The Cautionary Instruction: U.S. Supreme Court hears arguments in case with local twist

The Pittsburgh Post-Gazette/Ipso Facto
October 21, 2011

Last week, the U.S. Supreme Court listened to arguments in the case of Florence v. Board of Freeholders. Albert Florence was picked up in New Jersey on a warrant for an unpaid fine and lodged in two different county jails where, in each, he was strip-searched as part of routine jail policy.

After it was determined that the warrant had been issued in error, Florence was released. He filed suit claiming his Fourth Amendment right against unreasonable searches was violated. A federal district court judge sided with Florence, but the Third Circuit Court of Appeals reversed, saying routine strip-searches during intake are justified based on the prison’s concern that weapons and other contraband might be smuggled into the prison.

There is a local parallel to this case. In 2006, Allegheny County was sued for blanket strip-searches of all detainees that were “intermingled” with other county jail inmates. According to depositions taken during the suit, the searches largely included a visual examination of the genitals, as well as requesting detainees to bend at the waist and manipulate the buttocks, breasts and genitals to allow for a visual inspection of their body cavities and skin folds. Female detainees were required to “squat and cough” to see if any contraband dislodged from the vagina.

The class action law suit was settled for $3 million. However, Judge Terrence F. McVerry made reference, in his Settlement Opinion, to the lower court decision in Florence v. Board of Freeholders. Judge McVerry wrote that the Third Circuit in Florence held that conducting strip-searches did not require a showing of attempted smuggling or discovered contraband as a justification for the policy.
Allegheny County settled six days before Florence was decided. Florence ultimately made its way to the U.S. Supreme Court and was the subject of last week’s argument.

Assistant Solicitor General Nicole Saharsky argued last week before the Supreme Court that corrections officials should be able to set search policies for their jails. "You cannot say that there are some minor offenders that don't pose a contraband risk.” Saharsky added that guards who screen arrestees are, “Individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly."

Florence’s attorney, Thomas C. Goldstein, argued that such a “significant intrusion on individual privacy and individual dignity” requires a reason to believe that the arrested person poses a danger.
During the 12 months ending June 30, 2010, local jails admitted an estimated 12.9 million prisoners. While not every jail has a blanket strip-search policy -- the High Court would do well to debunk the near universally accepted idea that the U.S Constitution is of limited application behind the jail house walls.

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