Strip-search at jail entry approved by U.S.
justices;
5-4 court rules procedure permissible in
all cases, even for minor offenses
BYLINE: ADAM LIPTAK, April 4, 2012
Wednesday, The International Herald Tribune
The Supreme Court ruled 5 to 4 that people
arrested for any offense, however minor, could be forced to strip before
being jailed, even if no reasonable suspicion of contraband exists.
The U.S. Supreme Court has ruled by a 5-to-4
vote that officials may strip-search people arrested for any offense, however
minor, before admitting them to jails, even if the officials have no reason to
suspect the presence of contra-band.
Justice Anthony M. Kennedy, joined by the
court's conservative wing, wrote that courts were in no position to
second-guess the judgments of correctional officials who must consider not only
the possibility of smuggled weapons and drugs, but also public health and
information about gang affiliations.
''Every detainee who will be admitted to
the general population may be required to undergo a close visual inspection
while undressed,'' Justice Kennedy wrote, adding that about 13 million people
were admitted each year to U.S. jails.
The procedures endorsed by the majority are
forbidden by statute in at least 10 states and are at odds with the policies of
the U.S. government. According to a supporting brief filed by the American Bar
Association, international human rights treaties also ban the procedures.
U.S. appeals courts had been split on the
question, though most of them prohibited strip-searches unless they were based
on a reasonable suspicion that contraband was present. The Supreme Court did
not say Monday that strip-searches of every new arrestee were required; it
ruled, rather, that the Fourth Amendment's prohibition of unreasonable
searches did not forbid them.
Daron Hall, the president of the American
Correctional Association and sheriff of Davidson County, Tennessee, said the
association welcomed the flexibility offered by the decision. The association's
current standards discourage blanket strip-search policies.
The sharply divided decision Monday came
from a court whose ideological differences are under intense scrutiny after
last week's arguments on President Barack Obama's health care law. The
ruling came less than two weeks after a pair of major 5-to-4 decisions on the
right to counsel in plea negotiations, though there Justice Kennedy had joined
the court's liberal wing.
The majority and dissenting opinions on
Monday agreed that the search procedures the decision allowed - close visual
inspection by a guard while naked - were more intrusive than being observed
while showering but did not involve bodily contact.
Justice Stephen G. Breyer, writing for the four
dissenters, said the strip-searches the majority allowed were ''a serious
affront to human dignity and to individual privacy'' and should be used only
when there was good reason to do so.
Justice Breyer said that the Fourth
Amendment should be understood to bar strip-searches of people arrested for
minor offenses not involving drugs or violence, unless officials had a
reasonable suspicion that they were carrying contraband.
The decision Monday endorsed a recent trend
- coming from appeals courts in Atlanta, San Francisco and Philadelphia - of
allowing strip-searches of everyone admitted to a jail's general population. At
least seven other appeals courts, on the other hand, had ruled that such
searches were proper only if there was a reasonable suspicion that the arrested
person had contraband.
According to opinions in the lower courts,
people may be strip-searched after arrests for violating a leash law, driving
without a license and failing to pay child support. Citing examples from briefs
submitted to the Supreme Court, Justice Breyer wrote that people have been
subjected to ''the humiliation of a visual strip-search'' after being arrested
for driving with a noisy muffler, failing to use a turn signal and riding a
bicycle without an audible bell.
A nun was strip-searched, he wrote, after
an arrest for trespassing during an antiwar demonstration.
Justice Kennedy responded that ''people
detained for minor offenses can turn out to be the most devious and dangerous
criminals.'' He noted that Timothy McVeigh, later put to death for his role in
the 1995 Oklahoma City bombing, was first arrested for driving without a
license plate. ''One of the terrorists involved in the Sept. 11 attacks was
stopped and ticketed for speeding just two days before hijacking Flight 93,''
Justice Kennedy added.
The case decided Monday, Florence v. County
of Burlington, No. 10-945, arose from the arrest of Albert W. Florence in New
Jersey in 2005. Mr. Florence was in the passenger seat of his BMW when a state
trooper pulled his wife, April, over for speeding. A records search revealed an
outstanding warrant for Mr. Florence's arrest based on an unpaid fine. (The
information was wrong; the fine had been paid.)
Mr. Florence was held for a week in jails
in Burlington and Essex Counties, and he was strip-searched in each. There is
some dispute about the details but general agreement that he was made to stand
naked in front of a guard who required him to move intimate parts of his body.
The guards did not touch him.
''Turn around,'' Mr. Florence, in an
interview last year, recalled being told by jail officials. ''Squat and cough.
Spread your cheeks.''
''I consider myself a man's man,'' said Mr.
Florence, a finance executive for a car dealership. ''Six-three. Big guy. It
was humiliating. It made me feel less than a man.''
Justice Kennedy said the most relevant
precedent was Bell v. Wolfish, which was decided by a 5-to-4 vote in 1979. It
allowed strip-searches of people held at the Metropolitan Correctional Center
in New York after ''contact visits'' with outsiders.
As in the Bell case, Justice Kennedy wrote,
the ''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.''
The majority and dissenting opinions drew
differing conclusions from the available information about the amount of
contraband introduced into jails and how much strip-searches add to pat-downs
and metal detectors.
Justice Kennedy said one person arrested
for disorderly conduct in Washington State ''managed to hide a lighter,
tobacco, tattoo needles and other prohibited items in his rectal cavity.''
Officials in San Francisco, he added, ''have discovered contraband hidden in
body cavities of people arrested for trespassing, public nuisance and
shoplifting.''
Justice Breyer wrote that there was very
little empirical support for the idea that strip-searches detect contraband
that would not have been found had jail officials used less intrusive means,
particularly if strip-searches were allowed when officials had a reasonable
suspicion that they would find something.
For instance, that standard was used in a
study of 23,000 people admitted to a correctional facility in Orange County in
New York, and there was at most one instance of contraband detected that would
not otherwise have been found, Judge Breyer wrote.
Justice Kennedy said that strict policies
deter people entering jails from even trying to smuggle contraband.
Justices Ruth Bader Ginsburg, Sonia
Sotomayor and Elena Kagan joined Justice Breyer's dissent. Chief Justice John
G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. joined all
of Justice Kennedy's majority opinion, and Justice Clarence Thomas joined most
of it.
In a concurrence, Chief Justice Roberts,
quoting from an earlier decision, said that exceptions to the Monday ruling
were still possible ''to ensure that we 'not embarrass the future.'''
Justice Alito wrote that different rules
might apply for people arrested but not held with the general
population or whose detentions had ''not been reviewed by a judicial
officer.''
The president declared Monday that he was
confident the Supreme Court would uphold his health care law, saying it would
be an ''unprecedented, extraordinary'' step to overturn legislation passed by
the ''strong majority of a democratically elected Congress,'' Mark Landler
reported from Washington.
In his first public comments since court
questioning last week suggested that it might find the Affordable Care Act
unconstitutional, Mr. Obama offered both a robust defense of the law and a
barbed warning to justices thinking of striking it down.
''For years, what we've heard is the
biggest problem on the bench was judicial activism or the lack of judicial restraint,
that an unelected group of people would somehow overturn a duly constituted and
passed law,'' Mr. Obama said after meeting at the White House with the leaders
of Mexico and Canada. ''Well, there's a good example,'' he continued, ''and I'm
pretty confident that this court will recognize that and not take that step.''
