Supreme Court Struggles with Strip Searches

Supreme Court justices grappled Wednesday with the use of strip searches by prison officials  for newly admitted inmates charged with minor crimes.

At issue is the case of Albert Florence, a New Jersey man who was mistakenly arrested, hauled to two different jails, stripped searched and released six days later after all charges were dropped.

 Florence is suing the jails that detained him, arguing that his constitutional rights were violated when he was subjected to strip searching without a reasonable suspicion that he was bringing contraband into the jail. He argues that detainees that are placed in the general prison population for minor offenses should not be subject to such an invasion of privacy. 

During an hour-long discussion, the justices seemed to struggle with drawing a line between an inmate’s privacy rights and the interest prisons have to keep contraband out of the facilities.

Thomas C. Goldstein, a lawyer for Florence, said his client was directed at one jail to remove all his clothing, open his mouth, lift his tongue, hold out his arms, turn around and lift his genitals. Goldstein  called it an intrusion on his client’s  “individual dignity” and said prison officials should only conduct such searches when they believe the inmate could be carrying contraband.

But Justice Anthony Kennedy wondered how prison officials could determine such a suspicion.  

“It seems to me,” Kennedy said, “that you risk compromising … individual dignity if you say we have reasonable suspicion as to you, but not as to you. … You are setting the detainee up for a classification that may be questioned at the time and will be seen as an affront based on the person’s race, based on what he said or she said to the officers coming in.”

Justice Sonia Sotomayor asked if corrections officers would have to do research on intake  into whether the inmate was dangerous.

Justice Kennedy was also concerned that some inmates who were at a jail for minor offenses might, in fact, appreciate the security of an “institution where everyone has been searched.”

The justices discussed the kinds of strip searches used in prisons, ranging from monitored showers to more intrusive body cavity searches.

 Justice Samuel Alito asked about an inmate being asked to shower and apply medication for the prevention of lice with corrections officers standing 10 feet away,

 ”Does that require reasonable suspicion?” he asked.

Goldstein said it did not. His client’s concern was for strip searches that consisted of “very close inspection of the individual’s genitals.”

Carter G. Phillips argued on behalf of the jails that held Florence. He urged the Court to show deference to the “good faith judgment of our jailers.”

Justice Stephen Breyer asked Phillips about the fact that there are not a lot of statistics showing that minor offenders are carrying contraband into the jails.

Phillips said that it could mean that the fear of a search served as a deterrent.

Lower courts have split on whether reasonable suspicion is needed before strip searching an individual entering the prison population.

In 1979, the Supreme Court ruled that in the interest of security, prisons could conduct visual body cavity searches of all detainees after they had contact with outsiders. For years after that ruling, lower courts ruled that the prison had to have a reasonable suspicion that the arrestee was concealing contraband before subjecting him to a strip search upon entering the facility.

But in recent years, some courts have begun to allow a blanket policy to strip search all arrestees.

The Obama administration is siding with the prisons in the case and urging the court  to allow a blanket policy for all inmates set to enter the general prison population. 

“When you have a rule that treats everyone the same,” Justice Department lawyer Nicole A. Saharsky argued, “you don’t have folks that are singled out. You don’t have any security gaps.”

David A. Moran, a clinical professor of law at the University of Michigan Law school, said that if the justices rule broadly against Florence the impact will be dramatic, because until a few years ago most lower courts enforced a rule requiring reasonable suspicion.

“This is the first case in more than 30 years,” he said, “in which the court has directly dealt with the issue of strip searching detainees in jail, and specifically those who have been arrested for minor offenses.”

The case should be decided in the next several months.