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Supreme Court hears arguments on strip searches, deportation

The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Wednesday. In Florence v. Board of Chosen Freeholders of County of Burlington [transcript, PDF; JURIST report], the court considered whether a suspect's Fourth Amendment [text] rights were violated when he was strip searched twice after being arrested for a non-criminal offense and the circumstances did not suggest that he was carrying contraband. Petitioner Albert Florence was arrested in New Jersey after being pulled over when it was discovered that there was an outstanding warrant against him for failure to pay a fine, which is considered a non-criminal offense in New Jersey. He produced a letter stating that he had paid the fine, but the officer made the arrest anyway. Florence was transported to a local jail where he was forced to strip naked for inspection. He was transferred to another correctional facility a week later and was again subjected to a strip search. Florence later filed suit under 42 USC § 1983 [text], alleging that his Fourth Amendment rights were violated. The US District Court for the District of New Jersey granted summary judgment for the defendants, but the US Court of Appeals for the Third Circuit reversed [opinion, PDF]. Counsel for Florence argued that the search was illegal because it was not based on reasonable suspicion, but was based on a jail policy that subjected every arrestee to a strip search. Counsel stated that the case was distinct from the situation in Bell v. Wolfish [materials], where the court ruled that the possible innocence of arrestees should not prevent officials from performing searches in order to maintain their facility. Counsel made a distinction between major versus minor offenders, arguing that strip searches are more warranted for offenders who are "inclined to violence," and called any argument finding suspicion that Florence was smuggling contraband "laugh out loud funny." Counsel requested that the jail's blanketed policy be replaced by a case-by-case review. Counsel for the facilities argued that there was no reasonable suspicion requirement in the case because the search was more cursory and not invasive, like a cavity search. Counsel further argued that the classification of the offense should not matter because minor offenders could just as easily as major offenders smuggle contraband into the prison population. Counsel asked that the court give deference to the judgment of prison officials as to what is appropriate.

In Judulang v. Holder [transcript, PDF; JURIST report], the court considered whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable, but did not leave and reenter the US in the time between his conviction and commencement of removal proceedings, may seek a discretionary waiver of the conviction and thereby avoid removal under former section 212(c) of the Immigration and Nationality Act (INA) [text]. Judulang, the son of immigrants from the Philippines, pleaded guilty to voluntary manslaughter in 1989 and later claimed that he could seek a discretionary waiver of deportation under 212(c). The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that Judulang's aggravated felony crime of violence was not a ground for exclusion under the statute. Counsel for Judulang argued that he would have been eligible to apply for such a waiver under section 212(c) prior to the BIA's 2005 decision in Matter of Blake [opinion, PDF], which changed the policy and found no statutory counterpart to 212(c) in the current immigration Act. Counsel argued that the change in policy violated equal protection as well as "considerations of fair notice, reasonable reliance, and settled expectations." Counsel for the government argued that the BIA was consistent in its decision making in this area of the law, citing earlier decisions that were consistent with Blake.

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