Supreme Court Backs Invasive Jailhouse Strip Searches For Minor Offenses

In the 5-4 ruling, Justice Anthony Kennedy wrote an opinion, joined by the high court's conservatives, supporting harsh strip search policies as reasonable measures to keep contraband out of jails.

The uncertainty over who is more likely to bring contraband into a facility is too great a security risk to allow some to avoid invasive strip searches because they were arrested for a minor offense, according to the opinion.

Jails are often crowded, unsanitary and dangerous places, Kennedy wrote. There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population.

Even those admitted for seemingly small infractions could be dangerous sociopaths, Kennedy warned. The justice noted that Oklahoma City bomber Timothy McVeigh, New York serial killer Joel Rifkin and one of the terrorists involved in the Sept. 11, 2001, attacks were all at various times detained by police for minor infractions like driving without a license plate or speeding.

People detained for minor offenses can turn out to be the most devious and dangerous criminals, Kennedy wrote, a concern he expressed during October oral arguments.

New Jersey Strip Search Case

For jail facilities, invasive strip searches may be a necessary security measure. But for Albert Florence, a New Jersey man wrongly arrested over unpaid fines, the strip search was a violation of his Fourth Amendment right against unreasonable searches.

After his 2005 arrest for an unpaid fine he had actually paid, he was taken to the Burlington County Jail and told to take his clothing off, open his mouth and lift his tongue. Then, he was told to hold out his arms, turn around and lift his genitals.

He was held at the Burlington County Jail for six days before he was transferred to Essex County Correctional Facility. There, Florence was told to strip naked, shower, open his mouth and lift his genitals. Then he was told to squat and cough. He was dismissed the following day.

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, said Justice Stephen Breyer, writing for the court's liberals in the minority.

Had Florence been arrested for, or had a history of being involved with, drugs or violence, the invasive strip search would have been allowed under the Fourth Amendment. Otherwise, the county jails' system of pat-downs, body scanners, clothing search and supervised showers was enough for those arrested for misdemeanors, Breyer wrote.

He also rebutted the instances of contraband smuggling the majority cited to support mandatory invasive strip searching. Breyer noted that requiring a reasonable suspicion works for the U.S. Marshals Service, Immigration and Customs Enforcement and the Federal Bureau of Prisons.

Neither the majority's opinion nor the briefs set forth any clear example of an instance, Breyer wrote, in which contra­band was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard.