The U.S. Supreme Court will soon decide whether correctional facilities may strip search any detainee who enters the facility, including people who are arrested for minor offenses that do not inherently involve drugs or weapons. The case now before the Justices requires them to closely review a relevant precedent from 1979 when the Court was comprised of entirely different members. The strip search case, Florence v. Board of Commissioners, was argued before the Court on October 12, 2011. The Supreme Court took the case because the various federal courts around the country were deciding this issue differently. Some federal appellate courts said that jail officials cannot strip search detainees brought in on minor offenses without reasonable suspicion that they are hiding contraband or weapons. More recently, three appellate courts held broadly that all incoming arrestees may be strip searched, even without the reasonable suspicion that they are hiding contraband.
An Elastic Constitutional Standard
This case pits the Fourth Amendment against the federal courts’ tendency to defer to the authority of certain public institutions, including public schools, jails, and the military. The Fourth Amendment is a remarkably brief constitutional provision, stating that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Nearly all Fourth Amendment cases depend on how the courts define what warrantless searches are “reasonable.” Under this elastic standard, the courts have to balance the needs of a free society with the institutional demands of law enforcement and public safety. This is why the Supreme Court is as much a collection of learned judges as they are political scientists who have to resolve difficult legal issues on the basis of American history, the intent of the constitutional framers, existing Court precedent, and the current realities of American life. All these factors play into the strip search case that the Court is expected to resolve by June 2012.
Not all arrestees are taken to the local jail for violent felonies or other offenses against humanity. Some are brought in on non-violent offenses that have nothing to do with contraband. In the Florence case that is now pending in the Supreme Court, the detainee was arrested for civil contempt. Not quite the most dangerous offense, yet he wound up in the local jail. This is legal. Anyone can be arrested at any time, even wrongfully, and taken to the county lockup. If the arrestee cannot post bail, he might stay in the local jail overnight. Or, he might be legitimately pulled over after having a few drinks. In ruling on the strip search case, the Supreme Court will essentially be determining whether the motorist may be strip searched before entering the local jail. Examined in that light, anyone could be strip searched if the Supreme Court broadly sides with law enforcement in the Florence case. As the Court is stacked with conservative Justices who routinely favor the police and jail officials, this is a sobering thought.
There is nothing dignified about a strip search in jail. In Florence, the Third Circuit Court of Appeals said that, “Florence was directed to remove all of his clothing, then open his mouth and lift his tongue, hold out his arms and turn around, and lift his genitals. The officer conducting the search sat approximately arms-length in front of him and directed Florence to shower once the search was complete.” When Florence was transferred to a different facility, “he was subjected to another strip and visual body-cavity search upon his arrival at [the jail]. As described by Florence, he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough.” Adding insult to injury, Florence was soon released from jail and the charges against him were dismissed. Were these intrusive and embarrassing procedures necessary? Does the Fourth Amendment prohibit it?
No Supreme Court case is resolved in a vacuum. After more than 100 years of jurisprudence, the Court has a backlog of precedents from which it may draw in deciding cases. In light of these precedents, no Supreme Court ruling is entirely unpredictable. The problem for the Court is that no two cases are alike. Precedents may provide guidance in solving current cases, but old cases may have turned on different facts. Also, Justices come and go. New Justices can see old Supreme Court cases differently and every Supreme Court ruling in its own way charts new ground.
The Bell v. Wolfish Precedent
In 1979, the Supreme Court issued a ruling that the Court will have to scrutinize once again. In Bell v. Wolfish, the Court said that the Fourth Amendment allowed jail officials at the Metropolitan Correctional Center in New York City to strip search inmates after they had contact visits with outsiders, including family and friends. The facility mostly housed detainees awaiting trial on federal charges, but it also housed witnesses in protective custody and inmates serving short sentences. Yet, MCC policy was to conduct visual cavity searches after any of them met with outsiders, regardless of the reason for their detention. The reasoning was that any of the contact visitors might smuggle in contraband for the inmates.
Bell is a useful starting point for the Supreme Court in the Florence case, but it does not solve the problem now confronting the Justices. In Bell, all detainees were subject to the cavity searches. In theory, even if they were there for relatively innocuous reasons, they were incarcerated prior to the contact visit. They could arrange for an outside visitor to smuggle in drugs or a weapon. Florence is different from Bell. While both cases involve the need to prevent outsiders from smuggling drugs and weapons into jail, in Florence, the arrestee was taken to the facility for the first time and strip searched no matter what he was doing at the time of his arrest—and whether or not jail officials had reason to believe he was carrying contraband. As most people are arrested without any prior warning, it is far less likely that—pre-arrest—they are going to plan ahead to bring contraband into the jail. As the Third Circuit Court of Appeals noted in Florence, courts that have ruled in favor of strong Fourth Amendment rights for arrestees have done so on “the belief that individuals arrested for minor offenses presented a relatively slight security risk because they usually are arrested unexpectedly whereas the contact visits in Bell may have been arranged specifically for the purpose of smuggling weapons or drugs.”
