WASHINGTON -- As the Supreme Court considered Wednesday whether people arrested for traffic or other minor offenses can be strip-searched during jail processing, Justice Anthony Kennedy homed in on the competing interests. He referred to the importance of protecting "the individual dignity of the detainee" yet stressed the danger of a county jail, where arrestees are screened, then placed in cells with other prisoners.
"You don't know who these people are," said Kennedy, often a swing vote in difficult cases. "You arrest them for traffic, and they may be some serial killer. You don't know."
Though Wednesday's case involved a New Jersey man who was arrested in error, the justices looked far beyond the facts of his ordeal to scenarios involving dangerous arrestees and the smuggling into jails of weapons, drugs and other contraband.
The dispute began in March 2005 when Albert Florence was picked up on a warrant for an outstanding fine and brought to New Jersey county jails where he was strip-searched as part of routine processing. Florence had paid off the fine, but the warrant had not been removed from a state computer.
At the first jail in Burlington County, N.J., Florence was ordered to open his mouth, lift his tongue, hold out his arms, turn around and lift his genitals. At the second jail, in Essex County, he was also ordered to squat and cough as authorities looked for contraband.
After the warrant mistake was discovered and he was freed, Florence, 36, finance director at a car dealership, sued, claiming his Fourth Amendment protection against unreasonable searches was violated. A federal district court judge sided with Florence, but an appeals court reversed, saying routine strip-searches during intake are justified based on authorities' concerns that weapons and other contraband might be smuggled into the general prison population.
Representing Florence in his appeal, lawyer Thomas Goldstein argued that jails should be able to strip arrestees only if authorities have reason to suspect they may be concealing something. Goldstein said jailers lacking sufficient grounds should not be able to get up close to a person and look at their private parts.
What Florence experienced, Goldstein said, was "a significant intrusion on individual privacy and individual dignity."
Lawyer Carter Phillips, on behalf of the New Jersey counties, countered that an arrestee lacks the usual Fourth Amendment rights. Phillips urged the justices to rely on a 1979 case, Bell v. Wolfish, in which the justices upheld strip-searches for prisoners after visits with outsiders.
"Anybody who thinks that the problems of contraband are less serious today than they were (at the time of that case) is ignoring reality," Phillips said, urging the court to defer to the judgment of corrections officials.
The U.S. Justice Department sides with the New Jersey counties. Assistant Solicitor General Nicole Saharsky echoed Phillips' view that corrections officials should be able to set search policies for their jails.
"You cannot say that there are some minor offenders that don't pose a contraband risk," Saharsky said, adding of the guards who screen arrestees, "You have individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly."
Justice Sonia Sotomayor, among those most skeptical of the government position, questioned whether new detainees are truly the source of weapons and drugs in jails. "I understand that contraband is serious," said Sotomayor, a former prosecutor and trial judge. "But most of the studies point to it not being on intake, but coming in through guards, coming in through contact visits. The great cause today is that from corrupt correction officials."
More sympathetic to government concerns, Justice Antonin Scalia asserted that in the 18th century, when the Fourth Amendment was adopted, it was standard practice to strip-search arrestees. "So how could it be deemed an unreasonable invasion of privacy when it was done all the time and nobody thought it was unconstitutional?" he asked. Goldstein disputed such searches as standard practice in the late 1700s.
Scalia suggested jailers should have latitude to search a new detainee for "any fleas or cooties or any other communicable disease before he is put into the general population."
Goldstein said guards could oversee routine showers but more invasive searches tied to health or medical issues should be done by medical personnel.
Justice Samuel Alito asked Phillips about people picked up for traffic offenses: "Suppose someone is just arrested because they have a lot of tickets for being caught on speed cameras. That person can be subjected to the searches you are describing?"
"Yes," Phillips answered, again saying the justices should defer to the corrections authorities.
A ruling in the case of Florence v. Board of Chosen Freeholders of Burlington County is likely by summer when the justices recess for the summer.