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Should Minor Offenders Be Subject To Strip Searches?

The U.S. Supreme Court hears arguments Wednesday in a case testing whether prison guards may constitutionally strip-search even minor traffic offenders when they are arrested and taken to jail.

For decades, most courts did not allow such blanket strip searches, but in recent years, the pendulum has swung the other way.

Wednesday's test case began on a New Jersey highway in March 2005. Albert Florence, his wife and his little boy were in a celebratory mood as they motored their way to the home of Albert's parents. The couple had just bought a new house and had been looking at new furniture at the design center. April was at the wheel, and Albert noticed that their BMW was being followed by a state trooper. April assured her husband that she wasn't speeding, but the trooper soon signaled them to pull over. After checking April's license, the trooper asked who owned the car, and upon learning that her husband, sitting next to her, was the owner, the trooper ordered Albert out of the car, handcuffed him and arrested him on an outstanding warrant for failure to pay a fine.

Albert Florence, a finance director at a car dealership, had no criminal record. He had just one brush with the law, years earlier, stemming from his leaving the scene of a traffic stop. He had been fined $1,500, and when he fell behind in his payments, a judge issued a warrant for his arrest, prompting Florence to pay the amount due in full.

The problem was that the warrant had never been purged from the computer system.

Florence, however, could prove he had paid the fine. He kept the document showing he had paid in his car, and he showed the paperwork, complete with a state seal, to the state trooper. The officer apologized but said he still had to arrest him.

The Constitution requires a suspect to be promptly arraigned and, in most cases, released, on bond if necessary. However, in Florence's case, despite the best efforts of his wife, he did not get a hearing and remained in jail for a full week.

At the Burlington Country jail where he was first taken, he was told to shower and was inspected by a guard.

The guard "was at about arm's distance," Florence recalls, "and he instructed me to turn around, squat, cough, lift up my genitals, and then put on the orange jumpsuit."

Florence says he pleaded with jail authorities to check with Essex County, where the warrant originated, and he kept waiting for his hearing. But it didn't happen. Meanwhile, his anxiety was growing. By the fourth day, he says, he was "pretty messed up" and scared about not being there for his wife, who was seven months pregnant with a condition that put her at risk of a premature birth.

After five days, he was transferred to Essex County, where he expected that everything would be straightened out.

Instead, Florence found "the same hell all over again."

He was not only strip-searched, but unlike in Burlington County, where he was by himself, Florence was now mixed in with other criminals.

"I'm with a whole bunch of murderers and carjackers and rapists and all walks of life that I wouldn't wish upon anybody, " Florence says.

Finally, a week after his arrest, and after his wife got a lawyer, he was released. He sued both counties for failing to give him a hearing and for what he contends were illegal strip searches. The failure to provide a prompt hearing is still pending before the lower courts. The strip search is before the Supreme Court on Wednesday.

In Washington, D.C., a woman arrested for eating a sandwich on the subway was strip-searched in front of male guards.

Florence contends that strip-searching a person who is arrested for "a noncriminal offense" violates the Constitution's ban on unreasonable searches.

His lawyer, Susan Chana Lask, notes that Florence was not arrested for a knife fight or a drug violation.

"He was pulled off the street for a traffic stop," Lask says. "There was no reason to strip-search Albert Florence unless they thought he was carrying contraband, but they never made that case."

Indeed, the state of New Jersey has a policy against strip searches without suspicion. And Lask, in her brief, calls the number of trivial offenses for which individuals are regularly arrested and would be subject to indiscriminate strip searches "astonishing." Such jailable offenses include car equipment violations, such as driving with a noisy muffler, parking violations, even riding a bike without a bell. In Washington, D.C., a woman arrested for eating a sandwich on the subway was strip-searched in front of male guards.

The New Jersey counties where Florence was imprisoned, however, have an entirely different perspective. Representing them, lawyer Carter Phillips will tell the Supreme Court that cases like Florence's are both rare and better than the alternative. Phillips notes that Essex County includes Newark, where thousands of prisoners are processed. To protect prisoners and guards alike, he argues, "it is simply the safer approach to say, if for whatever reason the system has seen fit to put you in a jail ... you have to go through the strip-search process."

The U.S. Supreme Court in 1979 ruled that prison officials may, in the name of security, conduct strip searches of prisoners who have planned contact visits with outsiders. The court said such searches are reasonable in order to prevent weapons, drugs and other contraband from being brought into the prison. Until quite recently, however, the lower courts have not permitted automatic jail-admission strip searches for those charged with minor offenses and not yet convicted. In the past decade, that trend has started to reverse. And now that question is squarely before the Supreme Court.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.