For decades after the Bell ruling came down in 1979, most federal courts distinguished Bell from cases involving post-arrest strip searches. The Third Circuit in Florence summed up the prevailing view: “In the years following Bell, ten circuit courts of appeals applied the Supreme Court’s balancing test to strip searches of individuals arrested for minor offenses and found the searches unconstitutional where not supported by reasonable suspicion that the arrestee was hiding a weapon or contraband. In general, these courts concluded that the extreme invasion of privacy caused by a strip and/or visual body-cavity search outweighed the prison’s minimal interest in searching an individual with a minor crime shortly after arrest.”
Constitutional law is a fluid concept. The Constitution is written in vague terms and the Fourth Amendment invites re-interpretation by virtue of its prohibition against unreasonable searches and seizures. What is reasonable? What is unreasonable? These concepts are in the eye of the beholder. A federal judge who values civil liberties over security will find that degrading strip searches are a last resort, when prison officials have reason to believe the detainee is carrying something dangerous. A conservative judge will side with security and defer to the expertise of prison officials, who—as federal judges like to remind us—have a difficult and thankless job supervising society’s most dangerous and unpredictable people.
Once the Supreme Court resolves an issue and its decision becomes the law of the land, we often forget that now-settled areas of law were often disputed, even among the Supreme Court Justices. Bell v. Wolfish was a 5-4 decision on the issue of whether jail officials could conduct cavity searches on all inmates after their contact visits. Even a moderate Republican, Justice Lewis Powell, dissented in Bell, stating that, “[i]n view of the serious intrusion on one’s privacy occasioned by such a search, I think at least some level of cause, such as a reasonable suspicion, should be required to justify the anal and genital searches described in this case.” Yet, those five votes become constitutional law.
A Shift To The Right On Prison Strip Searches
The Supreme Court took up the strip search case in Florence because the federal courts had taken divergent views on whether the Fourth Amendment prohibits strip searches for arrestees. As the Third Circuit noted in Florence, post-Bell, ten Courts of Appeal had sided with the arrestee on this issue. That was then. What happened over the last few years, however, is proof that the Constitution takes on a different meaning over time as the composition of the federal courts change.
In 2008, the Eleventh Circuit Court of Appeals, based in Atlanta, decided in Powell v. Barrett that most federal courts had misinterpreted Bell all these years in siding with minor offenders in the strip search cases. While federal courts over the years had held that the Supreme Court intended in Bell to grant different rights to detainees based on the nature of their offense, the Eleventh Circuit said this interpretation is incorrect. The court decided that other courts were not appropriately deferential to jail officials in requiring individualized suspicion before conducting these strip searches. After reviewing decisions from around the country that sided with the Fourth Amendment rights of minor offenders, the Eleventh Circuit concluded: “Those decisions are wrong. The difference between felonies and misdemeanors or other lesser offenses is without constitutional significance when it comes to detention facility strip searches. It finds no basis in the Bell decision, in the reasoning of that decision, or in the real world of detention facilities.
The Supreme Court made no distinction in Bell between detainees based on whether they had been charged with misdemeanors or felonies or even with no crime at all. Instead, the policy that the Court treated categorically, and upheld categorically, was one under which all “[i]nmates at all Bureau of Prison facilities, including the [Metropolitan Correctional Center], are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution.” It was a blanket policy applicable to all.
This was a bipartisan effort on the Eleventh Circuit to scale back the Fourth Amendment in the jail context. Republican presidents appointed seven of the judges who voted this way. Democrats appointed five of the judges who agreed with them. In addition to the Eleventh Circuit, another federal appellate court recently reversed the prior cases of its own jurisdiction and sided with jail officials on this issue. In 2010, the Ninth Circuit Court of Appeals, which sits in San Francisco, ruled that the Ninth Circuit had improperly decided in 1984 that the Fourth Amendment protected minor offenders. (All the Republican-appointed judges on the Ninth Circuit panel sided with law enforcement; only two of the six Democratic-appointees did). Following this trend, in 2010, the Third Circuit in Florence adopted a narrow view of the Fourth Amendment on this issue. That is the decision now before the Supreme Court.
