The United States Supreme Court yesterday announced a new rule further eviscerating our disappearing right to privacy. In a 5-4 majority decision written by Justice Kennedy, joined by justices Roberts, Alito, Scalia, and Thomas, the Court held that the Fourth Amendment does not prohibit jails from strip-searching all inmates, including people jailed for minor offenses, if they are to be placed in general population. The ruling applies to visual searches of genital areas by corrections officers without physically touching the inmate.
Such searches are commonly referred to as a “squat and cough” that, in theory, is supposed to dislodge any contraband concealed in the vagina or rectum. In practice, they are used to humiliate inmates and emphasize that they are not in control.
The case was brought by Albert Florence, a New Jersey man who said he was subjected to two invasive inspections in 2005 after being mistakenly arrested for not paying a fine.
A state trooper pulled over Florence’s BMW in 2005 as he and his family were on the way to his mother-in-law’s to celebrate the purchase of their new home. He was handcuffed and arrested in front of his distraught, pregnant wife and young son.
He spent seven days in jail because of a warrant that said, mistakenly, that he was wanted for not paying a court fine. In fact, he had proof that the fine had been paid years earlier; he said he carried it in his glove box because he believed that police were suspicious of black men who drove nice cars.
Florence was jailed in Burlington County and then Essex County before a magistrate ordered him released. At Burlington, he said, he was forced to disrobe in front of an officer and told to lift his genitals. At Essex, he was strip-searched again and, he said, was made to squat and cough in front of others, a maneuver meant to expel anything hidden in a body cavity.
Ten states currently prohibit jails from strip searching new inmates jailed for misdemeanors absent reasonable suspicion to believe they are concealing contraband. The federal Bureau of Prisons has a similar rule. This ruling does not require a change in policy.
Justice Breyer wrote the dissent, joined by justices Ginsberg, Sotomayor, and Kagan.