The New Jersey Police Chief Magazine | May 2012 Continued from previous page
the search is based on a reasonable suspicion that a weapon, CDS,… or contraband will be found and the search is authorized pursuant to regu- lations promulgated by the Commissioner of the Department of Correc- tions. [emphasis added]. N.J.S.A. § 2A:161A-1.
In New Jersey, a strip search is defined as “the removal or rearrangement of clothing for the purpose of vis- ual inspection of the person’s undergarments, buttocks, anus, genitals or breasts. The term does not include any removal or rearrangement of clothing reasonably required to render medical treatment or assistance or the removal of articles of outer-clothing such as coats, ties, belts or shoelaces.” N.J.S.A. 2A:161A-3(a).
The regulations governing the New Jersey Department of Corrections outline the procedures for strip searches of individuals arrested or detained for other than a crime. “[A]ll inmates admitted to an adult county correctional facility shall be thoroughly searched in accordance with the applicable provisions of N.J.S.A. 2A:161A-1 et seq., and this sub chap- ter.” N.J.A.C. 10A:31-8.3(a). Accordingly, County Correctional institutions must implement guidelines that are in compliance with New Jersey’s Strip Search Act.
This is exactly the rule that Florence sought to have implemented as a Federal floor in his argument before the United States Supreme Court. However, the Court took the position that the Fourth Amendment allows the officials in charge of the facilities to put in place the rules that they feel best protect the other inmates and their staff. In writing for the Court, Justice Kennedy articulated in his opening sentence that “[c] orrectional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies.” Florence at *3. The Court found that the justifications proffered by the Respondents, in this case the County facilities, were significant interests that substantially supported the importance of deferring to correctional officials who are experienced in these matters. The concurring opinion of Justice Alito specifically recognized the limitation of the holding by the Court. That this is what the Fourth Amendment requires of correctional institutions when admitting persons into the general population. Justice Alito noted that “the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.”
The correctional institutions in New Jersey have a strong interest in the words penned by Justice Ken- nedy.
If the officials in charge of instituting policies at correctional facilities across the State would ever
hope to assert more control over the safety measures and precautions implemented at their facilities, Justice Kennedy’s argument carries a significant amount of weight. Weight that is needed to wrestle the safety of all individuals present at these facilities out of the hands of the legislature who are far removed from the daily dangers that are inherent in the industry. As noted above, New Jersey has a history of providing greater protection of individual liberties than the Federal Constitution requires.
It may very well be a long
process to convince the State Legislature to revise N.J.S.A. 2A:161A-1 et seq., to conform to the Florence decision. However, the backers of any potential movement for change can now point to the words of Justice Kennedy and the United States Supreme Court to support their initiative.
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