Supreme Court Weighs Legality Of Strip Searches

Oct 12, 2011
Originally published on October 12, 2011 8:23 pm

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 4-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 OK 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 arm's 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 18th 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 10 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 U.S. Marshals 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 1 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, 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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GUY RAZ, HOST:

The Supreme Court today wrestled with a case that tests whether some 700,000 people arrested each year on minor charges can be automatically strip-searched. At issue is whether jail authorities first need some reasonable suspicion. NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Albert Florence, his wife, and 4-year-old son were driving to a family gathering in New Jersey when they were pulled over by a state trooper. Soon, Florence found himself in handcuffs and taken to jail where he was repeatedly strip-searched before being released six days later. It turned out the arrest was based on a computer error. A long-ago arrest warrant for failure to pay a traffic fine was never purged from the records even though the fine was paid.

Florence 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 today, Florence, who is the finance director for a car dealership, recalled how he felt when he was told to strip, lift his genitals, squat, and cough.

ALBERT FLORENCE: I went from having a good day with my wife sitting next to me to being scared, petrified, humiliated.

TOTENBERG: But lawyer Carter Phillips, representing the jails, said automatic strip searches are necessary.

CARTER PHILLIPS: It's impossible to determine whether or not a minor offender is a risk or not. You could be a minor offender because you've just been stopped for a speeding violation. You could be a murderer.

TOTENBERG: Inside the Supreme Court, both sides took a beating. Representing Florence, lawyer Tom Goldstein faced a volley of questions about what constitutes an illegal search. Justice Ginsburg: is showering in front of an officer a constitutional violation? Answer: No, but close inspection by an officer at arm's length is. Justice Sotomayor: So it's OK to stand five feet away but not two feet? That's a line that doesn't make much sense to me. What about a visual cavity search? Answer: there's a material difference between a visual inspection in the shower and a visual body cavity search where you expose your anus to inspection.

Justice Alito: Suppose every person who is taken to jail is required to shower with anti-lice soap in front of an officer 10 feet away, does that require a reasonable suspicion that the arrestee is hiding something? Answer: It does not. Question: Your only concern is about searches that go farther than that? Answer: That's exactly right.

Justice Kennedy: In my practice at least, 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. Lawyer 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 Breyer: Suppose a person is arrested on a traffic violation and the police find out he's wanted on a murder charge. Can they strip-search him or not? Answer: That is reasonable suspicion to believe he might have a weapon. For three decades, the courts have drawn the line at felony versus misdemeanor offenses, with a requirement that strip searches of the minor offenders have some reasonable suspicion to justify them. Justice Scalia: I can understand that for cavity searches, but not for fleas or cooties or other communicable diseases.

When Goldstein responded that disease inspection is done by medical personnel, Scalia balked, suggesting it's ridiculous to allow inspections by medical personnel but not jail officials. That's the rule used not only by the county jails in New Jersey, replied Goldstein, but also by the U.S. Marshal Service and federal immigration authorities. Those federal authorities take in 600,000 prisoners each year together. Following Goldstein to the lectern was lawyer Carter Phillips, representing the New Jersey jails.

Justice Kagan: Your position is there's no reasonable suspicion required even for an intrusive body cavity search? Answer: That's correct. Justice Alito, alluding to recent news stories about cities arresting people for traffic citations, asked whether such people can be automatically subject to strip searches. Answer: The basic principle we are asking for is deference to jails and administrator's judgment.

Justice Sotomayor: You're saying that if prisons decide on a manual cavity search, more than lifting genitals, squatting and coughing, they can do that without any individualized suspicion. Lawyer Phillips backed off at that, agreeing a manual body search would be a hard sell. Justice Scalia: So you want us to write an opinion that applies only to squatting and coughing? Phillips, ruefully: Well, you may want to write it slightly differently.

Justice Sotomayor: There's something unsettling about permitting arrests for minor offenses, and then allowing strip searches. Answer: What's disturbing about this case is that Mr. Florence candidly shouldn't have been arrested, but the strip search nevertheless represents the good faith judgment of our jailers. A decision in the case is expected by summer.

Nine Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.