Visual Strip-Search Ruling

by Ed Whelan

By a vote of 5 to 4, the Supreme Court ruled today (in Florence v. Board of Chosen Freeholders) that the Fourth and Fourteenth Amendments do not bar jail officials from requiring that every detainee who will be admitted to the general population of the jail be required to undergo a close visual inspection while undressed. The case divided the Court along ideological lines, with Justice Kennedy authoring the majority opinion for himself and the Court’s judicial conservatives.

The case arose in an ugly factual context, as Albert Florence had been arrested, subjected to two visual strip searches in two jails, and held for some seven days, all because a warrant for his arrest had wrongly remained outstanding in the state’s computer database. In claiming that the visual strip searches violated his rights, Florence proposed the rule that a person arrested for a minor offense could not be required to remove his clothing and expose his private parts for visual inspection unless jail officials had reason to suspect him of concealing a weapon, drugs, or other contraband.

Here’s a high-level summary of Kennedy’s opinion: The Court’s precedents establish that jail officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband. Jail officials have a significant interest in conducting a thorough search for weapons, drugs, and other contraband during the intake process. The seriousness of the offense for which a detainee has been arrested is a poor predictor of who has contraband, and a rule relying on that factor would be difficult to administer. 

Kennedy made clear that he was not addressing what sort of search might be reasonable for detainees who will not be made part of the general population of the jail. In brief concurrences, the Chief Justice and Justice Alito emphasized that Kennedy’s opinion reserved judgment on that question.

Justice Breyer’s dissent relies on empirical data, on the recommendations of correctional associations, and on the contrary practices of many jails to conclude that the policy of subjecting those arrested for minor offenses to visual strip searches is not justified.

One curiosity: Many Court-watchers expected Justice Sotomayor to author the majority opinion in this case, the last to be issued from the October sitting, as she was the only justice not yet to have issued a majority opinion from that sitting. The fact that she didn’t do so will invite speculation that she lost the majority either in this case (but why then would Breyer rather than Sotomayor write the dissent?) or in another (but on a quick review I don’t see any candidates).

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