One concerned who may be searched. The other asked how intrusive the search may be.
The various approaches to the two issues proposed by the lawyers in the case seemed to leave the justices unsatisfied and sometimes exasperated.
“You want us to write an opinion that applies only to squatting and coughing?” Justice Antonin Scalia asked at one point.
The case was brought by Albert W. Florence, a New Jersey man who was wrongly arrested for a supposedly unpaid fine. Before things were sorted out, he was held in two county facilities and strip-searched in each one.
Carter G. Phillips, arguing on behalf of Essex and Burlington Counties, conceded that Mr. Florence “was arrested under circumstances in which he candidly shouldn’t have been arrested.” But Mr. Phillips urged the justices to separate that issue from whether a blanket policy requiring strip-searches of all new prisoners was appropriate.
Thomas C. Goldstein, one of Mr. Florence’s lawyers, for his part conceded that strip-searches of people entering jails are often appropriate “like if it’s a serious offense or if they have any drug history.” But in other cases, he said, jail officials must have a reasonable suspicion that the new prisoners have contraband before conducting a close inspection of their naked bodies.
“It is an extraordinary intrusion on dignity and autonomy to strip him naked when they have no reason to do so,” Mr. Goldstein said of Mr. Florence.
At the same time, Mr. Goldstein acknowledged that some sorts of searches, even ones that many people would find unwelcome, are always permissible. “Showering in the presence of officers is not something that requires reasonable suspicion,” he said. But “a close inspection of the person at arm’s length,” he said, is on the other side of the constitutional line.
The distinction did not seem to satisfy some of the justices. “It’s O.K. to stand five feet away, but not two?” Justice Sonia Sotomayor asked. After some back and forth in which Mr. Goldstein declined to argue for any particular distance, she said, “That is a line that doesn’t make much sense to me.”
Mr. Florence testified that he had been made to squat, cough and lift his genitals. There was some dispute about precisely what happened, but Mr. Goldstein said there was no question that county officials had crossed the line set by the Fourth Amendment, which bars unreasonable searches. “There is no dispute,” Mr. Goldstein said of Mr. Florence, “that he was required directly in front of an officer to strip naked.”
Justice Scalia asked whether jail administrators could take account of medical as well as security concerns — whether they could look to see, as he put it, “if the person has any fleas or cooties.”
Such searches are acceptable, Mr. Goldstein said, if they are conducted by nurses or other medical personnel.
Justice Scalia was skeptical. “If you’re examined close up by someone who has a medical degree, it’s O.K.?” he asked. “And on the other hand, if it’s someone who does not have a medical degree, it’s not O.K.?”
“That is correct,” Mr. Goldstein replied.
The most pertinent Supreme Court precedent is Bell v. Wolfish, which was decided in 1979. It allowed strip-searches of people held at the Metropolitan Correctional Center in New York after “contact visits” with outsiders.
Mr. Goldstein said the Bell decision was premised on an effort to deter smuggling, which was sensible given that the visits there were planned. Arrests, on the other hand, are typically unexpected and unwelcome, he said.
Justice Elena Kagan seemed to agree. “Here,” she said of the case argued Wednesday, Florence v. Board of Freeholders, No. 10-945, “you are talking about somebody who is arrested on the spot. There is no opportunity for planning, for conspiracy with respect to contraband, is there?”
Nicole A. Saharsky, a lawyer for the federal government, which argued in support of the county officials, called that view too sanguine. Some people turn themselves in, she said, and some protesters decide to be arrested. And some people who have contraband when they are arrested unexpectedly may make a snap decision to hide it.
Mr. Phillips argued that the logic of the Bell decision should allow blanket strip-search policies for new prisoners of the sort that Mr. Florence described.
Indeed, Mr. Phillips said that jail officials should be free to conduct what he called “a much more intrusive true body-cavity search.”
Justice Samuel A. Alito Jr. asked whether that analysis would apply even to people arrested for traffic violations. Mr. Phillips responded that judges should defer to jail personnel and “respect their judgment that you can’t make a distinction based on that specific individual,” on “whether somebody is a minor offender or a major offender.”
Justice Sotomayor said she found that approach disturbing. “There is something unsettling,” she said, about permitting humiliating searches after an arrest for, say, “kids who are staying out after curfew.”
Justices Alito and Stephen G. Breyer asked for evidence that people arrested for minor offenses have been caught trying to smuggle contraband into jails, even after they were patted down and made to shower, as a result of an additional and more intrusive strip search.
The lawyers defending blanket strip-search policies had little to offer in response, and Justice Anthony M. Kennedy called the evidence on that point “somewhat skimpy.”