U.S. SUPREME COURT
VISUAL STRIP SEARCHES AT JAIL INTAKE OF PERSONS BEING PLACED IN GENERAL POPULATION NEED NOT BE SUPPORTED BY REASONABLE SUSPICION
by Jack Ryan, Attorney
©2012 Jack Ryan, Attorney, Co-Director, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
In Florence v. Board of Chosen Freeholders of the County of Burlington [i] the United States Supreme Court examined whether or not jails can strip search all persons to be booked into general population, no matter how minor the offense, and without reasonable suspicion to believe they were hiding contraband or weapons. The Court’s syllabus outlined the facts relating to the strip searches of Florence as follows:
In 1998, seven years before the incidents at issue, petitioner Albert Florence was arrested after fleeing from police officers in Essex County, New Jersey. He was charged with obstruction of justice and use of a deadly weapon. Petitioner entered a plea of guilty to two lesser offenses and was sentenced to pay a fine in monthly installments. In 2003, after he fell behind on his payments and failed to appear at an enforcement hearing, a bench warrant was issued for his arrest. He paid the outstanding balance less than a week later; but, for some unexplained reason, the warrant remained in a statewide computer database.
Two years later, in Burlington County, New Jersey, petitioner and his wife were stopped in their automobile by a state trooper. Based on the outstanding warrant in the computer system, the officer arrested petitioner and took him to the Burlington County Detention Center. He was held there for six days and then was transferred to the Essex County Correctional Facility. It is not the arrest or confinement but the search process at each jail that gives rise to the claims before the Court.
Burlington County jail procedures required every arrestee to shower with a delousing agent. Officers would check arrestees for scars, marks, gang tattoos, and contraband as they disrobed. Petitioner claims he was also instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. (It is not clear whether this last step was part of the normal practice. Petitioner shared a cell with at least one other person and interacted with other inmates following his admission to the jail.
The Essex County Correctional Facility, where petitioner was taken after six days, is the largest county jail in New Jersey. It admits more than 25,000 inmates each year and houses about 1,000 gang members at any given time. When petitioner was transferred there, all arriving detainees passed through a metal detector and waited in a group holding cell for a more thorough search. When they left the holding cell, they were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings. This policy applied regardless of the circumstances of the arrest, the suspected offense, or the detainee's behavior, demeanor, or criminal history. Petitioner alleges he was required to lift his genitals, turn around, and cough in a squatting position as part of the process. After a mandatory shower, during which his clothes were inspected, petitioner was admitted to the facility. He was released the next day, when the charges against him were dismissed. [cites omitted]
As a result of the two strip searches, Florence filed a lawsuit. The case made its way to the United States Supreme Court after the United States Court of Appeals for the 3rd Circuit ruled that all persons being placed into a jail’s general population could be strip searched without reasonable suspicion that they were hiding weapons or contraband and irrespective of the nature of their offense. The United States Supreme Court outlined the question presented as follows:
This case presents the question of what rules, or limitations, the Constitution imposes on searches of arrested persons who are to be held in jail while their cases are being processed. The term "jail" is used here in a broad sense to include prisons and other detention facilities. The specific measures being challenged will be described in more detail; but, in broad terms, the controversy concerns whether every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed. [cites omitted]
The Court began its analysis by recognizing, as it had in previous decisions that the courts should pay deference to the decisions of corrections officials in their efforts to maintain order and security in jail facilities. Citing prior decisions the Court pointed out that these decisions of corrections officials should be upheld when they serve a legitimate penological interest.
The Court wrote:
Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of retained constitutional rights of both convicted prisoners and pretrial detainees. The task of determining whether a policy is reasonably related to legitimate security interests is peculiarly within the province and professional expertise of corrections officials. This Court has repeated the admonition that, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters.
