I’m just getting back to work after a leave of absence, and I’m still getting caught up on some major cases that were decided while I was out. One such case is Florence v. Board of Chosen Freeholders, __ U.S. __, 132 S. Ct. 1510 (2012), the jail strip search case recently decided by the Supreme Court. I wrote about that subject in this prior post, but the Court’s new opinion in Florence changes the legal landscape and calls for an update.
In Florence, the Court considered whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of everyone arrested for any minor offense, no matter the circumstances. The petitioner in the case, Albert Florence, was arrested during a 2005 traffic stop based on an outstanding warrant for failing to appear in a prior criminal case. There is some indication that the warrant shouldn’t have been in the officer’s computer system at all—Mr. Florence had long since paid the fine that had led to its issuance—but it nevertheless led to seven days of confinement in two county jails in New Jersey. At both jails, Mr. Florence was, pursuant to standard operating procedures, subjected to non-contact searches that involved removing all of his clothing and manipulating his body so officers could check for body markings, medical issues, and contraband.
Florence sued the jails under 42 U.S.C. § 1983, claiming it violated the Fourth and Fourteenth Amendments to perform a search like that on a person arrested for a minor offense as part of the routine intake process, without reasonable suspicion that he was dangerous or likely to be concealing contraband. Mr. Florence won in the district court but the Third Circuit reversed, 621 F.3d 296 (2010), holding that the jails’ search procedures struck a reasonable balance between inmate privacy and jail security. The Supreme Court granted certiorari to resolve a circuit split on the question of whether the constitution allows jails to conduct suspicionless strip searches of everyone admitted to a jail’s general population.
A divided Court affirmed the Third Circuit, with five Justices upholding the searches. Writing for the Court, Justice Kennedy began by noting that running a jail is difficult and the courts should, as a rule, defer to correctional officials as long as their policies are reasonably related to legitimate penological interests. He then spelled out why a blanket policy of searching everyone is reasonable. First, strip searches aren’t just for weapons and drugs—they also detect medical issues like lice and body markings like gang tattoos, both of which might necessitate segregating some inmates from the general jail population. Second, searches of only those reasonably suspected of being dangerous or possessing contraband would be underinclusive. “People detained for minor offenses can turn out to be the most devious and dangerous criminals.” After all, the Court noted, Oklahoma City bomber Timothy McVeigh was stopped for driving without a license plate, and one of the 9/11 terrorists was ticketed for speeding just days before the attack. Slip op. at 14. And finally, a rule requiring jails to figure out which inmates were dangerous before searching them would be difficult to administer. For instance, officers often lack ready access to comprehensive information about an arrestee’s prior criminal record. More generally, the Court was reluctant to call upon officers to engage in difficult line-drawing exercises during the “pressures of the intake process,” and so it opted for a bright-line rule. Id. at 17.
The Court concluded by noting that the facts of the Florence case did not require it to rule on whether a strip search would be reasonable for a detainee who would not be assigned to the general jail population. Chief Justice Roberts and Justice Alito each wrote concurring opinions to emphasize that exceptions to the Court’s rule might emerge in the future. In particular, Justice Alito noted that the opinion did not consider whether it would be reasonable to conduct a full strip search of an arrestee whose detention had not been reviewed by a judicial official, or for whom facilities apart from the general population might be available.
Justice Breyer authored a dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. He began by noting the longstanding rule that “[p]rison walls do not form a barrier separating prison inmates from the protection of the constitution.” Turner v. Safley, 482 U.S. 78 (1987). He then walked through the balancing test set out in Bell v. Wolfish, 441 U.S. 520 (1979), weighing the need for the search against the invasion of rights it entails. For him, the invasiveness outweighed the need in light of the alternatives available (metal detectors and other technologies, for example) and the lack of a record of specific record of instances where contraband was smuggled into a general jail population that could not have been discovered through searches based on a reasonable suspicion standard.
After Florence, a jail may have a policy of strip searching all arrestees who will enter the jail’s general population without any need for individualized suspicion. That’s new in this neck of the woods, as the Fourth Circuit was pretty clearly among those where such searches could only be conducted with reasonable suspicion that the arrestee possessed a weapon or other contraband. See Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981). I say “pretty clearly” because the Logan case actually involved a suspicionless search of an arrestee who was not admitted to the general jail population. Rather, she was detained in a separate holding cell at the jail. With that in mind jailers should continue to limit strip searches for those who will not enter the general jail population to circumstances where they have a reasonable suspicion that the arrestee possesses contraband. Moreover, in light of the 5–4 split in Florence, jailers may wish to pay careful attention to Justice Alito’s observation that the Court’s new rule might not apply to offenders who have yet to appear before a judicial official.
Finally, jailers should keep in mind the nature of the particular searches at issue in Florence, as the term “strip search” might mean different things in different places. The searches in Florence included, at one of the jails, an observed clothing exchange, showering, a visual inspection for body markings, and requiring the arrestee to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the other jail, officers inspected his “ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings,” and required him to “lift his genitals, turn around, and cough in a squatting position.” Slip op. at 3. Importantly, officers never touched arrestees in any way, and the searches were apparently conducted professionally without “intentional humiliation and other abusive practices.” Id. at 19. A good search policy would probably offer a particularized description of what it means by “strip search,” as well as a reminder that an otherwise reasonable and permissible search can be spoiled by being conducted in an unprofessional manner.
(In closing, I’d like to publicly thank my colleagues for covering my work during my leave. Thanks!)