When is a strip search reasonable?

Should a jailer have a reasonable suspicion that an inmate arrested for a minor offense is carrying contraband before subjecting him to a strip search? The wisdom of such a policy is obvious. But during oral arguments at the Supreme Court this week, the justices engaged in dismissive hairsplitting about when and whether a corrections officer should be able to see a prisoner naked. They shouldn’t allow themselves to be distracted from the real issue.

Albert Florence was on his way to a family celebration when a New Jersey state trooper stopped his car and, after finding that he had an outstanding warrant, arrested him. The warrant for Florence had been issued because of an unpaid fine that he actually had paid.

Florence was taken to a county jail where, he said, he was ordered to strip and lift his genitals at arm’s length from an officer, and then take a shower. Supposedly the jail had a policy against strip searches except in cases of reasonable suspicion, but Florence’s search was deemed to be a “visual observation” rather than a strip search because it apparently wasn’t as intrusive as it could have been. After six days, Florence was transferred to another facility, where he also was subjected to a strip search.

Obviously, jailers have the duty to search new prisoners they suspect are carrying drugs or weapons. But there must be a reasonableness test. Florence’s lawyers point out that most jails use such a standard for strip searches. (In Los Angeles Country, for example, prisoners who haven’t been arraigned are strip searched only if there is “individualized suspicion.”) A reasonable suspicion test is especially appropriate for individuals arrested on minor offenses, which can include traffic and parking violations.

A lawyer for Florence also told the justices that he wouldn’t object to the practice of jail guards watching inmates as they got out of the shower, leading the justices into a digression about how far away a guard must be from a prisoner before violating his privacy. The fact that guards might occasionally see inmates without their clothes on doesn’t justify the sort of intrusive search to which Florence was subjected.

It is that search — and similar ones — that the justices need to focus on. As Florence’s lawyers point out, there is no evidence that prisoners who don’t get strip searched on reasonableness grounds pose a problem with contraband. That reinforces the argument against such searches, an argument rooted in the 4th Amendment’s guarantee of freedom from unreasonable searches and seizures. Someone in Albert Florence’s position shouldn’t have to surrender that right to privacy.