Limits on strip searches tested

A New Jersey man who was strip-searched twice and spent six days in jail because of an administrative error wants a federal panel to force prison officials in Burlington and Essex Counties to change practices and pay for their mistakes.

A three-judge panel for the U.S. Court of Appeals for the Third Circuit heard arguments Thursday in Philadelphia on whether it is constitutional for prison officials to strip-search people arrested on minor offenses.

"This case is strange on so many levels," said Judge Thomas Hardiman, who questioned whether the matter should be sent back to U.S. District Judge Joseph Rodriguez. Rodriguez ruled in Camden last year that it is unconstitutional to strip-search those arrested for minor offenses who pose no apparent danger.

The Third Circuit panel noted that judges across the country had interpreted a 1979 U.S. Supreme Court ruling concerning treatment of detainees, Bell v. Wolfish, differently, even though most circuit courts agree strip searches of those charged with minor, or "non-indictable" offenses, are unconstitutional.

Based on those decisions, millions have been paid to inmates. Philadelphia agreed last year to pay $5.9 million to settle a class-action lawsuit, and Camden County agreed to pay $7.5 million in 2007.

Thursday's arguments centered on a person's right to privacy versus a prison's security needs. The case stems from the 2005 mistaken arrest of Albert Florence in Burlington County.

Florence was stopped for speeding on I-295, but was arrested on a warrant issued by an Essex County judge who had found him in contempt for not paying a fine. Florence, however, had already paid the fine and showed police a receipt during the traffic stop.

Despite that, he was arrested in front of his wife and 3-year-old child and spent six days in the Burlington County jail before he was taken to the Essex County jail. He was subjected to two strip searches before an Essex County judge confirmed the error and ordered Florence released.

Attorneys for Burlington and Essex Counties argued for the need to strip-search all inmates to find contraband, identify gang tattoos, control the spread of lice and bedbugs, and check for infectious diseases, such as the MRSA virus.

"Prison is a dangerous place," Judge Delores Sloviter said. "Are we stepping into an area we shouldn't be stepping into unless it is clear it is unconstitutional?"

Florence's attorney, Susan Chana Lask, said both prisons had clear policies, consistent with New Jersey law, that forbade such searches. Those policies, however, are not followed, Lask said.

"They shouldn't be doing blanket strip searches on everyone," she said.

Earlier this year, five former New Jersey attorneys general who served between 1990 and 2006 filed a court brief agreeing it is unconstitutional to strip-search everyone who enters the prison.

Guidelines adopted by the New Jersey Attorney General's Office in the 1990s, after numerous lawsuits filed in the 1980s, allow strip searches if a person has been arrested on a felony charge or if there is a reasonable suspicion he or she could be hiding some form of contraband.

J. Brooks DiDonato, an attorney for Burlington County, said that although the law and policies offered guidance to prisons, nothing precluded prisons from conducting strip searches across the board. Officials, he said, should not be forced to make judgment calls to determine who is a threat.

"Our position is flat out: We're not required to make that decision," DiDonato said, adding that most prison violence was directed at other inmates. "The policy is designed to protect people like Mr. Florence."

Although DiDonato and Essex County attorney Alan Ruddy couldn't say how many prisoners arrested on minor offenses had tried to smuggle contraband, they assured the panel that they had recovered the unimaginable from unmentionable places.

For example, recently in Atlantic County, where policies have changed because of lawsuits, an overweight inmate was booked without a strip search, DiDonato said. Inside the prison, he said, authorities recovered a gun and two clips of ammunition that had been concealed in rolls of body fat.

In 2007, Ruddy said, there were 14 instances of contraband confiscated during intake at the Essex County jail, which houses about 25,000 inmates a year.

In Bell, delivered by Justice William Rehnquist, the Supreme Court ruled that body-cavity searches of prisoners who had contact visits are constitutional. Lower courts, however, have held that nonviolent offenders, at the time of arrest, should be given different consideration from that given a convicted killer, unless officials have reasonable suspicion.

Thursday, the judges wanted more statistics specific to the number of inmates held on minor charges and contraband recovered. They questioned why Rodriguez had not required that information.

"Why shouldn't we remand for more information?" Hardiman asked.

The panel did not indicate when it would rule.