Can a prison perform a strip search of each detainee regardless of the reason for the arrest?
Petitioner Albert Florence was arrested on an outdated bench warrant for a non-indictable offense and was subjected to “strip searches” in two separate prison facilities. Florence sued both facilities, alleging that their blanket policies of strip searching all detainees, regardless of their offense, violates the Fourth Amendment. The United States Court of Appeals for the Third Circuit reversed a District Court opinion, holding that the policies in this case did not violate the Fourth Amendment. Florence argues that the Fourth Amendment protects detainees from suspicionless strip searches when less intrusive alternatives better serve penological interests. The Respondents contend that the prison context diminishes the Fourth Amendment’s privacy expectation, and that the privacy expectation is outweighed by the security interest promoted by blanket strip searches. The decision in this case could affect prison security, the psychological wellbeing of detainees, and the future volume of prison litigation.
Questions as Framed for the Court by the Parties
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.
On March 3, 2005, police arrested Petitioner Albert Florence in New Jersey on an Essex County bench warrant while he was a passenger in his sport utility vehicle. See Florence v. Board of Chosen Freeholders, 595 F.Supp.2d 492, 496 (D.N.J. 2009). The warrant was issued for non-indictable civil contempt related to a delinquent fine Florence had already paid prior to the day of his arrest. See id. Although Florence disputed the validity of the bench warrant, the arresting officer brought Florence to Respondent Burlington County Jail (“BCJ”). See id.
At BCJ, corrections officers subjected Florence to what Florence described as a “strip and body cavity search.” See Florence, 595 F.Supp.2d at 496. During the search, police required Florence to remove all of his clothing in front of an officer, open his mouth and lift his tongue, lift his genitals for visual inspection, and shower. See id. at 496–97.
After spending six days at BCJ, Florence was transferred to Respondent Essex County Correctional Facility (“Essex”). See Florence, 595 F.Supp. 2d at 497. At Essex, Florence alleges he underwent another strip and visual body cavity search. See id. This search entailed Florence removing his clothing, opening his mouth, lifting his genitals, showering, and squatting and coughing in front of officers. See id.
The charges against Florence were dismissed the day after his arrival at Essex, and he was released from the facility. See Florence, 595 F.Supp. 2d at 497. On July 19, 2005, Florence sued the Board of Chosen Freeholders of the County of Burlington ("BCF") and Essex on behalf of all detainees booked at BCJ and Essex for minor offenses since 2003 who were subjected to strip searches. See id. at 495–96. Florence alleged that their policies of visually searching all detainees violates the Fourth Amendment’s search and seizure protection. See id. at 500–01.
The United States District Court for the District of New Jersey granted class certification and determined that the facilities’ visual inspection procedures amounted to strip searches. See Florence v. Board of Chosen Freeholders, 621 F.3d 296, 299–300 (3rd Cir. 2010). Although BCJ also had a separate, more invasive procedure it called a strip search, the court determined that the disrobing involved in the visual inspection constituted a strip search. See Florence, 595 F.Supp. 2d at 502–504. Both BCJ and Essex follow a blanket policy of visually inspecting all detainees, regardless of the level of their offense. See id. at 512.
The District Court granted Florence’s motion for summary judgment, concluding that blanket strip searches for minor offenders are unconstitutional. See Florence, 621 F.3d at 301. On appeal, the United States Court of Appeals for the Third Circuit reversed, determining that blanket strip search policies are reasonable and do not violate the Fourth Amendment. See id. at 311.
The United States Supreme Court granted certiorari to determine whether the Fourth Amendment allows prisons to strip search all detainees, even those arrested for minor offenses, under any circumstances. See Florence v. Board of Chosen Freeholders, 131 S. Ct. 1816 (2011).
