Florence and the 4th Amendment

I promised Mark I’d post some thoughts on Florence v. Board of Freeholders, the recent 4th Amendment case from SCOTUS. Since this post isn’t a scholarly document, I’m not going to provide extensive references or links.  My sources are the opinions from the various cases, which can be found at various sites on the web.

First, a brief summary of the case from Lyle Denniston at SCOTUSblog:

Insisting that it has no expertise in how to run a jail or prison, the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures.  The prisoner, however, may be told to manipulate some part of the body.  Some difference of emphasis among the five Justices in the majority made it appear that the decision might be more limited than at first glance.

The ruling, it appeared, did not authorize jail officials to conduct a strip search unless the prisoner was to be placed among other prisoners at the facility.  Two Justices wrote separately in an effort to stress that aspect of the ruling, and their votes were essential to the 5-4 result.

The decision was a clear defeat for challengers to strip searches as a general policy.  The Court explicitly refused to limit the authority to use strip searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs.   The same kind of visual inspection of an arrestee’s naked body, the Court declared, can be applied to anyone placed in the general population of a jail or prison, even if only temporarily.

If you’re still interested, then there is more below.

Next, a little bit of history.  One of the underlying precedents for Florence is Bell v. Wolfish, which is extensively quoted in the majority opinion of Florence. Bell was a class-action suit trying to overturn NJ prison regulations for detainees, including “double bunking,” restrictions on reading material, and cavity searches.  Here, the Justices were balancing the Due Process rights of detainees with the prison administration’s procedures to regulate the prison population.  The opinion hinged on a determination of whether the procedures described amounted to punishment of the detainees or whether they were necessary inconveniences to assure relative security at the correctional facility.  Justice Rehnquist’s opinion (of a 6-3 majority) allows, among other things, visual cavity searches for pretrial detainees, which is part of Florence’s objection.  A key passage from Rehnquist’s opinion is:

“[W]e deal here with the question whether visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.”

Justice Powell concurred with the Rehnquist opinion, but did not join for the cavity searches, leaving that section as a 5-4 majority.  His concurrence in full:

“I join the opinion of the Court except the discussion and holding with respect to body-cavity searches. In view of the serious intrustion on one’s privacy occasioned by such a search, I think at least some level of cause, such as a reasonable suspicion, should be required to justify the anal and genital searches described in this case. I therefore dissent on this issue.”

On the other side, Justice Marshall dissented, saying:

“[B]y blindly deferring to administrative judgments on the rational basis for particular restrictions, the Court effectively delegates to detention officials the decision whether pretrial detainees have been punished. This, in my view, is an abdication of an unquestionably judicial function.”

Marshall’s view was that the more significant intrusion on detainees’ rights, the more significant the governments objectives must be.  In the case of detainees who have not actually been convicted of a crime, this bar must be concomitantly higher.

Furthermore, Florence is an extension of Atwater v.  Lago Vista, where the Court ruled that warrantless arrests for minor crimes do not abridge Fourth Amendment rights.  In this case, a mother was stopped for a seatbelt violation, berated by the cop in front of her children, then taken to the police station in handcuffs where she was incarcerated in a holding cell for an hour before posting a bond. Atwater asked for a “bright-line” rule forbidding custodial arrest when conviction does not carry any jail time and there is no compelling need for immediate detention.  However, in a 5-4 decision authored by Justice Souter, the Court found that the historical record showed that peace officers could arrest anyone who committed a crime in their presence.  The Court dismissed the “bright-line rule” because they found that application of the rule would be difficult and the arresting officer would not necessarily know what the charge/punishment might be.  In essence, the Court fell back to looking for simplicity in the standard for applying Fourth Amendment – break the law and you can be arrested.

Souter conceded that Atwater’s case was egregious and that she would likely prevail if the rule were to be exclusive to her case.  But to provide a blanket standard, the Court necessarily had to find the least common denominator.  Souter also noted that the proper venue for arrest limitations was by statute because “the statute can let the arrest power turn on any sort of practical consideration without having to subsume it under a broader principle.”

Justice O’Connor wrote the dissent, stating ”[g]iving police officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment’s command that seizures be reasonable.”  She proposed a rule where if there were probable cause that a fine-only offense had been committed, that the police would be directed to issue a citation unless the officer could delineate “specific and articulable facts” which could warrant the severe intrusion of a full custodial arrest.  O’Connor also pointed out that the majority’s insistence on a “clear and simple” rule is not contrary to her requirement for specific reasons for custodial arrest.

