Supreme Court considers constitutionality of strip search

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During oral arguments that focused on the difficult task of line drawing, the justices of the U.S. Supreme Court tried to determine if the strip search of a county jail inmate, erroneously arrested on a warrant for a minor offense, violated the Fourth Amendment.

The lead plaintiff in the case, Florence v. Board of Chosen Freeholders of the County of Burlington, Albert Florence, was arrested on a bench warrant for a non-indictable variety of civil contempt for failing to pay a fine. Despite his objections that he’d paid the fine, he was taken to county jail and required to strip, lift his genitals and shower in front of jail officials. He was then transferred to another county jail, strip searched again, directed to squat and cough and to shower in front of a correctional officer before being sent to the general population.

He was released after seven days in custody and the charges against him were dismissed.

Florence and other arrestees were certified as a class in a suit against the county and various individuals and municipal entities for civil rights violations under §1983, claiming the jails’ strip search policies violated the Fourth Amendment.

The plaintiffs moved for summary judgment, and the defendants filed a cross motion for summary judgment, alleging qualified immunity. The district court granted the plaintiffs’ motion, and denied the defendants’ motion.

But the 3rd Circuit reversed, holding that the strip search procedures were reasonable.

The plaintiffs successfully petitioned the U.S. Supreme Court for certiorari.

Reasonable suspicion, serial killers and ‘cooties’

At oral arguments Wednesday, Thomas C. Goldstein, a partner in the Washington office of Goldstein, Howe & Russell, argued that such strip searches should only be conducted where there is reasonable suspicion.

“Do you apply the reasonable suspicion rule to all arrestees?” asked Justice Ruth Bader Ginsburg. “I thought you were making a distinction between felons and less serious offenders.”

Goldstein said a single standard could apply.

“Our rule is one of reasonable suspicion,” he said. “Our question presented draws the line at minor offenders because this class [of plaintiffs] is only [of] people who were arrested for minor offenses.”
Justice Anthony Kennedy wondered how workable such a rule would be.

“In my practice at least, county jails were much more dangerous than penitentiaries, because you don’t know who these people are,” Kennedy said. “You arrest them for a traffic violation and they may be some serial killer. You do not know.”

Goldstein noted that the New Jersey officials had quick access to Florence’s record.

“They have not complained that they didn’t have enough information about him,” Goldstein said. “They filled out a form saying there is no reasonable suspicion here.”

When Goldstein repeatedly stressed that the jail officials failed to adhere to their own rule regarding reasonable suspicion, Ginsburg interrupted.

“But you are trying to state the constitutional rule, and you keep talking about what their rule [is],” Ginsburg said. “We are trying to find out what are the [constitutional] limits.”

Goldstein tried to limit the issue.

“Because this case only involves minor offenders, we have articulated a rule with respect to minor offenders,” Goldstein said.

Justice Stephen Breyer noted that the Court needs a rule “so that jail personnel all over the country have to be able to follow it and know exactly what they are supposed to do.”

Justice Antonin Scalia asked whether jail officials could search inmates enough to ascertain if “the person has any fleas or cooties [or] other communicable disease before he is put into the general population.”

“Are are felons more likely to have those than non-felons?” Scalia asked.

“No, they are not,” Goldstein said.

“So that line makes no sense,” Scalia said.

Policy for ‘health and tattoos,’ ‘crack pipes in body cavities’

Carter Phillips, managing partner of the Washington office of Sidley Austin, argued on the county’s behalf that the strip search policy was aimed at maintaining the safety and health of jail officials and inmates.

The policy at the first jail “was primarily aimed, frankly, at health and tattoos,” Phillips said. “And the policy at [the second jail] was aimed primarily at contraband and then secondarily at tattoos and health.”

Justice Sonia Sotomayor asked whether the Court should focus on the severity of the offense for which the inmates are charged.

“Should we be considering a rule that says the right to search someone depends on whether that individual has in fact been arrested for a [serious] crime?” Sotomayor asked. “I mean, there is something unsettling about permitting the police to arrest people for things [like] staying out after curfew [and] nothing else.”

Though the plaintiff in this case “was arrested under circumstances in which he candidly shouldn’t have been arrested,” Phillips noted that “policies which apply across the board” should not be held unconstitutional where they “represent the good faith judgment of our jailers.”

Nicole Saharsky, assistant to the solicitor general, argued for the federal government as an amicus that those who are arrested after a stop, as Florence was, may pose a unique safety hazard in jail.

“They might have a gun or contraband in their car and think: ‘Hey, I’m going to put that on my person [so it’s] not going to be found” in a vehicle search. She noted that people have been known to “smuggl[e] crack pipes in body cavities.”

“Some people charged with misdemeanor crimes will try to smuggle things in,” Sotomayor noted. “The issue is how many of them would not have been found on a reasonable suspicion standard.”

“Individuals who are doing the searches at issue have very limited information about people,” Saharsky said.

A decision is expected later this term.