The Fourth Amendment protects individuals from “unreasonable” searches. See Florence v. Board of Chosen Freeholders, 621 F.3d 296, 301 (3rd Cir. 2010). Whether a search is unreasonable depends on the context of the search: specifically, a balancing of “the need for the particular search against the invasion of personal rights the search entails.” See id. The United States Court of Appeals for the Third Circuit held that the strip searches in this case were reasonable because the security interests of the Respondent prisons outweighed the privacy interests of their detainees. See id. at 311.
Petitioner Florence claims that the Fourth Amendment requires an official to have a reasonable suspicion of contraband to perform strip searches of detainees during prison intake. See id. at 12. Florence argues that the circumstances of his arrest did not create the reasonable suspicion that would outweigh his legitimate expectation of privacy from intrusive searches. See id. at 20–21. In contrast, Respondents BCF and Essex argue that the penological interests of a prison in conducting searches at intake outweigh the privacy interests of detainees. See Brief for Respondent, Board of Chosen Freeholders of the County of Burlington (“Freeholders”) at 34–35; Brief for Respondent, Essex County Correctional Facility (“Essex”) at 18–19.
Does the Fourth Amendment apply to detainees?
Petitioner Florence argues that the Fourth Amendment protects individuals from intake searches, absent reasonable suspicion, in the prison setting. See Brief for Petitioner at 18–19. In addition, Florence claims that, in most cases, an individualized reasonable suspicion to justify a strip search must be found for each detainee. See id. at 20–21. He asserts that the context of a search determines the reasonableness of privacy expectations, and that detainees in a prison context still maintain an expectation of privacy that the Fourth Amendment must protect. See id. at 19. In addition, because the government lacks the authority to punish individuals who have not been convicted, Florence maintains that a court should consider the reasonableness of a detainee’s expectation of privacy differently from that of convicted inmates. See id. at 19–20.
According to BCF and Essex, Fourth Amendment protections against searches in the prison context are either severely limited, or absent altogether. See Brief for Respondent, Freeholders, at 12–13; Brief for Respondent, Essex, at 16. Essex argues that this is because the custodial relationship of a prison to a detainee substantially delimits a detainee’s reasonable expectation of privacy. See Brief for Respondent, Essex, at 18–19. Additionally, BCF and Essex argue that, because a prison requires surveillance of inmates and strict controls over entrance, the expectation of privacy is much lower than in a home or car. See Brief for Respondent, Freeholders, at 18–19; see Brief for Respondent, Essex, at 19. Essex also claims that the historical context of the Fourth Amendment shapes the meaning of a legitimate expectation of privacy: The Founders ratified the amendment during a time when prisons cleansed and strip-searched new inmates. See id. at 16–18. Essex adds that, because prisons are highly monitored, there is no reason to distinguish between a pre-trial detainee and a convicted inmate. See Brief for Respondent, Essex, fn 4 at 20. Accordingly, Essex argues that the prison setting diminishes the reasonable expectation of privacy of detainees and does not protect detainees from searches under the Fourth Amendment. See Brief for Respondent, Essex, at 16–17.
If the Fourth Amendment applies, does it protect certain detainees from strip searches?
Florence argues that a high level of reasonable suspicion is necessary to justify a procedure as intrusive as a strip search under the Fourth Amendment. See Brief for Petitioner at 21–22. According to Florence, a strip search invades the core of privacy that the Fourth Amendment protects, threatening damage to an individual’s dignity, self-esteem, and psychological wellbeing. See id. at 21–24. He claims that the circumstances of his arrest—being pulled over for speeding during a family trip with relatives and brought in on an outstanding warrant for a non-indictable offense—did not establish an individualized suspicion, sufficient to justify a strip search, that he would smuggle contraband into prison. See id. at 30. Florence adds that, even if the prison officials had reasonable suspicion, they performed his strip searches in a manner so degrading as to render each search unreasonable. See id. at 26–27.
