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Thoughts on the strip-search case

Like Lyle Denniston, I attended the oral argument this morning in Florence v. Board of Chosen Freeholders of the County of Burlington, the case on whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses.  My impression of the argument was rather different from Lyle’s however, so I thought I would offer SCOTUSblog readers a somewhat different take.

First, some background. As I see it, Florence is really a follow-up to Atwater v. City of Lago Vista, in which the Court considered whether the Fourth Amendment allows arrests even for very minor offenses. In Atwater, the Court concluded that the Fourth Amendment does allow arrests even for very minor offenses — in that case, a seatbelt violation that led to a small fine. Florence requires the Court to confront a downstream implication of Atwater: If the Fourth Amendment allows the police to make the arrest for the very minor offense, and the arrestee is then brought to the jail, does the Fourth Amendment also allow the kind of invasive strip search that often occurs on entry into jail to ensure that no contraband is brought inside?

The arguments in Florence largely resembled the arguments in Atwater. The question is, does it work to create a Fourth Amendment rule that specially treats the relatively rare case of arrestees for minor crimes and those that aren’t dangerous or likely to be bringing in contraband differently than the run of criminal cases? Or should the Court conclude that the Fourth Amendment leaves this relatively rare case to the discretion of the government and perhaps the political process?

In Florence, the problem for the challlengers to the government’s action is that everyone concedes that there are some circumstances in which the government needs to conduct some sort of inspection of arrestees for contraband as they enter a prison. The challengers, representing the petitioner Florence, therefore had the hard line-drawing problem: How to distinguish the different kinds of possible inspections, and how to say when different inspections are permitted?

The petitioner, represented by Tom Goldstein, took the view that the government can always watch arrestees from 10 feet away or a similar distance while the arrestees are showering before entering the jail. If the government wants to inspect the arrestees more closely, however, such as at a close arm’s-length distance, then reasonable suspicion is required. According to Goldstein, reasonable suspicion should always exist when the arrest is for a major offense. In contrast, case-by-case reasonable suspicion should be required for arrests for minor crimes. The respondents, represented by Carter Philips, took the view that no line drawing was required: As long as the inspection was only visual inspection of the outside of a person’s body, then the Fourth Amendment did not apply at all upon entering a prison.

My sense of how the argument developed is a bit different than Lyle Denniston’s in his post below. My impression was that the Justices were pretty skeptical of engaging in the kind of line-drawing that the petitioner advocated. A lot of the Justices’ questioning focused on the difficulty of distinguishing a ten-foot inspection from a five-foot inspection from a two-foot inspection, or distinguishing a major crime from a minor one. It’s hard to make conclusions based just on oral arguments, but my sense is that a majority of the Justices thought that these were simply too slender a reed on which to base a constitutional distinction.

It’s true that some of the questioning of Phillips focused on the lack of empirical evidence that this was a genuine problem. But I don’t think the Justices as a group saw this case as a question of empirics, in part because empirical evidence is hard to find here and in part there are so many different kinds of jails. Similarly, I wasn’t sure of what to make of Scalia’s questioning to Phillips about whether this was just a case about “coughing and squatting.” In his post below, Lyle sees this as an expression of skepticism of Phillips’s position. That’s certainly possible. But I thought that it might also be an expression of Scalia’s frustration that Philips wasn’t asking for even a broader pro-government rule. Perhaps the transcript, which should be out shortly, will reveal more.

Finally, I was particularly intrigued by Justice Alito’s questioning. Justice Alito’s questioning usually gives listeners a pretty good indicator of where he will come out in a case. In this case, Alito seemed more skeptical of the respondents (the jail) than I would have expected. If you’ll pardon my entirely baseless speculation, I was left wondering if Justice Alito’s experience before joining the Court left him with an unusual sense of the facts in this case. For many of the Justices, the jails here are an abstraction. But the Florence case comes from New Jersey, via the Third Circuit, and one of the two jails is located in Newark. Justice Alito is a former U.S. Attorney for the District of New Jersey based in Newark, and he served for many years as a Circuit Judge with chambers in Newark — in both cases, working about three miles from the Essex County Correctional Facility.

[ Disclosure: Goldstein & Russell, P.C. – whose attorneys either work for or contribute to this blog – represents petitioner Albert Florence in this case, but the author of this post was not involved in the case.]

Recommended Citation: Orin Kerr, Thoughts on the strip-search case, SCOTUSblog (Oct. 12, 2011, 2:24 PM),