Supreme Court Okays Strip Search of Arrestees without Reasonable Suspicion

On Monday, the Supreme Court issued a 5-4 decision (.pdf download) in Florence v. Board of Chosen Freeholders of County of Burlington, holding that corrections officials can strip search an individual who has been arrested before admitting him or her to a jail’s general population, regardless of how minor the charge and whether or not the officials reasonably believe that the arrestee is concealing contraband.

While riding in his car with his wife and young son, Albert Florence was stopped by a state trooper in Burlington County, New Jersey.  The trooper erroneously arrested Florence on a bench warrant issued for late payments of a fine, which Florence had paid before his arrest.  He even carried official proof of payment in his glove compartment, but this did not protect him. At both the Burlington County Detention Facility and the Essex County Correction Facility, Florence was forced to undergo a thorough strip search with other detainees, even though New Jersey law requires reasonable suspicion of possession of contraband for a strip search when an individual is arrested for a minor offense.

Florence and others brought a class action suit against jail and county officials in the U.S. District Court for the District of New Jersey.  The District Court granted summary judgment for Florence on the grounds that his Fourth Amendment right against unreasonable searches and seizures had been violated.  The Court of Appeals for the Third Circuit reversed the District Court’s ruling, holding that the jails’ security interest in preventing smuggling of contraband outweighed the privacy interests of detainees.

The Supreme Court, in an opinion by Justice Kennedy, held that the strip search procedures in question – which involved Florence being ordered to “lift his genitals, turn around, and cough in a squatting position” – “struck a reasonable balance between inmate privacy and the needs of the institution.”  The majority emphasized that corrections officials are given enormous latitude to determine legitimate security interests, if there is no evidence that they have “exaggerated their response.”

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote in dissent that no convincing reason had been presented why “in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further [] penal interests.”

Breyer argued convincingly that the majority’s categorical rule allowing officials to commit gross invasions of personal privacy by conducting strip searches without any reason to suspect the concealment of contraband is simply not justified by the empirical evidence.  Notably, he cited an empirical study showing that out of 23,000 individuals strip searched before being admitted to a particular correctional facility, a mere five were discovered to have concealed contraband in their underwear or anal cavities, and in four of those instances, there would have been reasonable suspicion to conduct a search. Thus, there was “only one instance in 23,000 in which the strip search policy ‘arguably’ detected additional contraband.”  Such results do not suggest that important penal interests are being served by such policies.

Indicating some discomfort with the breadth of the majority’s rule, Chief Justice Roberts and Justice Alito each wrote separate concurrences to emphasize its limitations. Roberts simply noted that there may be exceptions to the rule in the future, while Alito emphasized that the ruling is limited to visual inspections of arrestees who will be admitted to the jail’s general population.

Notwithstanding these “limitations,” the Supreme Court has issued a ruling of dramatic impact, under which any individual arrested for any reason – including driving with a noisy muffler or riding a bicycle without an audible bell -- and no matter how innocent he or she may be of the charges, may be ordered to strip naked and to expose his or her genitals for inspection by corrections officers.

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.