In response, BCF and Essex argue that legitimate penological interests outweigh the expectation of privacy in prison. See Brief for Respondent, Freeholders, at 20; see Brief for Respondent, Essex, at 40–41. Essex asserts that a detainee’s expectation of privacy must be measured objectively and that the prison context necessarily diminishes this expectation. See Brief for Respondent, Essex, at 16, 19–20. Furthermore, BCF argues that, because of the context of confinement, a detainee invokes a sufficient level of suspicion to warrant a strip search. See Brief for Respondent, Freeholders, at 21–22. Accordingly, BCF and Essex maintain that prison interests weigh in favor of strip searches and a general rule that confined individuals, both inmates and detainees, are subject to a general level of suspicion, rather than individualized suspicion. See Brief for Respondent, Freeholders, at 21; see Brief for Respondent, Essex, at 20.
Even if the Supreme Court applies a more deferential standard to prisons than the Fourth Amendment balancing test, Florence argues that governmental interests in preventing and deterring the smuggling of contraband fail, in light of less intrusive alternatives, to justify strip searching all detainees. See Brief for Petitioner at 27–28; 31–34; fn 14 at 40–41. Florence contends that the strip search, however degrading, is not effective in uncovering hidden contraband, unlike an exhaustive body-cavity search. See id. at 27. According to Florence, less intrusive alternatives to the strip search include pat-down searches, metal detectors, and visual observation with undergarments. See id. at 31–32. Florence maintains that, if an officer finds reason to suspect smuggling, the officer may investigate with a more intrusive search. See id. at 32. To address the privacy interest of detainees, Florence offers the alternative policy of separating those arrested for minor offenses from other inmates. See id. at 34–35.
BCF and Essex argue that, even if a prison policy intrudes on a detainee’s privacy, the prison practice is valid if it “reasonably relates to a legitimate penological interest.” See Brief for Respondent, Freeholders, at 26; Brief for Respondent, Essex, at 25. Essex argues that the risk of smuggling contraband is sufficiently significant to justify prison administrators' exercise of discretion in including strip searches during intake procedures. See id. at 50–51. Claiming that prison security is a legitimate interest, Essex further argues that an individual who was arrested for a nonfelonious crime is not less likely to smuggle contraband into prison. See Brief for Respondent, Essex, at 34–36. Additionally, BCF cites the prevention of gang violence and spread of lice as legitimate penological interests that outweigh a detainee’s expectation of privacy. See Brief for Respondent, Freeholders, at 34–35. Finally, Essex argues that implementing Florence’s suggested alternatives would increase training and administrative costs, without achieving the requisite level of prison security. See Brief for Respondent, Essex, at 37–39.
In Florence v. Board of Chosen Freeholders, the Supreme Court will decide whether the Fourth Amendment allows prisons to conduct strip searches of all detainees under any circumstances, without regard to the severity of their offenses. See Florence v. Board of Chosen Freeholders, 131 S. Ct. 1816 (2011). The Petitioner, Albert Florence, argues that prior case law mandates a reasonable suspicion standard for strip searches. See Brief for Petitioner at 18–19. The Respondents, Essex and BCF, contend that the Fourth Amendment does not apply to a prison environment, where detainees have no expectation of privacy, and therefore that prison officials should be able to strip search detainees under any circumstances. See Brief for Respondent, Board of Chosen Freeholders of the County of Burlington at 12–13.
The Former Attorneys General of New Jersey (“NJ AGs”) contend that a blanket strip-search policy does not increase prison security. See Brief of Amici Curiae Former Attorneys General of New Jersey (“NJ AGs”) in Support of Petitioner at 12–14. The NJ AGs argue that there are other effective ways to achieve prison security than strip searches, such as pat-downs, metal detectors, and room searches. See id. at 20–21. According to certain academics who study gang behavior, strip searches do not necessarily identify gang members, as gang affiliations are usually prominently marked and individuals may change their affiliation while retaining old marks on their bodies. See Brief of Amici Curiae Academics on Gang Behavior in Support of Petitioner at 9, 17–18. Additionally, the Medical Society of New Jersey points out that strip searches are not an effective way of containing the spread of contagious diseases. See Brief of Amici Curiae Medical Society of New Jersey, et al. in Support of Petitioner at 7–8.
