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The Strange Case of a New Jersey Strip Search

In October of this term, the US Supreme Court heard arguments in the case of Florence v. Burlington County, NJ, et. al. As of today, they have yet to release an opinion in the case although every other case heard in October has been decided. This clearly indicates that the Justices are having a lot of difficulty with this case and cannot possibly reach a consensus and the decision might ultimately be a plurality decision.

The facts are interesting to say the least. Albert Lawrence, an African-American car dealership employee, was driving with his wife in a BMW when he was pulled over by the State Police. A computer search indicated that there was an outstanding bench warrant from Essex County for his arrest. That warrant was issued when Florence plead guilty to a minor offense and agreed to pay the fine in installments. When he fell behind in payments, the warrant was issued. He since paid the fine in full and carried proof of satisfaction of payment with him. In fact, Essex County neglected to take the warrant out of their computer system.

He was transported to the Burlington County jail after being searched on a “pat down” by the arresting officer who then signed an affidavit at the jail saying there was no reasonable cause to believe he had weapons or contraband. As part of the in-take, inmates are instructed to shower in the presence of a guard and to “lift their genitals” for visual inspection. He was then admitted to the population where he stayed for six days before Essex County officials picked him up.

Upon arrival at the Essex County jail, he again underwent a similar intake procedure except this time the search was more intrusive. For example, he was ordered to squat and cough while naked before a guard, ostensibly to determine if he was carrying contraband in a body cavity. The following day, Florence finally appeared before a judge who lifted the warrant since the fine had been previously paid. The record is unclear whether Florence was extended an apology. He then filed suit against Burlington and Essex County jail officials claiming the searches violated his 4th Amendment rights against unreasonable search and seizure. Although victorious in the District Court, the Third Circuit Appeals Court dismissed the suit.

The county officials argue that Florence is not afforded 4th Amendment protections in the environment of a jail. To the extent that “inmates” have any rights, they are limited. They said that jail administrators must be afforded deference in their policies in order to ensure the security of the jail and that some system of individualized suspicion will not work. Florence, on the other hand, is arguing that jail officials do exactly that. They do not contest the fact that jails are dangerous places, but that, in a sense, officials need to use their heads. In this case, the arresting officer attested to the fact he did not consider Florence a “threat” for contraband or weapons, not did Florence exhibit any behavior that would lead officials to think he did. They further admit that if, for example, a person is pulled over and drugs are found in the car, jail officials had the right to conduct these intrusive searches since there was “reasonable suspicion.” Finally, New Jersey law states that persons arrested for non-indictable offenses (bench warrants for alleged non-payment of fines do not meet that test) are not subject to strip search absent a warrant, consent, or reasonable suspicion. None were present in this case. In effect, the state officials are arguing for a one-size-fits-all solution where reasonable suspicion exists for everyone by virtue of the act of coming to the jail in hand cuffs.

This case is a tough one where the rights of someone arrested have to be weighed against the very real threat of contraband or weapons in a jail environment. There is previous Supreme Court cases that basically granted great deference to the jail officials in the past. A lot of the oral argument initially centered around how far a guard need stand away from the prisoner for the “search” not to be intrusive as if jailers will now come armed with a tape measure lest they run afoul of the Constitution. As Florence’s lawyers pointed out, the purpose for these searches that were approved in the past applied to visitors in an effort to stop contraband from being smuggled into jails. Even the state’s lawyers had to concede that there are few cases where searches of prisoners,- whether already in the population or upon intake- contraband of any type was discovered. When taken to task over the empirical evidence, they then contended that the deterrent effect of the searches was the reason so few cases could be discovered. In short, their justification is a self-fulfilling prophecy.

As for the fact that a more individualized suspicion regimen should be used, the state argues that is in unworkable. However, the Federal Department of Corrections does exactly that with miniscule examples of contraband being found (if any- the lawyer for the US could not produce any examples). Additionally, they annually process more prisoners than Burlington or Essex counties in New Jersey. Additionally, most instances of contraband being smuggled into jails is attributable to corrupt prison officials and guards, a fact brought out during oral argument. Using the rationale of the state officials for blanket strip searches- to interdict contraband and weapons- do we now search guards in the same fashion?

I believe that one needs to dissect the circumstances of this case to truly analyze it. Obviously, Florence was, in the first instance, the victim of bad record-keeping and computer technology. There is even the possibility it was a case of racial profiling (the reason he carried the papers showing the fine was paid in the first place). However, that was not an issue in this case and I do not wish to make a comment on that practice (despite believing it has some merit at times). The arresting officer, even the jail officials, however had no way to know that. However, I believe it was either Justice Ginsberg or Alito who questioned whether anyone arrested should be subject to these blanket searches. For example, they noted, police in some areas are now arresting people for such minor offenses as jaywalking. In the extreme, would the jaywalker be subject to strip searches no matter how intrusive?

No doubt, the Justices are weighing these competing problems- prison security versus 4th Amendment rights. Maybe they will come to some compromise where if the offense is “minor” and a guard stands so many feet away, it passes muster. They could take the easiest way and just allow these searches despite the offense where “everyone is assumed guilty of carrying contraband until proven otherwise.” Best yet, they could direct police and jail officials to use their heads and a little commonsense when they process people into jails or between jails so as to retain a little dignity for someone who, in this case, was innocent all along. As I mentioned, no decision or opinion has been reached as of today (maybe tomorrow?). We can only hope the Supreme Court uses more commonsense than officials in Burlington and Essex counties in New Jersey.

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