Those of us who take the Fourth Amendment seriously, with its “right of the people to be secure in their persons, houses, papers, and effects” from search and seizure, were dismayed by the Supreme Court’s recent ruling in Florence v. Board of Freeholders. In a 5-4 decision, the Justices found that every person arrested and held temporarily could be subject to a routine strip search.
In 2005, Albert Florence was stopped in his car by a New Jersey state trooper. The officer checked a computer database and saw that Florence had an outstanding warrant. This warrant appears to have been a system error — it was issued after Florence failed to pay a fine. Florence paid the fine, but the warrant remained in the system. As a result, Florence was arrested and taken to the Burlington County Detention Center. He remained there for six days before being transferred to the Essex County Correctional Facility. At both facilities, Florence was strip searched. At Burlington County, all of those arrested were expected to shower with a delousing agent. The agent would check the arrested person for scars, gang tattoos, or contraband. Florence claimed that part of the “search” included being forced to lift his genitals. At the Essex facility, things were no less invasive: Florence had his ears, nose, mouth, scalp, hands, armpits, and “other body openings” examined. It did not matter whether or not Florence had committed a federal crime, or whether Florence appeared to pose a threat: the procedure was the same for every arrested individual.
Florence finally sued the jail operators under the Fourth and Fourteenth Amendments, claiming that a person arrested for a minor offense should not be required to remove his or her clothing and expose private parts.
Wrong, said five Justices on the Supreme Court. If you are a jail inmate, you have no basic right to privacy. Even if you were not arrested for harboring drugs or for a violent offense. Even if your arrest was based on a mistake. Jails and prisons process hundreds of people each day, and nothing is more important than keeping jails orderly.
Yes, that is the justification given by Justice Kennedy, who wrote the opinion. The Court had previously upheld blanket policies designed to keep contraband out of jails, so why make exceptions now? Even if people who were merely arrested for minor offenses — and may not even be guilty of anything — were forced to undergo invasive and humiliating strip searches for no real benefit.
As long as the officers doing the strip search don’t actually touch private body parts, violating your privacy with their eyes is perfectly okay. The only time it is not okay is when there is “substantial evidence” that the officers’ response is exaggerated — a perfectly clear-cut and not at all subjective standard to follow.
At this point, few criminal defense attorneys can be surprised at the Supreme Court’s one step forward, two steps back approach to the Fourth Amendment. They agree that people have the right to not have GPS systems secretly attached to their cars without a warrant, but people in jail must strip in front of officers. But as jaded as criminal defense attorneys are, the ability of Justice Kennedy and the other supporting Justices to blithely dismiss the invasiveness of a strip search is still shocking. What will be the next situation in which the right to privacy is “stripped,” so to speak, of any meaning?