Adam Liptak has a useful roundup of yesterday’s oral argument in Florence v. Board of Chosen Freeholders of Burlington County. The case involves a blanket policy of strip searching people arrested for minor offenses. It is a classic case where Supreme Court intervention to protect Fourth Amendment rights is warranted. The state is apparently unable to provide evidence of safety risks to would remotely justify suspicionless searches of people arrested for minor, non-violent offenses, and at an absolute minimum the Supreme Court should establish a standard of individualized reasonable suspicion for such searches that has some teeth. There seems to be some skepticism of the state’s position from the Court, but my concern is that because of their unwillingness to set clear rules even if the Court rules against the state I can see an opinion for the Court so “minimalist” it doesn’t really stop states from doing anything.
Another point that should be made is that the term “contraband” conflates things that have different implications for safety within prisons. The state has a very strong interest in insuring that people don’t smuggle weapons into prisons, but how many people arrested without warning for any offense — let alone minor, non violent offenses — are likely to have dangerous weapons hidden in intimate areas? If the contraband we’re talking about is drugs smuggling might be a little more likely but this doesn’t entail a risk posed to other prisoners. It’s a classic case of the War on (Some Classes of People Who Use Some) Drugs being used as an acid to dissolve the Bill of Rights; combining drugs and weapons into a generic “contraband” category allows the state to pretend there’s a more compelling justification for intrusive, humiliating searches than there actually is. Both generally and in individual cases, it would better if they were kept distinct, although there’s virtually no chance anyone on this Court will do so.