(CN) – A divided Supreme Court on Monday upheld blanket strip-search policies that are enforced against all jail inmates, regardless of the charge they face.
A successful challenge would rely on substantial evidence that the policies are an unnecessary or unjustified response to problems of jail security, but Albert Florence simply failed to make that case, according to the majority opinion.
After Florence had been one week late paying an installment in the fine he owed for a previous charge, a New Jersey judge issued a warrant for his arrest.
Florence made the payment in question a week later, but New Jersey updated his profile on a statewide database.
Two years later, a state trooper pulled Florence over and arrested him for the outstanding civil contempt warrant.
The Burlington County Detention Center subjected Florence to a strip search and visual body-cavity search, and Florence underwent another search when the jail transferred him to a facility in Essex County.
One day after the second search, the charges against Florence were dismissed. He then filed a federal class action against both jails and several other defendants for constitutional violations.
A federal judge granted summary judgment on Florence’s unlawful search claim, but declined to grant an injunction and denied the defendants’ immunity claims.
The 3rd Circuit reversed, however, with the majority concluding that a jail’s security interests outweigh the privacy interests of detainees who ordinarily would not be suspected of concealing contraband.
Though the 9th and 11th Circuits have made similar findings, the high court took up Florence’s appeal to settle circuit conflict.
The decision notes that 13 million inmates are jailed, “in the stricter sense of the term, excluding prison facilities,” every year, and the largest facilities process hundreds of people every day.
The justices also gave statistics about contraband in all of its forms, pointing out that correctional officers have recovered weapons like knives and glass chards in the body cavities of prisoners. They also uncover heroin and other drugs. Since an inmate could fashion a weapon out of a pen, nothing can be overlooked.
“The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband,” Justice Anthony Kennedy wrote for the majority. “The court has held that deference must be given to the officials in charge of the jail unless there is ‘substantial evidence’ demonstrating their response to the situation is exaggerated. Petitioner has not met this standard, and the record provides full justifications for the procedures used.”
It would be “unworkable” for jails to offer search exemptions for new detainees who face less serious charges, the system for which Florence argued, according to the court.
“The record provides evidence that the seriousness of an offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption,” Florence wrote.
“People detained for minor offenses can turn out to be the most devious and dangerous criminals.”
Timothy McVeigh, the Oklahoma City bomber, for example was arrested after the tragic attack for driving without a license plate.
Detainees facing more serious charges could also take advantage of security loopholes.
“Experience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment,” Kennedy wrote. “They may have some of the same incentives as a serious criminal to hide contraband. A detainee might risk carrying cash, cigarettes, or a penknife to survive in jail.”
In a holding cell or some other less secure area, “a hardened criminal or gang member can, in just a few minutes, approach the person and coerce him into hiding the fruits of a crime, a weapon, or some other contraband,” the decision states.
The opinion also considers the difficulty in classifying serious offenses. Florence himself could not even dodge this hurdle, since the previous arrest that required him to pay the fine, thus leading to the contempt warrant, involved possession of a deadly weapon.
Kennedy and Justice Clarence Thomas did not sign off on the fourth section of the majority opinion, just before the conclusion. Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito joined the opinion in full.
Calling it “unnecessary” to do so, the fourth section refuses to consider concerns that searches can be inappropriately invasive or otherwise abusive.
In separate concurring opinions, Roberts and Alito note that these concerns might justify an exception to the otherwise bulletproof search policies.
“The court makes a persuasive case for the general applicability of the rule it announces,” Roberts wrote. “The court is nonetheless wise to leave open the possibility of exceptions, to ensure that we ‘not embarrass the future.'”
Alito’s three-page opinion focused on a more narrow exception possibility involving strip searches of detainees whose detention has not yet been reviewed by a judicial officer.
The dissent echoes Alito’s finding that this question remains open, but otherwise there is not much common ground.
It opens with an explanation that officers inspected Florence’s “genitals from an arm’s length away, required him to lift his genitals, and examined his anal cavity.”
“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 searc[h]’ forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband,” Justice Stephen Breyer wrote. “And I dissent from the court’s contrary determination.”
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the 14-page opinion, which describes humiliating strip searches of individuals arrested for minor offenses.
“They include a nun, a Sister of Divine Providence for 50 years, who was arrested for trespassing during an antiwar demonstration,” Breyer wrote. “They include women who were strip-searched during periods of lactation or menstruation. They include victims of sexual violence. They include individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell. They include persons who perhaps should never have been placed in the general jail population in the first place.
“I need not go on. I doubt that we seriously disagree about the nature of the strip search or about the serious affront to human dignity and to individual privacy that it presents. The basic question before us is whether such a search is nonetheless justified when an individual arrested for a minor offense is involuntarily placed in the general jail or prison population.”
Breyer rejected the majority’s finding that perceived threats justify blanket-search policies.
“I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strong reasons to believe they are not justified.”
Less invasive approaches, such as metal detectors and pat-downs, have been shown to achieve the same results, Breyer wrote. And relying on “reasonable suspicion” might go a long way.