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Justices struggle for clarity on prison strip searches

By Bill Mears, CNN Supreme Court Producer
updated 2:13 PM EDT, Wed October 12, 2011
STORY HIGHLIGHTS
  • Albert Florence, mistakenly arrested for an unpaid traffic fine, was strip-searched
  • The justices ask what a "reasonable suspicion" standard would look like
  • "I'm still unsure," Justice Sotomayor says after hearing from Florence's attorney
  • Appeals court rulings have gone both ways on reasonable suspicion and strip searches

Washington (CNN) -- A New Jersey man who was strip searched in prison after being accused of failing to pay a traffic fine received a somewhat chilly reception from an often perplexed Supreme Court Wednesday.

During a brisk hour of oral arguments, the justices struggled to get a clear answer from lawyers over whether and when a "reasonable suspicion" standard could be applied before conducting examinations of newly admitted prisoners. Albert Florence said he was subjected to what he called a pair of intrusive, humiliating searches six years ago.

"What we're trying to do is to protect the individual dignity of the detainee. But it seems to me that you risk compromising that individual dignity if you say we have reasonable suspicion as to this inmate, but not as to that inmate. You are just setting us up" for further legal challenges, said Justice Anthony Kennedy. "So it seems to me that your rule imperils individual dignity in a way that the blanket rule does not."

Florence is challenging Burlington County rules allowing routine strip searches of everyone arrested, even for minor offenses, regardless of the circumstances.

The man was a passenger in his family's sport utility vehicle when it was stopped by a New Jersey state trooper in March 2005. His then-pregnant wife was driving and their 4-year-old son was in the back seat as they headed to a Sunday dinner.

Since Florence was the vehicle's registered owner, the officer ran his identification and discovered a bench warrant for an outstanding fine. He had already paid the fine and carried a letter attesting to that fact, since he claimed he had been stopped on several previous occasions. Nevertheless, the 35-year-old Bordentown resident was handcuffed and arrested, then taken to the jail in Burlington County, in the central part of the state.

Court records show Florence was subjected to an invasive strip and visual body-cavity search. He was then held for six days in the county lockup before being transferred to a Newark correctional facility, where, he claims, he was subjected to another more intrusive search before being placed in the general prison population.

"It was very disgusting. It was just a bad, bad experience," he told CNN Correspondent Kate Bolduan recently. "I was just told, 'Do as you're told.' Wash in this disgusting soap and obey the directions of the officer who was instructing me to turn around, lift my genitals up, turn around, and squat."

The next day a magistrate freed Florence, confirming what he had insisted all along, that the fine had been paid.

Florence then sued, claiming the search protocols violated his Fourth Amendment rights, since neither jail reasonably suspected he presented a security threat, or was smuggling contraband. But a federal appeals court in Philadelphia last year ruled the blanket search policy proper.

During intense oral arguments at the high court, Florence's lawyer, Thomas Goldstein, struggled to articulate a workable legal standard where strip searches would be allowed but not required under law.

"So what is permitted?" asked Justice Ruth Bader Ginsburg repeatedly. "What, is showering in the presence of officers" all right?

"Are you suggesting three different levels" of permissible searches, followed Justice Sonia Sotomayor. "Stripping naked: It's OK (for officers) to stand five feet away, but not two?"

When Goldstein offered a layered explanation, Sotomayor told him flatly, "I'm still unsure."

"There's a distinction between the simple strip search and the visual body cavity search," said Chief Justice John Roberts. "You say that they apply reasonable suspicion standard to the visual body cavity search. So is the visual cavity search therefore off the table" for simple, non-violent offenses.

Justice Samuel Alito wanted to know whether a general strip-search policy to prevent the spread of head lice would be acceptable. Goldstein suggested it would be proper.

But the more scenarios the bench offered, the less certain they appeared to offer a bright-line rule in their eventual ruling. "How do you want us to write this so that jail personnel all over the country have to be able to follow it and know exactly what they are supposed to do," said Justice Steven Breyer, speaking for many of his colleagues.

Goldstein urged the court to rely on earlier precedent forcing jailers to use individualized discretion before searching inmates. "If the jail has the facts, as it did here, to affirmatively determine that there is no reasonable suspicion, which is what they decided about Mr. Florence," he said, "then it is an extraordinary intrusion on dignity and autonomy to strip him naked when they have no reason to do so."

But the county's attorney, Carter Phillips, said prison officials know their security system best. Noting that jail is "without question one of the most dangerous, most risky environments," he said he hoped the court would not ask "individual jailers to make decisions where they clearly will not have the kind of information" they would need and "where if they make a judgment wrong in either direction, all it means is litigation."

Sotomayor again was unconvinced. "So why do we change the policy" that has been in place in prisons around the country for decades, she asked, citing high court precedent.

"Even though there were searches, contraband still got in. So virtually every circuit (appeals court) in practice in the federal system has been following this 'reasonable suspicion' for minor crimes and they have been fairly successful. So why do we change the constitutional rule to let them (prisons) do more?"

Federal courts before the September 11, 2001, terror attacks had been at odds over the constitutionality of strip searches. The Constitution's Fourth Amendment protects against "unreasonable searches and seizures."

The Supreme Court in 1979, in what is called the Bell precedent, upheld the kind of search Florence had undergone for prisoners who had contact visits with outsiders. Using a balancing test, the justices said the prison's security interest justified intrusion into the inmates' privacy. But subsequent appeals courts have found those arrested for minor offenses may not be strip searched unless authorities have a "reasonable suspicion" that the person may be concealing a weapon or contraband such as drugs.

In 2008, however, appeals courts in Atlanta and San Francisco found searches of every inmate coming into the prison population are justified, even without specific suspicions. Those opinions were the first of their kind since the 9/11 attacks and, along with Florence's case, now give the high court the chance to clarify an issue that a number of civil and human rights proponents have tried to highlight.

Local jails in New Jersey at the time of Florence's arrest were subject to federal monitors after allegations that minority motorists and their passengers were being unfairly targeted for police stops and arrests, sometimes called "racial profiling." Stops of that nature are not at issue in the current appeal. Florence, who is African-American, is not alleging any racial discrimination by the state or individual officers.

The case is Florence v. Board of Chosen Freeholders of the County of Burlington, New Jersey (10-945). A ruling is expected sometime before June.

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