The Policemen’s Benevolent Association (“PBA”) counters that requiring a reasonable suspicion standard will lead to a decrease in security for both prison officials and detainees. See Brief of Amici Curiae Policemen’s Benevolent Association, et al. in Support of Respondents at 11. The PBA argues that prison officials will not be able to catch all contraband without a visual inspection; without this visual inspection, dangerous weapons and drugs may enter prison facilities. See id. In support of this argument, Respondent Essex indicates that non-indictable detainees are more likely to smuggle contraband into prisons than detainees whose offense would automatically trigger a reasonable suspicion. See Brief for Respondent, Essex County Correctional Facility at 34–35. The National Sheriffs’ Association also asserts that the ability to identify health issues and gang affiliations by a strip search is crucial to maintaining prison safety; such identifications enable officers to stop the spread of disease or to take precautionary steps to separate rival gang members. See Brief of Amici Curiae National Sheriffs’ Association, et al. in Support of Respondents at 6–8.
The NJ AGs argue that allowing blanket policies of strip-searching will result in a loss of privacy to detainees and will cause degradation and needless trauma. See Brief of NJ AGs at 25–27, 31–32. A strip search, Florence contends, communicates to the detainee that he is worth less than other people in society, leaving him feeling humiliated and lowering his self-esteem. See Brief for Petitioner at 22. Psychiatrists indicate that a strip search can also leave serious and lasting psychological harm on a detainee, including symptoms of post-traumatic stress disorder and suicidal tendencies. See Brief of Amici Curiae Psychiatrists in Support of Petitioner at 3, 9. In addition to the effects on detainees, Florence contends that a blanket strip search policy causes prison staff to become desensitized to these indignities, resulting in a view of detainees as being less than human. See Brief for Petitioner at 23–24.
The County Commissioners Association of Pennsylvania (“CCAP”) counters that a more pressing social cost is the expense to prisons if they are forced to comply with a reasonable suspicion standard. See Brief of Amici Curiae County Commissioners Association of Pennsylvania in Support of Respondents at 25. CCAP contends that a reasonable suspicion standard will lead to an increase in the number prison employees, work hours, and training time required at all prisons. See id. CCAP also indicates that prison litigation would increase with a reasonable suspicion standard, distracting prison officials from their jobs in operating the prisons. See id. The strip search guidelines are less clear with such a standard, DRI argues, which leads to more profiling and abuse of discretion by prison officials. See Brief of Amici Curiae DRI in Support of Respondents at 10–11. Litigation might also increase, DRI points out, because prisons' inability to predict what a court will deem reasonable will frustrate their efforts to create good strip search guidelines. See id. at 12.
The Supreme Court will determine whether the Fourth Amendment permits prisons to strip search all detainees, including those arrested for minor offenses. Petitioner Florence argues that the reasonable privacy expectations of a detainee are substantial and outweigh the prison interest in performing suspicionless strip searches at intake. Respondents BCF and Essex contend that penological interests in security are legitimate and outweigh the any reasonable privacy expectations of a detainee. The Supreme Court’s decision could impact safety for prison staff and inmates, and will determine the rights of arrestees.
CNN U.S., Bill Mears: High Court to Examine Strip Searches for Minor Offenses (Apr. 4, 2011)
Verdict, Sherry F. Colb: The Supreme Court Agrees to Review the Constitutionality of Strip Searching All Arrestees Who Enter a Jail (Aug. 24, 2011)
Fordham Law Review, Daphne Ha: Blanket Policies for Strip Searching Pretrial Detainees: An Interdisciplinary Argument for Reasonableness
FindLaw: Strip Search After an Arrest