In 5-4 Decision, Supreme Court Upholds Use of Strip Searches in Jail

The Supreme Court has handed down a decision confirming “that jail administrators may require all arrestees who are committed to the general population of a jail [sic] to undergo visual strip searches not involving physical contact by corrections officers."

The case in question, Florence v. Board of Chosen Freeholders, involved Albert Florence, who was pulled over in a car with his wife and 4-year-old son back in March 2005. A records search showed that Florence had an “outstanding warrant” based upon an unpaid fine. As a result, he was taken into custody and held for over a week in two different counties. Eventually, it was discovered that the fine had already been paid, and Florence was released.

During his eight days in captivity, however, Albert Florence was subjected to a pair of strip searches.  “Turn around,” he remembered being told. “Squat and cough. Spread your cheeks.” Quite understandably, Mr. Florence described the experience as “humiliating” and de-humanizing, saying that he felt “not better than an animal.”

Florence’s case made its way to the Supreme Court centered on the individual’s right to preserve his/her person against unreasonable searches and seizures – in this case, situations where officials have no reason to suspect that the arrestee might be smuggling in contraband. The most applicable precedent for this case comes from the 1979 decision in Bell v. Wolfish that affirmed the “practice of body-cavity searches of inmates following contact visits with persons from outside the institution.”  Still, Mr. Florence’s case does seem markedly different; after all, he had not planned on being arrested.

Ultimately, however, the Court found the case unconvincing – albeit by a narrow margin. Justice Kennedy delivered the opinion of the Court, and he was joined by Chief Justice Roberts and Justices Scalia, Alito, and Thomas. The Court stood behind the authority of correctional officers who know more thoroughly the risks of letting contraband into the general population of the prison. In addition, the Court cites less obvious dangers like the presence of gang-affiliated tattoos or markings that might have otherwise been discovered too late.

The concurring opinions took care to define the limits of the Court’s decision. “The Court,” Justice Alito writes, “does not hold that it is always [sic] reasonable to conduct a full strip search” if the arrestee “could be held in available facilities apart from the general population.” Chief Justice Roberts, in his concurrence, writes that “the Court does not foreclose the possibility of an exception to the rule it announces.”

The lone dissent was delivered by Justice Breyer, who reacted quite strongly regarding the de-humanizing nature of such searches. “Even when carried out in a respectful manner,” he writes, “and even absent any physical touching … such searches are inherently harmful, humiliating, and degrading.”

He goes on to describe, quite graphically, other cases which were presented via amicus briefs and involved the strip searches of women who were menstruating, victims of sexual abuse, as well as a nun Sister Bernie Galvin, who was given a “scanty paper hospital-like gown” and forced to wait in a cold cell before being searched. Finally, the dissent contends that no convincing evidence had been presented for the discovery of contraband via strip searches that would or could not have been detected with another method.

Still, Justice Kennedy’s “swing vote” broke the ideological tie and brought the Court to decide against Florence. The deciding factor seemed to be the special nature of a detention facility, one where security and stability are extremely important. “There is a substantial interest [emphasis added],” wrote Justice Kennedy, “in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population.”

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