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Strip Searches and Minor Offenses

According to the Uniform Crimes Reporting Program, there were over eleven million arrests in the United States in 2009, down from over fourteen million in 2005. Albert Florence was arrested in 2005 on a warrant for a matter that had already been resolved. He was subsequently subjected to two strip searches, at Burlington County jail and Essex County jail. Florence sued jail officials, arguing that “the searches were unreasonable because he was being held for failure to pay a fine, which is not a crime in New Jersey.” U.S. District Court Judge Joseph H. Rodriguez ruled the searches unconstitutional.

The Third Circuit reversed the decision, ruling that jail searches are reasonable, even absent suspicion of concealment of weapons or drugs. The U.S. Supreme Court granted certiorari, considering whether the Fourth Amendment allows “suspicious-less” strip searches at jails on persons arrested for minor offenses. SCOTUSblog reported the Supreme Court’s holding in the case: “Jail strip searches do not require reasonable suspicion, at least so long as the arrestee is being admitted into the general jail population.” Justice Kennedy’s 5-4 majority opinion held that the interests of maintaining security when a prisoner is added to the general jail population trumps an individual prisoner’s privacy rights. Jail officials have an interest in checking for lice, checking for tattoos that might indicate gang affiliation, and checking for drugs and weapons. Justice Breyer’s dissent said that, absent a reasonable suspicion, a minor offender’s personal privacy rights should prevail.

Opinions, Briefs, etc.

Florence v. Chosen Freeholders of County of Burlington, et al., No. 10-945 (April 2, 2012)

Florence v. Chosen Freeholders of County of Burlington, et al.: SCOTUSblog page (opinion, briefs, coverage, etc.)

Petitioner’s Brief (via the ABA website)

Bell v. Wolfish, 441 U.S. 520 (1979) (body-cavity searches of inmates after visits with persons from outside the institution)

Recent Articles

John Horton, Traffic Offenders Can Be Strip Searched… Plain Dealer (Cleveland, Ohio, April 10, 2012)

Noah Feldman, Strip-Search Case Reflects Death of American Privacy Bloomberg (April 8, 2012)

Adam Cohen, Strip Searches: The Supreme Court’s Disturbing Decision Time Ideas (online) (April 6, 2012).

Glenn Greenwald. The Obama DOJ and Strip Searches Salon (April 3, 2012).

Supreme Court Justices Allow for Routine Strip-Searches of Inmates in US Jails Guardian (April 2, 2012).

Adam Liptak, Supreme Court Ruling Allows Strip Search for Any Arrest New York Times (April 2, 2012).

Nina Totenberg. Supreme Court OKs Strip Search for Major Offense NPR: All Things Considered (April 2, 2012). (with link to 5 minute audio file)

Tumblr.com: Florence v. Chosen Freeholders (March 14, 2012)

Constitutional Amendments and State Laws (Cited in the Dissent)

  • Fourth Amendment, with selected annotated via FindLaw — for additional annotations, law students may consult the U.S.C.A. (Westlaw) or the U.S.C.S. (Lexis)
  • Fourteenth Amendment, annotated, via LII’s CRS Annotated Constitution
  • Colorado Revised Statutes 16-03-405(1): “No person arrested for a traffic or a petty offense shall be strip searched, prior to arraignment, unless there is reasonable belief that the individual is concealing a weapon or a controlled substance…”
  • Florida Statutes 901.211(2): “No person arrested for a traffic, regulatory, or misdemeanor offense, except in a case which is violent in nature, which involves a weapon, or which involves a controlled substance, shall be strip searched unless: (a) There is probable cause to believe that the individual is concealing a weapon, a controlled substance, or stolen property…”
  • Illinois  Comp. Stat., ch. 725, 5/103-1(c): “(c) No person arrested for a traffic, regulatory or misdemeanor offense, except in cases involving weapons or a controlled substance, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon or controlled substance.”
  • Iowa Code 804.30: “A person arrested for a scheduled violation or a simple misdemeanor shall not be subjected to a strip search unless there is probable cause to believe the person is concealing a weapon or contraband.”
  • Kansas statute 22-2521(a): “No person detained or arrested solely for the violation of a statute, resolution or ordinance involving a traffic, regulatory or nonviolent misdemeanor offense shall be strip searched unless there is probable cause to believe that the individual is concealing a weapon or controlled substance.”
  • Kentucky Admin. Regs. 3:120, 3(1)(b)
  • Michigan Compiled Laws 764.25a(2): “A person arrested or detained for a misdemeanor offense, or an offense which is punishable only by a civil fine shall not be strip searched unless both of the following occur…” (reasonable cause or prior written authorization)
  • Missouri Revised Statutes 544.193.2: “No person arrested or detained for a traffic offense or an offense which does not constitute a felony may be subject to a strip search or a body cavity search by any law enforcement officer or employee unless there is probable cause to believe that such person is concealing a weapon, evidence of the commission of a crime or contraband.”
  • Tennessee Code 40-7-119: “No person arrested for a traffic, regulatory or misdemeanor offense, except in cases involving weapons or a controlled substance, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon, a controlled substance or other contraband.”
  • Revised Code of Washington 10.79.130: strip, body cavity searches–warrant required–exceptions (reasonable suspicion/probable cause)

Of course, presuming the Supreme Court clerks exhaustively researched state statutory and administrative law, forty state either allow strip searches after minor offenses, or are silent on the issue.

  • Ohio Revised Code 2933.32 (strip searches allowed with probable cause of concealment of criminal evidence, contraband, or weapons, or for legitimate medical or hygienic reasons)

 

Selected Law Review Articles

Lewis R. Katz. “Lonesome Road”: Driving Without the Fourth Amendment (via SSRN) (police could arrest almost any motorist for minor traffic offenses under various state and municipal laws)

(HeinOnline subscribers may access full-text; probably also available via Lexis and Westlaw)

Aaron Johnson. Crying Wolfish: The Upcoming Challenge to Blanket Strip-Search in Florence v. Board of Chosen Freeholders. 7 Duke J. Const. Law & Public Policy Sidebar 41 (2011).

Daphne Ha. Note. Blanket Policies for Strip Searching Pretrial Detainees: An Interdisciplinary Argument for Reasonableness. 79 Fordham L. Rev. 2721 (2010-2011).

Andrew A. Crampton. Note. Stripped of Justification: The Eleventh Circuit’s Abolition of the Reasonable Suspicion Requirement  for Booking Strip Searches in Prison. 57 Clev. St. L. Rev. 893 (2009).

Margo Schlanger. Jail Strip-Search Cases: Patterns and Participants. 71 Law & Contemp. Probs. 65 (2008).

Deborah L. MacGregor. Stripped of All Reason? The Appropriate Standard for Evaluating Strip Searches of Arrestees and Pretrial Detainees in Correctional Facilities, 36 Colum. J.L. & Soc. Probs. 163 (2003).

Subject Compilation of State Laws, 1960-2011

subject=strip search (link to eight citations for HeinOnline subscribers)