New Detainee Strip Search Policy from the Supreme Court

By Jessica Blumberg

The Supreme Court recently issued a decision on the scope of strip searches by officers when a person is arrested and detained.  This decision completed the recent and distressing trend of lowering the standard for when a strip search may be conducted. Since September 11, 2001, federal appellate courts in Atlanta, Philadelphia, and San Francisco have found that prison authorities need a broad strip search policy in order to maintain security, regardless of the nature of the offense for which the detainee was arrested. In Florence v. Board of Chosen Freeholders, a case originating in New Jersey, the Supreme Court opined that, under the Fourth Amendment, a person may be stripped and searched in a jail even if he is arrested for a minor offense. Furthermore, the jail does not have to have suspicion of unlawful items upon the person prior to this strip search. Essentially, a jail can have a blanket policy to strip search anyone held in the jail.

Florence v. Board of Chosen Freeholders began when Albert Florence and the members of the certified class action brought suit in the U.S. District Court for the District of New Jersey against jail and county officials. Mr. Florence, who was erroneously arrested by a New Jersey state trooper, was subjected to a strip search in the Burlington County Detention Facility. The strip search included having him hold his genitals, turn around, and cough while in a squatting position. Mr. Florence was subjected to this extreme and invasive procedure even though he had been arrested for a minor offense—the state trooper believed Mr. Florence had not paid an outstanding fine. The jail personnel conducted the strip search of Mr. Florence even though New Jersey law “requires reasonable suspicion of possession of contraband for a strip search when an individual is arrested for a minor offense.” (http://www.afj.org/connect-with-the-issues/the-corporate-court/florence-v-board-of-freeholders.html). No such reasonable suspicion, however, existed for Mr. Florence. The other members of the certified class were subject to similar treatment in Burlington Country Detention Facility. In their suit against Essex County and the Burlington County Detention Facility, the plaintiffs’ asserted that there must be reasonable suspicion of contraband before a strip search can be conducted. Requiring jail personnel to have reasonable suspicion of contraband before conducting a highly invasive strip search of a detainee would prevent undue harassment and unnecessary searches of persons held for minor offenses.  The defendants contended that “the Fourth Amendment does not apply to a prison environment, where detainees have no expectation of privacy, and therefore that prison officials should be able to strip search detainees under any circumstances.” (http://www.law.cornell.edu/supct/cert/10-945).

The Circuit Court found that the detained persons’ Fourth Amendment rights against unreasonable search and seizure were violated when the individuals were searched without reasonable suspicion of possession of contraband.  However, the Court of Appeals reversed the lower court’s decision because a jail’s security interest in preventing contraband items from being smuggled into the jail outweighed the privacy interests of the detainee.

The Supreme Court granted certiorari to review the decision, and heard arguments on October 12, 2011.  Several amici briefs were filed on behalf of the respondents—the Essex County and Board of Chosen Freeholders of the County of Burlington—including the National Sheriff’s Association, associations from San Francisco, Maine, and Texas, as well as the United States’ Solicitor General’s Office.  The National Sheriff’s Association asserted that strip searches are essential to maintaining prison security because the searches allow officials to identify gang memberships and keep rival gang members separate. Amici briefs on behalf of the petitioners were filed by the Academics on Gang Behavior, the American Bar Association, and the Domestic Violence Legal Empowerment and Appeals Project, as well as several other organizations. The Former Attorneys General of New Jersey wrote that a blanket strip search policy would not increase prison security, but would rather result in degradation and trauma to the detainees. They asserted that there were other effective means of ensuring prison security, such as “pat downs, metal detectors, and room searches.” (http://www.law.cornell.edu/supct/cert/10-945).

The Supreme Court, in a 5-4 decision, agreed with the Court of Appeals in granting great latitude to jail personnel in determining their security interests if no evidence is given that their response has been exaggerated. Justice Kennedy, writing for the majority (and the conservative wing of the Court), explained that the blanket strip search policy “struck a reasonable balance between inmate privacy and the needs of the institution.” 566 U.S. * 19 (2012), available at http://www.supremecourt.gov/opinions/11pdf/10-945.pdf.  The three policy reasons set forth for conducting routine strip searches are to “detect lice and contagious infections, look for tattoos and other evidence of gang membership, and prevent smuggling of drugs and weapons.” Id. at *6. Addressing the low level offenses of the petitioners, Justice Kennedy explained that people arrested for low level offenses could still be devious and dangerous criminals. While Justice Kennedy is correct that persons detained for minor offenses could still be dangerous, his statement also appears to be saying that anyone who is arrested for any reason could be a dangerous person and should therefore be treated as such. Considering the wide range of reasons for which people are arrested, this seems to be a dangerous standard to put forward and could have wide ranging ramifications.

Writing for the dissenting (and liberal) judges, Justice Breyer addressed the blanket strip search policy being put forward by the majority. In his opinion, Justice Breyer cited an empirical study of 23,000 detainees subjected to strip searches before being admitted to a particular correctional facility. Out of those 23,000 persons, only five were found to have concealed contraband in their underwear or anal cavities. In four of those five cases, prison officials had reasonable suspicion to conduct a strip search. Justice Breyer, therefore, argued that there was only 1 in 23,000 cases where a strip search without reasonable suspicion found additional contraband materials, which were not sufficient numbers to justify the asserted penal interests in a blanket policy.

Indicating that this opinion is not as far reaching in limiting detainee civil rights as it appears at first breath, Chief Justice Roberts wrote in a separate concurring opinion that there may be exceptions to the majority’s rule in the future. Hopefully Chief Roberts is correct that this decision does not signal a trend towards reducing the rights of detainees and persons held for crimes. But for now prisons may still subject anyone to highly invasive strip searches. It is to be seen what kind of psychological and emotional damage this policy will cause to the innumerable persons detained in American prisons. Perhaps the Supreme Court will see the error in its ways in a future decision and recognize that the bodily integrity and dignity of detainees is more important than the scant contraband seized from blanket strip search policies.

Sources—

http://www.law.cornell.edu/supct/cert/10-945

http://www.afj.org/connect-with-the-issues/the-corporate-court/florence-v-board-of-freeholders.html.

http://www.npr.org/2012/04/02/149849568/supreme-court-upholds-invasive-strip-searches

http://www.scotusblog.com/case-files/cases/florence-v-board-of-chosen-freeholders-of-the-county-of-burlington/

http://www.supremecourt.gov/opinions/11pdf/10-945.pdf

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