This is the case that wasn't. Media coverage indicated, some of it explicitly, that the new U.S. Supreme Court decision in Florence v. Board of Chosen Freeholders of the County of Burlington involved "police" strip-searching even those arrested for the most minor crimes, as if it were about ordinary searches incident to arrest by field law enforcement officers.
In fact, the Supreme Court addressed the question of whether it is lawful to conduct an intrusive bodily search - sometimes called a "strip search" - on all pre-trial detainees entering the general population of a jail, even when there is no particular reason to suspect the new inmate is concealing contraband.
It has always been pretty clear that detention officers could search inmates, new or old, when there is reason to think the inmate is concealing contraband. It was not completely clear, however, that detention officers are permitted to conduct invasive searches on all incoming inmates, including those arrested for very minor offenses, as a routine procedure. The answer is now clearly "yes, they are" at least in respect to those inmates who will be entering the general population of the facility.
After weighing the justifications offered by corrections officials in this case, the Court greatly defers to their experience and expertise and decides that an invasive search of new inmates entering the general population of a jail (two jails in this case), is lawful because the search is "reasonably related to legitimate security interests."
The Facts of the Case
In a clearly "bad to worse" case for Mr. Florence, a New Jersey state trooper arrested him for an active bench warrant, arising from a "failure to appear" at a hearing to pay a fine, when in fact by the time of the arrest Florence had paid the fine (but after the court date). Florence was subjected to intrusive body searches at one jail, where he was held for six days, and then again when he was transferred to a second jail.
The in-processing at the first jail, the Burlington County Detention Center, required Florence and every incoming detainee to shower with a delousing agent, to be visually checked for scars, marks and gang tattoos, to lift his tongue and have his mouth examined, and finally to completely expose himself for inspection by holding out his arms, turning around and lifting his genitals. He remained at this facility for six days, and then he was transferred to the largest county jail in New Jersey, the Essex County Correctional Facility.
At the Essex County Correctional Facility, Florence was again subjected to invasive in-processing procedures. All newly arrived inmates were kept in a group holding cell until they could be thoroughly searched. When leaving the cell, each inmate was instructed to disrobe and was checked for body markings, wounds and contraband, and was required to expose his body openings for visual inspection. During this process, Florence was required to lift his genitals, turn around, and cough in a squatting position. Then there was a mandatory shower, while his clothes were inspected, and finally he was admitted to the facility.
He was released the next day when it was learned the charges against him had been dismissed. Unfortunately for Mr. Florence, the pending charges were not removed from the computer system until after he was processed into the second jail. With empathy, one can understand Mr. Florence's annoyance with the system.
Corrections Officers Convince the Court
Florence (and other inmates who were charged with non-indictable offenses) sued the jails for allegedly violating their Fourth Amendment rights, claiming the practice of requiring all entering inmates to strip naked and be subjected to visual inspection, without reasonable suspicion that a particular inmate was carrying contraband, was an unreasonable search.
In its decision on appeal, the United States Supreme Court first explained that a jail regulation impinging on an inmate's constitutional rights must be upheld "if it is reasonably related to legitimate penological interests," citing Turner v. Safley, 482 U.S. 78 (1987). The Court then contemplated the corrections officials' list of justifications for requiring all entering inmates to be thoroughly searched, even without reasonable suspicion. In the record of the case, corrections officials explained the problems they encounter dealing with the constantly revolving inmate population. The brief stays and the perpetual influx of new inmates give jail personnel little opportunity to accurately identify which inmates pose the greatest risks. They described the value of deterring entering inmates from bringing contraband into their facilities by thoroughly searching every entering inmate, as inmates would adapt and exploit the situation if there were any exceptions to the rule.
They reminded that jails are responsible for identifying and minimizing threats inmates pose to themselves, to other inmates, and to the jails' personnel. The jails' invasive searches of new inmates help officers identify medical concerns (wounds, injuries, lice, contagious infections). The thorough inspection of their bodies exposed gang affiliations, which affects lodging decisions and the safety of everyone in the jail.
They explicitly articulated the obvious dangers of inmates bringing concealed contraband (weapons, drugs, lighters, cigarettes) into the jail environment, but they also explained concerns beyond sneaking in contraband. In the end, the corrections officials' well-reasoned justifications were sufficient to link the jails' security needs to the practice of thoroughly searching all inmates being admitted to the general population.
In this case, corrections officers provided legitimate justifications for their policies requiring thorough searches of entering inmates - and the Court accepted those justifications in regard to those entering the general population. However, the Court specifically left open the possibility that, in other situations, it may not be reasonable to subject all entering inmates to this level of thorough search, and Chief Justice Roberts specifically drew attention to this aspect of the Court's decision.
Jails that require such thorough searches of entering inmates have to justify the need for them in their specific situations. In some circumstances - for instance, if the inmate entering an individual holding cell is going to be under close supervision, is not going to have contact with other inmates, and is only going to stay a few hours - such an invasive search without particularized suspicion may not be justified.
In this case, though, the Court greatly defers to the experience and expertise of the corrections officials who defended the jails' regulations - and they helped themselves a lot by providing well-reasoned justifications for their particular policies. The case serves as a great reminder of the value, throughout law enforcement, of a strong articulation of justification, at the trial level of a case, by the official(s) handling a matter - even if that official might feel he / she is stating the obvious.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of The Law of Policing, which is available at LRIS.com. He can be reached directly at email@example.com
In her 20-year career with law enforcement, Pam McDonald has been a patrol officer, a felony investigator, a felony prosecutor and a college professor in the area of police law. She currently serves as head of the Thomas & Means publications section and assists Randy Means in much of his work. She can be reached at firstname.lastname@example.org.