Argument preview: No limits on strip-searching?
At 10 a.m. on Wednesday, the Supreme Court will hold a one-hour hearing on the constitutionality of police department strip-search policies, when the search targets everyone arrested and taken to the station or jail. The case is Florence v. Board of Chosen Freeholders of Burlington County, et al. (docket 10-945). Arguing for Albert W. Florence with 30 minutes will be Thomas C. Goldstein of the Washington, D.C., law firm of Goldstein & Russell. Carter G. Phillips of the Washington office of the law firm of Sidley Austin will argue for 20 minutes for the county governments and police departments; 10 minutes of time will be allotted to Nicole A. Saharsky, assistant to the U.S. Solicitor General, representing the U.S. as amicus supporting the local governments and officers.
It is difficult to imagine that a strip-search can be done with delicacy and sensitivity. To those who have been subjected to it in a jail or prison, it has been described as at least humiliating, and perhaps even de-humanizing. But police departments insist on the necessity of the procedure, to keep weapons, drugs and other contraband out of the close quarters of a facility inhabited by potentially or actually dangerous individuals. The policy wisdom or the practical value of the strip-search, however, are not before the Supreme Court in a new case from New Jersey. The constitutional question is whether there are any limits on its use — in other words, can it be used on everyone arrested, regardless of circumstances?
At one time, there was widespread agreement among federal appeals courts that an individual arrested by police and charged with only a minor offense — like a traffic violation, say — could not constitutionally be strip-searched unless the officers had reason to believe that the individual was hiding a weapon or other contraband. For the past three years, however, some of those appeals courts have been reconsidering, and there is now conflict over the procedure’s validity under the Fourth Amendment — at least in cases of traffic violations and other non-violent offenses.
The change of heart was based, in some of the courts, on a Supreme Court decision decided in May 1979, Bell v. Wolfish. It involved a federally operated detention facility in New York City, used mainly to hold accused individuals awaiting trial. Several of the detention facility’s policies were at issue, but the most significant part of the ruling upheld (against a Fourth Amendment challenge) a strip-search policy. As summarized by the Court, the policy required a “body-cavity search” of every inmate “following contact visits with persons from outside the institution.” Each inmate, after such a visit, was to be stripped so that an officer could make a visual inspection of the anal and genital cavities. A 5-4 majority allowed such searches, without any proof of “reasonable suspicion,” in order to help keep the facility secure. (None of the Justices who took part remains on the Court now.)
The claim now before the Supreme Court (although there is some dispute about it) is that police departments in two counties in New Jersey — Burlington and Essex — have had universal policies on strip-searching — that is, the procedure is applied to everyone the police arrested and took to a jail for booking, without any suspicion that they individually posed a threat, and no matter how minor the offense that led to their arrest. And the facts in this case do seem to differ in key respects from those in Bell v. Wolfish.
Albert W. Florence, who lives in Burlington County, was not facing any trial when he was twice subjected to strip-searches, one in each of those counties. He had had no contact at the facility with anybody but the police, so there was no “contact” with an outsider. And, as matters turned out, he had been arrested for a reason for which the legal justification had lapsed by the time of his arrest. His case, thus, seems an ideal one to test just how broad a strip-search policy can be, on the basis of the Bell v. Wolfish precedent.
Florence was arrested by a New Jersey state highway patrolman on March 5, 2005, on an Interstate highway, I-295. The officer had stopped the BMW sports utility vehicle in which Florence was riding; his wife, April, was driving. One of their three children, a four-year-old, was riding with them; they were headed for April’s mother’s home for dinner. Florence has since said that he asked his wife, as the patrolman signaled them to pull over, whether she was speeding, and she said no. Florence, however, may not have been completely surprised: as a black man who works for an auto dealership in New York, and rides from time to time in nice cars, he has been stopped several times — he believes, as a target of racial profiling.
