By a 5-4 vote, the Supreme Court ruled Monday that people arrested over traffic and other minor offenses can be strip-searched even if there is no reasonable suspicion that they are concealing weapons or contraband. But the court’s decision goes too far. Jailers have a responsibility to make sure that their facilities are secure, but they can do so without the blanket authority the court has given them.
The decision was a defeat for Albert Florence, a finance director for a car dealership who 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 had been issued because of a 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, while an officer inspected him from an arm’s length away. After six days, he was transferred to another facility, where he was subjected to a similarly invasive inspection.
In dismissing Florence’s civil rights suit against county officials, JusticeAnthony M. Kennedy’s majority opinion deferred broadly to jail officials and said it would be unworkable to oblige them to search only those prisoners they reasonably suspected of concealing drugs or weapons. Citing the example of Oklahoma City bomberTimothy McVeigh,who was arrested for driving without a license plate, Kennedy noted that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”
But many jurisdictions see that as a remote possibility. In his dissent, JusticeStephen G. Breyernoted that 10 states and several federal agencies — including the U.S. Marshals Service and Immigration and Customs Enforcement — require reasonable suspicion or probable cause for such searches.
The one consolation in the majority decision is that Kennedy — in a part of his opinion not joined by Justice Clarence Thomas — left open whether arrestees could be strip-searched if they weren’t assigned to the general jail population but were detained separately (for example, in a cell at a police station). In a concurring opinion, JusticeSamuel A. Alito Jr. suggested that for many people accused of minor offenses, “admission to the general jail population, with the concomitant humiliation of a strip-search, may not be reasonable.” Chief JusticeJohn G. Roberts Jr. made a similar observation in his concurrence. That suggests a majority of the court recognizes that if authorities insist on detaining individuals accused of traffic violations or other trivial offenses, they should be housed separately —- or released pending an appearance in court.