So, Bell and Atwater lay the ground for the issues of strip/cavity searches and warrantless detention, respectively, in Florence.  In both cases, we see the Court looking for a balance between the Fourth Amendment and the police/corrections officers’ ability to enforce the law.  In both cases, a narrow majority comes down on the side of ceding discretion to the government.  It is interesting to note that cavity searches are a bridge too far for Powell.  I would have liked to know whether he had specific legal reasoning in dissenting on only that issue, or if the dissent was more from a moral/ethical/emotional point of view.

This brings us to the recent opinion in Florence v. Board of Freeholders.  Again, the Court has ceded authority to the prison administrators and held that any detainee that enters the general population of a prison can be subject to a strip search, including a visual cavity inspection.

From Kennedy’s opinion:

“The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Block, 468 U. S., at 584–585 (internal quotation marks omitted). Petitioner has not met this standard, and the record provides full justifications for the procedures used.”

Reading through Kennedy’s opinion, it sounds like he is trying to justify to himself his vote on this case, as he goes through Florence’s history with the police, even though it is not particularly relevant to the Constitutional question presented.  Indeed, he barely mentions that the warrant for Florence’s arrest was out-of-date and that Florence showed documentation to the arresting officer that the fine was paid. The warrant for Florence’s arrest was quashed but apparently not recorded in the computer as such.   Where Souter mentions that Atwater might have won on the facts of the case, that possibility is not mentioned in Kennedy’s opinion.  Chief Justice Roberts states, in his concurrence, that:

“[f]actual nuances have not played a significant role as this case has been presented to the Court. Both courts below regarded acknowledged factual disputes as “immaterial” to their conflicting dispositions, 621 F. 3d 296, 300 (CA3 2010)”

In addition, Roberts joins Justice Alito’s concurrence, which can be viewed as limiting the principles of strip-searching detainees.  Specifically, Alito says:

“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.”

Justice Breyer’s dissent quotes the opinion in Bell:

“The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.”

And he goes on to point out that 1) there is empirical evidence that suspicionless strip searches do not turn up contraband in appreciable numbers; 2) the American Correctional Association recommends, and some bodies already implement, a reasonable suspicion standard for strip-searching inmates; and 3) some states already have “reasonable suspicion” statutes.

So, we see in Florence again that the narrow majority is supporting a sort of “zero tolerance” or blanket authority to the prison administration to search detainees, even, in this case, a wrongfully detained person. We will see whether Alito’s concurrence ends up being the controlling opinion in that correctional facilities apply rules that allow for separate facilities and/or procedures for people detained for minor (fine-only) offenses. In fact, one of the respondent facilities (Essex) changed its policy on visual cavity searches to include a reasonable suspicion standard after Florence’s detention.

If you’ve made it this far through this exegesis, you’ve probably figured out that I would have dissented in each case.  While there is something to be said for a bright line rule, I don’t think that having a “reasonable suspicion” standard is inconsistent with that notion.  Like Justices Powell and Breyer, I think the cavity search/enhanced strip search is an exceptionally intrusive search that should require affirmative and reasonable suspicion in order to be done.

I do wonder if there will be enough of an outcry to have additional states enact statutes that deal with this issue, as we saw in the aftermath of Kelo.  But I think the Florence decision was overshadowed by coverage of the oral arguments of the ACA, so that not too many people are familiar with the case.

For those interested, there are (at least) three additional cases that are relevant: Block v. Rutherford, allowing “shakedown” searches of cells and allowing prohibition of contact visits by pretrial detainees; Terry v. Ohio, which allows frisking (and traffic stops) upon reasonable suspicion; and Turner v. Safley, which basically set the standard of scrutiny for the constitutionality of prison regulations (“rational basis”).

5 Responses

  1. The mistake was that the original suit should have been for the wrongful arrest, not the subsequent searches.


  2. Excellent, Mike. I too wonder what disposition was made of the wrongful arrest matter if any.


  3. Banned, I believe there is another case pending, re: the wrongful arrest.


  4. Florence’s wrongful arrest and wrongful detention suits are going through the NJ state court system. He likely has a very good shot at winning those, particularly if he can admit SCOTUS oral argument transcripts into the evidenciary record.

    Carter Phillips (respondent’s counsel):
    “Justice Sotomayor, I think what is disturbing about — about this case is, in fact, the — that he was arrested under circumstances in which he candidly shouldn’t have been arrested as a matter of State law.”


  5. Nearly all commentator shave missed one of the central points of the ruling, that he was placed in the general prison population. For better or worse, once you have done that, you can’t differentiate among who gets searched and how much.


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