Associated Press

Santa Cruz Sentinel, April 3, 2012

(NOTE: The Sentinel published an edited version of this article. The following is the complete article.)

WASHINGTON (AP) – Jailers may perform invasive strip searches on people arrested even for minor offenses, an ideologically divided Supreme Court ruled Monday, the conservative majority declaring that security trumps privacy in an often dangerous environment.

In a 5-4 decision, the court ruled against a New Jersey man who was strip searched in two county jails following his arrest on a warrant for an unpaid fine that he had, in reality, paid.

The decision resolved a conflict among lower courts about how to balance security and privacy. Prior to the Sept. 11, 2001, terror attacks, lower courts generally prohibited routine strip searches for minor offenses. In recent years, however, courts have allowed jailers more discretion to maintain security, and the high court ruling ratified those decisions.

In this case, Albert Florence’s nightmare began when the sport utility vehicle driven by his pregnant wife was pulled over for speeding. He was a passenger; his 4-year-old son was in the backseat.

Justice Anthony Kennedy said the circumstances of the arrest were of little importance. Instead, Kennedy said, Florence’s entry into the general jail population gave guards the authorization to force him to strip naked and expose his mouth, nose, ears and genitals to a visual search in case he was hiding anything.

“Courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security,” Kennedy said.

In a dissenting opinion joined by the court’s liberals, Justice Stephen Breyer said strip searches improperly “subject those arrested for minor offenses to serious invasions of their personal privacy.” Breyer said jailers ought to have a reasonable suspicion someone may be hiding something before conducting a strip search.

Breyer said people like Florence “are often stopped and arrested unexpectedly. And they consequently will have had little opportunity to hide things in their body cavities.”

Florence made the same point in his arguments: He said he was headed to dinner at his mother-in-law’s house when he was stopped in March 2005. He also said that even if the warrant had been valid, failure to pay a fine is not a crime in New Jersey.

But Kennedy focused on the fact that Florence was held with other inmates in the general population. In concurring opinions, Chief Justice John Roberts and Justice Samuel Alito said the decision left open the possibility of an exception to the rule and might not apply to someone held apart from other inmates.

Kennedy gave three reasons to justify routine searches — detecting lice and contagious infections, looking for tattoos and other evidence of gang membership and preventing smuggling of drugs and weapons.

Kennedy also said people arrested for minor offenses can turn out to be “the most devious and dangerous criminals.” Oklahoma City bomber Timothy McVeigh initially was stopped by a state trooper who noticed McVeigh was driving without a license plate, Kennedy said.

In his dissent, Breyer said inmates in the two New Jersey jails already have to submit to pat-down searches, pass through metal detectors, shower with delousing agents and have their clothing searched.

Many jails, several states and associations of corrections officials say strip searches should be done only when there is reasonable suspicion, which could include arrest on drug charges or for violent crimes, Breyer said.

Susan Chana Lask, Florence’s lawyer, said, “The 5-4 decision was as close as we could get … in this political climate with recent law for indefinite detention of citizens without trial that shaves away our constitutional rights every day.”

The first strip search of Florence took place in the Burlington County Jail in southern New Jersey. Six days later, Florence had not received a hearing and remained in custody. Transferred to another county jail in Newark, he was strip-searched again.

The next day, a judge dismissed all charges. Florence’s lawsuit soon followed.

He still may pursue other claims, including that he never should have been arrested.

Florence, who is African-American, had been stopped several times before, and he carried a letter to the effect that the fine, for fleeing a traffic stop several years earlier, had been paid.

His protest was in vain, however, and the trooper handcuffed him and took him to jail. At the time, the State Police were operating under a court order, because of allegations of past racial discrimination, that provided federal monitors to assess stops of minority drivers. But the propriety of the stop is not at issue, and Florence is not alleging racial discrimination.

In 1979, the Supreme Court upheld a blanket policy of conducting body cavity searches of prisoners who had had contact with visitors on the basis that the interaction with outsiders created the possibility that some prisoners had obtained something they shouldn’t have.

For the next 30 or so years, appeals courts applying the high court ruling held uniformly that strip searches without suspicion violated the Constitution.

But since 2008 — in the first appellate rulings on the issue since the Sept. 11 attacks — appeals courts in Atlanta, Philadelphia and San Francisco have decided that a need by authorities to maintain security justified a wide-ranging search policy, no matter the reason for someone’s detention.

The high court upheld the ruling from the Philadelphia court, the 3rd U.S. Circuit Court of Appeals.

The case is Florence v. Board of Chosen Freeholders of County of Burlington, 10-945.