The United States Supreme Court recently issued its decision in the case of Florence v. Board of Chosen Freeholders of County of Burlington 566 U.S. ___ (April 2, 2012). The issue in the case was whether county jail officials in New Jersey had violated the Fourth and Fourteenth Amendments by conducting a close visual inspection of a pretrial detainee while he was undressed — in other words, a strip search.
According to the Bureau of Justice Statistics, more than thirteen million inmates are admitted to jails every year (Department of Justice, Bureau of Justice Statistics, T. Minton, Jail Inmates at Midyear 2010 — Statistical Tables 2 (2011), cited in Florence).
Violence in jails is a significant risk for inmates and staff alike. “Inmates commit more than 10,000 assaults on correctional staff every year and many more among themselves” (Department of Justice, Bureau of Justice Statistics, J. Stephan & J. Karberg, Census of State and Federal Correctional Facilities, 2000, p. v (2003), cited in Florence).
Strip Searches Challenged
The risk of introduction of contraband has resulted in jail regulations which require strip searches of inmates before they may be placed in a facility’s general population. Criminals can be enterprising when it comes to hiding contraband. Examples from the record in the Florence case included reports of a misdemeanor arrestee taping drugs and matches under his scrotum and another misdemeanor arrestee who concealed a lighter, tobacco, tattoo needles, and other items in his rectal cavity. Although not mentioned in the Supreme Court’s opinion, see the recent report of a man believed to have concealed a ten-inch revolver in his rectum.
The petitioner in the Supreme Court’s recent case, Albert Florence, filed a federal lawsuit against two New Jersey jails, alleging that county jail officials had violated his Fourth and Fourteenth Amendment rights by subjecting him to a “strip search” while a jail official looked for evidence of injury or disease (to identify any need for medical attention), body markings (tattoos or other gang marks), and contraband (drugs, cigarettes, alcohol, weapons or anything prohibited by jail rules).
The United States Court of Appeals for the Third Circuit, which covers federal districts courts in Delaware, New Jersey, and Pennsylvania, reversed the decision of the district court. The lower court had ruled in favor of Florence on his unlawful search claim. The Supreme Court agreed with the Third Circuit, holding that “courts must defer to the judgment of corrections officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.”
The case was decided by a 5-4 vote of the justices.
In 2005, Florence — a passenger in a vehicle stopped by a New Jersey state trooper — was arrested on a bench warrant for failure to appear at an enforcement hearing. He had been charged with obstruction of justice and use of a deadly weapon in 1998, though he had pleaded guilty to lesser charges and was sentenced to pay a fine. The bench warrant was issued in 2003 after he fell behind in his fine payments. Unfortunately for Florence, the warrant mistakenly remained in a computer database despite the fact that he paid the fine in full.
After his arrest, Florence was taken to a local detention center where he was held for several days before being transferred to another detention facility. In both facilities, Florence was subjected to a search before being transferred into the general detention population, and he challenged the search procedures at both jails.
As a pretrial detainee, Florence was required to undress and shower with a delousing agent. Jail officers conducted a visual inspection of him, naked, in order to look for scars, wounds, gang marks and tattoos, and contraband. Florence claimed he had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. Officers visually inspected his ears, nose, mouth, hair, scalp, fingers, arms, armpits, and other body openings. He also claimed that he had to cough in a squatting position as part of the search process.
Florence argued that, as a person arrested for a minor offense, he should not have been required to strip and expose his private areas to close visual inspection as a part of the jail intake process. He urged the adoption of a rule that would require detention officials to have “reason to suspect” that an arrestee was concealing contraband, drugs, or a weapon before conducting a strip search.
The term “strip search” can include directions to undress, close visual inspection, or instructions to arrestees to shake their heads, run their hands through their hair, lift their arms or feet, move or spread their buttocks or genital areas, or to cough in a squatting position.
In Florence’s case, he did not allege that any touching of his body occurred.
The Supreme Court, in a majority opinion written by Justice Kennedy (widely considered to be the swing vote for the current Court), began by emphasizing that courts must defer to detention officials in matters of penal regulations. Such regulations, even if they infringe an inmate’s constitutional rights, must be upheld if they are reasonably related to legitimate correctional interests Turner v. Safley, 482 U.S. 78, 89 (1987).
Next the Court discussed Bell v. Wolfish 441 U.S. 520 (1979), a case involving pretrial detainees in federal prisons. In that case, the detainees argued that the rule requiring them to undergo body cavity searches after contact visits with people from outside the institution was unconstitutional. A divided Supreme Court upheld the rule, finding that it was appropriate to defer to the judgment of officials that such inspections were needed to discover and deter the smuggling of contraband, drugs, and weapons.
Ultimately, in Florence’s case, the Court concluded that he had failed to show “substantial evidence” existed that jail officials had exaggerated their response to the issues presented by pretrial detainees. Admission of pretrial detainees to the general jail population includes risks of disease and threats of gang violence.
Close visual inspections of detainees before their admission permit the identification of any communicable diseases as well as gang affiliations. Strip searches also serve to detect contraband. Obvious problems are posed by weapons and drugs, but contraband also includes lighters, cell phones, medications, wigs, gum, and many other commonplace items. The presence of and demand for such items can lead to violence (against both officers and other inmates) and extortion and undermine jail security.
The Court noted the practical difficulty of classifying inmates properly before the intake search. Arrestees may lie about who they are or present fake identification. Access to complete criminal histories may not be possible. For instance, Florence’s rap sheet failed to reflect his previous arrest for possession of a deadly weapon. Requiring intake officers to make legal determinations as to the dangerousness of the arrestee or the seriousness of his offense (as an example, the precise weight of illegal drugs possessed must be considered for felony offenses) would result in case-by-case applications of strip search rules and further subject officers and jails to claims of discriminatory application. Jail officers who deal with suspected criminals have an “essential interest in readily administrable rules” (Atwater v. Lago Vista, 532 U.S. 318, 347 (2001)).
The Florence Court concluded that the procedures used by the New Jersey jails under these circumstances “struck a reasonable balance between inmate privacy and the needs of the institution.” However, only five of the nine justices agreed on this conclusion. In light of a vigorous dissent in which two of the Court’s newest members (Justices Sotomayor and Kagan), this view may not prevail if a different question is presented or the composition of the Court changes.