Strip Search for a Minor Offense: Is It Constitutional?

To the Supreme Court, questions of dignity and rights seem less important than defining "true anal cavity searches"

prison guard -reuters-body.jpg
Imagine, gentle reader, that you decide to become a criminal mastermind. The first step to global domination will be smuggling contraband -- that is, weapons or drugs -- into the Burlington County, New Jersey, jail. Your scheme is worthy of Oswald C. Cobblepot: You will insert the offensive items into a bodily cavity or affix them on an inconspicuous part of your body. Then, you and your wife and child will climb into the family BMW. To divert suspicion from your plan, you will place your wife behind the wheel, then have her commit a routine traffic infraction. (Luckily, you are African American, thus making a police stop far more likely.) When you are stopped, you will immediately identify yourself, thus ensuring that the police officer will find an invalid warrant against your name. You will play Tom Sawyer, producing documents suggesting that the warrant has been satisfied. This is a clever ploy: you appear reluctant to be arrested, when in fact it is your fondest wish.

So far, the plan has functioned flawlessly. There is still, however, a potential flaw: because the warrant is invalid, the police can thwart your scheme by simply presenting you to a magistrate upon arrest, as they should do, rather than processing you into the jail. But luck is with you: the officers ignore the law and frog-march you into the hoosegow.

But then -- holy lockdown! -- the alert jail staff, in violation of New Jersey law, conduct a strip search of your person. Foiled!

Except, of course, that in the actual events at issue in Florence v. Board of Chosen Freeholders, argued Wednesday before the Supreme Court, the victim of the illegal detention and search, Albert Florence, was not a criminal mastermind at all, but an auto-dealership employee on his way to a family dinner. The strip search produced no contraband; a second strip search, when Florence was transferred to another county's jail after a week of illegal detention, was even more intrusive, requiring Florence to squat and cough under the eyes of jail staff. It also produced no contraband.

What sane person would have thought it would? The two counties that Florence has sued for subjecting him to this squalid ordeal now argue that there is no need for any sane suspicion --that any person, even one arrested for a non-criminal offense such as failure to pay a fine -- can be subjected to repeated strip searches on the off chance that he or she may be carrying contraband. Florence insists that the authorities need "reasonable suspicion" in this case.

The Fourth Amendment, which applies in jail as well as on the outside, forbids "unreasonable searches." Is a routine strip search reasonable? Failure to pay a fine is not a crime in New Jersey; neither is driving without a seat belt, or asking to exit a parking deck without paying when there's no available parking. But all of these offenses have subjected citizens to arrest, and the Supreme Court has approved that approach to law enforcement. Now such inadvertent brushes with the law may bring strip searches as well.

To be clear, this is not a matter of having to take off clothes for a shower or a medical inspection; it's a matter of one or more guards standing in arm's reach of the prisoner, with the option of requiring a male prisoner to move his genitals, and asking any prisoner to open bodily orifices.

Albert Florence had some criminal charges in his background, but he seems to me less like the Penguin than like Kafka's Joseph K., who "without have done anything truly wrong, ... was arrested" one morning. (The jail's own personnel wrote on his intake form, having his record in front of them, that they saw no grounds for suspicion.)

The important question, of course, is how the justices see him and those like him: law-abiding citizens snared by a clumsy system, or potential Cobblepots?

The argument takes place against a legal background in which the Court, in 1979, had already held that inmates already could be strip searched upon return from "contact visits" with outsiders. Visitors sometimes do smuggle in contraband, and inmates don't have to have contract visits. Further, all inmates can be "observed" naked, in the showers or during medical inspections.

The major question before the Court is how close the officer can stand and when or if the inmate may have to lift or squat. Arguing for the New Jersey defendants, Carter Phillips instructed the justices on the fine distinctions between a "a true anal cavity search," on the one hand, and "simply an anal focus and genital focus search." Scalia interrupted him: "You want us to write an opinion that applies only to squatting and coughing." Most of the justices were about as interested in thinking about those distinctions, gentle reader, as you are. The main issue on everybody's mind was whether the Court could come up with a rule and put this puppy to bed.

Scrying yesterday's oral argument transcript for clues, I would say that the inmates' point of view was not very much on the justices' minds. Remember that Florence was not arguing for a blanket no-strip rule, but only a standard that, at least in the case of "minor offenses," the jail must have a reason, even if a faint one, to suspect that smuggling may occur. That seemed to Justice Kennedy to offend against dignity, not further it. "I take it what we're trying to do is to protect the individual dignity of the detainee," he asked Thomas Goldstein, who represented Florence and his co-plaintiffs. "But it seems to me that you risk compromising that individual dignity if you say we have reasonable suspicion as to you, but not as to you."
Later, during Phillips's argument, Kennedy suggested that the strip search was actually a favor to Florence and others illegally held: "Does the record or common experience justify an argument that if you have the person who's stopped just for a traffic ticket, but that person is going to be in custody for five or six days, that person might well prefer an institution where everyone has been searched before he or she is put into the population with this?"

Justice Scalia suggested that the entire question had been settled by what went on in prisons during the 19th century. "At the time the Fourth Amendment was adopted, this -- this was standard practice, to strip search people who were admitted to prisons. So how could it be deemed an unreasonable invasion of privacy when it -- when it was done all the time and nobody thought it was unconstitutional?" Goldstein wisely responded, "If you read history differently than me, I'm not going to be able to persuade you."

Justice Samuel Alito asked Phillips, "Would you say that [strip search is proper] regardless of the offense for which the person is arrested? There have been some stories in the news recently about cities that have taken to arresting people for traffic citations. Suppose someone is just arrested because they have a lot of tickets for being caught on speed cameras, let's say. That person can be subjected to the searches that you are describing?" Phillips replied yes; the reason, he says, is that jail administrators prefer not to make exceptions to rules.

Justice Stephen Breyer asked how many persons jailed for minor offenses actually do bring in contraband. "I've read through the briefs and I can't find a lot of contrabanders that were caught in that category," he said. "In fact, my law clerk thinks it's one out of 64,000 or less. So -- so what is the justification for a rule to avoid reasonable suspicion in that category?" Phillips replied that it's really not up to the courts. The Court should defer to "the good faith judgment of our jailers."

Justice Sonya Sotomayor pointed out a potential blind spot in that good faith judgment: "I understand contraband is serious. But most of the studies point to it not being on intake, but coming in through guards, coming in through contact visits. The great cause today is that from corrupt correction officials."

I know and admire many honest correctional officers, without necessarily wanting to turn over the Constitution to them. We are caught in the logic of a society enamored of incarceration, which aims to turn any prisoner into an item who can be processed and controlled with minimal fuss about rights and privacy. Failure to pay a fine, murder, what's the difference to "our jailers"?

Whether such a rule is compatible with freedom and democracy is a question that seems likely to get only a brief look amid the quarrels about jailhouse order. I'm not making any predictions as to outcome. But 41 years ago this summer, I ran out of a jaywalking citation from the LAPD. I'm not planning any trips back there after next June.