When the Constitution was originally drafted, it did not contain any provisions for personal liberties. Seeing the need for this, our Founders drafted ten amendments guaranteeing individual liberties called the "Bill of Rights". The Fourth Amendment holds: The right of the people to be secure in their persons, houses, ... against unreasonable searches and seizures, shall not be violated,.... The rights guaranteed in the Fourth Amendment and in particular the meaning of the term "unreasonable searches" have recently come under assault since the Supreme Court issued its ruling in the Florence v. Board of Chosen Freeholders of the County of Burlington case. In a narrow 5-4 decision, the Court voted to affirm the power of correctional facilities to conduct visual strip searches of prisoners regardless of the nature of their suspected crimes.
Since this decision will most certainly have serious repercussions for the more than two million Americans presently under incarceration, let's take a look at how the unchecked power of correctional facilities to conduct suspicionless strip searches impacted the life of just one of its victims, the plaintiff in the Florence v. Board of Chosen Freeholders case, Albert Florence. On May 3, 2005, Mr. Florence was driving with his son and wife to his mother-in-law's home in New Jersey when his car was pulled over by a state trooper for speeding. When the trooper entered Mr. Florence's information into the police database, he found that there was a warrant issued for Mr. Florence's arrest due to unpaid traffic fines. In spite of the fact that Mr. Florence carried with him an official letter stating that the fines had in fact been paid, the trooper arrested him in front of his family and brought him to the Burlington County Detention Center. At Burlington, Mr. Florence underwent a series of visual searches at the hands of the correctional officials, which involved him stripping naked, spinning in a circle, and lifting up his genitals. Six days later he was transferred to the Essex County Correctional Facility, where, according to Mr. Florence, the officials ordered him to undress and "Turn around... Squat and cough... Spread your cheeks." Mr. Florence, a family man wrongfully accused of a minor offense, understandably felt that this treatment crossed a line in violating his right to privacy. In an interview with the New York Times he said of the experience, "It was humiliating. It made me feel less than a man." Mr. Florence subsequently brought a civil rights lawsuit against the County of Burlington claiming that his fourth and fourteenth amendment rights had been violated during his stay in prison. Unfortunately, when the case was brought before the Supreme Court, the majority of the Justices deemed otherwise. "In addressing this type of constitutional claim, 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" wrote Justice Anthony Kennedy in the Court's majority opinion. In the case of Mr. Florence, what could be more unjustified than forcing a law abiding father of four to squat naked and degrade himself before correctional officials on two occasions because of a charge of an unpaid traffic fine? What could be more unnecessary than that? The American Bar Association, in its Standards on Treatment of Prisoners, prescribes searches of inmates' bodies only "upon suspicion that the prisoner is carrying contraband." The practice of strip searching prisoners without suspicion of contraband has actually been outlawed in ten states. These precedents, however, were not enough to sway the opinion of the five more conservative members of the Supreme Court, who argued that the "seriousness (or lack therof) of an offense is a poor predictor of who has contraband." Earlier this month, in the Supreme Court's deliberation over the Affordable Care Act passed by Congress and the constitutionality of the federal government forcing Americans to purchase health care, Justice Antonin Scalia asked the question, "If the government can do this, what, what else can it not do?" Perhaps he should have asked himself this same question before voting in favor of suspicionless strip searches last week. If the federal government can give free rein to prison officials to strip and humiliate suspects of minor offenses like outstanding traffic fines without justifiable cause, what might be considered an "unreasonable search"? What, in the words of Justice Scalia, can they not do?