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Florence v. Board of Chose Freeholders of County of Burlington et al.: U.S. Supreme Court okays strip searches for non-serious crimes like DUI arrests and traffic stops

In Florence v. Board of Chosen Freeholders, the petitioner argues that an involuntary visual strip search of a detainee absent of reasonable suspicion that he or she may attempt to smuggle contraband into the general population of a jail violates the Fourth and Fourteenth Amendments of the Constitution. In a 5-4 decision, the Supreme Court concluded that “the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions,” and thus the Fourth and Fourteenth Amendments were not violated. In the majority opinion, Justice Kennedy contends that:

a.) “Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion […]. A regulation impinging on an inmate’s constitutional rights must be upheld ‘if it is reasonably related to legitimate penological interests.”

b.) Concerning whether security imperatives in jail supervision override the assertion that certain detainees should be exempt from invasive search, the risks to new inmates, existing population, and staff—contagious infections, wounds, the chance of gang violence, or violence caused or escalated via drugs or weapons—is in the interests of stabilizing jail supervision.

c.) Exempting new detainees not arrested for serious crimes or offenses involving weapons or drugs from invasive searches is unworkable.

The seriousness of an offense is a poor predictor of who has contraband; even persons arrested for minor offenses may be coerced to smuggle in contraband. At times it may be difficult to classify inmates by their current or previous offense before intake search. Officers conducting an initial search often know very little about new detainees, and, if ruled illegal, in a close case officers may eschew an invasive search to avoid liability.

In 1998 Albert Florence was arrested for obstruction of justice and use of a deadly weapon. He plead guilty to two lesser charges and was sentenced to pay a fine in monthly installments. In 2003, Florence fell behind on his payments and failed to appear at an enforcement hearing; a bench warrant was issued for his arrest. Less than a week later he paid the outstanding balance, but, because of an error in a computer database, the warrant stayed active. In 2005, Florence was pulled over and arrested based upon the inaccurate, but still active, outstanding warrant. He was held in the Burlington County Detention Center for six days and then was transferred to the Essex County Correctional Facility. Upon entering each facility, Florence was forced to shower and, as outlined in the dissent, submit to:

“a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his armpits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.”

To support the majority decision, Justice Kennedy cites three main cases that established precedent regarding jailing and invasive searches: Turner v. Safley, 482 U. S. 78, 84–85 (1987), Bell v. Wolfish, 441 U. S. 520 (1979), and Block v. Rutherford, 468 U. S. 576 (1984). Turnerconfirmed the Court’s opinion regarding 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,” as noted in the headnote. Bell v. Wolfish, 441 U. S. 520 (1979) addressed a rule that required all pretrial detainees in any correctional facility to submit to an invasive search. The Court deferred its judgment to correctional facilities and noted that there is no “mechanical way to determine whether intrusions on an inmate’s privacy are reasonable.” Finally, in Block v. Rutherford, 486 U.S. 576 (1984), the Court concluded that jails could ban all contact visits because they posed a threat. In regard to Regardingcertain allowances in Block, the Court concluded it would be a “’difficult if not impossible task’ to identify ‘inmates who have propensities for violence, escape, or drug smuggling.’” With these precedents in tow, Kennedy, mainly through example, establishes why deference to jail administrators is vital.

Kennedy notes that “people detained for minor offenses can turn out to be some of the most devious and dangerous criminals.” For instance, after the Oklahoma City bombing Timothy McVeigh was stopped for driving without a license plate; Joel Rifkin, the serial killer, was stopped for the same reason; even one of the terrorists involved in the 9/11 attacks was stopped for speeding two days before the hijacking. Also, people detained for minor offenses have indeed tried to smuggle in contraband via their rectal cavities or genitals for concealment. Kennedy cites examples from Atlantic County, Washington State, and San Francisco, each outlined in briefs. Furthermore, the fact that jails admit more than 13 million inmates a year, and with the pressures officers are under during the intake process, to ensure evenhanded procedure and safety in balance with the Fourth and Fourteenth Amendments, it would be unreasonable to suggest a screening process.

In the dissenting opinion, Justice Breyer does not take this need for balance for granted. He cites Mary Beth G. v. Chicago 723 F. 2d 1263, 1272 (CA7 1984) to illustrate the privacy interests at stake: “that practices [discussed in Mary Beth G.] similar to those at issue here are ‘demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, [and] repulsive, signifying degradation and submission.’” But rather than disagreeing with the majority opinion outright by citing that inmates retain basic constitutional rights, Bell v. Wolfish 441 U. S. 520, 545 (1979) and that such invasive searches absent of suspicion of smuggling contraband impinge on those rights, Breyer ingeniously appeals to reason by using statistics and the general the examples Kennedy pulls from Atlantic County, Washington State, and San Francisco to illustrate how the need for such sweeping discretion by jail administrators regarding invasive searches is a false necessity.

Breyer agrees that searches are vital to ensuring the safety of a jail environment and that the Court normally defers its judgment to jail administrators, but remains suspicious that the present, more non-invasive searches that detainees are subject to are so thorough as to not warrant an invasive search. Searches already employed at Essex and Burlington include: “ (a) pat-frisking all inmates; (b) making inmates go through metal detectors (including the Body Orifice Screening System (BOSS) chair used at Essex County Correctional Facility that identifies metal hidden within the body); (c) making inmates shower and use particular delousing agents or bathing supplies; and (d) searching inmates’ clothing.” Breyer then moves to the statistics. Of 23,000 people admitted to Orange County correctional facility between 1999 and 2003, there were three incidents of drugs being recovered from an inmate’s anal cavity and two of drugs falling from an inmate’s underwear during a strip search, and “in four of these five instances, there may have been ‘reasonable suspicion’ to search” Dodge v. County of Orange, 282 F. Supp. 2D 41 (SDNY 2003). From data the Court received through a brief for Shain v. Ellison, 273 F. 3d 56, 60 (CA2 2001), 75,000 detainees were subject to body-cavity searches. In 16 instances searches led to contraband, and “13 of these 16 pieces of contraband would have been detected in a patdown or search of shoes and outer clothing.” In the remaining three instances, a drug or felony history of the searched detainee would have confirmed reasonable suspicion for a further search. Regarding the general examples, Kennedy simply states that “neither San Francisco nor the respondents tell us whether reasonable suspicion was present or absent in any of the 15 instances cited. Nor is there any showing by the majority that the few unclear examples of contraband recovered in Atlantic County, Washington State, or anywhere else could not have been discovered through a policy that required suspicion for strip searches.” Therefore, “these examples, including San Francisco’s statistics, do not provide a significant counterweight to those presented in Dodge and Shain,” making the requirement of invasive visual strip searches for all detainees entering a jail’s general population absent of suspicion of smuggling contraband a false necessity, which to Breyer creates an imbalance in jail administrators’ need to ensure the safety of their facilities and the rights to privacy outlined in the Fourth and Fourteenth Amendments.

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