I attended the oral argument this morning in Florence v. Board of Chosen Freeholders of the County of Burlington, a case on whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses. To my mind, the case is really a follow-up to Atwater v. City of Lago Vista, 532 U.S. 318 (2001), in which the Court considered whether the Fourth Amendment allows arrests even for very minor offenses. In Atwater, the Court concluded that the Fourth Amendment does allow arrests even for very minor offenses — in that case, a seatbelt violation that led to a small fine. Florence requires the Court to confront a downstream implication of Atwater: If the Fourth Amendment allows the police to make the arrest for the very minor offense, and the arrestee is then brought to the jail, does the Fourth Amendment also allow the kind of invasive strip search that often occurs on entry into jail to ensure that no contraband is brought inside?
The arguments in Florence largely resembled the arguments in Atwater. The question is, does it work to create a Fourth Amendment rule that specially treats the relatively rare case of arrestees for minor crimes and those that aren’t dangerous or likely to be bringing in contraband differently than the run of criminal cases? Or should the Court conclude that the Fourth Amendment leaves this relatively rare case to the discretion of the government and perhaps the political process?
In Florence, the problem for the challlengers to the government’s action is that everyone concedes that there are some circumstances in which the government needs to conduct some sort of inspection of arrestees for contraband as they enter a prison. The challengers, representing the petitioner Florence, therefore had the hard line-drawing problem: How to distinguish the different kinds of possible inspections, and how to say when different inspections are permitted?
As I understood the oral argument, the Petitioner, represented by Tom Goldstein, took the view that the government can always watch arrestees from 10 feet away or a similar distance while the arrestees are showering before entering the jail. If the government wants to inspect the arrestees more closely, however, such as at a close arms-length distance, then reasonable suspicion is required. According to Goldstein, reasonable suspicion should always exist when the arrest is for a major offense. In contrast, case-by-case reasonable suspicion should be required for arrests for minor crimes. The Respondents, represented by Carter Phillips, took the view that no line drawing was required: As long as the inspection was only visual inspection of the outside of a person’s body, then the Fourth Amendment did not apply at all upon entering a prison.
My sense of the argument was that the Justices were pretty skeptical of engaging in the kind of line-drawing that the Petitioner advocated. It was just too hard to distinguish a 10-foot inspection from a 5-foot inspection from a 2-foot inspection, or to distinguish a major crime from a minor one. So I would guess the votes will be there for a conclusion that no line-drawing as required, as the government has the discretion to do a close visual inspection of all arrestees when they enter jail.