This morning I appeared on the NPR radio program “On Point with Tom Ashbrook” to discuss the Supreme Court’s recent 5-4 Fourth Amendment case on strip searches, Florence v. Board of Chosen Freeholders of County of Burlington. I was joined by law prof Erik Luna and attorney Susan Chana Lask.
Florence raises a class line-drawing problem. On one hand, there is no obvious way to separate the dangerous from nondangerous individuals to know which to search without reasonable suspicion, and also no obvious way to distinguish degrees of visual inspection ranging from merely watching a person as they shower to inspecting them at “arm’s length” or “closely.” On the other hand, given that there are 13 million jail intakes every year nationwide, a blanket rule allowing strip searches will allow some people to be searched who should not have been subject to that indiginity. At some level, the case boils down to where you place the presumption. Do you presume that the jail administrators are best equipped to set policy, and overturn that judgment only if they are clearly wrong? Or do you assume that people should not be searched, and only allow them to be searched if the case for it is clearly established?
Given the egregious facts of the petitioner’s case, the Court’s failure to draw a line to give relief to the petitioner strikes a lot of people as outrageous (including Tom Ashbrook, the host of the show). My own view is that both the majority and dissent offer plausible ways to deal with the difficult problem the Court faced. It strikes me as plausible to say that so long as there is no touching involved and the individual is being admitted to the general population, that a per se rule allowing the visual inspection is reasonable. But it also strikes me as plausible to draw some lines, even if a bit arbitrary and uncertain, to try to carve out some cases that require individualized suspicion. The problem is particularly difficult because the harm at the search stage is largely the result of earlier Fourth Amendment decisions like Atwater that allow arrests based on probable cause for any offense; it’s not clear to me that the Court should impose limits at the jail-entry stage to correct perceived difficulties with the Court’s precedents on arrests. So I end up a bit on the fence on this one.