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The Supreme Court on Wednesday struggled with whether jail officials may conduct intrusive strip searches of all arrestees, even of those detained for minor offenses, or whether the Constitution demands something more. Thomas Goldstein of Washington, D.C.’s Goldstein & Russell, urged the justices to hold that the Fourth Amendment requires reasonable suspicion for strip searches of all arrestees in order to protect individual integrity and dignity. “What is not subject to a reasonable suspicion standard is anything other than close inspection of a person at arm’s length,” he added. But Carter Phillips of Sidley Austin and the Obama administration countered that reasonable suspicion should not be required when an arrestee is going to be put into the general prison or jail population. A blanket policy of strip searching those arrestees, Phillips explained, “is designed to ensure not just that no contraband comes into the prison but for the protection of the arrestee as well.” The Fourth Amendment issue in Florence v. Board of Chosen Freeholders stems from two strip searches of Albert Florence, a New Jersey resident. Florence, after a traffic stop, was arrested on a bench warrant for failure to pay a fine. Although Florence produced a receipt showing payment of the fine, the officer arrested him and took him to the Burlington County jail in New Jersey. At intake, Florence was told to strip, open his mouth, lift his tongue and his genitals and to shower. He remained in jail for six days until being transferred to the Essex County jail where he underwent a more extensive strip search that included being ordered to squat and cough and then to shower. One day later, he was released when the charge was dismissed. Florence sued both counties and various officials, charging that their strip search procedures violated the Fourth Amendment. A federal district court granted summary judgment in favor of Florence. But the U.S. Court of Appeals for the 3d Circuit reversed. The appellate court held that prison officials should be accorded “wide-ranging deference” in enforcing policies necessary to maintain security and order in their prisons. During arguments, the justices peppered Goldstein, representing Florence, with questions about where and when reasonable suspicion is required and seemed at times confused and dissatisfied with his answers. “What is the greater intrusion — standing two or five feet away” from the naked arrestee when inspecting him or her, asked Justice Sonia Sotomayor. “That is a line that doesn’t make much sense to me.” Goldstein explained that a prison officer might conduct a visual inspection from a distance of 10 feet. In that scenario, a naked arrestee showering and applying medication for lice does not require reasonable suspicion. His only concern, said Goldstein, is “the very close inspection of the individual’s genitals, which can occur absolutely so long as there is some minimal level of suspicion that’s created.” Phillips told the justices that no reasonable suspicion is required even for intrusive body cavity searches. “That’s the rule of law,” he insisted, adding also that it did not matter whether the arrestee was being admitted into the general prison population because the risks “remain too substantial.” “Suppose someone is just arrested because they have a lot of tickets for being caught on speed cameras, let’s say,” suggested Justice Samuel Alito Jr. “That person can be subjected to the searches that you are describing?” Phillips replied, “Yes, Justice Alito. I think the basic principle we are asking for is that deference to the jails and — and to the administrators of the jails. (It) requires that this Court respect their judgment that you can’t make a distinction based on that specific individual; that whether somebody is a minor offender or a major offender: One, is never all that clear in the first place; and two, isn’t a basis on which to distinguish the risks that it poses.” The justices pressed both lawyers and Assistant to the Solicitor General Nicole Saharsky for data on whether minor offenders with contraband pose a serious problem at prison intakes. Justice Stephen Breyer was particularly skeptical that minor offenders posed a contraband problem based on some studies, and Justice Anthony Kennedy called the evidence “skimpy.” Saharsky said the question before the Court is whether there are reasons for a blanket rule — strip searches of all arrestees — to which the Court should defer. “First of all, you cannot say that there are some minor offenders that don’t pose a contraband risk,” she argued. “They are documented in the record. Second, you have individuals who are making very quick determinations. They have large numbers of people to get through into the general prison population. They have very little time, and if they guess wrong, those mistakes can be deadly.” If the rule is so important, why isn’t it federal policy, asked Justice Ruth Bader Ginsburg. Saharsky conceded that federal arrestees are given a choice of being strip searched and placed in the general prison population, or not being strip searched and placed in an alternative cell. “Who consents to that?” wondered Chief Justice John Roberts Jr. Saharsky said computers and other privileges are available to the general population. In an unusual comment directed at the Office of Solicitor General, Justice Ginsburg called the government’s brief in the case “really confusing.” Saharsky apologized. Marcia Coyle can be contacted at [email protected].

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