April 2, 2012
In a 5 to 4 vote, the Supreme Court ruled on Monday that it is permissible for jailers to strip search people arrested and jailed on minor offenses, even if they have not violated the law.
Justice Kennedy wrote for the majority when he said that when an arrested person is to be put into the general jail population, “courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.”
Justice Stephen Breyer dissented. He said strip searches improperly “subject those arrested for minor offenses to serious invasions of their personal privacy.”
The case reached the Supreme Court after Albert Florence was strip searched following his arrest on a warrant for an unpaid fine. In fact, the fine had been paid. It is not a crime in New Jersey not to pay a fine. After six days, Florence had not received a hearing on the case. He was transferred to another jail in Newark, New Jersey, where he was strip searched again. The following day, all charges were dropped and Florence was released.
The case represents a further erosion of the Fourth Amendment. For over thirty years, U.S. appeals courts have uniformly held that strip searches without suspicion violate the Constitution. Unless there is a reason for suspicion, the Constitution forbids searches without a court warrant.
In 2008, in the first appellate rulings on strip searches since September 11, 2012, appeals courts in Atlanta, Philadelphia and San Francisco ruled that the need of the state to maintain security justified a wide-ranging search policy, no matter the reason for someone’s detention and despite the protection afforded by the Fourth Amendment.