The composition of the federal judiciary has moved to the right over the years. Presidents Ronald Reagan and George W. Bush each served for eight years and associated with conservative groups who wanted a more conservative judiciary. President Bill Clinton did not appoint their liberal equivalents during his presidency. While some Republican-appointed Justices in Bell disagreed with the majority decision that held that all inmates may be subjected to a cavity search following outside contact visits, there are fewer Republican moderates today in the federal system. Language in the Ninth Circuit case summarizes the conservative view on whether to search minor offenders may well sway the Justices on today’s Court: “The Supreme Court has instructed us that jailers and corrections officials ‘should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ It has also explained that “judicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.” Decisions that carve out misdemeanor arrestees at county facilities for special treatment do not afford those who run detention facilities the “wide-ranging deference the Supreme Court has mandated.”
Similarly, in the Florence case, the Third Circuit speculated that one reason not to distinguish between minor offenders coming in off the street and existing prisoners who meet with outsiders is that gang members might exploit that distinction: “We also disagree with Plaintiffs’ contention that the risk that non-indictable offenders will smuggle contraband is low because arrest for this category of offenses is often unanticipated. Even assuming that most such arrests are unanticipated, this is not always the case. It is plausible that incarcerated persons will induce or recruit others to subject themselves to arrest on non-indictable offenses to smuggle weapons or other contraband into the facility. This would be especially true if we were to hold that those incarcerated on non-indictable offenses are, as a class, not subject to search. For that reason, we agree with the concern expressed by the Eleventh Circuit in Powell v. Barrett that gang members would be likely to exploit an exception from security procedures for minor offenders.”
Pay close attention to what the Third Circuit said. It does not say there is actual evidence that gang members will take advantage of a civil libertarian ruling. The Court of Appeals only says that this scenario is “plausible.” Yet, in other areas of constitutional law, federal courts will not allow the government to infringe upon civil liberties based on the speculative fear of negative consequences. This inconsistency may seem unfair, but remember the deference that courts pay to prison officials and their need to maintain order in the jails. Indeed, in 1987, eight years after Bell v. Wolfish, the Supreme Court in Turner v. Safley made it more difficult for prisoners to challenge the conditions of their confinement, ruling that prison policies are constitutional if they are “reasonably related to legitimate penological interests.”
This is the most deferential standard of review that the Supreme Court will apply in constitutional cases. Any justification for restrictive prison policies is legal if they are plausible on their face. Yet, as pointed out by attorneys for Florence in their Supreme Court brief, there is no evidence that the rule prohibiting suspicionless strip searches of persons arrested for minor offenses has facilitated smuggling into jails. Moreover, according to the brief, a report commissioned by the U.S. Department of Justice concluded that jail officials tended “to exaggerate a possible security threat” without expansive search rules, and other branches of the Department of Justice—including the Bureau of Prisons, the Department of Homeland Security and the U.S. Marshals Service—also require reasonable suspicion before minor offenders are strip searched.
Obama Administration Sides With The Jails
This evidence suggesting that minor offenders are not smuggling contraband into jails was not good enough for the Obama administration, which is asking the Supreme Court to endorse the restrictive strip search policy in Florence. At oral argument, a lawyer for the Obama Justice Department told the Supreme Court that “[p]rotest- ers…who decide deliberately to get arrested… might be stopped by the police, they see the squad car behind them. They might have a gun or contraband in their car and think hey, I’m going to put that on my person, I just need to get it somewhere that is not going to be found during a patdown search, and then potentially they have the contraband with them.” This position would probably be identical to that advanced by a Republican presidential administration.
Turner v. Safley and the recent trend in favor of strip searches for minor offenders looms over the Florence case. On the other hand, most federal courts sided with the arrestees prior to 2008. At oral argument in the Supreme Court, the Justices had a difficult time drawing a line between what is permissible under the Fourth Amendment when it comes to strip searching new inmates. According to journalist Lyle Denniston, who covered the argument for the SCOTUS blog, “The Justices were deeply concerned about protecting the security of jails, but also were highly skeptical of an ‘anything goes’ policy that would force every newly arrested individual to disrobe and have their bodies inspected, up close and perhaps with some manual manipulation. The members of the Court searched—at times in vain—for some guidance on just what potential threats to individual ‘dignity’ were too much to be constitutionally forbidden.”
Indeed, at oral argument, Justice Anthony Kennedy—who often serves as the swing vote on the Court—told the Obama administration lawyer, “I was somewhat surprised at the evidence, the amount of contraband that was discovered, and the amount of weapons that was discovered that is in the literature and citations was somewhat skimpy. I thought there would be a stronger showing than I found in the briefs.” For civil libertarians who worry that the Court will instinctively side with law enforcement on this issue, it was good news that even the conservative Justices gave pause to a rule that would allow for strip searches across-the-board for all incoming inmates, including non-violent ones.
Stephen Bergstein is a civil rights lawyer based in upstate NewYork.