Supreme Court Considers Limits On Strip Searches After Arrest

The Supreme Court Tuesday heard arguments that it is unconstitutional to strip search someone who is arrested without reasonable suspicion that the person might be carrying contraband. The case stems from a 2005 arrest of Albert Florence during a traffic stop. The police computer showed Florence as having an outstanding warrant for failure to pay a fine even though Florence had paid it and had in his possession court documents showing he had paid it.

Nevertheless, the Burlington County, New Jersey police officer arrested Florence, who was held in jail for 6 days before he was taken before a judge who ordered him released. Florence was strip searched in Burlington County and went through the same process after being transferred to Essex County.

In the Court today, Florence’s lawyers argued that the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures, prohibits police from carrying out a strip search or other similarly-invasive search without reasonable, individualized suspicion that the person is carrying contraband.

Lawyers for the two counties argued that such searches are necessary to prevent weapons and drugs from entering the jails, pointing out that someone arrested on a minor offense could pass drugs to a more serious offender after being admitted to the general jail population. Further, they argued that the jails do not have the time or manpower to evaluate each arrestee, and the simple policy of searching everyone is easier to implement.

The Justices all seemed to agree that strip searches should be permissible for some offenders, such as those arrested for violent crimes. Florence’s lawyer argued that the arrest charge could serve as the reasonable suspicion justifying the search, meaning those people could be searched automatically, while police would need to show an additional justification for searching someone arrested on a minor offense.

Justice Stephen Breyer seemed especially skeptical of Burlington’s claim that the searches were necessary. He repeatedly referred to a California study that found that in only one instance, out of 26,000 arrestees, contraband would have been allowed into a prison if the prisons operated on a reasonable-suspicion standard for strip searches.

Even if the Justices agree with Florence that some kinds of searches require extra justification, they will still have to decide which kinds of searches are allowed, and that might be the hardest part of the case. Florence’s lawyer said that it would be constitutional for prison guards to watch a prisoner shower, for safety reasons, but an inspection of the prisoner’s genitals from arm’s length would be unconstitutional. Justice Sonia Sotomayor and others were skeptical of the distinction, asking why it would be fine for a guard to observe the prisoner naked from five feet away but not from two feet away.

One thing everyone—including Burlington’s lawyer—seemed to agree on was that allowing arrests for minor offenses, such as traffic violations or eating food in Washington’s subways, creates a host of constitutional and practical problems. Justice Sotomayor said that arrests for violations like this were “unsettling.” Burlington’s lawyer agreed, but he said the only question before the Court is the treatment of people after the arrest has already occurred.

The case will likely be decided later this year.