U.S. Supreme Court hears appeal of Burlco man who was strip-searched twice

Albert Florence at his home in Bordentown with his attorney, Susan Chana Lask, who took on the case free.
Albert Florence at his home in Bordentown with his attorney, Susan Chana Lask, who took on the case free. (MEL EVANS / Associated Press)
Posted: October 13, 2011

WASHINGTON - Is it permissible, under the Constitution, to order a man to disrobe and shower in front of corrections officers even though he was arrested for a nonviolent offense?

Would it be acceptable if the officers maintained a distance of at least five feet - or arm's length - while visually inspecting him while he was nude?

Can an inmate be checked for contraband without making him squat, cough, and lift his genitals, as Albert Florence of Burlington County was ordered to do during a second search after he was sent to Essex County?

In a case that originated in a Burlington County traffic stop more than six years ago, justices of the U.S. Supreme Court on Wednesday revisited an issue the court last dealt with 32 years ago - whether there should be limits to strip searches at jails.

Florence, 36, said his rights were violated and he felt humiliated when he was strip-searched twice - first in the county jail in Mount Holly after he was arrested during a motor vehicle stop, and then more intrusively in the Essex County jail in Newark.

He had been detained because of an unrelated contempt-of-court warrant for an unpaid fine - which he had satisfied two years before. Florence spent six days in jail before the clerical mistake on the warrant was verified.

During oral arguments, justices peppered the attorney for Burlington and Essex Counties with questions seeking to learn how the counties would balance the need for security against the rights people have against unreasonable searches.

"The balance would tip in the favor of the institution" to ensure the safety of inmates and guards, responded Carter G. Phillips, who represented both counties.

Thomas C. Goldstein, who represented Florence, said county jails "do strip everyone for contraband. . . . Their rule is, they can."

"Ultimately, it's going to be our rule," Justice Anthony M. Kennedy shot back to laughter in the hall.

The justices agreed to hear the case in April after conflicting rulings were issued by federal courts.

The last time the high court took up the subject was in 1979. Then, the justices decided that strip searches are constitutional, but only after an inmate has a visitor, to prevent drugs and weapons from being smuggled into a jail.

Since then, some courts, including most recently the U.S. Court of Appeals for the Third Circuit in Philadelphia in the Florence case, have said that strip searches can be performed on all inmates regardless of the crime and circumstances. Florence's appeal from that decision brought his case to the top court.

Other federal courts have ruled that the searches should take place only when jail officials have "reasonable suspicion" that the inmate may be hiding contraband and only when the inmate is charged with a serious crime.

The Supreme Court's decision in Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington - a case that drew briefs from numerous states and the federal government on the side of the counties - is expected to help set search rules for jail officials across the country.

Florence and his wife, April, attended the hearing with their attorney, Susan Chana Lask of New York, who took on the case free.

After the session, Florence, finance manager for an automobile dealership, said that he was "still enthused" about getting justice and that he enjoyed the exchanges between the justices and attorneys. The couple, who have four children, live in Bordentown.

His wife said she was in the driver's seat when the trooper pulled them over in March 2005.

She said she was shocked when he handcuffed her husband after checking a computer database. Their 4-year-old son was in the backseat and after her husband was hauled away, "He kept asking, 'Where's Daddy? Where's Daddy? Where's Daddy?' and I had no answer," she said.

Lask, who did not argue before the court, ceding that role to Goldstein, a veteran Supreme Court lawyer, said she had a "good feeling" about the hearing and believed the justices understood the humiliation her client felt.

"They all asked the right questions," she said. "They're going to come up with the right rules and I hope it's not, 'Let's take the easy way out and allow all strip searches.' "

In a suit seeking damages that is pending the Supreme Court's decision, Florence maintains that he and his family were stopped that day as they traveled in a BMW because they are African American, and alleges racial profiling by police.

Goldstein argued that jail officials should use discretion in deciding whom to strip-search to avoid "too much of an intrusion on an individual's privacy and dignity."

Phillips countered that even nonviolent offenders may bring in contraband.

Justice Stephen Breyer questioned that assertion, especially when it comes to minor offenders.

"I can't find the justification," he said, explaining that his law clerk had told him that contraband had been found in only one out of 64,000 strip searches of nonviolent offenders.

Justice Sonia Sotomayor said "most of the studies" show that contraband is brought by corrupt guards or by visitors to inmates, not by those who are newly arrested and nonviolent.

Said Sotomayor: "Your rule is, inmates aren't entitled to any privacy rights in prison?"

Phillips responded: "There's no expectation of privacy" when you're in prison.

After class-action lawsuits were filed in New Jersey over strip searches, including Florence's, the state changed its policy on the searches.

Now, they can be performed only on violent criminals or those charged with serious offenses. They cannot include orders to squat and lift the genitals for a closer examination, Phillips said after the court session.

The previous policy, Justice Antonin Scalia suggested, "was a violation of the Constitution." He said the law allowed "pure visual inspection for contraband."

Some justices said they saw the need for searches but were concerned that they could be done for mere traffic violators. In some states, Sotomayor said, traffic violators are jailed.

Brooks DiDonato, a Marlton lawyer who helped with the brief on behalf of Burlington County, said that's not the case in New Jersey.

"Anyone in New Jersey who gets a ticket goes home," he said.

DiDonato also said that jail officers in Burlington County, unlike in Essex, did only a visual inspection of Florence after he showered.

The guards "ask you to basically pirouette so they can look for any signs of contraband . . . or signs of disease . . . or for gang markings, such as tattoos, brands and piercing," DiDonato said.


Burlington County lawyer Brooks DiDonato says traffic violators normally wouldn't be strip-searched.

www.philly.com/didonato


Contact staff writer Jan Hefler at 856-779-3224 or jhefler@phillynews.com.

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