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High court to examine strips searches for minor offenses

By Bill Mears, CNN Supreme Court Producer
  • Albert Florence says he was subjected to strip searches over unpaid traffic fines
  • Lower court rulings on strip search policies are at odds
  • The first rulings since 9/11 backed universal search policies

Washington (CNN) -- A New Jersey man who says he was subjected to two humiliating strip searches over unpaid traffic fines will have his appeal heard by the Supreme Court, an important test of police detention powers in the post 9/11 security-conscious environment.

The justices Monday accepted Albert Florence's petition, and will hold oral arguments in the fall.

At issue is a challenge to a county's rules allowing routine, suspicionless strip searches of everyone arrested for even minor offenses, regardless of the circumstances.

Florence 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 daughter was in the back seat as they headed to dinner with Florence's mother-in-law.

Since Albert Florence was the registered owner, the officer ran his identification and discovered a bench warrant for failure to pay a fine. He had already paid the money, and carried a letter attesting to that fact, since he claimed he had been stopped on several previous occasions.

Nevertheless, Florence this time was handcuffed and arrested, and then taken to the jail in Burlington County, in the southern 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 was subjected to another identical search before being placed in the general prison population.

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

He then sued, but a federal appeals court in Philadelphia last year ruled the search policy proper.

In the appeal to the Supreme Court, Florence's lawyers wrote, "Strip searches deprive an individual of the most tangible protection of his intimate personal privacy -- his clothing. ... It is unreasonable under the Fourth Amendment for jail officials to engage in the deep intrusion into personal dignity of a strip search of every single individual admitted into the facility, no matter what the circumstances."

They also pointed out that Florence's alleged offense, failure to pay a fine, is not considered a criminal offense in the state and would not normally result in incarceration. His family said their efforts to free Florence were thwarted by repeated bureaucratic run-arounds.

State officials in their reply drew a distinction between a strip search policy for those initially arrested and for those later entering the general prison population. Such "intake" searches are justified, said the state, when applied consistently to every inmate and for proper reasons, including "both health threats and the increasing need to identify gang members upon their entry into the institution."

Federal courts before the September 11, 2001, 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 those 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. 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).