Private: Supreme Court Upholds Blanket Strip-Search Policy

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”:

They include women who were strip-searched during periods of lactation or menstruation. They include victims of sexual violence. They include individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.

I doubt that we seriously disagree about the nature of the strip search or about the serious affront to human dignity and to individual privacy that it presents.

American University criminal law and procedure expert Angela Davis acknowledged in the ACS podcast that those at detention centers have safety concerns that may warrant strip searches of many individuals. But, she added, all that Florence is asking is that those searches not be indiscriminate.

“He and his lawyers are not saying that prison officials should not have the right to search, even strip search, individuals who come into a criminal facility,” said Davis. “What they’re saying is there must be a reason.”

Watch the podcast, “The Story Behind Florence v. Burlington,” below.

Constitutional Interpretation, Criminal Justice, Search and Seizure, Supreme Court