With Liberty and Strip Searches For All?
Almost a year ago, Judge Joseph H. Rodriguez ruled unconstitutional the policy of two New Jersey county jails to strip search all detainees upon arrival, even if arrested for failing to pay a traffic ticket, or, in Judge Rodriguez’s hypothetical, even if a “priest or minister arrested for allegedly skimming the Sunday collection.” (The cite is Florence v. Board of Chosen Freeholders of County of Burlington, 595 F. Supp. 2d 492 [D.N.J. 2009]). The plaintiff was strip searched
follow[ing] his erroneous arrest during a 2005 traffic stop for a fine he had already paid. He was ordered during the searches to squat naked and, while standing in front of prison guards, to lift his genitals.
According to a corrections official quoted by the Star-Ledger, the justification for a blanket strip search policy is that “streetwise” inmates might “pass contraband to those accused of lesser offenses, knowing they will be subjected to a less thorough search.” However, federal courts have tended to reject blanket strip search policies as a violation of the Fourth Amendment, holding that a jail officer should strip search a detainee only upon “reasonable suspicion” that he actually has contraband or a weapon.
Burlington and Essex counties have appealed Judge Rodriguez’s ruling to the Third Circuit, and the ACLU recently filed an amicus brief for the plaintiff, along with a coterie of former New Jersey attorneys general. The ACLU brief makes the following arguments in favor of the reasonable suspicion standard (I’m paraphrasing):
- Although courts should defer to law enforcement officers on issues of jail safety, the reasonable suspicion standard is sufficiently deferential to officers’ expertise.
- In cases where there are allegations of drugs or violence, the charges themselves will provide reasonable suspicion, so there’s no need to worry about hard criminals getting off.
- Who needs strip searches? Even without reasonable suspicion, the jail is always free to do a pat down, send the detainee through a metal detector, or conduct a surprise sweep of the detainee’s cell.
- Realistically, no one can take advantage of this rule to smuggle contraband via low-grade offenders, because nobody plans to get arrested. (In contrast, maybe it’s OK to strip search inmates after they’ve received a visitor, which they could conceivably plan for.)
- Strip searches are humiliating, and should not be conducted unless absolutely necessary.