By Ian Tarr
On March 3, 2005, Albert Florence’s wife was driving her husband and their child down a New Jersey road. Unexpectedly, the family was pulled over by a police officer for an alleged speeding infraction. After checking the couple’s information in police records, the officer discovered that Mr. Florence had an outstanding warrant for an unpaid traffic fine. Florence had actually already paid the fine, but this had not yet been entered into the state’s computer system. Despite Florence’s protests, the police officer arrested him and brought him to jail, where he remained for nearly a week. During this time he was forced to undergo several invasive “strip and body cavity” searches; he had to remove his clothing, lift his genitals, shower, squat, and cough — all in front of police officers. After days of humiliation and emotional distress, Florence finally secured his release. He proceeded to sue the prison officials for violating his Fourth Amendment protection against unreasonable searches. Although Florence’s plight is not very well known to the American public, the outcome of his case may have significantly weakened some of the United States’ most cherished constitutional protections — and did so with justifications that may end up leading us even further astray.
Most people see the Constitution as a rock-hard pillar of essential freedoms. As such, it’s the North Star for American intuition in a whole host of heated issues, from gun rights to freedom of speech. However, in the 2012 Supreme Court case Florence v. Board of Chosen Freeholders, intuition and constitutional interpretation sharply diverged. In a 5-4 decision, the justices not only ruled against Florence, but also declared that the “undoubted security imperatives involved in jail supervision” gave cause for officials to strip-search anyone accused of any crime. The searches can be performed regardless of the level of offense; the accused doesn’t have to be admitted to jail and the police officer need not provide a reason for the search. This sweeping decree has dealt a worrisome blow to privacy and due process rights with serious results.
In the majority ruling, Justices Roberts, Scalia, Kennedy, Alito and Thomas downplayed privacy and due process rights, prioritizing the needs and discretion of jailers. The Court “defer[red] to the judgment of correctional officials” because “[t]he seriousness of an offense is a poor predictor of who has contraband.” Since all detainees can be considered potentially threatening, no distinctions should be made between low-, middle- and high-level offenders. Because the whole spectrum of crimes is treated by the Court as the same — from the nonviolent and minor to the extremely gruesome — invasive security procedures administered to an accused murderer can also be applied to someone with an unpaid traffic ticket (as in the case of Albert Florence). To emphasize this point, Justice Kennedy recalled a few high-profile instances when “people detained for minor offenses…turn[ed] out to be the most devious and dangerous criminals.” He noted that “hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate…One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” As the majority saw it, situations like these make more deliberate and cautious approaches to security — like strip-searching on a case-by-case basis depending on the detainee’s threat level — dangerously impractical. As such, the Court found that placing fewer restrictions on searches was the best way to avoid the aforementioned pitfalls — even if empowering the police meant acting to the detriment of individual rights.
By responding to all crime with the same security measures, no matter how invasive, the justices endorsed an alarming line of reasoning. After all, if different types of offenders have the same potential to smuggle contraband and should be strip-searched accordingly, then what about zero-level offenders? It’s a small jump from those who commit minor civil infractions to those who have committed no crime at all. If police forces around the country apply the Court’s logic consistently, then there’s no need to wait until a perceived offense has been committed; they should just go ahead and strip-search. These consequences are not an idle slippery slope prophecy, since precedent is extremely important in guiding the decisions of lower courts and government authorities. Recent actions show that this logic, reinforced by the Court’s decision, is already being put into practice. On January 30, Georgia police officers strip-searched drivers at routine traffic checkpoints. Just a day later, a lawsuit was filed against Chicago police who had conducted strip-searches in public. This is not to say that the Court’s decision in Florence is solely responsible for the expansion of intrusive policing, but it certainly lends legitimacy to these practices. After the Court gave such huge leeway to authorities, incidents like these have been — and likely will continue to be — on the rise.
To some extent, the majority recognized that its rationale could be used to undermine privacy rights. In his concurring opinion, Justice Alito wrote that “the Court does not hold that it is always reasonable to conduct a full strip-search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.” Yet the Court failed to provide a clear distinction between when such action is reasonable and when it is not. This opacity creates a low bar for the invasive and humiliating strip-searches. According to Justice Breyer — who was joined in the dissent by Justices Kagan, Sotomayor and Ginsburg — people have also been strip-searched for such minor infractions as “driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.” Other violations that may now elicit strip-searches include leash law infractions, late child support and unlicensed driving. The Court followed a fallacious line of reasoning without a clear standard for applying it. Through its lack of rigor, the Court has introduced enormous opportunities for a miscarriage of justice.
Perhaps the justices did not fully grasp the potential damage inherent in the humiliating nature of strip-searches. As stated in the Orange County, New York Correctional Facility Training Manual, a strip-search can involve a detainee “spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must, in addition, squat to expose the vagina.” In plenty of circumstances, forcing someone to expose him- or herself in such a demeaning fashion can be deeply traumatic. This protocol is particularly harmful to victims of sexual assault, for whom any additional corporeal violation can be emotionally scarring. Women who are menstruating have also been forced to remove their tampons. In one particularly egregious interaction, an elderly nun was strip-searched after trespassing during an antiwar demonstration. These individuals — and others in similar situations — will be the vast majority of those subjected to strip-searches, not the terrorist masterminds to whom Justice Kennedy refers in his decision. In a brief delivered to the Supreme Court by a group of licensed psychiatrists for the Florence case, strip-searches were said to have inflicted “severe and pervasive psychological injury,” even in cases less extreme than the one that was before the Court. If these searches can be so damaging that psychiatrists say they “attack fundamental attributes of a person’s psyche,” then how can they be administered based on mere potential to commit a crime? Centuries of legal principle dictate that people should only be punished for past acts, but with this decision, the accused may easily be harmed before they ever face a judge. The Court glossed over this ignominious abuse with alarming ease.
