|Sidley Austin's Carter Phillips|
April 02, 2012
"In addressing this type of constitutional claim, courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security," wrote Justice Anthony Kennedy for the majority. "That necessary showing has not been made in this case."
The justices split, 5-4, along ideological lines in Florence v. Board of Chosen Freeholders. Kennedy maintained a majority only through the concurring votes of two justices who wrote separately to emphasize the limits of the holding.
"The Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers," stressed Justice Samuel Alito Jr. "It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population."
Chief Justice John Roberts Jr. also concurred, saying the majority made a persuasive case for the rule it announced, but, he added, "The Court is nonetheless wise to leave open the possibility of exceptions, to ensure that we 'not embarrass the future.' "
Also joining the majority were justices Antonin Scalia and Clarence Thomas. Thomas declined to join a portion of the majority opinion in which Kennedy said there may be legitimate concerns about the invasiveness of searches that involve the touching of detainees as well as searches of detainees who will not be assigned to the general jail population.
"The clients and all prisons are happy with the outcome today," said Carter Phillips of Sidley Austin, who argued on behalf of the two New Jersey counties in the case. "The Court recognizes the difficult job that those who operate prisons face and accorded them deference. The ruling is narrow, but very clear in its basic guidance."
The case stemmed from the traffic stop and arrest of Albert Florence, who was driving with his family in March 2005 to a dinner at his mother-in-law's home in New Jersey. A state trooper, checking records, discovered a warrant for an unpaid fine related to an incident seven years earlier. Since that incident, Florence, an African-American, had been stopped several times by police and he carried an official letter stating the fine had been paid.
Despite the letter, he was arrested and transported to the Burlington County Detention Center, where he was told to strip, shower with a delousing agent, open his mouth, lift his tongue, hold out his arms, turn around and lift his genitals. Six days later, he was transferred to the Essex County Correctional Facility and strip-searched again, including a squat and cough. He was released the next day after charges were dropped.
Florence brought a civil rights lawsuit, charging that his rights under the Fourth and 14th amendments were violated. He argued that, before someone arrested for a minor crime could be strip-searched, prison officials needed reasonable suspicion that the arrestee was concealing contraband. Florence prevailed in the district court, but the U.S. Court of Appeals for the 3d Circuit reversed.
In Monday' decision, Kennedy gave three reasons for rejecting the reasonable-suspicion rule: detecting and deterring contraband, the danger of introducing lice or contagious infections, and the identification and isolation of gang members.
He also wrote that people detained for minor offenses may turn out to be the most devious and dangerous of criminals. "Hours after the Oklahoma city bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate," wrote Kennedy, adding that one of the September 11 terrorists was stopped and ticketed for speeding two days before the hijacking of Flight 93.
"Reasonable correctional officials could conclude these uncertainties mean they must conduct the same thorough search of everyone who will be admitted to their facilities," Kennedy wrote.
But Justice Stephen Breyer disagreed, saying there were strong reasons to believe that strip searches of persons who commit minor offenses are not justified. He cited empirical evidence from several court and county-jail studies that found few instances of contraband in strip searches of thousands of arrestees.
And, he added, there is a "plethora" of recommendations by professional bodies, such as correctional associations, against the procedure. The American Correctional Association, in consultation with the American Jail Association, National Sheriff's Association, National Institute of Corrections in the U.S. Department of Justice and the Federal Bureau of Prisons, has a standard that forbids suspicionless strip searches, wrote Breyer. Laws in at least 10 states, he said, forbid suspicionless strip searches.
"I cannot find justification for the strip search policy at issue here — a policy that would subject those arrested for minor offenses to serious invasions of their personal privacy," wrote Breyer, who was joined in dissent by justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Florence's high court counsel was Thomas Goldstein of Goldstein & Russell.Marcia Coyle can be contacted at email@example.com.