The state trooper checked official records, and found that there was an outstanding warrant for Florence’s arrest. The warrant, from Essex County, had been issued on the premise that Florence had not paid a fine. However, Florence had with him in the car a copy of a court record showing that, in fact, he had paid that fine. He would say later that he kept that document with him precisely to be able to contest an arrest based upon that warrant. He had paid the fine promptly after the warrant was issued, but the warrant remained on the books. The officer would not accept the document; Florence was handcuffed, and taken to a state police barracks. The officer issued no traffic citation, either to Florence or to his wife. Florence was then taken to the Burlington County jail.
His lawyers have told the Supreme Court that he was then held for six days, that no effort was made to check whether he had paid the fine, and that he was not taken before a judge even though New Jersey law required that such an encounter occur for a jailed person after 72 hours. Mrs. Florence, after visiting several courthouses, finally obtained a document to prove that the fine had been paid, but that did not lead to her husband’s immediate release. Over the course of six days, he was strip-searched twice, once in each county’s jail. After the second strip-search, he was taken before a judge the next day; the judge said he was “appalled,” and ordered Florence’s immediate release.
Not long after the incident involving Florence, Essex County changed its policy, bringing it in line with a state law that strictly limits the use of strip-searching for those arrested for minor offenses. Under New Jersey law, the complaint that Florence had failed to pay a fine was not a crime at all, his lawyers have insisted; rather, they have argued, it is treated as a form of civil contempt.
Florence turned the episode into a lawsuit against the two counties’ governments, their jails, police officers, an unnamed (“John Doe”) state trooper, and jail employees. He claimed his Fourth Amendment rights had been violated by strip-searches done without any suspicion that he posed a threat to jail security. A federal District judge upheld his constitutional claim, and the case went to the Third Circuit Court before a trial on the merits of Florence’s claim. Treating Florence’s claim as a previously unexamined one in that Circuit, the appeals court, applying Bell v. Wolfish, found no violation of Florence’s rights. The vote was 2-1.
“We do not minimize the extreme intrusion on privacy associated with a strip search by law enforcement officers,” the appeals court said. “However, the searches here are less intrusive than the visual body-cavity searches considered by the Supreme Court in Bell.” It also said that the situation with Florence was similar to that in the Bell case: the search was done as it had been and in the same place as in Bell: by jail personnel, in a detention facility. Moreover, the court added, the Burlington County policy required that such searches be done “in private, under sanitary conditions, and in a professional and dignified manner.”
On the other side of the equation, the Circuit Court spoke of the clear need to prevent the introduction of weapons and drugs into the prison environment. The security interest in that, it concluded, was just as strong as the interest in checking inmates after they had had “contact visits” as in the Bell case.
Petition for Certiorari
Albert Florence’s lawyers took the case to the Supreme Court, filing their petition last January 19. It posed a single issue: “Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.” Noting that a number of lower court judges had said that the issue needed to be resolved by the Supreme Court, and that the federal appeals courts had reached conflicting results, the petition said the Florence case was a proper vehicle because it involved only the single constitutional question, on which the appeals courts are divided, and the record in the case was well-developed.
Much of the petition was focused on an effort to show clear distinctions between the situation in the New Jersey counties and the one that the Justices had confronted in the Bell case. A contact visit involves persons who will enter the jail from outside, knowing in advance that they will be there, and, in Bell, such visits were only loosely supervised, it noted. By contrast, the petition said, Florence had been arrested without warning, and for only a minor civil offense; he hardly would have been likely to plan in advance to take something illegal with him to the station.
It also spoke alarmingly of what happens in a strip-search, saying that it demands “the forced exposure of intimate details that the individual may have throughout his life withheld from almost everyone.” In Florence’s case, it went on, he was “twice required to strip entirely naked, lift his genitals, and turn around to have his entire body closely examined by complete strangers,” and to do so — in the Essex County jail — in the presence of four other detainees. The petition offered a quote from Justice Stephen G. Breyer, when he was a Circuit Court judge, about the “severe if not gross interference with a person’s privacy” from an officer’s visual inspection of body cavities.
The petition’s final point was that jail security can be protected if police would use metal detectors and conduct such a scan with the detainee being required only to strip down to underwear.
