Monday, April 9, 2012

Justices, in 5-4 decision, OK strip searches for minor offenses

Sidley Austin's Carter Phillips


Deferring to the security concerns of jail officials, a divided U.S. Supreme Court on Monday ruled that strip searches of individuals arrested for minor offenses do not violate their privacy rights under the Constitution. 

Marcia Coyle
April 02, 2012
Deferring to the security concerns of jail officials, a divided U.S. Supreme Court on Monday ruled that strip searches of individuals arrested for minor offenses do not violate their privacy rights under the Constitution. 

"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 

Stripping down the strip search ruling

2012-04-06 18:29:51
By a 5-4 vote, the Supreme Court ruled last week that people arrested over traffic and other minor offenses can be strip-searched even if there is no reasonable suspicion that they are concealing weapons or contraband. But the court’s decision goes too far. Jailers have a responsibility to make sure that their facilities are secure, but they can do so without the blanket authority the court has given them.
The decision was a defeat for Albert Florence, a finance director for a car dealership who was on his way to a family celebration when a New Jersey state trooper stopped his car and, after finding that he had an outstanding warrant, arrested him. The warrant had been issued because of a fine that he actually had paid. Florence was taken to a county jail where, he said, he was ordered to strip and lift his genitals, while an officer inspected him from an arm’s length away. After six days, he was transferred to another facility, where he was subjected to a similarly invasive inspection.
In dismissing Florence’s civil rights suit against county officials, Justice Anthony M. Kennedy’s majority opinion deferred broadly to jail officials and said it would be unworkable to oblige them to search only those prisoners they reasonably suspected of concealing drugs or weapons. Citing the example of Oklahoma City bomber Timothy McVeigh, who was arrested for driving without a license plate, Kennedy noted that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”
But many jurisdictions see that as a remote possibility. In his dissent, Justice Stephen G. Breyer noted that 10 states and several federal agencies — including the U.S. Marshals Service and Immigration and Customs Enforcement — require reasonable suspicion or probable cause for such searches.
The one consolation in the majority decision is that Kennedy — in a part of his opinion not joined by Justice Clarence Thomas — left open whether arrestees could be strip-searched if they weren’t assigned to the general jail population but were detained separately (for example, in a cell at a police station). In a concurring opinion, Justice Samuel A. Alito Jr. suggested that for many people accused of minor offenses, “admission to the general jail population, with the concomitant humiliation of a strip-search, may not be reasonable.”
Chief Justice John G. Roberts Jr. made a similar observation in his concurrence. That suggests a majority of the court recognizes that if authorities insist on detaining individuals accused of traffic violations or other trivial offenses, they should be housed separately — or released pending an appearance in court.

Supreme Court: Strip searches OK

FILE - In this Oct. 11, 2011 file photo, Albert Florence, right, sits at his home Bordentown, N.J., with his attorney Susan Chana Lask. In a 5-4 decision, the Supreme Court ruled against Florence, who faced strip searches in two county jails following his arrest on a warrant for an unpaid fine that he had, in reality, paid. An ideologically divided court ruled Monday, April 2, 2012, that jailers may perform invasive strip searches on people arrested even for minor offenses.

WASHINGTON — Jailers may perform invasive strip searches on people arrested even for minor offenses, an ideologically divided Supreme Court ruled Monday, the conservative majority declaring that security trumps privacy in an often dangerous environment.
In a 5-4 decision, the court ruled against a New Jersey man who was strip searched in two county jails following his arrest on a warrant for an unpaid fine that he had, in reality, paid.
The decision resolved a conflict among lower courts about how to balance security and privacy. Prior to the Sept. 11, 2001, terror attacks, lower courts generally prohibited routine strip searches for minor offenses. In recent years, however, courts have allowed jailers more discretion to maintain security, and the high court ruling ratified those decisions.
In this case, Albert Florence’s nightmare began when the sport utility vehicle driven by his pregnant wife was pulled over for speeding. He was a passenger; his 4-year-old son was in the backseat.
Justice Anthony Kennedy said the circumstances of the arrest were of little importance. Instead, Kennedy said, Florence’s entry into the general jail population gave guards the authorization to force him to strip naked and expose his mouth, nose, ears and genitals to a visual search in case he was hiding anything.
“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,” Kennedy said.
In a dissenting opinion joined by the court’s liberals, Justice Stephen Breyer said strip searches improperly “subject those arrested for minor offenses to serious invasions of their personal privacy.” Breyer said jailers ought to have a reasonable suspicion someone may be hiding something before conducting a strip search.
Breyer said people like Florence “are often stopped and arrested unexpectedly. And they consequently will have had little opportunity to hide things in their body cavities.”
Florence made the same point in his arguments: He said he was headed to dinner at his mother-in-law’s house when he was stopped in March 2005. He also said that even if the warrant had been valid, failure to pay a fine is not a crime in New Jersey.
But Kennedy focused on the fact that Florence was held with other inmates in the general population. In concurring opinions, Chief Justice John Roberts and Justice Samuel Alito said the decision left open the possibility of an exception to the rule and might not apply to someone held apart from other inmates.
Kennedy gave three reasons to justify routine searches — detecting lice and contagious infections, looking for tattoos and other evidence of gang membership and preventing smuggling of drugs and weapons.
Kennedy also said people arrested for minor offenses can turn out to be “the most devious and dangerous criminals.” Oklahoma City bomber Timothy McVeigh initially was stopped by a state trooper who noticed McVeigh was driving without a license plate, Kennedy said.
In his dissent, Breyer said inmates in the two New Jersey jails already have to submit to pat-down searches, pass through metal detectors, shower with delousing agents and have their clothing searched.
Many jails, several states and associations of corrections officials say strip searches should be done only when there is reasonable suspicion, which could include arrest on drug charges or for violent crimes, Breyer said.
Susan Chana Lask, Florence’s lawyer, said, “The 5-4 decision was as close as we could get ... in this political climate with recent law for indefinite detention of citizens without trial that shaves away our constitutional rights every day.”
The first strip search of Florence took place in the Burlington County Jail in southern New Jersey. Six days later, Florence had not received a hearing and remained in custody. Transferred to another county jail in Newark, he was strip-searched again.
The next day, a judge dismissed all charges. Florence’s lawsuit soon followed.
He still may pursue other claims, including that he never should have been arrested.
Florence, who is African-American, had been stopped several times before, and he carried a letter to the effect that the fine, for fleeing a traffic stop several years earlier, had been paid.
His protest was in vain, however, and the trooper handcuffed him and took him to jail. At the time, the State Police were operating under a court order, because of allegations of past racial discrimination, that provided federal monitors to assess stops of minority drivers. But the propriety of the stop is not at issue, and Florence is not alleging racial discrimination.
In 1979, the Supreme Court upheld a blanket policy of conducting body cavity searches of prisoners who had had contact with visitors on the basis that the interaction with outsiders created the possibility that some prisoners had obtained something they shouldn’t have.
For the next 30 or so years, appeals courts applying the high court ruling held uniformly that strip searches without suspicion violated the Constitution.
But since 2008 — in the first appellate rulings on the issue since the Sept. 11 attacks — appeals courts in Atlanta, Philadelphia and San Francisco have decided that a need by authorities to maintain security justified a wide-ranging search policy, no matter the reason for someone’s detention.
The high court upheld the ruling from the Philadelphia court, the 3rd U.S. Circuit Court of Appeals.
The case is Florence v. Board of Chosen Freeholders of County of Burlington, 10-945.

No comments:

Post a Comment