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Supreme Court Weighs Constitutionality of Routine Jailhouse Strip Searches

October 12, 2011 at 12:00 AM EDT
Do routine jailhouse strip searches for people accused of minor offenses violate the Constitution? Supreme Court justices heard a case Wednesday centering on that issue. Judy Woodruff discusses the case, which pits privacy rights against security concerns, with The National Law Journal's Marcia Coyle.

JUDY WOODRUFF: And we turn next to the Supreme Court, where justices examined this question today: Do routine jailhouse strip searches for people accused of minor offenses violate the Constitution? That issue was raised in a case pitting privacy rights against security concerns.

Marcia Coyle of The National Law Journal was in the courtroom, and she joins us now.

Marcia, it’s good to have you back with us.

MARCIA COYLE, The National Law Journal: Thank you, Judy.

JUDY WOODRUFF: So, tell us about this case and how it ended up before the high court.

MARCIA COYLE: Albert Florence was riding in his SUV with his family. He was stopped by a state police officer. The officer found an outstanding, but erroneous, outdated warrant that he hadn’t paid a fine related to another vehicle stop.

He was arrested, taken to the Burlington County jail, where he was told to strip, open his mouth, lift his tongue, lift his genitals. And he was put in jail for six days. He was then transferred to the Essex County jail, where he went through another strip search upon intake into that jail, except they added a squat and a cough to ensure that he had no internal contraband.

He was released the next day when his wife was finally able to convince people that he had paid his fine. He filed a civil rights lawsuit, claiming that the jail, both jails’ strip-search policies violated the Fourth Amendment, which, as you know, protects us from unreasonable searches and seizures. He lost in the lower federal appellate court, and he brought the case to the Supreme Court.

JUDY WOODRUFF: And key to this case, Marcia, as I understand it, is that what he was arrested for was considered a minor offense.

MARCIA COYLE: Yes, it was.

JUDY WOODRUFF: Now, what arguments did the lawyers for Mr…


JUDY WOODRUFF: What did they say?

MARCIA COYLE: Well, Mr. Florence’s attorney told the justices that he felt that there ought to be a rule that says you have to have — you jail officials have to have reasonable suspicion of contraband or some sort of risk posed by the arrestee if you want to conduct a close-up inspection of the arrestee’s genital or body cavities.

He said, if you’re doing a visual inspection, say, 10 feet away, you don’t need reasonable suspicion. But if you’re getting that close to somebody, there’s an intrusion on the person’s personal dignity and individual integrity. That was the rule he sought.

And that prompted a whole series of questions from the justices about line-drawing. OK, well, if you’re 10 feet away and you don’t need reasonable suspicion, what about five feet? What about two feet? Other justices asked, well, should we be making a distinction between a minor offense and a major offense in order to do this kind of a search? And how often does a jail official really know it’s clear that it’s a minor offense?

Others raised the question, well, you know, maybe the distinction should be between the type of search, a simple strip search or a body cavity search. So they were not too happy with the line-drawing that he suggested.

JUDY WOODRUFF: So, his answers to those questions didn’t seem to satisfy the justices?

MARCIA COYLE: No. And those distinctions, according to his opponent, who was arguing on behalf of the jails, as well as a lawyer for the Obama administration…

JUDY WOODRUFF: The Justice Department, who has come in on the side of the New Jersey county.

MARCIA COYLE: Right, the county jails.

Those two lawyers argued that those types of distinctions are exactly why you need a blanket rule that says if you’re going to release someone into the prison’s general population, you should strip-search them, because the risks of contraband getting into that population or even the risk to the arrestee’s safety is so great, you don’t want jail officials to be stopping and thinking, well, now, is this a major offense, a minor offense, or how far away are we from the arrestee when do the search?

JUDY WOODRUFF: And how did the justices respond to that?

MARCIA COYLE: The justices there, too, had concerns, because as Justice Sotomayor, for example, said, there’s an increasing number of people being arrested today for minor offenses. And that raises concerns about how traumatizing these searches are, even arresting teens, for example, for breaking curfews.

Justice Alito said, what if you’re someone who has a lot of traffic tickets because you were caught by a speed camera? Does that person have to undergo a body cavity search? And the lawyers for the government and the jail said, yes, you need this blanket rule. You can’t risk making distinctions.

JUDY WOODRUFF: So this will come down to, if the justices choose, to their drawing a line, where they draw that line, if they choose to draw the line at all?

MARCIA COYLE: Exactly. They may not choose.

The lawyers for the government and the jail said the court very often has deferred to the discretion of prison officials when it comes to the health and safety of the prison population, and they may just decide that that’s what they have to do in this case.

On the other hand, they do have concerns about this major/minor offense distinction. And if they want to draw a line it may be, as we saw in the arguments today, very difficult.

JUDY WOODRUFF: The jail argument again being that when someone is — whatever the offense is, if we’re putting them with the general prison population, we want to be sure they’re not carrying something on their person?

MARCIA COYLE: Exactly. And there was…right. Exactly.

And there was skepticism among the justices when they pressed the lawyers for the government and the jails about any kind of data, any kind of studies that show, at least for people who are arrested for minor offenses, that they come in with contraband.

Justice Kennedy said the evidence that they had presented was skimpy.

JUDY WOODRUFF: Huh. So maybe that tells us something, and maybe it doesn’t.

MARCIA COYLE: Yes. Maybe it doesn’t.


MARCIA COYLE: This is one of these classic cases, Judy, where a question seems very simple and direct, but the justices are drawn into a real balancing act here in order to answer the question.

JUDY WOODRUFF: And I read that Justice Alito comes from that district close to where this…

MARCIA COYLE: He does. Yes, the case came out of the Third Circuit, the court he actually sat on.

One other thing, before I forget, Judy, because I always forget to say this. Anybody who’s interested in hearing these arguments that we discuss or reading the transcript can do so now. The Supreme Court puts the audio of the arguments up on its website on the Friday after every argument. So, this Friday, people can go up and listen to the argument we’re discussing now.

JUDY WOODRUFF: That’s very exciting.

MARCIA COYLE: It’s great.

JUDY WOODRUFF: Marcia Coyle, thank you very much for being here.

MARCIA COYLE: My pleasure.