Associated Press | April 2, 2012
By Mark Sherman

Jailers may perform invasive strip searches on people arrested even for minor offenses, a sharply divided Supreme Court ruled Monday, with the conservative majority declaring 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 actually had paid.

The decision resolved a conflict among lower courts about how to balance security and privacy. Prior to the Sept. 11, 2001, terrorist 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 sport utility vehicle driven by his pregnant wife was pulled over for speeding. He was a passenger, and his 4-year-old son was in the back seat.

Justice Anthony M. Kennedy said the circumstances of the arrest were of little importance.

Instead, Justice Kennedy said, Mr. 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,” Justice Kennedy said.

In a dissenting opinion by the court’s liberals, Justice Stephen G. Breyer said strip searches improperly “subject those arrested for minor offenses to serious invasions of their personal privacy.” Justice Breyer said jailers ought to have a reasonable suspicion someone may be hiding something before conducting a strip search.

Justice Breyer said people such as Mr. Florence “are often stopped and arrested unexpectedly.”

“And they consequently will have had little opportunity to hide things in their body cavities.”

Mr. Florence made the same point in his arguments: He said he was headed to dinner at his mother-in-law’s house when he was stopped in March 2005. He also said that even if the warrant had been valid, failure to pay a fine is not a crime in New Jersey.

But Justice Kennedy focused on the fact that Mr. Florence was held with other inmates in the general population. In concurring opinions, Chief Justice John G. Roberts Jr. and Justice Samuel Anthony Alito Jr. said the decision left open the possibility of an exception to the rule and might not apply to someone held apart from other inmates.

Justice 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 noted that people arrested for minor offenses can turn out to be “the most devious and dangerous criminals,” citing the example of Oklahoma City bomber Timothy McVeigh, who initially was stopped by a state trooper who noticed McVeigh was driving without a license plate.

In his dissent, Justice Breyer said inmates in the two New Jersey jails already have to submit to pat-down searches, pass through metal detectors, shower with delousing agents and have their clothing searched.