The two counties and various officers and officials from them, in two response briefs, urged the Court not to take the case at this point, noting that Florence’s lawsuit had not yet gone to trial and that the Justices often are unwilling to jump in at such a stage. They also contended that the split in the lower courts was not as stark and direct as Florence had sought to portray it; the Burlington officials said the split was “not black and white.” Moreover, they contended that the facts were as yet not fully developed in this case, making it a poor vehicle for review by the Justices.
A somewhat novel argument in the Burlington response was that Florence was relying on lower court precedents that were decided in “the early 1980s,” and, since then, ‘the increased threats that society faces may have affected the public perception of when strip searches are reasonable.”
Essex County’s reply argued that strip-search cases depended largely upon their individual facts, and contended that the appeals courts were entirely capable of sorting out each case, one at a time. Moreover, officials of that county said, the fact that appeals courts have been reconsidering their prior views against strip-searches suggests that they can resolve any existing conflict without the Supreme Court needing to get involved.
Strategically, the merits brief for Albert Florence opened with concessions about the need for searches to ensure the security of jails, and ticked off the methods that it suggested police conventionally use to protect that interest — all of which, of course, are less intrusive than strip-searching. The brief also acknowledged the circumstances that would give police sufficient reason to be suspicious about a detainee coming into their facility — such as having been arrested for a serious crime, or circumstances at arrest that might suggest a plan to get into a facility. All of these points, of course, were designed to suggest that the Court could rule for Florence without posing any significant danger to jail security.
That laid the groundwork, then, for arguments about how the Florence case was quite different, since he gave officers no reason whatsoever to suspect that he was a dangerous arrestee, or that he had connived to get into the jail in order to make trouble there.
In a broad policy argument, aiming at showing that there was no practical need for an all-persons-no-suspicion policy, the Florence brief suggested that “most jails in this country” actually use a “reasonable suspicion” standard for their jail search policies. “More than half of all Americans,” it added, for emphasis, “live in the 18 states that prohibit suspicionless strip searches.” And that, it added for good measure, includes New Jersey. The brief listed what it said were the cautious policies used by every branch of the Justice Department — from the Bureau of Prisons to the Bureau of Indian Affairs
The Florence merits brief also argued that Bell v.Wolfish did not set off any trend in the appeals courts to uphold strip-searches without suspicion. The appellate court “consensus” against such policies, it said, was interrupted by an Eleventh Circuit Court ruling in 2008 — some 29 years after Bell was decided.
The Burlington County brief, in its primary focus, depended very heavily upon the Bell precedent, citing the thousands of times it has been relied upon by lower courts, and making the point that the Supreme Court, if anything, has since strengthened its view of the need for jails to take special precautions to ensure their security. It gave strong emphasis, too, to the Supreme Court’s comments about how those in jails and prisons have a diminished expectation of privacy, and thus do not share all of the rights of those on the outside.
The more forceful part of that brief, however, was a lengthy footnote in which it sought to portray Albert Florence as a more dangerous person than Florence’s own lawyers had attempted to do. He was not, the brief said, just an “ordinary citizen.” The footnote recounted the incident that had led to the issuance of the arrest warrant for Florence, describing it in considerably more threatening terms. Florence was charged, after fleeing from the scene where he had been stopped while driving a car he did not own, with obstruction of justice, aggravated assault, and possession of a deadly weapon. He actually pleaded guilty, the footnote said, to hindering prosecution and obstructing justice, and was fined $1,574 — on which he paid only $250 before the arrest warrant was issued, prompting him to pay the balance less than a week later.
In legal terms, Essex County’s brief on the merits is markedly bolder. It argued that the Fourth Amendment does not apply at all to “the intake searches of newly admitted inmates to correctional facilities.” It argued that such inmates do not have a legitimate expectation of privacy at all, and, looking back to “the founding era,” it said there was in those days no privacy expectation, so that even visual cavity searches were not forbidden upon entry into a jail or prison. If, however, the Fourth Amendment were understood to apply, the brief contended, it is more than satisfied by the needs of security in jails and prisons. It argued that Bell v. Wolfish settled the constitutionality of strip-searches, and contended that those involving Florence were no different.
