The U.S. Supreme Court Addresses Strip-Searches

Florence v. Burlington Cty. Freeholder Bd., 132 U.S. 1510 (2012).  When a New Jersey case reaches the Supreme Court of the United States, it often seems to turn into a landmark.  This case is another example.   

Albert Florence was arrested during a traffic stop when a state trooper found that Florence had an outstanding bench warrant for failing to appear at a hearing to enforce a prior fine.  The trooper learned that information from checking a computer database.   It later turned out that Florence had in fact paid the fine.  Before the State learned that, however, Florence was subjected to invasive searches at two different county jails, at each of which he was placed into the general prison population.  In both searches, he had to disrobe fully.  His body was visually inspected.  At one jail, according to Florence’s allegations, he had to (among other things) open his mouth, lift his tongue, extend his arms, and lift his genitals.  At the other jail, Florence had to lift his genitals and cough while squatting, among other things.  At neither jail did anyone else touch Florence in any unclothed area.

Florence sued under the Civil Rights Act, 42 U.S.C. §1983, asserting that the searches violated his constitutional rights because they were undertaken without reasonable suspicion that he was concealing contraband.  He had, after all, been arrested for a minor offense that ultimately turned out to be a non-existent one.  The district court granted summary judgment to Florence, finding that a search without reasonable suspicion violated the Fourth Amendment.  The Third Circuit Court of Appeals reversed, and the case came to the Supreme Court of the United States. 

By a 5-4 vote, the Court affirmed the Third Circuit.  Justice Kennedy wrote the majority opinion.  Chief Justice Roberts and Justices Scalia, Alito and Thomas joined the majority opinion, though Justice Thomas did not join one part of it.  The Cheif Jsutice and Justice Alito also wrote separate concurring opinions.  Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, dissented.

The majority emphasized the need to “defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.”  Jails face the risk of new inmates bringing in disease, weapons, drugs or other contraband, problems that require careful oversight when inmates arrive and join the general prison population, where weapons can be used against other inmates or drugs shared with them.  It would be administratively difficult to distinguish between minor offenders and more serious offenders.  Moreover, even some apparently minor offenders may turn out to be serious, dangerous criminals.  He cited, among other examples, Timothy McVeigh, the Oklahoma City bomber, who was originally stopped only for driving without a license plate.   The majority also cited examples of minor offenders who had contraband on their persons, contraband that strip-searches exposed. 

The jail officials offered “significant reasons why the Constitution must not prevent them from conducting the same search on any suspected offender who will be admitted to the general population in their facilities.”  This “essential interest in readily administrable rules” defeated Florence’s claimed constitutional right.  The jails had struck “a reasonable balance between inmate privacy and the needs of the institutions” that was not shown to violate the Fourth or Fourteenth Amendments.

In the portion of his opinion not joined by Justice Thomas, Justice Kennedy noted that the majority’s decision did not address cases in which persons were being “held without assignment to the general jail population and without substantial contact with other detainees.”  Moreover, that same section recognized that there may be “legitimate concerns about the invasiveness of searches that involve the touching of detainees.”  Neither of those circumstances were present here.  The Chief Justice and Justice Alito, in their concurring opinions, highlighted the fact that the majority opinion reserved judgment regarding such circumstances.

The dissenters found the searches here to be unreasonable, in violation of the Fourth Amendment, absent reasonable suspicion.  Justice Breyer recognized that there is significant deference to prison officials in managing jails, an “inordinately difficult undertaking.”  Such deference, however, is to be given only where the invasion of prisoners’ rights is “reasonably related to legitimate penological interests” and the need for such a “humiliating” and “terrifying” process is not “exaggerated.” 

Here, the county jails already patted-down clothed arriving inmates, put them through metal detectors, searched their clothing, and required them to shower with delousing agents.  Florence conceded that prisoners could be viewed in their underwear or while showering.  There was no showing that all those means were insufficient to achieve the desired ends, so that suspicionless strip-searches were needed as well.  Justice Breyer questioned the examples of strip-searches revealing smuggled contraband that the majority had cited, noting that the contraband might well have been discovered under the reasonable suspicion standard as well, or by the other methods that the New Jersey county jails already used.

Though the word of the prison officials here was “important, it cannot be sufficient.”  That was especially so given the fact that many prison systems forbid strip-searches of minor offenders without reasonable suspicion, with no apparent effect on the interests that supposedly require suspicionless strip-searches.  The American Correctional Association and a standard Justice Department desk reference come down against suspicionless strip-searches.  Thus, the views of the prison officials here appeared to the dissenters to be aberrant.

The dissenters have the better of this argument.  If there were no proven, less invasive means of advancing the interests that strip-searches are said to advance, strip-searches might be permissible.  Since there is substantial evidence that there are alternatives that are recognized as effective, mechanical invocation of deference to the views of these particular prison officials, without more, leads to an unfortuante result, just as comparable deference to military authorities led to a result in Korematsu v. United States, 323 U.S. 414 (1944) (no constitutional barrier to the incarceration of Japanese-American citizens during wartime) that we now deeply regret.