One thing, and only one thing, emerged clearly after a busy — and often confusing — hour of Supreme Court argument Wednesday on the constitutionality of strip-searches in local jails: the outcome is not going to be a categorical rule, one way or the other.   None of the three lawyers argued for that, and nowhere near a majority of the Justices seemed prepared to rule flatly for or flatly against strip-searching of arrested individuals.  But where five Justices might draw the line was entirely unpredictable after the hearing on Florence v. Board of Chosen Freeholders (docket 10-945).

What might turn out to be decisive is that the Justices discovered — to the surprise of some of them — that there was so little evidence that smuggling weapons or drugs into jails or prisons was actually a serious, documented problem.   Several members of the Court pressed for “empirical evidence” of actual experience, but got in response only surmises, suggestions that it was fantasy not to appreciate that jails are by nature very dangerous places.

Although there were some comments from the bench — especially from Chief Justice John G. Roberts, Jr. — that not much was in dispute, it seemed obvious that the case involves anything but trivial differences of opinion.   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.

The Court had real difficulty, for example, as the Justices tried to nail down just what Washington lawyer Thomas C. Goldstein was proposing as a Fourth Amendment standard to govern strip-searching.  Goldstein used a tactic of trying to show that he was arguing something different from what his adversary was proposing, but Justice after Justice showed frustration, demanding to know what Goldstein’s proposed rule was.   He pressed strongly for a “reasonable suspicion” requirement before new arrestees could be routinely subjected to strip-searching, but he was willing to concede some forms of visual inspection of naked bodies, perhaps from a modest distance while they showered.  At a minimum, Goldstein’s responses seemed to border on the indistinct, when what the Court was after was specificity and clarity.

Goldstein’s approach, indeed, allowed his principal adversary, Washington lawyer Carter G. Phillips, to begin his portion of the argument by saying that Goldstein’s argument moved around so much that it was not exactly clear what his constitutional claim was.   But, as matters were to unfold, Phillips, too, wandered at times from his core argument that the Fourth Amendment should simply have nothing to do with the procedures used in jails upon the receipt of new arrestees.   He conceded to Justice Sonia Sotomayor, for example, that there is “some constitutional right of privacy” in the jail setting, and conceded that manual inspection of body cavities would invade that right unless there were some strong evidence of a threat to justify it.

Justice Antonin Scalia somewhat sarcastically said that what Phillips seemed to be advocating was a Supreme Court ruling that was limited to the validity of “squatting and coughing” inspections, and nothing more.   Scalia was the Court’s most vigorous champion of jail security, and thus its least skeptical about strip-searching as a routine jail-entry policy.

The most aggressive defense of strip-searching, without any notable limits, came from a Justice Department lawyer, speaking for the federal government.  Nicole A. Saharsky, an assistant to the U.S. Solicitor General, resorted to sometimes fanciful conjecture about how even individuals arrested for the most petty crimes — including political protesters — might actually be lurking conspirators to get guns, knives and drugs into jails or prisons.  Her strongly emotional argument was notably short on hard evidence to prove her point.   She also qualified the breadth of her argument by suggesting that she was proposing no limits only on strip-searches carried out when an arrestee was going to be put into a general jail population, instead of being segregated in a holding cell.

Remarkably, she said that federal prison officials give inmates a choice of being strip-searched and then placed with all other prisoners, or being placed — without a strip-search — in a cell.  Chief Justice Roberts wondered why anyone would ever choose the former, and Saharsky said that computers are available for those in the general population, but not in a cell.  That somewhat bizarre response fairly typified the core of her argument.

Indeed, the seeming shallowness of the evidence of actual discovery of contraband gave Goldstein, in his brief rebuttal, a chance to trot out a series of statistics showing that hundreds of thousands of people show up as arrestees in jails or prisons, without any notable evidence that they were able to introduce into the jail population anything threatening — at least anything that would not be detected if officers had to base strip-searching upon some “reasonable suspicion” of a threat of contraband.   He cited a memo written in Essex County, N.J. — operator of one of the jails in which Albert Florence had been strip-searched — showing that it takes in more than 25,000 arrestees a year, that there were only 14 instances of contraband getting into the jail, and even that would have turned up using a search policy based on “reasonable suspicion.”   This was the kind of “empirical evidence” the Court had seemed so anxious to have, but it was a little tardy in coming.

(Disclosure:  Some members of the law firm of Goldstein & Russell, involved in this case as counsel to Albert Florence, also have various roles in this blog’s activity.  The author of this post, however, operates independently of the law firm’s practice.)





Posted in Florence v. Board of Freeholders, Analysis, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument recap: No flat rule on strip-searches?, SCOTUSblog (Oct. 12, 2011, 12:10 PM),