Essex County’s brief also had a fallback argument under the Fourth Amendment: when it received Florence as a detainee, the county brief said, he had come from another jail, and such transfers pose a “unique danger” to jailhouse security.
If detainees have any constitutional protection at all, according to Essex County’s brief, it is under the Due Process Clause, targeting conditions of confinement, perhaps including “abusive or needless searches.”
The U.S. government entered the Florence case firmly on the side of the counties, their officers, and the constitutionality of strip-searches within jails and prisons. It amounted to a straightforward reliance upon the Bell precedent, seeing no distinction between the two cases. It also dismissed Florence’s argument that there were less intrusive ways to assure safety and security in correction facilities, and argued that a special rule for those hauled in for “minor” offenses might only lead more dangerous criminals to enlist those who committed such lesser crimes to use their arrest, perhaps planned, to bring in contraband for them. The Justice Department brief also contradicted directly the Florence brief’s claim that federal law enforcement agencies do not rely upon strip-searches; it said that the Bureau of Prisons requires them, and the U.S. Marshals Service allows them “when necessary to address smuggling concerns.”
The amici filings are almost balanced numerically — 10 in support of Albert Florence, 11 in support of the counties. Aside from a brief by 12 states on the counties’ side, all of the other amici briefs in its favor are from counties, municipal government associations, or police organizations. On Florence’s side, the amici filings are considerably more varied, ranging over health organizations, groups seeking to monitor sexual abuse, criminal defense lawyers, former jail and prison officials, a police “accountability project,” and the American Bar Association.
The Supreme Court’s review no doubt will start with Bell v. Wolfish. Whether it stops with that may be doubted. However much the government advocates have sought to find exceedingly close parallels between the circumstances of that case and those in Albert Florence’s case, the differences are hardly narrow or subtle. The stark fact of the Bell case is that the searches followed visits from outsiders. It seems quite fanciful to construct scenarios in which an arrested individual, fortuitously pulled over by a state trooper, could be fitted into the role of a conspirator seeking to get contraband smuggled into jails for the inmates there. If that were accepted as plausible, of course, then a strip-search for everybody would be justified as necessary to jail security. But making it seem plausible may well be an exercise in theoretical gymnastics. It would involve, as the Court has said in another context, piling inference upon inference upon inference.
But if the Court is not impressed with that doomsday scenario, it remains a serious question whether it can fashion a Fourth Amendment rule that would recognize meaningful exceptions to the need for strip-searches in the jailhouse. The “minor offense” distinction might work, if it could be given any substance as to what that means, and how police would know when an officer — perhaps not one of their own — showed up with an arrestee in tow and little to go on in making a solid judgment of do or don’t strip-search. Recall that the Fourth Amendment only prohibits searches that are “unreasonable.” The Court has always had difficulty giving that word any dependable meaning.
Making the need to strip-search depend upon the circumstances of arrest might lengthen the booking process at the jail, but it would seem to have promise for narrowing the range of arrestees who do seem to need to be stripped naked and examined. Again, though, there is a question of what might be “reasonable” about a strip-search deemed appropriate for one kind of arrest scenario, but not for another.
It does seem though, that the Court is not going to accept the suggestion of Essex County that the Fourth Amendment has no application — none — to “intake searches” at jails and prisons. Even Bell v. Wolfish does not go that far, whatever else it might mean. The majority opinion in Bell did assume that arrestees in a jail do have some expectation of privacy, even though diminished, and it permitted the kind of searches at issue there on the premise that they did not violate that expectation. The Court may see through that line of argument as a transparent attempt to appeal to the “originalists” on the Court by invoking the hallowed “founding era.”
The chances do seem strong that the Florence will divide the Court along ideological lines. And that, as always, enhances the pivotal perceptions of Justice Anthony M. Kennedy.
(Disclosure: The law firm of Goldstein & Russell is part of the team representing Albert Florence. Some of the attorneys in that firm work for this blog in various capacities, but the author of this post operates independently of that firm’s law practice.)