Today’s case is Florence v. Board of Chosen Freeholders of Burlington County. To begin, we need to look at the Bill of Rights.
The Fourth Amendment states, in full:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Does this protect citizens against strip searches, when no crime has been committed or even alleged? Or may a county jail strip search someone detained on a minor traffic violation — even mistakenly — without suspicion of anything more serious going on?
The Litigants
Albert W. Florence of Mount Holly, New Jersey kept a 2003 document with him showing that he had paid a fine for a previous traffic offense, because he was convinced the police in some areas of New Jersey engage in racial profiling. In March of 2005, he was a passenger in his BMW, which was being driven by his wife. Their four-year-old son was in the back. A state trooper pulled them over, reportedly for speeding.
The trooper ran a records search, found a supposedly unpaid fine, and arrested Mr. Florence, despite being shown the document as evidence that the fine had, in fact, been paid. Mr. Florence spent eight days in jail in two counties (Essex and Burlington) before being released, with no charges; he was strip-searched twice during that period. He sued in federal court, alleging his Constitutional rights had been violated.
The Background
The reason for being taken into custody was the supposedly unpaid fine, which had, in fact, been paid. Even if it hadn’t been paid, failure to pay a traffic fine in New Jersey is not a crime. Being strip searched for something other than a crime is illegal in New Jersey,
… unless ‘there exists probable cause that a weapon, drug or evidence of a crime will be found.’ In order to sue state and local officials for monetary damages under the Federal Civil Rights Act, a person must allege a violation of his/her rights protected by the “Constitution and laws” of the United States.
Moreover, a state official is immune from such suits unless there is clearly established law that the search was unlawful.
A New Jersey federal judge, the Honorable Joseph Rodriguez, ruled in favor of Florence last year. Later, the Third Circuit U.S. Court of Appeals in Philadelphia heard the appeal, and found against him.
Police departments, correctional departments, various cities and counties, the American Bar Association, Attorneys General, and even a group of psychiatrists, have filed briefs in support of the Petitioner or the Respondents. See here for a listing.
The Questions
In 1979, in Bell v. Wolfish, the Supreme Court found that it was within the bounds of the Constitution for a correctional institution to perform a body and cavity search on inmates, regardless for the reason for their incarceration; this is the basis for the Third Circuit ruling. There is also a contradictory history on this question:
The federal courts of appeal are divided over whether blanket policies requiring jailhouse strip-searches of people arrested for minor offenses violate the Fourth Amendment. Eight courts have ruled that such searches are proper only if there is a reasonable suspicion that the arrested person has weapons or contraband.
The more recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, is to allow searches no matter how minor the charge. Some potential examples cited by dissenting judges in those cases: violating a leash law, driving without a license, failing to pay child support.
Your Thoughts
- Does the Fourth Amendment here favor Mr. Florence?
- Do correctional institutions have the Constitutional power to perform body and cavity searches when there is no suspicion of any crime having been committed?
- Does the fact that his particular search was illegal under New Jersey law play into the qustion of its Constitutionality?
- If this level of privacy violation is to be permitted, what are the limits of the Fourth Amendment? In what sense, and under what circumstances, are Americans safe from “unreasonable searches and seizures”?
Related articles
- In Supreme Court case, man says strip-search humiliated him (abcnews.go.com)
- Privacy vs. security: Justices to debate jail strip searches (cnn.com)
- Are Strip Searches Unconstitutional? (theroot.com)
- United States Supreme Court Grants Petition to Hear Constitutionality of Prison Strip Searches on Non-Criminal Offenses (prweb.com)
Morally speaking, I think the strip-search is secondary in this case. If the man had not been accused of any crime, but was still arrested, his civil rights have been violated.
That said, someone who has been accused of a crime, and has been arrested, does have reason for such a search. The safety of all inmates depends on strict control of what goes into the jails and prisons. The risk of something entering the jail or prison that can potentially be used as a weapon is exceptionally high, and therefore necessitates extreme measures.
Mr. Florence spent a little over a week in jail. Had he been killed there with something that someone brought in, and were able to bring in because of the lack of a strip search, there would rightfully be accusations of negligence on the part of security officials.
I agree Michael, the real issue here should be Mr. Florence’s unjust incarceration. To be held more than a week, with no charges brought, and on the flimsy excuse of something that isn’t even a crime — this is unconscionable.
However, that’s not the basis for his suit. He’s suing under the Fourth Amendment, because of the strip search. I would have thought this more a habeus corpus issue. But I’m not a lawyer.
Or more of a keep your mani off my corpus issue.
Yeah, I understand why there’s a 4th Amendment question. It’s often not obvious where to draw the line between safety and freedom.
But here’s the thing…we do have an obligation to keep the incarcerated safe from each other. And such searches are part of it.
There’s a different question worth considering, though… The search is for safety. But if they find illegal contriband on you at the time, should that evidence be permissible in court? I’d say no.
In Massachusetts there was a state supreme court decision in the early part of this millennia clearly identifying as unconstitutional strip searches of the type described in this article. Since the specific part of that ruling was buried in a voluminous legal finding word got out to law enforcement too slowly or not at all. The result was a number of class action law suits against various county sheriffs which were settled at notable expense to the Commonwealth.
One recent response is to create new detainee classifications and procedures. Detainees were previously classified mainly as either “pretrial” (Jail) or “sentenced” (to either a House of Correction or a state prison). These two generalizations even covered witnesses and people being held in contempt of court.
There are now at least three types: Pre-arraignment, pre-trial and sentenced.
Pre-arraignment inmates, who by definition have not benefited from a hearing in front of a judge since being detained, are housed separately and should never be strip searched without probable cause. Pretrial and sentenced inmates are almost always strip searched before being introduced to their respective populations to prevent the introduction of contraband. Cavity searches, are seldom performed without probable cause, I would say even extenuating circumstances.
While the practice is probably not universal across the Commonwealth (what local police with town/city lockups do is probably somewhat random) it is becoming normalized among county level institutions.
Mike,
The American prison system is so messed up this is like putting a band-aid on a gushing femoral artery.
Want to cut state and federal budgets a good whack? Get in line with sentencing guidelines in the rest of the free world and release 95% of the prison population.
AW,
That’s an excellent idea. America incarcerates more of its population that any other developed country, in line with the harshest and most repressive regimes in the history of history. Are Americans really that lawless, or is our law-and-order crowd bordering on insanely paranoid?
Armchair,
I hear that a lot. But I haven’t pulled the data to see just how much we spend incarcerating people, so I don’t know how much it would save us on the cost side of the ledger.
On the other hand, someone who’s in prison is generally not going to be a productive member of society, and thus cannot add to GDP. Would they have done so were they not in prison? I don’t know, but the chance of them being productive outside the walls is greater than it would be inside the walls.
I’m afraid we have Nixon to thank for our current prison system.