A U.S. Supreme Court holding that jailhouse strip searches are generally acceptable does not foreclose all claims of impropriety, such as one by a woman allegedly searched while pregnant.
U.S. Magistrate Judge Joel Schneider said the court, in Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012), “appears to be receptive to an exception to a blanket strip search policy that applies to all arrestees.”
“Although the exception to the Florence holding has not been defined, at a minimum it appears to include a situation where a person was arrested for a ‘minor’ offense, she/he was not admitted to the general population, and there was no reasonable suspicion she/he was carrying contraband,” Schneider wrote in Haas v. Burlington County, 08-cv-1102.
Haas is one of several federal suits put on hold pending the Florence ruling.
Albert Florence, arrested on a bench warrant for an alleged unpaid fine, was strip-searched at the Burlington County Detention Center, and again six days later after being transferred to Essex County Correctional Facility.
Florence filed a putative class action, claiming, among other things, violation of his Fourth Amendment rights against unreasonable search and seizure.
U.S. District Judge Joseph Rodriguez certified the class in 2008. Two plaintiffs opted out of the class and filed their own suits that year. Tammy Marie Haas, while pregnant, was strip-searched at the Burlington jail in 2006 after an arrest on a warrant for failing to appear at a child-support hearing, she claimed. Conrad Szczpaniak allegedly was searched there after being arrested for failure to pay fines in noncriminal matters.
Their suits were stayed and administratively terminated without prejudice, pending the outcome of Florence’s suit.
Rodriguez granted Florence summary judgment in February 2009. The next year, the U.S. Court of Appeals for the Third Circuit reversed.
At the time, the circuits were split on the issue, and the Supreme Court agreed to hear the case. Last April 2, the court upheld the Third Circuit in a 5-4 ruling. The majority — Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas — held Florence’s searches constitutional, saying corrections officials must be allowed to implement reasonable search policies to detect contraband.
Chief Justice John Roberts Jr. and Justice Samuel Alito each delivered concurring opinions, emphasizing there should be exceptions.
The dissenters — Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — said searches in absence of offenses involving violence or drugs are unreasonable.
Haas’ and Szczpaniak’s suits then were reinstated and consolidated. They moved to amend the complaint to avoid dismissal, in light of Florence.
On Tuesday, Schneider granted the motion and said the plaintiffs alleged facts that “plausibly place them within the orbit of an exception to a blanket strip-search policy that the majority of the Supreme Court appears ready to accept.”
“Although Florence left many questions unanswered, one thing is plain — that is, that a minimum of five Justices … did not endorse a blanket rule that all persons may be strip searched after they are arrested,” said Schneider, sitting in Camden.
Schneider pointed to part IV of the majority opinion — in which Thomas did not participate — which, he said, creates uncertainty as to the scope of the ruling. There, Kennedy withheld ruling on situations where the detainee is or could be held separate from the jail’s general population.
Schneider also cited language from Roberts, urging the court to “not foreclose the possibility of an exception to the rule it announces,” and from Alito, who noted that the court “does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee’s detention has been reviewed by a judicial officer.”
Questions left open are what constitutes a “minor” offense, whether jails must create separate holding areas for minor offenders, how long a detainee may be separated before admission to the general population and what sort of strip search is permissible, Schneider said.
Haas and Szczpaniak both were arrested on “what appears to be a minor offense” and were searched before seeing a magistrate, Schneider said. He added that both claim it was feasible to keep them out of the general population — which Haas allegedly was for the entirety of her detention.
Schneider took no stock in the county’s futility arguments and brushed aside its contention that, since arrest warrants were issued, the plaintiffs’ cases already had been reviewed by a judicial officer.
“The Court reads Justice Alito’s concurrence as referring to a situation where a person is strip searched before her/his post-arrest detention is reviewed by a judicial officer,” he said.
William Riback, who heads a firm in Haddonfield, and Cherry Hill solo Carl Poplar represent the plaintiffs.
Riback says: “It’s our belief that this opinion correctly interprets Florence to caution against strip searching minor offenders.”
They are handling five other federal suits that were stayed pending Florence — by detainees allegedly searched in Atlantic, Bergen, Middlesex, Ocean and Union counties — but Haas was the first to yield a ruling, says Riback.
Michelle Corea of Capehart Scatchard in Mount Laurel, the defendants’ lawyer, did not return a call.
J. Brooks DiDonato of Parker McCay in Marlton, who was defense counsel before handing the case to Corea in July and represented Burlington County in Florence, declines comment.