Last month, the United States Supreme Court, in a 5 to 4 decision, decided the jail strip search case of Florence v. Board of Chosen Freeholders, affirming the split decision of Third Circuit Court of Appeals.
Albert Florence, an African American, was riding as a passenger in a vehicle that was stopped for speeding on a New Jersey interstate. The officers ran a check on Florence and found an old warrant for failure to pay a fine after he had pleaded guilty to weapons related offenses. He showed proof that he had paid the fine to the officers, but he was nonetheless handcuffed, arrested, and taken first to the Burlington County Jail, where, pursuant to the County’s strip search policy, he was forced to strip naked, lift his genitals, and open his mouth in order to be visually examined for contraband. He was then compelled to take an observed shower. Six days later he was taken to the Essex County Jail where he was again strip searched, this time with the added indignity of squatting and coughing for his anus to be visually observed. The next day he was finally brought before a judge who said he was “appalled” by the course of events and released him. Florence then sued the officers and counties involved, alleging, among other claims, that he was subjected to searches pursuant to unconstitutional county policies that violated the Fourth Amendment. The federal district judge ruled in Florence’s favor on this claim on summary judgment. The defendants appealed and the case went up to the Third Circuit Court of Appeals.
In a 2-1 decision, the Third Circuit reversed the ruling of the district judge. After noting that ten Circuit Courts of Appeals had decided to the contrary, the Third Circuit majority held that under the Supreme Court’s decision in Bell v. Wolfish, blanket suspicionless jailhouse strip searches of persons arrested for minor offenses was constitutionally permissible. The Supreme Court agreed to hear the case in order to determine the following question: “Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.”
Justice Kennedy wrote the majority opinion, which first emphasized that in Turner v. Saffley, “the [Supreme] Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld ‘if it is reasonably related to legitimate penological interests.’” Justice Kennedy then turned to Bell v. Wolfish, which upheld the blanket strip searching of prisoners after jail contact visits, as “the starting point for understanding how this framework applies to Fourth Amendment challenges.” Florence. Drawing heavily from the amicus briefs of numerous prison warden and police associations, as well as from Justice Kennedy’s own predilections, which he had articulated at oral argument, the majority supported a blanket search rule by opining that “people detained for minor offenses can turn out to be the most devious and dangerous criminals,’ and citing to the necessity of finding weapons and other contraband hidden in and around body cavities, discovering gang tattoos, and detecting lice and other health problems. Moreover, the “laborious administration of prisons would become less effective and likely less fair and evenhanded were the practical problems inevitable from the rules suggested by the petitioner to be imposed as a constitutional mandate.” In conclusion, Justice Kennedy, placed some limitations on the Court’s holding, excepting strip searches of persons not placed in the jail’s general population, strip searches that include touching, and strip searches designed to harass or humiliate. Justice Scalia and Justice Thomas joined Kennedy in the decision, however Thomas did not join the part of the opinion placing the limitations articulated by Kennedy.
Chief Justice Roberts and Justice Alito filed separate concurring opinions, in which they agreed with Justice Kennedy’s ruling, but stated exceptions to the blanket rule suggested by Justice Kennedy. Roberts pointed out that Florence was not arrested for a minor traffic offense, and that there was no alternative to his placement in general population, while Alito, after pointing out that a visual strip search “can be humiliating and deeply offensive to many,” wrote that the Court “explicitly reserves judgment” on “whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee’s detention has been reviewed by a judicial officer.”
Justice Breyer wrote the dissenting opinion, joined by Justices Ginsburg, Sotomayor and Kagan. Breyer first pointed out that, in contrast to the breadth of the question presented, “[t]his case is limited to strip searches of those persons entering a jail’s general population.” Additionally, he emphasized that the searches in question, because they “involve close observation of the private areas of a person’s body . . . constitute a far more serious invasion of that person’s body” than do searches that consist only of undressing and taking an observed shower.
Relying on a wide range of studies, regulations, and empirical data, including from the American Correctional Association, the Bureau of Prisons, and the National Police Accountability Project of the National Lawyers Guild, while distinguishing Bell on its facts, Justice Breyer debunked much of the majority’s seemingly blind deference to prison officials, whose word, he stated, while “important,” standing alone could “not be sufficient.” In his view, the invasion of privacy occasioned by the kind of strip search at issue was “particularly acute” when it was performed on persons arrested for minor offenses such as a traffic ticket, for not paying a civil fine, or for a minor trespass. Hence he found that the invasion of privacy at issue did not meet the Bell and Turner requirement that it be “reasonably related” to the justifying “penological interest” and not be “exaggerated.” In conclusion, the dissent could “not find justification for the strip search policy at issue here – – – a policy that would subject those arrested for minor offenses to serious invasions of their personal privacy.”
In summary, the Florence decision is essentially limited to the facts of the case, with eight justices agreeing that the decision does not extend to traffic offenses, to cases where the person is not placed in general population, where the search is designed to harass or humiliate, or is performed before a Gerstein probable cause hearing is held.
This article is adapted from an article written by PLO attorney Flint Taylor which appeared in The Police Misconduct and Civil Rights Law Reporter, Volume 10 Number 8, March/April 2012.