Of course, it is not just the act of strip-searching, but also its practitioners, that are problematic. The reality that officers do not have to justify their searches indicates that the practice could easily become more common. Since police do not have to disclose a reason for each strip-search, they can use the threat of the humiliating practice to discourage defendants from, for example, calling their lawyers or invoking their constitutional rights. The police and jailers that administer this procedure have been given huge license by the Supreme Court, and they now wield disproportionate power. Florence’s counsel posed this dilemma in oral arguments, to which the Court tersely responded that the issue was “not implicated on the facts of this case…and it [was] unnecessary to consider.” The Court’s decision makes it difficult to build a case against abusive authorities. Since officers do not need to have or give a specific motive in the first place, it would be extremely difficult to prove that they held a nefarious one.
Although this immense power could be wielded against any individual, it likely will exacerbate instances of institutional racism. Considering the Bureau of Justice Statistics’ finding that “blacks [are more likely] than whites…to experience use or threat of force,” strip-searches could easily become yet another conduit for this bias. Florence, an African-American, did not allege racial discrimination, and his case focused on the constitutionality of blanket strip-searches for all citizens. However, it is worth noting that the police department in which he was detained was under a court order at the time and had been “provided federal monitors to assess stops of minority drivers,” according to The Chicago Sun-Times.
The humiliating facets of strip-searches and the ease with which they can be abusively applied cause this practice to straddle the line between routine safety procedure and illegitimate, de facto punishment for violating even the most minor aspect of the law. This punitive trait stems from the substantial harm that these searches cause: a destructive quality with which civil liberties organizations take issue. In response to the ruling, Stephen Shapiro, legal director of the American Civil Liberties Union, declared that “being forced to strip naked is a humiliating experience that no one should have to endure absent reasonable suspicion.” Similarly, the American Bar Association found that indiscriminate strip-searches could violate international human rights. Even the American Correctional Association forbids strip-searches without reasonable suspicion. Before Florence, most of the lower courts took this information into account and prohibited strip-searches unless authorities had “a reasonable suspicion that contraband was present.” Now, the Supreme Court has weakened that more reasonable precedent.
There are many reasons why the Court’s willingness to skirt over individual detainees’ rights is disconcerting, but perhaps the most compelling is the lopsided trade the justices made. The basis of their decision was a preference for concrete advancements in jail security over constitutional protections, but in this case, the advancements are so slim as to be irrelevant. As Justice Breyer illustrated in the dissent, and as Justices Ginsburg, Kagan and Sotomayor concurred, the instances in which random strip-searches are superior to less invasive, existing security methods are few and far between. There is ample proof of this trend; the New York Federal District Court commissioned a four-year-long study of 23,000 inmates who had been strip-searched in the state of New York. The study found that in only five of these instances was contraband discovered in such a way that solely a strip-search could have revealed it. Additionally, four out of these five searches were based on “reasonable suspicion,” meaning that under the Court’s one-size-fits-all approach, only one more successful strip-search would have occurred. That’s a paltry 0.0043 percent success rate. The New York study was corroborated by a similar analysis of strip-searches in California. Out of 75,000 strip-searches, only three yielded contraband that would have gone undetected by a pat-down or other less invasive methods. Yet with Florence, the Supreme Court has decided to further erode privacy rights and support these ineffectual and invasive practices with few tangible returns to show for it.
Florence v. Board of Chosen Freeholders is not a unique aberration in the annals of the Roberts Court. In District Attorney’s Office v. Osborne, the Court stopped an imprisoned man from accessing and testing DNA used to convict him. Last year, the Court upheld warrantless collection of an arrestee’s DNA and even allowed it to be fed into a national database. In another case, Salinas v. Texas, it ruled that a defendant’s Fifth Amendment right to not incriminate himself was only valid if he verbally invoked it. This constituted one of the most substantial restrictions on Miranda rights in decades. In another blemish on the Court’s privacy record, Chief Justice Roberts is responsible for appointing judges to the Foreign Intelligence Surveillance Court, which grants the N.S.A.’s requests for information. Florence is merely one of the more recent instances in which the Court has encouraged the expansion of overbearing security practices.
This trend does not seem likely to abate any time soon, and Americans should be worried about the wholesale weakening of constitutional safeguards that protect against due process infringements, privacy violations and abuses of authority. Perhaps even Justice Roberts himself is aware of this possibility; he recommended restraint in enforcing Florence “to ensure that we ‘not embarrass the future.’” Sadly for the rest of us, his appeal to caution may be too little, too late.
Ian Tarr ’17 is undecided in his concentration.
Art by Rachel Haberstroh