Florence v. Board of Chosen Freeholders: Stripping Away Privacy Rights?

Today, the Court heard oral arguments for Florence v. Board of Chosen Freeholders, a case involving the blanket strip search policy of corrections facilities in New Jersey.  The question before the Court is whether individuals’ Fourth Amendment right against unreasonable searches is violated when, upon arrest and placement in a county jail for even minor offenses, they are subjected to a visual body cavity search in the absence of reasonable suspicion that they carry contraband.

Albert Florence and his family were stopped by a state trooper for a traffic violation in Burlington County, New Jersey.  After running Florence’s tags, the trooper arrested him for non-payment of a court fine, even though Florence carried proof of payment of that fine in his car for just such a situation.  At both the Burlington County Detention Facility and the Essex County Correction Facility, Florence was forced to undergo a thorough strip search, including a visual body cavity search, by the corrections officers.

Florence and other people arrested for minor offenses, such as traffic arrests for running a stop sign or having a broken headlight, brought a class action lawsuit against the corrections facilities and county officials.   The district court found that the officials violated Florence’s Fourth Amendment right against unreasonable searches.  The Third Circuit Court of Appeals reversed, holding that the facilities’ security interest in preventing the smuggling of contraband outweighs the privacy interests of detainees.

During argument today, the justices focused on when a suspicionless search would be reasonable and whether body cavity searches were significantly more intrusive than simple visual searches. Justice Kennedy thought that the blanket search policy might be valid because, in his own experience, county jails are more dangerous than state penitentiaries.  Justice Scalia questioned whether it made sense to draw the line for visual cavity searches at the point where it would be allowed for felony arrests but not arrests for minor offenses.

However, when the counties’ attorney suggested that reasonable suspicion was not required for a body cavity search, he received push back from some justices.  Justice Sotomayor said that the requirement of reasonable suspicion for cavity searches, which has been adopted in virtually every circuit, has been fairly successful, and she questioned the advisability of changing the rule to allow jails to further invade individual privacy.  Sotomayor further observed that contraband generally comes into correction facilities through contact visits and corrupt guards, rather than through intake.  Justice Kagan observed that for “somebody who is arrested on the spot, there is no opportunity for planning, for conspiracy with respect to contraband.”

If the Supreme Court allows this blanket body cavity search policy to stand, it will further erode Fourth Amendment protections against police searches.