was held at the Burlington County jail for six days before being transferred to the Essex County jail in preparation for his hearing before an Essex County judge.

Once again, upon entering the jail, Florence was subjected to a strip search. He was taken to a shower area with other detainees. He was ordered to remove his clothes, open his mouth, lift his genitals, turn around, squat, and cough.

The following day, Florence appeared before a judge who ordered his immediate release from jail.

Florence filed a lawsuit against the two jails charging that officials violated his Fourth Amendment right to privacy by subjecting him to strip searches without any suspicion that he was concealing a weapon or contraband.

A federal judge sided with Florence and a class of similar detainees being held for minor offenses who had been subjected to routine strip searches.

On appeal, the Third Circuit Court of Appeals reversed. The appeals court said that the jails’ interest in safety and security outweighed the privacy interests of detainees – even those accused of minor crimes. Judges must defer to the policy judgments of jail officials, the appeals court added.

In affirming that decision, Kennedy said: “The court has held that deference must be given to the officials in charge of the jail unless there is substantial evidence demonstrating their response to the situation is exaggerated.” He added, “The record provides full justification for the procedures used.”

Kennedy said the strip search is necessary not only to detect concealed weapons or drugs, but also to help detect lice or other conditions classified as contagious, untreated wounds, and gang-related tattoos.

“Something as simple as overlooking a pen can pose a significant danger,” Kennedy wrote. “Inmates commit more than 10,000 assaults on correctional staff every year and many more among themselves.”

The seriousness of an offense, he added, can be a poor predictor of who has contraband and who may be exceedingly dangerous. Kennedy noted that Oklahoma City bomber Timothy McVeigh was initially stopped and arrested for driving without a license plate. Serial killer Joel Rifkin was initially arrested for the same offense.

Under these circumstances, jail officials have an interest in following readily administrable rules, the justice said. “The restrictions suggested by petitioner would limit the intrusion on the privacy of some detainees but at the risk of increased danger to everyone in the facility, including the less serious offenders themselves,” Kennedy said.

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