By Angela J. Davis, Professor of Law, American University, Washington College of Law
The Supreme Court upheld the constitutionality of a jailhouse strip search of a man who was wrongfully arrested for a minor offense in Florence v. Board of Chosen Freeholders of County of Burlington. Mr. Florence was riding in his car with his pregnant wife and son (his wife was driving) when a police officer pulled them over. The officer ran Mr. Florence’s name through his computer and discovered a warrant for his arrest. The warrant was issued when Mr. Florence (pictured) failed to appear at a contempt hearing regarding fines that he had not paid. Mr. Florence did appear, and he paid the fines, but the warrant was not removed from the computer database. Mr. Florence actually showed the police officer written documentation that he had complied with the court’s order, but the officer arrested him anyway. Mr. Florence was incarcerated for six days and subjected to two complete strip searches requiring him to lift his genitals, squat, cough and spread his buttocks. He was ultimately released when a court discovered the mistake.
The 5-4 decision, written by Justice Anthony Kennedy and joined by the conservative wing of the court, rejected Mr. Florence’s argument that the searches were unreasonable under the Fourth Amendment. The Court also rejected Mr. Florence’s proposal that new detainees arrested for minor offenses be exempt from strip searches unless there is reasonable suspicion to believe they are hiding contraband. The Court called the proposal “unworkable” – an interesting characterization considering the fact that the proposal seems to be working just fine in the ten states where the reasonable suspicion standard is currently the law.
A number of federal agencies also require reasonable suspicion before a strip search may be conducted, including the U.S. Marshals Service, the Immigration and Customs Service, the Bureau of Indian Affairs, and the Federal Bureau of Prisons. The American Correctional Association, after consulting with the American Jail Association, the National Sheriff’s Association and the National Institute of Corrections, established a standard that forbids suspicionless strip searches. In addition, Justice Breyer’s dissent discusses startling statistics from several studies that conclusively demonstrate that strip searches are no more effective in detecting contraband than pat-downs or medical detectors. The majority opinion ignores these facts with no explanation.
In Whren v. United States, the Supreme Court declined to provide a Fourth Amendment remedy for victims of racial profiling. In Atwater v. Lago Vista, the Court upheld the constitutionality of laws permitted a full custodial arrest for even a minor traffic offense. Florence v. Burlington now permits jail officials to do body cavity searches of anyone who is arrested, no matter how minor the offense. The combined impact of these cases cannot be measured, but the consequences could be devastating for young black and Latino men, who are stopped, searched and arrested in numbers far greater than their similarly situated white counterparts.