This column by ACRU Senior Legal Analyst Ken Klukowski was published April 9, 2012 on Breitbart.com.
The Supreme Court narrowly sided with police, holding on April 2nd that the Fourth Amendment allows strip searches for anyone taken to jail if that person will mingle with the other inmates.
Years ago, an arrest warrant was issued against Albert Florence when he fell behind in paying a fine for a criminal conviction. He later finished paying the fine, but somehow that fact fell through the cracks and the warrant was not rescinded. When running a background check during a traffic stop years later, a police officer discovered the warrant. The officer arrested Florence and took him to jail, where he was strip searched before being put with the general jail population.
Florence argued, since there was no reason to suspect he was concealing anything, the search violated the Fourth Amendment in the Bill of Rights, which declares in part that regarding their bodies and possessions, people are protected against “unreasonable searches and seizures.”
The issue in Florence v. Board of Chosen Freeholders of County of Burlington is whether the Fourth Amendment requires jails to exempt certain detainees from strip searches when they are sent to jail. The justices held that the Constitution does not bar such searches in a 5-4 decision written by Justice Anthony Kennedy.
This stems from a 1979 case where the Supreme Court held that searches for people going to jail must balance personal privacy with the legitimate safety needs for law enforcement staff working at a jail, as well as other jail inmates. In 1984 the justices added to this rule, holding that jails could completely ban physical contact with visitors because clever criminals could figure out the gaps in security procedures and smuggle weapons or drugs into jail. That year, the Court also held that officers could conduct random searches of jail cells for the same reason, and it ruled that courts should generally defer to prison officials on what policies are effective, since judges are not trained to design security systems.
Then in 2001, the Court held that these rules apply even to people whose offense cannot result in jail time, since an arresting cop often can’t know whether what he’s dealing with is a jail-worthy crime. Officers need to make quick judgments during arrest, and the Constitution doesn’t require them to further risk their safety by second-guessing themselves during that critical moment.
When first arriving at a jail, police cannot know whether the inmate is using a fake ID or otherwise concealing a past of serious crime. A second concern is that hardened criminals could approach “first-timers” during the intake process at jail and coerce them to carry items if the seasoned criminal knows the other person will not be thoroughly searched.
Kennedy began, “Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of inmates creates numerous risks for facility staff, for the existing detainee population, and for a new detainee himself.” Jail officers need to look for signs of sickness or infection, make sure there are no weapons or drugs, and also check for markings like gang tattoos, which could spark violence with other inmates if they belong to rival gangs. Patdowns and metal detectors can’t rule out all those health and safety concerns.
The numbers are persuasive. Over 13 million people are processed through jails every year in America. There are over 10,000 inmate assaults on jail staff each year. While some jails do not require strip searches to safeguard against such violence, others do. So the Court had to decide whether the Bill of Rights draws a line against such searches or instead if it’s left to the discretion of law enforcement professionals to formulate such policies.
Kennedy and three justices declined to decide whether this rule would apply to detainees in systems where they would never come into contact with other prisoners (such as keeping people in a separate holding cell when they arrive at jail) or if the search involves physically touching the prisoners. Justice Clarence Thomas refused to join that part of the opinion, indicating he did not want those limitations to become part of a majority opinion of the Court.
Chief Justice John Roberts and Justice Samuel Alito joined Kennedy’s opinion in full but also wrote separately. In their concurring opinions they made clear the limited scope of the Court’s decision. They stated that this case involved someone with an outstanding arrest warrant, and they might not allow this strip-search rule to extend to someone arrested for a minor traffic offense. Alito added that strip searches are “undoubtedly humiliating and deeply offensive to many” but are necessary when admitting someone into the general jail population.
Justice Stephen Breyer wrote a dissent for the four liberal justices, saying that such searches automatically violate the Fourth Amendment if there’s no reason to suspect the person has drugs or weapons. He quoted a lower court writing that naked searches are “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, and repulsive.” This may be the longest string of adjectives I’ve ever seen in a Supreme Court opinion. We get your point, Mr. Justice.
No security system can be perfect, because each is designed by imperfect human beings. The Court found a reasonable balance between privacy and security in the Florence case in the latest of a series of narrowly-divided decisions.