U.S. high court takes Burlco search case

Posted: April 05, 2011

The U.S. Supreme Court will decide whether prison authorities had the right to strip-search a man mistakenly jailed for seven days after a routine car stop six years ago in Burlington County.

On Monday, the court agreed to hear the case filed on behalf of Albert Florence, who spent six nights in the Burlington County Jail and a night in the Essex County Jail in 2005. He was strip-searched at both facilities before a judge confirmed that he had been arrested in error and let him go.

"They strip-searched him twice in the most horrific way imaginable," said Florence's attorney, Susan Chana Lask. "At that point, you're just degraded."

Florence, a manager of a car-leasing company, is among a large number of people across the country whose controversial strip searches, following arrests on minor infractions, have divided the lower courts.

While most appellate courts have held that such searches are unconstitutional, citing the 1979 Supreme Court decision Bell v. Wolfish, four recent decisions have upheld the practice as a way of maintaining prison security, concluding that other decisions improperly interpreted Bell.

Carter G. Phillips, representing Essex County, said he was not surprised that the high court took the case.

"It's probably the right time and the right case to decide this issue," Phillips said.

In September, the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled in favor of the Burlington and Essex County prisons, reversing U.S. District Judge Joseph Rodriguez.

Rodriguez, sitting in Camden, ruled that authorities had gone too far by searching Florence without reasonable suspicion that he was carrying drugs or a weapon.

"The Third Circuit is now the law of the land" throughout that circuit, said attorney J. Brook DiDonato, who represents Burlington County. DiDonato said that the finding and confiscation of weapons during strip searches protects people like Florence. Most violence is directed at other inmates, he said. He said he believed the Supreme Court would likely affirm the ruling and "lay the issue to rest."

Lask said she was sure the high court would reverse the ruling.

"I believe in prison security, but this went too far," Lask said. "This is not what the United States is supposed to be about. This is not about prison security. This is torture for people who don't deserve it."

The most egregious part of her client's case, she said, is that a clerical error led to his arrest and he never should have been taken into custody.

In the Bell opinion, delivered by Justice William H. Rehnquist, the Supreme Court ruled that body-cavity searches of prisoners who had contact with visitors were constitutional. Lower courts, however, have held that nonviolent offenders, at the time of arrest, should be given different consideration from that given a convicted killer unless officials have reasonable suspicion.

About 7:30 p.m. March 3, 2005, Florence was a passenger in his family's BMW X5 SUV, with his 4-year-old son in the backseat. His wife, then pregnant, was driving south on I-295 when she was pulled over. The trooper said she was speeding but did not give her a ticket.

The vehicle was registered to Florence, and the trooper received information that an arrest warrant had been issued. Records showed he had failed to pay a fine for a ticket issued for eluding police.

Florence had certified proof that the fine was paid at least a year earlier, but the trooper took him into custody nonetheless, handcuffing him in front of his wife and child. At the Burlington County Jail, authorities ordered a strip search, including body cavities.

In his lawsuit, Florence said Burlington County authorities said they could not help him track down the correct warrant information because he was to be transported to Essex County to resolve the matter.

That took six days. In the Essex County Jail, Florence was subjected to the same strip search.

The next day, Florence was brought before an Essex County judge, and authorities confirmed that the fine had been paid and that the warrant had been issued in error.

Florence, who is African American, sued, alleging that he was subjected to racial discrimination and that authorities had violated his civil rights. His case has since been classified as a class-action suit. The Supreme Court is scheduled only to decide whether prisons may strip-search everyone who is jailed, including those taken in for minor infractions.

Until recent years, circuit courts have agreed that strip searches of those charged with minor, or "non-indictable" offenses, are unconstitutional.

Based on those decisions, millions have been paid. In 2009, Philadelphia agreed to pay $5.9 million to settle a class-action lawsuit, and Camden County agreed to pay $7.5 million in 2007.

Guidelines adopted by the New Jersey Attorney General's Office in the 1990s, after numerous lawsuits filed in the 1980s, allow strip searches if a person has been arrested on a felony charge or if there is a reasonable suspicion that he or she could be hiding some form of contraband.

The Supreme Court is scheduled to hear the Florence case in the fall.


Contact staff writer Barbara Boyer at 856-779-3838 or bboyer@phillynews.com.

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