WASHINGTON (AP) — The Supreme Court
seemed ready Wednesday to endorse a jail policy that forces even people
arrested on minor charges to undress and shower while being watched by guards.
Less clear was whether justices would
decide jailers need a reason to suspect someone may be hiding a weapon or drugs
before undertaking a more invasive strip search. The court heard arguments in a
case weighing the privacy rights of people in jail against authorities' need to
maintain safety.
It's the case of Albert Florence, the
finance manager for a New Jersey car dealership, who was arrested on a warrant
for an unpaid fine. Florence says he was twice required by jail guards, who
stood close by, to undress, open his mouth and lift his genitals. On the second
occasion, he also had to bend over and cough, in case he was hiding something
inside his body.
Jail officials and the Obama
administration back a policy that allows close searches of anyone entering the
general jail population.
"What I would really like is an
opinion that recognizes that deference to the prison and to their judgment is
what's appropriate under these circumstances," Carter Phillips, the jails'
lawyer, told the court.
But Thomas Goldstein, representing
Florence, said the court should draw a line that limits intrusion into
someone's privacy when there is no cause to suspect he is hiding anything.
Florence was arrested after a state
trooper pulled over the family's BMW sport utility vehicle as they were headed
to dinner with his mother-in-law in 2005. His wife, April, was seven months
pregnant at the time and driving. Their 4-year-old son was in the back seat.
"When somebody is pulled over
like Mr. Florence, it's laugh-out-loud funny to think he is smuggling something
into this jail," Goldstein said. In addition to the searches, Florence is
challenging his arrest because he already had paid the fine — and carried a
document to prove it — and challenging his detention in two jails for a week
without a hearing. Those matters are on hold pending the outcome of his high
court case.
As happens often, the justices
appeared more concerned with the wider implications of any decision they might
reach than with the specifics of the case before them.
The justices focused a lot of
questions on how close guards can get to naked inmates and how thorough
searches can be. "He says 2 feet is too close, 5 feet or whatever is
OK," Chief Justice John Roberts asked Phillips. "You want to go to 2
feet. You don't want to have to stand back to 6 feet. That's all the case comes
down to?"
Justice Stephen Breyer questioned
whether the distinction between major and minor crimes makes sense. He pointed
to San Francisco's experience showing that many people arrested for minor
crimes are "high on drugs" when they are brought in, and perhaps
should be subjected to closer searches.
Goldstein acknowledged that it
wouldn't take much to allow "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."
Several justices said that it might
be safer, even for people like Florence, to give jails permission to search
everyone thoroughly.
Justice Anthony Kennedy asked whether
someone in that situation "might well prefer an institution where everyone
has been searched before he or she is put into the population."
Yet there also were many questions
about the rationale for the searches — deterring smuggling.
Justice Sonia Sotomayor said recent
studies show that most contraband that gets into jails and prisons is not
arriving with the inmates themselves, "but coming in through guards,
coming in through contact visits."
The court ruled more than 30 years ago
that prison inmates could be strip-searched following visits.
Phillips asked the court to apply the
same rule to people who are entering the general jail population, although he
conceded one point under questioning.
"I think what is disturbing
about this case is in fact that he was arrested under circumstances in which he
candidly shouldn't have been arrested as a matter of state law," he said.
A decision should come by spring.
The case is Florence v. Board of
Chosen Freeholders, 10-945.
Copyright 2011 The Associated Press.
(AP Photo/Mel Evans)
