Jailers may perform invasive strip-searches on people arrested even for minor offenses, a divided Supreme Court ruled Monday, as the conservative majority declared that security trumps privacy in an often-dangerous environment.
In a 5-4 decision, the court ruled against a New Jersey man who was strip-searched in two county jails following his arrest on a warrant for an unpaid fine that he had paid.
The decision resolved a conflict among lower courts about how to balance security and privacy. Before the Sept. 11, 2001, terror attacks, lower courts generally prohibited routine strip-searches for minor offenses. In recent years, however, courts have allowed jailers more discretion to maintain security, and the high court ruling ratified those decisions.
In this case, Albert Florence's nightmare began when the SUV driven by his pregnant wife was pulled over for speeding. He was a passenger; his 4-year-old son was in the back seat.
Justice Anthony Kennedy said the circumstances of the arrest were of little importance. Instead, he said, Florence's entry into the general jail population gave guards the authorization to force him to strip naked and expose his mouth, nose, ears and genitals to a visual search in case he was hiding anything.
"Courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security," he said.
In a dissenting opinion joined by the court's liberals, Justice Stephen Breyer said strip-searches improperly "subject those arrested for minor offenses to serious invasions of their personal privacy." He said jailers ought to have a reasonable suspicion someone may be hiding something before conducting a strip-search.
Breyer said people like Florence "are often stopped and arrested unexpectedly, and they consequently will have had little opportunity to hide things in their body cavities."
Florence said he was headed to dinner at his mother-in-law's house when he was stopped in March 2005. He said that even if the warrant had been valid, failure to pay a fine is not a crime in New Jersey.
But Kennedy focused on the fact that Florence was held with other inmates in the general population. In concurring opinions, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito said the decision left open the possibility of an exception to the rule.
Kennedy gave three reasons to justify routine searches -- detecting lice and contagious infections, looking for tattoos and other evidence of gang membership, and preventing smuggling of drugs and weapons.
He also said people arrested for minor offenses can turn out to be "the most devious and dangerous criminals." He noted that Oklahoma City bomber Timothy McVeigh, who grew up in Pendleton, N.Y., initially was stopped by a state trooper who noticed McVeigh was driving without a license plate.
In his dissent, Breyer said inmates in the two New Jersey jails where Florence was strip-searched already have to submit to pat-down searches, pass-through metal detectors, shower with delousing agents and have their clothing searched.
He said many jails, several states and associations of corrections officials say strip-searches should be done only when there is reasonable suspicion, which could include arrest on drug charges or for violent crimes.
The first strip-search of Florence took place in the Burlington County Jail in southern New Jersey. Six days later, Florence had not received a hearing and remained in custody. Transferred to another county jail in Newark, he was strip-searched again. The next day, a judge dismissed all charges.