Are Strip Searches Unconstitutional?
A businessman humiliated by New Jersey police takes his case to the U.S. Supreme Court.
Following his arrest, under New Jersey policy, Florence should have been brought before a magistrate within 24 hours. Instead he was held for a week and transferred between two jails. He was strip-searched at the first jail and at the second, tool -- the second time together with several other prisoners.
When, after a week in jail (during which he was provided no toothpaste, toothbrush or soap), Florence finally had an opportunity to bring his case in front of a magistrate, he was immediately released. Florence's description of how an evening celebration of middle-class success turned into a weeklong nightmare, triggered by the police -- who to this day have never explained why they pulled over the Florences -- and by jailers in two New Jersey counties, should be required listening for all of the court's justices.
Without question, jail officials should have the latitude to search those arrestees who they have reason to believe may be hiding contraband or weapons on their person. Such a search would not violate the Fourth Amendment's prohibition against illegal searches and seizures. The Supreme Court affirmed that 40 years ago in Bell v. Wolfish. But reliance on the court's decision in Wolfish is misplaced here.
Burlington County jail officials do not even argue that their search was designed to turn up such items. Instead, they contend that their searches are designed to allow officers to see if arrestees have gang tattoos. Thus they require every prisoner to take a shower using Kwell anti-lice soap in the presence of two officers.
While conceding that Florence was "kwelled," as they call it, county jail officials deny compelling Florence to lift his genitals and cough. Are jail officials constitutionally permitted to even routinely impose "kwelling" on every arrestee in the presence of police officers without any particularized suspicion of gang affiliation or danger?
For years, victims of "driving while black" practices have described the deep humiliation they have experienced, the sense of dislocation from their status as citizens and a disconnection from the promise of fairness in the law. Should the Supreme Court uphold the county jail's strip-search policy, it may well mean that millions of Americans -- arrested for crimes and misdemeanors large and small every day -- may suffer the even deeper and more sustained traumatic intrusion on their personal dignity that Albert Florence suffered at the Burlington and Essex county jails.
Sherrilyn A. Ifill teaches at the Francis King Carey School of Law of the University of Maryland.