Tuesday, October 11, 2011
The New SCOTUSblog "Community" Feature & Florence v. Board of Chosen Freeholders of Burlington County, et al.
SCOTUSblog recently launched a cool new online "community" feature where folks can join up and discuss key issues having to do with the Supreme Court (http://www.scotusblog.com/community). Today's discussion centered around the upcoming case of Florence v. Board of Chosen Freeholders of Burlington County, et al., which deals with the question of whether the government can conduct suspcionless strip searches of every person admitted to jail. The entire discussion can be found here. Below is the comment that I contrbibuted:
If a man's home is his castle and a man's body is his temple, then perhaps the Supreme Court should consider its opinion in Buie v. Maryland, 494 U.S. 325 (1990), in deciding whether the government can conduct suspiconless strip searches of every person admitted to jail. In Buie, the Supreme Court held that as an incident to a lawful home arrest, police officers can, "as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." The Court cautioned, however, that for officers to conduct a "protective sweep" beyond these spaces, "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."
An analogy can be drawn to station house searches of arrestees. Pursuant to Illinois v. Lafayette, 462 U.S. 640 (1983), as an incident to the lawful booking and jailing of a suspect, police officers can, as a precautionary matter and without probable cause or reasonable suspicion, conduct an inventory or booking search. If, however, officers want to further invade the privacy of the arrestee and search the recesses of his body, then, like officers seeking to search the recesses of an arrestee's home during a protective sweep, there must be at least reasonable suspicion. Indeed, this was the precise argument made by the Eleventh Circuit in Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005). According to the Eleventh Circuit, "[w]hen we balance the need for investigative strip searches for evidence that might be hidden on the arrestee's body against the intrusiveness inherent in a strip search, we believe Buie, 494 U.S.at 325...provides the analytical framework that, at a minimum, would apply to strip searches for evidence." And, under that framework, "an officer must have at least a reasonable suspicion that the strip search is necessary for evidentiary reasons."