WASHINGTON -- The Supreme Court on Monday decided that jails may perform suspicionless strip searches on new inmates regardless of the gravity of their alleged offenses.
In 2005, Albert Florence was riding in the passenger seat as his wife drove him and one of their three children to her mother's house for dinner. A New Jersey state trooper pulled the car over and arrested Florence under a civil contempt order for failure to pay a fine that he had, in fact, paid in full. Over the course of six days, he was taken to two county jails and strip searched upon entry to each, even though there was no reason to suspect that he was carrying any contraband that threatened jailhouse security, let alone that he was guilty of any criminal offense.
During the high court's oral argument in October, Florence’s lawyer, Thomas Goldstein, urged the justices to adopt a "reasonable suspicion" standard for strip searching upon prison intake, a standard that would vindicate his client's constitutional rights and serve to deter similar situations in the future.
The justices rejected that suggestion in a 5-4 decision along ideological lines. The majority held in Florence v. Board of Chosen Freeholders that a you-can-strip-seach-'em-all rule strikes the better balance between inmates' rights and jailhouse security than case-by-case determinations of suspicion left to the discretion of the intake officers.
"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," Justice Anthony Kennedy wrote for himself, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. "That necessary showing has not been made in this case."
"The admission of inmates creates numerous risks for facility staff, for the existing detainee population, and for a new detainee himself or herself," wrote Kennedy, citing "well-documented" instances of new admittees introducing contraband and contagion into the general population.
The court refused to exempt minor offenders such as Florence from strip searches, stating that "[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals." As evidence for that claim, the majority invoked 9/11. "One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93," Kennedy wrote.
Kennedy lost Thomas' vote, however -- and with it, the majority -- for the section of his opinion limiting the decision from reaching cases in which detainees will neither be entered into the general population nor put into "substantial contact with other detainees."
Roberts and Alito both wrote separately to emphasize their support for a narrow application of the ruling despite Thomas' defection. "Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate," Alito wrote. "For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible."
The ruling is "a significant victory for jail administrators," said professor Orin Kerr, a Fourth Amendment expert at George Washington University School of Law. "This gives them breathing room, but it's not limitless."
Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, dissented, noting that strip searches can include a male detainee's "spreading and/or lifting his testicles" and a female detainee's "squat[ting] to expose the vagina."
"In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence -- say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor -- is an 'unreasonable search' forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband," Breyer wrote.
In a separate opinion handed down Monday, the Supreme Court in Rehberg v. Paulk unanimously held that plaintiffs cannot sue government witnesses for violating their constitutional rights in grand jury proceedings. Government witnesses already had absolute immunity from suit should they perjure themselves or commit other wrongs in trial testimony. Alito, writing for all nine justices, saw "no sound reason to draw a distinction for this purpose between grand jury and trial witnesses."
This story has been updated to provide further information on the strip search decision and to note the government witnesses ruling.