April 4, 2012
(Editor’s note: The Supreme Court continues to issue significant rulings, and we’re going to continue to write about them throughout the month of April.)
Are strip searches unconstitutionally unreasonable?
Of course, it certainly is to the person being strip searched.
But unless that person is a member of the U.S. Supreme Court, his or her opinion isn’t legally binding.
If the Supreme Court’s opinion in Florence v. Board of Chosen Freeholders of the County of Burlington announced this past Monday is any indication, the Justices in the majority weren’t the ones subjected to such a search.
In a 5-4 decision split along ideological lines, the Supreme Court upheld as constitutional routine strip searches of persons arrested for minor offenses, such as a traffic offense, a regulatory offense, or any other misdemeanor.
Because of the factual circumstances giving rise to the case, though, the five Justices in the majority were somewhat divided.
The challenger of the constitutionality of the search’s use in this manner was Albert Florence.
In 1998, Florence had been charged with obstruction of justice and use of a deadly weapon, and he pleaded guilty to two lesser offenses and was sentenced to pay a fine in monthly installments.
In 2003, Florence fell behind on his payments, and, after failing to appear at an enforcement hearing, a bench warrant was issued for his arrest.
He paid the outstanding balance less than a week later.
However, for “some unexplained reason,” the warrant remained in a statewide computer database.
Two years later, Florence and his wife were pulled over by a state trooper, and, based on the out-of-date warrant in the computer system, the trooper arrested Florence.
First, Florence was brought to Burlington County Detention Center, where, upon arriving, he was required to shower with a delousing agent, while officers checked him for scars, marks, gang tattoos, and contraband as he disrobed.
Florence also claimed that he was instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals.
After a six day stint at Burlington, Florence was transferred to the Essex County Correctional Facility.
At Essex, Florence was subjected to another strip search.
Again, while Florence was disrobing, an officer looked for body markings, wounds, and contraband.
Supposedly without touching him, an officer looked at Florence’s ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings.
Additionally, at Essex, Florence claims that he was again subjected to a more invasive search of being required to lift his genitals, turn around, and cough in a squatting position.
After a mandatory shower, Florence was admitted to the facility.
The next day, though, the charges were dropped and he was released.
The strange part is that Florence’s legal challenge doesn’t target on his arrest or confinement (which were based on a warrant that should have been recalled two years prior), but instead the searches that he was subjected to while in custody.
On that issue, as mentioned earlier, the Justices split 5-4 along ideological lines.
The liberal bloc’s dissent, written by Breyer, unsurprisingly espoused the view that subjecting an individual arrested for a minor offense (not involving drugs or violence) to a strip search is unconstitutional without reasonable suspicion to believe that the individual possesses drugs or other contraband.
As mentioned above, the conservative bloc was divided, specifically on whether there could be any exceptions to the holding.
Both Chief Justice Roberts and Justice Alito wrote separate concurrences from the majority opinion.
Roberts stated that the factual circumstances of Florence didn’t allow the court to decide whether it would be unconstitutional to strip search a detainee who wasn’t to be exposed to the prison population at large, but the Court should “leave open the possibility of [such] exceptions.”
Alito went further in his concurrence, seeking to “emphasize the limits of today’s holding.”
He “emphasized” this point by clarifying that the Court isn’t ruling that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.
Conversely, Alito writes, if someone is arrested for a minor offense, and is likely to be released promptly on their own recognizance or for a low bail amount, placing him or her into the general prison population with the accompanying strip search “may not be reasonable, particularly if an alternative procedure is feasible.”
True, concurrences aren’t binding precedent per se, but considering how close the vote was, it’s likely that both Roberts’ and Alito’s will have some precedential weight.
The result of this is a much narrower scope of the ruling – one, perhaps, that requires state corrections bureaus to ask whether it is truly necessary to introduce an arrestee into the general prison population.
We won’t know whether that’s true until another case arrives at the Court with that question, but, because of Alito’s concurrence, it’s very likely that one such case will find its way to the Court in the near future.