Search and Seizure

  • April 10, 2012

    by Jeremy Leaming

    Tom Goldstein has argued more than 20 cases before the U.S. Supreme Court, and in a recent interview with “The Daily Show with Jon Stewart,” delved into one of the cases he has argued, where the high court’s conservative majority rejected a constitutional challenge to jailhouse strip-searches.

    About 4-and-half minutes into part one of the interviews, Jon Stewart asked Goldstein, publisher of SCOTUSblog, about the April 2 opinion upholding broad uses of strip-searches. Stewart said the 5-4 opinion in Florence v. Board of Chosen Freeholders seemed to advance an “incredibly extreme” measure of police power.

    In part two, Goldstein continued that the justices on the right are “really worried about jail security.” In telling the story of Albert Florence – he was arrested for minor fines he had already paid, and then strip searched at two different New Jersey jails – Goldstein said he found the circumstances a “little hardcore,” and that “I wish we would have won, but we didn’t.”

    Goldstein noted that the high court’s Florence decision does not mean that jails have to use strip-searches. But he added, “I think when the jails are allowed to do it, I think they’re pretty much going to do it.” He also lamented the fact that he was unable to persuade the justices that typically people “don’t drive around on the street hoping to get picked up so that they can smuggle something into the jail.”

  • April 5, 2012
    Guest Post

    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.

  • April 3, 2012
    Guest Post

    By Inimai Chettiar, Policy Counsel at the American Civil Liberties Union, where she serves as national legislative counsel to end mass incarceration in states across the country.


    Yesterday a divided Supreme Court ruled in Florence v. Burlington that any person arrested can be subject to a strip search - even for a minor offense or traffic violation – without any reason to suspect that they may be carrying a weapon or contraband. (Read the ACLU press release here.)

    As disturbing as the practice of subjecting people accused of minor offenses to degrading strip searches is, it wouldn’t be a problem if those people weren’t thrown behind bars in the first place. Unfortunately, U.S. jails are full of people accused of minor, nonviolent crimes. One such person was Albert Florence (pictured), a 35-year-old Black man erroneously arrested in 2005 for failing to pay a traffic fine he had already paid –  and whose experience is the center of the case decided by the Court.

    A New Jersey state trooper pulled over Florence’s pregnant wife as she was driving Florence and their four-year-old son to dinner to celebrate their purchase of a home.  Because Florence owned the vehicle, the officer ran his license and discovered a warrant for an outstanding noncriminal traffic fine. Despite the fact that Florence had already paid the fine and carried an official letter proving it, the police handcuffed and arrested him and dragged him off to jail.  He was incarcerated for six days and subjected to two invasive strip searches. As Florence recounts, "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 judge freed Florence, confirming that he had in fact paid his fine.  (You can hear more from Florence in an ACS podcast interview. )

    In a 5-4 opinion, the Court held that two New Jersey county jails had not violated the Fourth Amendment by routinely strip searching all new detainees including those, like Albert Florence, who had been arrested for minor offenses and were unlikely to spend more than one night in jail. With 13 million Americans jailed each year, the decision could have far reaching consequences. 

    At the same time, the Court was careful to note that the strip search policies it upheld did not involve any physical contact with the detainee, and only applied to detainees who were housed with the general population. Whether those reservations prove to be meaningful constraints on the power of prison officials to strip search detainees remains to be seen. More significantly, perhaps, at least 10 states already prohibit routine strip searches without reasonable suspicion, including New Jersey. (Read the ACLU’s amicus brief submitted on behalf of former attorneys general of New Jersey.)

    Yesterday’s ruling provides the country with an opportune moment to reflect on our epidemic of mass incarceration. There are six million people currently in prison or under correctional supervision in the U.S. — more than were in Stalin’s gulags.

  • April 2, 2012

    by Nicole Flatow

    The U.S. Supreme Court on Monday rejected the constitutional challenge of a New Jersey man who was twice subjected to invasive strip searches after he was stopped, wrongfully arrested and detained for a week for his alleged delinquency on a traffic fine he had already paid.

    In a 5-4 ruling in Florence v. Burlington, the court declined to impose any exception to a detention center’s blanket strip search policy, even for those who have allegedly committed minor offenses, and who are not suspected of concealing any sort of weapons, drugs or other contraband.

    “Even assuming all the facts in favor of petitioner, the search procedures at the Burlington County Detention Center and the Essex County Correctional Facility struck a reasonable balance between inmate privacy and the needs of the institutions,” Justice Anthony Kennedy wrote for the majority.

    In dissent, Justice Stephen Breyer wrote, “the kind of strip search in question involves more than undressing and taking a shower … Rather, the searches here involve close observation of the private areas of a person’s body and for that reason constitute a far more serious invasion of that person’s privacy.”

    In a podcast produced by the American Constitution Society and the National Constitution Center, the plaintiff, Albert W. Florence, tells the story of his arrest in front of his pregnant wife and four-year-old son, and his subsequent treatment in two detention facilities over the course of a week.

    “Even thinking about it and even speaking about it still brings me, you know, chills,” he said.

    His lawyer at the lower court level, Susan Chana Lask, notes, “He wasn’t even an inmate when he was taken in. He was just an arrestee for a noncriminal offense.”

    Justice Breyer hones in on this distinction in his dissent, calling “such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor” an “‘unreasonable searc[h]’ forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband.”

    Breyer notes that amicus briefs submitted in this case have identified a number of other instances in which "individuals arrested for minor offenses have been subjected to the humiliations of a visual strip search”:

  • February 24, 2012
    Guest Post

    By Inimai Chettiar, the Policy Counsel at the American Civil Liberties Union, where she serves as national legislative counsel to end mass incarceration in states across the country. This piece is cross-posted at the ACLU’s Blog of Rights, as part of its celebration of Black History Month.


    I spent this past New Year's Eve lying on the floor of a New England police station. Just hours before, I was enjoying sushi with my best friend Jamal; excitedly discussing his possible political appointment and promising career.

    On our way home, we were pulled over for driving 37 mph in a 25 mph zone. Jamal was directed to perform a sobriety test although he was clearly not drunk and had explained that a back injury and current spasms would affect his performance. I got out of the car to speak with Jamal, but an officer whipped out his Taser and screamed at me to get back inside. While I tried to explain to him that I wanted to speak to Jamal as his attorney, Jamal declined a breathalyzer test because he didn't believe there was cause for an arrest. Apparently, declining the breathalyzer results in a mandatory arrest, incarceration, and a one year driver's license suspension, but cops aren't required to notify drivers of these consequences. Jamal was handcuffed and thrown into the back of the police car.

    Happy New Year: My best friend was now a statistic, part of the 1 in 3 Black menwho have been behind bars in this country. During the 12 hours I waited at the jail for Jamal's arraignment, I thought about how he felt locked in a cell the size of my Manhattan bathroom and about the 2.3 million people in similar cells across the country at that very moment.