In many jails officials seek to improve security by requiring some kind of strip search of everyone who is to be detained. These procedures have been used in different places throughout the country, from Cranston, Rhode Island, to Sapulpa, Oklahoma, to Idaho Falls, Idaho. [cites omitted]
The Court outlined the dangers of not allowing strip searches at intake:
Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of inmates creates numerous risks for facility staff, for the existing detainee population, and for a new detainee himself or herself. The danger of introducing lice or contagious infections, for example, is well documented… Persons just arrested may have wounds or other injuries requiring immediate medical attention. It may be difficult to identify and treat these problems until detainees remove their clothes for a visual inspection… Jails and prisons also face grave threats posed by the increasing number of gang members who go through the intake process… The groups recruit new members by force, engage in assaults against staff, and give other inmates a reason to arm themselves. Fights among feuding gangs can be deadly, and the officers who must maintain order are put in harm's way. These considerations provide a reasonable basis to justify a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process. The identification and isolation of gang members before they are admitted protects everyone in the facility… Detecting contraband concealed by new detainees, furthermore, is a most serious responsibility. Weapons, drugs, and alcohol all disrupt the safe operation of a jail. Correctional officers have had to confront arrestees concealing knives, scissors, razor blades, glass shards, and other prohibited items on their person, including in their body cavities…The use of drugs can embolden inmates in aggression toward officers or each other; and, even apart from their use, the trade in these substances can lead to violent confrontations.
There are many other kinds of contraband. The text-book definition of the term covers any unauthorized item...Everyday items can undermine security if introduced into a detention facility… Something as simple as an overlooked pen can pose a significant danger. Inmates commit more than 10,000 assaults on correctional staff every year and many more among themselves…Contraband creates additional problems because scarce items, including currency, have value in a jail's culture and underground economy. Correctional officials inform us "[t]he competition . . . for such goods begets violence, extortion, and disorder… Gangs exacerbate the problem. They orchestrate thefts, commit assaults, and approach inmates in packs to take the contraband from the weak. This puts the entire facility, including detainees being held for a brief term for a minor offense, at risk. Gangs do coerce inmates who have access to the outside world, such as people serving their time on the weekends, to sneak things into the jail.
It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places. There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population.
Florence argued that persons arrested for minor offenses should not be subject to strip searches. The Court responded:
It is reasonable, however, for correctional officials to conclude this standard would be unworkable. The record provides evidence that the seriousness of an offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption… People detained for minor offenses can turn out to be the most devious and dangerous criminals… Experience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have some of the same incentives as a serious criminal to hide contraband. A detainee might risk carrying cash, cigarettes, or a penknife to survive in jail. Others may make a quick decision to hide unlawful substances to avoid getting in more trouble at the time of their arrest. This record has concrete examples…
Even if people arrested for a minor offense do not themselves wish to introduce contraband into a jail, they may be coerced into doing so by others… This could happen any time detainees are held in the same area, including in a van on the way to the station or in the holding cell of the jail. If, for example, a person arrested and detained for unpaid traffic citations is not subject to the same search as others, this will be well known to other detainees with jail experience. A hardened criminal or gang member can, in just a few minutes, approach the person and coerce him into hiding the fruits of a crime, a weapon, or some other contraband… Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility… This is a substantial reason not to mandate the exception [Florence] seeks as a matter of constitutional law…
It also may be difficult, as a practical matter, to classify inmates by their current and prior offenses before the intake search. Jails can be even more dangerous than prisons because officials there know so little about the people they admit at the outset.
The Court concluded by upholding the blanket strip search policy at issue. The Court noted that this was not a case where officers intentionally humiliated a prisoner; it was not a case involving touching; and it was not a case where the prisoner was held by themselves for a short period of time without ever being placed in general population.
In upholding the right of jail officials to strip search all persons entering general population irrespective of how minor their offense and without reasonable suspicion, the Court has in one broad sweep changed the manner in which jails and prisons throughout the country may conduct searches in the booking process.
It is important to note that this was a five to four decision. Two of the majority votes, Chief Justice Roberts and Justice Alito added some points that jail administrators should consider. In a concurring opinion written by Justice Alito and joined by Chief Justice Roberts, it was pointed out that the opinion in this case allowed for the Visual Strip Search of all individuals who were being placed in general population.
Justice Alito described the Visual Strip Search as follows: “officers may direct the arrestees to disrobe, shower, and submit to a visual inspection. As part of the inspection, the arrestees may be required to manipulate their bodies.”
Justice Alito further pointed out that there may be cases where a strip search is unreasonable:
It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.
Thus, the concurrence takes the position that some minor offenders should never make it into general population and thus never be strip searched.
The Court has authorized jail officials to visually strip search all individuals who are going to be placed in general population.
Jails should consider, based upon the concurring opinions in this case, whether minor offenders can be held separately in the short term until their release such that a strip search is unnecessary.
Based on the concurrence if a jail holds all pre-trial detainees separately, and there is no intermingling, the rule announced in this case may not apply.
[i] Florence v. Board of Chosen Freeholders of the County of Burlington, 2012 U.S. LEXIS 2712 (April 2, 2012).