Can right to privacy bar a strip search in jail? Supreme Court hears case.

Members of the US Supreme Court were asked on Wednesday to declare for the first time that Americans’ constitutional right to privacy prohibits a strip search if they are sent to jail for a minor offense.

In an important case exploring the scope of Fourth Amendment privacy rights, the justices must decide whether two New Jersey jails violated the rights of a motorist detained in 2005 for a minor infraction.

The motorist was twice ordered to remove his clothing to facilitate close inspection of the most private parts of his body.

“This is a very significant intrusion on individual privacy and individual dignity,” Thomas Goldstein, a lawyer for the motorist, told the justices.

Mr. Goldstein urged the high court to find that strip searches of those accused of relatively minor offenses must first be justified by a reasonable, individualized suspicion that the person was concealing a weapon or contraband.

No discernible five-member voting bloc among the justices emerged during the hour-long argument.

Washington lawyer Carter Phillips, representing the jails, said detainees in a jail enjoy no reasonable expectation of privacy against being viewed while naked in a shower.

He said similar visual observations by jail guards during the detainee intake process also do not violate Fourth Amendment privacy protections.

The justices explored the many gradations of strip searches. The most intrusive involves a physical check to ensure no contraband is concealed in a body cavity. That check requires individualized suspicion, Mr. Phillips said.

But the case of the two jails and the motorist involved no physical contact, only visual inspection.

"So the issue is how close the guard can be to an individual in a single strip search,” Chief Justice John Roberts asked. “Is that all the case comes down to?”

The case stems from a traffic stop by a New Jersey state trooper on March 3, 2005.

Albert Florence, the finance director for a car dealership, was riding with his wife and three children in the family’s BMW. The officer arrested Mr. Florence for an outstanding warrant issued in Essex County.

The warrant had been issued several years earlier for civil contempt, because Florence had failed to promptly pay a fine. Once he paid the fine, a judge issued a document verifying that the judgment had been satisfied. Florence carried the order in his car to avoid being rearrested by police.

His wife showed the document to the trooper. But Essex County had failed to remove the warrant from its computer system. Florence was arrested and taken in handcuffs to the Burlington County Jail for transfer to Essex County on the pending warrant.

Once at a jail, officials instructed Florence to remove his clothing. They conducted a visual inspection of his body, instructing him to open his mouth, lift his tongue, lift his arms, and then lift his genitals.

Arrestees are supposed to be given a prompt hearing before a magistrate – but Florence was held at the jail for six days. On the sixth day, he was transferred to Essex County Jail where he was subjected to another strip search. This one was conducted in a shower area with several other detainees. He was instructed to open his mouth, lift his genitals, turn around, squat and cough.

The next day – a week after his arrest – Florence appeared before a judge who ordered his immediate release.

Florence filed a lawsuit against the two jails charging that the suspicion-less searches violated his Fourth Amendment right to privacy.

A federal judge ruled for Florence and for a class of similarly situated individuals who had been detained on minor charges at the jails and subjected to strip searches.

On appeal, the Third US Circuit Court of Appeals reversed. The majority said the jails’ interest in safety and security outweighed the privacy interests of arriving arrestees. The appeals court added that judges must defer to the policy judgments of jail officials.

During the Wednesday argument, several justices questioned whether jails are facing a significant problem from contraband smuggling.

“This is a serious problem and it is not less a serious problem than it was 30 years ago,” Phillips said, referring to an earlier prison contraband decision by the high court.

Assistant Solicitor General Nicole Saharsky urged the justices to embrace the narrower reading of the Fourth Amendment suggested by the jails. She said the jails’ blanket policy of subjecting all incoming detainees to visual strip searches was reasonable given the potential dangers.

A case by case determination, in contrast, might pose problems. “If they guess wrong, those mistakes could be deadly,” she said.

In his rebuttal, Goldstein noted that every year 700,000 Americans are sent to jail for minor offenses. “This is a lot of people,” he said.

The case is Florence v. Board of Chosen Freeholders of Burlington County (10-945). A decision is expected by late June.