But the tougher question was whether officials eager to keep weapons and other contraband out of jails could more closely inspect private body parts without some reasonable suspicion to justify the search.
Such a “significant intrusion on individual privacy and individual dignity” requires some reason to believe the arrested person poses a danger, said Washington lawyer Thomas C. Goldstein. He represents Albert Florence, a New Jersey man who said he was subjected to two invasive inspections after being mistakenly arrested for not paying a fine.
But Goldstein’s counterpart, Carter Phillips, said jails were within their rights to have a blanket policy of searching everyone admitted to the general population in their facilities.
“I think the basic principle we are asking for is that deference to the jails and to the administrators of the jails requires that this court respect their judgment,” Phillips said.
Neither position seemed to completely satisfy the justices.
Even Phillips acknowledged that Florence’s story is “disturbing” because he “candidly shouldn’t have been arrested.”
A New Jersey state trooper pulled over Florence’s BMW in 2005 as he and his family were on the way to his mother-in-law’s to celebrate their new home. He was handcuffed and arrested in front of his distraught, pregnant wife and young son.
He spent seven days in jail because of a warrant that said, mistakenly, he was wanted for not paying a court fine. In fact, he had proof that the fine had been paid years earlier; he said he carried it in his glovebox because he believed that police were suspicious of black men who drove nice cars.
Florence was jailed first in Burlington County and then Essex County, before a magistrate ordered him released. At Burlington, he said he was forced to disrobe in front of an officer and told to lift his genitals. At Essex, he was strip-searched again, and said he was made to squat and cough in front of others, a maneuver meant to expel anything hidden in a body cavity.
Goldstein said it was “laugh-out-loud funny” to think that Florence was trying to smuggle anything into the jail.
But the justices seemed more concerned with coming up with a rule that would clearly let jailers know how to balance their security concerns with the Fourth Amendment’s protection against unreasonable searches. Thirty years ago, the court ruled that prisoners could be strip-searched after returning from contact visits with outsiders.
Goldstein offered the rule that all entering jail could be observed naked while showering and changing into prison uniforms. But the close kind of inspection Florence received — with a guard peering at his genitals from two feet away — required reasonable suspicion, Goldstein said.
Justice Sonia Sotomayor said she did not see how such a rule could be workable. “The greater intrusion is that you are standing two as opposed to five feet away?” she asked. “That is a line that doesn’t make much sense to me.”
Justice Anthony M. Kennedy worried that Goldstein’s test would require jailers to make arbitrary decisions about the potential danger of those arrested on minor charges. Justice Samuel A. Alito Jr. wondered if Goldstein wasn’t really asking for different treatment for those arrested on minor charges, something for which Alito seemed somewhat sympathetic.
The justices at times debated whether a higher level of suspicion would be needed to justify the more intrusive searches.
Phillips acknowledged that he thought it would be hard to convince a majority of the court that a body-cavity search, for example, did not require reasonable suspicion.
Justice Antonin Scalia said he doesn’t think the Fourth Amendment applies to strip-searches, because they were “standard practice” at the time of the founding. Goldstein disputed that.
Scalia said he could see a problem with suspicionless cavity searches, but not if prison officials were simply looking for “fleas or cooties” to ensure a healthy environment.
Sotomayor and Justice Stephen G. Breyer pressed Phillips and Assistant Solicitor General Nicole A. Saharsky on whether there was really a problem with arrestees smuggling contraband. Breyer said he could find almost no examples for those charged with minor crimes.
But Saharsky said a blanket policy of strip-searches still makes the most sense. Jail officials have little time to make decisions about those before them, she said, “and if they guess wrong, those mistakes can be deadly.”
The case is
Florence v. Board of Chosen Freeholders