Supreme Court holds strip searches not Fourth Amendment violations

The New York Times this morning reports "U.S. Supreme Court Justice Anthony M. Kennedy's, joined by the court's conservative wing, writing that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations" in holding that individuals arrested for any offense, however minor, may strip-searched before being admitted to jails even if officials have no reason to suspect the presence of contraband.

"Federal appeals courts had been split on the question, though most of them prohibited strip-searches unless they were based on a reasonable suspicion that contraband was present," the article continued, and, while the Supreme Court did not say that strip-searches of every new arrestee were required, it ruled Fourth Amendment prohibitions of unreasonable searches did not forbid them. "Monday's decision endorsed a recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, allowing strip-searches of everyone admitted to a jail's general population -- at least seven other appeals courts, on the other hand, had ruled that such searches were proper only if there was a reasonable suspicion that the arrested person had contraband."

"'The Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers,' stressed Justice Samuel Alito Jr. in a Law.com article this morning. 'It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.'"

Justices Breyer, Ginsburg, Sotomayor & Kagan dissented. "I cannot find justification for the strip search policy at issue here — a policy that would subject those arrested for minor offenses to serious invasions of their personal privacy," Breyer wrote.

"The petition for certiorari asks us to decide 'whether the Fourth Amendment permits a . . . suspicionless strip search of every individual arrested for any minor offense . . . .'," the dissent reads. "This question is phrased more broadly than what is at issue. The case is limited to strip searches of those arrestees entering a jail's general population… The kind of strip search in question involves more than undressing and taking a shower (even if guards monitor the shower area for threatened disorder). Rather, the searches here involve close observation of the private areas of a person's body and for that reason constitute a far more serious invasion of that person’s privacy… Such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an 'unreasonable search' forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband.

Florence v. County of Burlington, No. 10-945