Analysis: Supreme Court allows indiscriminate strip searches
The Supreme Court declined to impose limits on strip searches in Florence v. Board of Chosen Freeholders, thereby giving jail officials the power to inspect the genitals and body cavities of anyone in custody – including people arrested for minor civil offenses.
The court’s 5-4 decision means that jail officials are allowed to conduct strip searches even if they don’t suspect that the person being searched is hiding drugs or contrabands.
Jail officials claimed that strip searches are needed to screen for drugs, weapons, banned objects, contagious infections, wounds or injuries, and gang tattoos of incoming detainees before they are admitted to the jail’s general population.
Background on Florence v. Board of Chosen Freeholders of the County of Burlington, et al.
The case stemmed from the 2005 arrest of Albert Florence in Burlington County, New Jersey.
Florence, an African-American man, was arrested because the state’s computer system erroneously showed that he had an outstanding bench warrant for a fine, which he had paid off. The state trooper proceeded with the arrest even after Florence provided a copy of a court document certifying that the fine was paid and warrant had been cleared.
Following his arrest, Florence was taken to Burlington County Detention Center, where he was required to strip naked, shower with a delousing agent to remove any lice, “open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals” as jail officers visually inspect him for gang tattoos, drugs, and contrabands.
Six days later, Florence was transferred to the Essex County Correctional Facility. There, Florence was subjected to another strip search in which he was ordered to strip naked, shower, open his mouth, lift his genitals, and squat and cough in front of other arrestees and jail officials. The strip search was conducted even after Florence passed through both a metal detector and another device that can detect metals hidden inside the body. A week after his arrest, Florence appeared before a judge and was released immediately.
Florence sued the counties and detention facilities for violating his Fourth Amendment right to be protected against “unreasonable searches.” He also pointed out that both Burlington and Essex counties violated New Jersey’s state law, which protects people arrested for minor offenses from being subjected strip searches without reasonable suspicion that they are carrying drugs, weapons, or contrabands.
A district court ruled in favor of Florence, but the decision was overturned by the Third Circuit Court of Appeals. The Supreme Court upheld the Third Circuit’s ruling.
The Supreme Court ruled that people arrested for minor offenses are not exempt from strip searches, arguing that jail safety concerns outweighed a person’s right to privacy.
“The difficulties of operating a detention center must not be underestimated by the courts,” Justice Anthony Kennedy wrote in the court’s majority opinion. “The Court has held that deference must be given to the officials in charge of the jail unless there is ‘substantial evidence’ demonstrating their response to the situation is exaggerated.”
By refusing to set any boundaries on strip searches, the court’s decision raises concerns of “intentional humiliation and other abusive practices” by jail officials.
“A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy,” wrote Justice Stephen Breyer in the court’s dissenting opinion. “In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence – say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor – is an ‘unreasonable searc[h]’ forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband.”
Both Chief Justice John Roberts and Justice Samuel Alito wrote concurring opinions to emphasize the court’s right to carve out exceptions in the future. But in practical terms, jail officials around the country are legally permitted to examine the genitals and body cavities of a person arrested for jaywalking until the Supreme Court decides otherwise.
The court’s majority opinion was written by Justice Anthony Kennedy and signed by Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas, and Justice Antonin Scalia. The dissenting opinion was written by Justice Stephen Breyer and signed by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan.
- WhatTheFolly.com: Transcript: SCOTUS oral argument of Thomas Goldstein on jail strip searches (petitioner)
- WhatTheFolly.com: Transcript: SCOTUS oral argument of Carter Phillips on jail strip searches (respondent)
- WhatTheFolly.com: Transcript: SCOTUS oral argument of Nichole Saharsky on jail strip searches (amicus for respondent)
- SupremeCourt.gov: Opinion on Florence v. Board of Chosen Freeholders of County of Burlington et al (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – brief for petitioner (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – brief for respondents – Board of Chosen Freeholders of County of Burlington (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – brief for respondents – Essex County Correctional Facility and Essex County Sheriff’s Department (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – reply brief for petitioner (PDF)