Wednesday, October 12, 2011

Court Considers Constitutionality of Strip Searches for Arrestees

The Supreme Court heard oral arguments today in Florence v. Board of Chosen Freeholders (Burlington), asking whether arrestees can be strip-searched on admission to jail without reasonable suspicion.

The case grew out of Albert Florence's arrest and jailing on an outstanding warrant.  The arresting officer took Florence to Burlington County Jail, where officers conducted a strip-search and a visual body-cavity search (including a shower) as part of the intake process.  Florence was detained at Burlington for six days and was then transferred to Essex County Jail.  Officers at Essex conducted similar searches, but this time required Florence to squat and cough to expel any contraband.  Neither Burlington nor Essex officers had reasonable suspicion that Florence was concealing contraband.

Florence argued that his searches violated the Fourth Amendment, because officers lacked reasonable suspicion.  Burlington and Essex, helped by the U.S. solicitor general as amicus, argued that prison officials could conduct blanket intake strip searches like these without reasonable suspicion.

As we might expect, oral arguments centered around the necessary line drawing in a case like this.  Justices wondered whether Florence's reasonable suspicion standard should apply to all arrestees--those arrested for both serious and non-serious offenses, violent and non-violent, drug-related and not, etc.  They wondered just how intrusive a search would trigger the reasonable suspicion standard--a search at 2 feet, or at 5 feet, or at 10 feet.  They wondered whether reasonable suspicion would apply to all types of searches--those conducted for contraband, and those conducted for prison health purposes (as in, say, a lice check).  And they wondered about both the administrability of a reasonable suspicion standard (for the prison) and the trade on personal dignity that might accompany searches based on individualized assessment (for the arrestees). 

If the arguments today are any indication, nobody on the Court seems particularly enthuastic about drawing these lines.

And yet the parties' stronger positions--that reasonable suspicion should always apply (from Florence), and that it should never apply (from the jails)--also had their drawbacks.  As several justices pointed out (led by Justice Breyer), there's scant empirical evidence that contraband works its way into jails under a reasonable suspicion standard.  Moreover, as Justice Alito suggested, applying blanket, suspicionless strip searches to, say, people arrested for routine traffic citations seems wrong.  And as Tom Goldstein argued (for Florence), nobody seems to seriously contest the administrability of a reasonable suspicion standard; in fact, it's the one applied by the federal Marshal Service and ICE to over 600,000 arrestees every year.

On the other side, there was some evidence in the record--testimony by a prison warden--that blanket suspicionless strip searches are necessary to protect the safety of all prisoners.  And, as Carter Phillips argued for the jails, the Court has granted deference in the penal context; according to Phillips, deference here means no constitutional bar to suspicionless strip searches.

Because of the inevitable line-drawing problems with any intermediate position, look for the Court to lean toward a categorical rule--either that reasonable suspicion is always required, or that it is never required.  This, in turn, will almost certainly depend on administratibility and effectiveness of a reasonable suspicion rule (or not)--the kinds of empirical questions over which several justices expressed concern.  But still there may be a thumb on the Court's scale against a categorical rule for reasonable suspicion: as the arguments made clear, such a rule would necessarily introduce some line-drawing--say, as Chief Justice Roberts pointedly put it, between a search at 2 feet or a search at 5 feet--and it wasn't at all clear that a majority on the Court would be comfortable with this (much less in agreement over the line).

Here's a short video by the American Constitution Society and the National Constitution Center on the story behind the case:

We previously posted on the issue here, on Bame v. Dilland, a split decision by a three-judge panel of the D.C. Circuit that the officer enjoyed qualified immunity for a suspicionless strip search of a non-violent, non-drug-related arrestee.

SDS

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