While driving with his family in March 2005, Albert Florence was stopped by a New Jersey state trooper, who, after checking the vehicle’s registration, arrested Florence on an Essex County, New Jersey bench warrant for failing to pay a court fine.  Florence had, in fact, paid the fine years before and the matter was eventually resolved – but not before Florence had been repeatedly strip-searched by prison officials during a six-day stay in county correctional facilities.  As a recent Washington Post article points out, the invasiveness of the facility’s intake procedures is jarring, especially in light of the inconsequentiality of Florence’s purported offense.  But are the procedures constitutional?

The Supreme Court will soon decide.  In a brief filed with the Court, Florence contends that jailers’ policy of strip-searching all inmates entering correctional facilities – including those accused of minor offenses – violates the Fourth Amendment’s protection against unreasonable searches and seizures.  To effect a search as invasive as the one Florence underwent, officials must have a “reasonable suspicion” that an inmate is attempting to smuggle drugs or weapons into the facility.

Counsel for the prisons counter, however, asserting that suspicionless strip searches are necessary mechanisms to ensure the safety and security of state and federal prisons.  Any interest inmates have in individual privacy is dwarfed by the state’s interest in detecting the smuggling of contraband into prison.  Indeed, altering existing policy might spur inmates to coerce others into getting arrested on minor charges in order to smuggle contraband undetected.

As a tactical matter, Florence seeks to minimize the state’s interest in suspicionless strip searches, deriding the practice’s efficacy in detecting contraband.  Florence points to a variety of statistics suggesting that suspicionless strip searches prove a poor screening mechanism for smuggled materials.  For instance, eighteen states prohibit suspicionless strip searches with no indication that prisons therein suffer from an increased incidence of smuggling.  Florence also points to Dodge v. County of Orange, 282 F. Supp. 2d 41 (S.D.N.Y. 2003), in which a court in the Southern District of New York examined a prison policy whereby all inmates were strip-searched before entering a particular facility.  The Court looked at every arrest record to determine whether a “reasonable suspicion” regime – in which strip searches were limited to prisoners whose crimes and/or backgrounds evinced a propensity to smuggle – would increase the amount of contraband introduced into prison.  The Court concluded that of the 23,000 searches conducted over a four-year period, there was only one instance in which a person smuggling drugs might have evaded detection under a reasonable suspicion regime.

Florence’s reliance on statistics to cast doubt of the state’s interest in security may prove to be a tactical error.  First, recitations of statistics from other jurisdictions or other prisons do not necessarily speak to the realities of the prisons in which Florence was housed.  As one of the respondents points outs, the jail where Florence was strip-searched is one of the most dangerous in New Jersey, where contraband is “found on a daily basis.”[1]  Though the facility in Dodge may not have benefitted from a suspicionless strip search regime, the present prison might.

Moreover, the Court has defended highly invasive searches absent probable cause in prior cases, even where such practices appear to possess limited utility.  In Bell v. Wolfish, 441 U.S. 520 (1979), for instance, the Court upheld a prison policy subjecting prisoners to body cavity searches upon receiving outside visitors, despite the fact that such searches had discovered contraband in only one instance.  However, Bell does not necessarily ring the death knell for Florence’s appeal.  The fact that the searches in Bell discovered little contraband is to be expected: if the inmates knew that they would be searched after visits with guests, there would be little incentive to have those guests smuggle in illicit items.  In contrast, inmates charged with minor offenses are unlikely to possess contraband because: (a) they possess no real criminal disposition and thus no desire to smuggle illicit items into prison or (b) their arrest was unpredictable and thus they lacked the time necessary to hide contraband materials on their person.  The Court’s dismissal of statistical data in Bell does not necessarily suggest they will reject it again in Florence.