SCOTUSBlog: My commentary on Florence

My SCOTUSBlog commentary on Florence v. Board of Chosen Freeholders of the County of Burlington strip search case argued today, October 12th:

At issue in Florence is “reasonableness” of a jail strip search of a man brought in because of a computer error on whether he had paid a past traffic fine. In Bell v. Wolfish the Court held that pretrial detainees in the Manhattan MCC could be strip searched during their confinement because it was reasonable on a balancing of interests.

Those detainees, however, were either held on a criminal complaint or indicted. How does that relate to an accidental arrestee, a person brought to jail because of an erroneous traffic warrant that arose after the person was stopped on the street by chance, and a warrant comes up when his driver’s license number is run?

Reasonableness has always been stated by the Court to be the “fundamental inquiry” (see, e.g., United States v. Chadwick) or “touchstone” in Fourth Amendment cases. (see, e.g., Robinette v. Ohio; Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls). Was it reasonable to strip search Mr. Florence when there was virtually no chance he would be introducing a weapon or contraband into the jail? Does the Fourth Amendment “reasonableness” and balancing inquiry permit the Court to find this strip search invalid in light of what some members of the Court will undoubtedly see as the weighty interest in jail security automatically tipping the balance for the government?

And what about “lesser-intrusive means”? An accidental detainee like Mr. Florence should not be subjected to the indignity of his strip search. Even so, how does one apply such a rule (a “bright-line rule”?) so jailers will understand it? That didn’t stop the Court in holding that a detainee couldn’t be detained more than 48 hours without seeing a judicial officer for a probable cause finding in County of Riverside v. McLaughlin, but that case did not involve jail security. But, Earls refused to even going in the “lesser-intrusive measures” for drug testing students. Indeed, such a standard has always been scrupulously avoided by the Court. (See, e.g., United States v. Martinez-Fuerte and Colorado v. Bertine).

An irony lost on the parties [only one respondent mentions it in passing for something else] is Herring v. United States holding that the exclusionary rule would not be applied to persons arrested and then searched on accidental warrants because there was only mere negligence in not purging the warrant. Now, that mere negligence leads to the gross indignity of a strip search of a man with papers in his car showing that the warrant for him is bogus.

If Mr. Florence loses, then we have a fait accompli. “Reasonableness” has been forever subordinated to “jail security,” and mere incantation of the words makes the Fourth Amendment evaporate in any jail setting. No exclusionary rule under Herring; no civil action under Florence; the government can’t lose; perfect. Is that where we are headed? Gail Atwater’s driving without a seat belt would then have caused her to risk being strip searched because her arrest was valid under the Fourth Amendment even though the offense was “fine only.” And what about retaliatory arrests for “contempt of cop”? Can officers then arrest people to purposely add to their indignity knowing that a strip search will occur, too? That already happens with automobile searches, so why not for any arrest?