5:18pm

Wed October 12, 2011
Law

Supreme Court Weighs Legality Of Strip Searches

The United States Supreme Court wrestled on Wednesday with a case testing whether some 700,000 people arrested each year on minor charges can be subject to automatic strip searches when taken to jail. Specifically, the issue the justices grappled with was whether jail authorities need some reasonable suspicion to conduct that kind of a search.

Before the Court was the case of Albert Florence, a car dealership finance director, who was wrongly arrested because of a computer error, and then repeatedly strip searched before being released six days later. A long ago arrest warrant for failure to pay a traffic fine had never been purged from the New Jersey records, even though the fine was paid.

Then in 2005, Florence, his wife and four-year-old son were driving to a family gathering when they were pulled over by a state trooper. Florence was handcuffed and taken to jail where he was repeatedly strip searched.

He sued the two New Jersey counties where he was held for six days without a hearing, contending that automatically strip searching even those detained on minor charges is unconstitutional unless there is some reason to believe a detainee is concealing contraband.

On the steps of the Supreme Court Wednesday, Florence recalled that he was "scared, petrified, humiliated" when jailers ordered him to strip naked for inspection, lift his genitals, squat, and cough.

Lawyer Carter Phillips, representing the jails, said automatic strip searches are necessary. "It's impossible to determine whether or not a minor offender is a risk or not," he said. "You could be a minor offender because you've just been stopped for a speeding violation" or "you could be a murderer."

Inside the Supreme Court, both sides took a beating. Representing Florence, lawyer Tom Goldstein contended that no arrestee should be strip searched without reasonable suspicion, but he conceded that jails are justified in viewing accused felons differently from minor offenders charged with misdemeanors.

His next problem was in delineating what a strip search is. Justice Ruth Bader Ginsburg asked if "showering in the presence of officers" violated the Constitution's ban on unreasonable searches. Goldstein said no, but that a close inspection at an "arm's length" would be a violation.

That answer didn't sit well with Justice Sonia Sotomayor. "It's okay to stand five feet away, but not two? That doesn't make much sense to me."

What about a visual body cavity search, she asked.

"There's a material difference," replied Goldstein, between a "visual body cavity inspection...where you require someone to bend over, and cough" to expose the anus, and a visual inspection of a naked prisoner at arms length. But he contended neither should be permissible without some individualized suspicion.

Justice Antonin Scalia contended that "at the time the Fourth Amendment was adopted," it was "standard practice to strip search people who were admitted to prisons." Goldstein disputed Scalia's historical information, saying that strip searches in the eighteenth century were almost a "ritual cleansing" carried out by other prisoners, not by prison guards, and that, he said, is "just a different kettle of fish entirely."

Justice Samuel Alito asked whether it would be permissible for jail authorities to require every prisoner to shower with anti-lice soap in front of an officer ten feet away. Goldstein said that would be permissible. So "your only concern is searches that go farther than that," asked Alito. Goldstein said that was "exactly right."

Justice Anthony Kennedy noted that, at least when he was in private practice, county jails were much more dangerous than penitentiaries because "you don't know who these people are"; you "arrest them for traffic [offenses] and they may be some serial killer." Goldstein replied that while that may have been the case decades ago when Justice Kennedy practiced law, today, police and jail officials can call up a person's record with a tap of the computer, and officials in Florence's case actually filled out a form saying there was no reasonable suspicion to strip search him.

Justice Stephen Breyer asked whether a person could be strip searched after being arrested on a traffic violation if the police discover he is wanted on a murder charge. "That's reasonable suspicion," Goldstein replied. He contended that for three decades courts have drawn the line at felony versus misdemeanor offenses, with a requirement that strip searches of minor offenders be justified by some reasonable suspicion.

In fact, continued Goldstein, that rule is used by the United States Marshal's Service and Immigration and Customs Enforcement, which together process over 600,000 prisoners each year.

Following Goldstein to the lectern was lawyer Phillips, representing the New Jersey jails.

Justice Elena Kagan quickly questioned his argument, asking whether any reasonable suspicion is required even for an intrusive body cavity search. Phillips said there no, there is not.

Justice Alito, alluding to recent news stories about cities arresting people for traffic citations, asked whether such individuals can be subject to strip searches. Phillips replied that "the basic principle we are asking for is that deference to the jails. . . and to the administrators of the jails requires that this Court respect their judgment."

Justice Breyer noted that, in the statistics he has seen, it is rare to find contraband through these intake searches. "In fact," he says, "my law clerk thinks it's one out of 64,000 or less." Phillips credited that as simply being "a testament to the effectiveness of the deterrent."

Concerned about the limits of Phillips' argument, Justice Sotomayor asked if correction officers can manually search body cavities, without any suspicion the prisoner is hiding something. At that Phillips backed off, agreeing that would be a hard sell.

"So you want us to write an opinion that applies only to squatting and coughing?" asked Justice Scalia, to laughter in the courtroom.

Phillips ruefully said the court "may want to write it slightly differently."

Moving on to the subtext of the case, Justice Sotomayor said there " is something unsettling about permitting the police to arrest people for things, like kids who are staying out after curfew" and then allowing strip searches.

"Candidly," Phillips conceded, Albert Florence "shouldn't have been arrested." But the strip searches "nevertheless represent the good faith judgment of our jailers."

A decision in the case is expected by summer.

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