Prison Law Blog

Sara Mayeux

With Liberty and Strip Searches For All?

with 2 comments

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.

[Side note: At this point casual readers may be wondering, “Wait, I could get arrested for a traffic infraction?! Well, yes, if the Supreme Court has anything to say about it.]

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.

Written by sara

January 26, 2010 at 11:53 am

2 Responses

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  1. […] In reaching this conclusion, the Ninth Circuit overruled two earlier cases in which it held that blanket strip search policies are unconstitutional: Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989), and Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) (per curiam). For those keeping score at home, as of today, the circuit split on blanket strip searching policies comes down more or less as follows. Last month, I blogged about a similar case making its way up to the Third Circuit. […]

  2. […] With Liberty and Strip Searches for All? (January 26, 2010) — my earlier coverage of Florence, back when it was still before the Third Circuit […]

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