Florence, Atwater, and the erosion of Fourth Amendment protections for arrestees.

• Author: Simcock, Julian

INTRODUCTION A. Analytical Template and Existing Literature B. A Tale of Two Arrests I. THE STATE OF EXISTING FOURTH AMENDMENT LAW A. Terminology B. Historical Doctrine C. Bell v. Wolfish D. Florence v. Board of Chosen Freeholders II. RESURRECTING BELL: WHY A FAITHFUL APPLICATION OF EXISTING LAW MILITATES AGAINST BLANKET STRIP-SEARCH POLICIES A. The Missing Deterrence-Based Rationale in Florence 1. Invoking deterrence-based precedent 2. Grappling with hypotheticals B. An Exception, Rather than a New Norm III. RISKS OF ABUSE--WHY THE INTERSECTION OF FLORENCE AND ATWATER PRESENTS NEW PRACTICAL CONCERNS THAT MILITATE AGAINST BLANKET STRIP-SEARCH POLICIES A. Introducing Atwater v. City of Lago Vista B. The Florence Concurrences C. The Risk of Abuse by Police Officials 1. Instances of abuse 2. Application in contemporary context D. The Rising Spectre of Justice Stevens's Dissent in Bell CONCLUSION INTRODUCTION

If there is an animating imperative behind the Supreme Court's decision in Bell v. Wolfish, it is this: when confronted with a question regarding strip-searching arrestees, courts must seek a careful balance. (1) The Fourth Amendment, the Court held, cannot be confined to a "mechanical application." (2) Instead, it "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails." (3) In essence, while authorities may be justifiably concerned about the presence of contraband in prisons, there are limits to the policies they may pursue. These limits are especially important in the context of strip searches, which, given the degree of invasion involved, the Supreme Court has placed within a "category of [their] own demanding [their] own specific suspicions." (4)

Decades later, the Court appears to have deviated from Bell's moorings. Last Term, in Florence v. Board of Chosen Freeholders, the Court examined the constitutionality of blanket search policies that require that all arrestees be strip-searched regardless of individualized suspicion or the nature of the offense. (5) In a five-to-four ruling, the Court upheld such searches as constitutional. (6) The opinion is more fragmented than the initial vote count suggests--Justice Thomas refused to join one section of the majority opinion, and Chief Justice Roberts and Justice Alito wrote separate concurrences to explain limitations to the ruling. (7)

Nevertheless, a new line had been drawn. For the first time, the Court held that prisons seeking to implement blanket strip-search policies were free to dispense with any level of reasonable suspicion or tailored justification. (8) I argue in the following analysis that Florence constitutes an unnecessary erosion of Fourth Amendment protections for arrestees. The Court's opinion entails a departure from Bell and also from the Court's broader jurisprudence on the Fourth Amendment. In addition, some of the most unsettling issues posed by Florence--those which hint at the potential for future abuse--remain unresolved.

1. Analytical Template and Existing Literature

   Among both judges and academics, the topic of arrestee strip searches is contentious. One group of scholars says that the degree of invasiveness is the crucial factor determining whether or not a strip search is permissible. (9) Another argues that the arrestee's status in the adjudicatory process should be more closely considered, (10) while a third asserts that courts should look only at when (or if) the arrestee is introduced to the general prison population. (11) A final group of scholars maintains that the decision should be contingent upon the type of offense with which the arrestee has been charged. (12)

   Although many of these arguments represent important contributions to the field, this Note is premised on the idea that the debate cannot be quite so easily siloed. In fact, all of these arguments are featured at least once in the range of opinions issued in Florence. I argue that the state of the current law is the product of two things: a departure from prior Supreme Court precedent, and an insufficient focus on future risks. With these aims in mind, Part I of this Note takes up the work of historical analysis and situates the current debate in a broader legal and historical framework. Part II highlights why the Court's decision in Florence represents a departure from traditional jurisprudence. Although it has been the subject of little attention by scholars, Florence relies heavily on holdings that emphasize the role of deterrence in strip-search policies. For a variety of reasons, these holdings are inapposite to the debate over postarrest strip-search policies. After arriving at a clearer understanding of how such precedent should be applied, I conclude that, contrary to the Court's assessment, existing precedent militates against blanket strip-search policies. In Part III, I set aside the doctrine, and look to the ground-level ramifications that an endorsement of blanket strip-search policies would create. Perhaps most importantly, I take a closer look at an unsettling aspect of the Florence decision--the unresolved intersection with Atwater v. City of Lago Vista. The Court's now decade-old holding in Atwater substantially expanded the range of minor offenses that allow an officer to make an arrest. While officers must continue to find probable cause, the gravity of the offense no longer weighs in the calculus. (13) If that discretionary power is now coupled with the uniform application of suspicionless strip searches--a practice which now bears "constitutional imprimatur" (14)--the risk of abuse by prison officials may increase. While this issue received little of the Court's attention in Florence, (15) and is almost entirely unexamined in the secondary literature, it deserves attention equal to, if not greater than, any other issue of jurisprudence on arrestee strip searches.

2. A Tale of Two Arrests

   On an afternoon in March, a man in his late twenties, Albert, is driving with his family on a state highway. (16) He is on his way to his in-laws' to celebrate the recent purchase of a new home. (17) But before arrival, he and his family are stopped by the police for reasons that are unclear. (18) Upon request, Albert identifies himself, and is then immediately arrested in front of his family. (19) The officers cite an outstanding warrant for Albert's arrest based on his failure to pay a contempt violation. (20) Despite Albert's protestations, the arrest continues. The officers transport him to a nearby jail facility and order him to do something that strikes Albert as unnecessary--to take off his clothes and undergo a strip search. (21) Neither the circumstances of his arrest nor his purported offense create any suspicion that he may be carrying contraband. But the jail's policy dictates that all arrestees must be strip-searched. (22) While an officer looks on, Albert is forced to remove all of his clothing and then to open his mouth, lift his arms, rotate, and lift his genitals for closer inspection. (23) After six days in jail, he is escorted to another facility and put through a second, more invasive strip search. (24) This time, Albert is searched along with four other detainees, who are forced to strip in the presence of one another. (25) They are told to lift their genitals, turn around, and squat and cough. (26) Albert is afraid and humiliated throughout the process. (27) The next day, following what is now a week of confinement, he is finally able to see a magistrate. (28) Upon learning that the fine has been paid, the magistrate orders Albert's immediate release. (29)

   On another afternoon in March, a woman named Gail is driving her children home from soccer practice. (30) She is traveling at approximately fifteen miles per hour through a residential neighborhood just north of Austin, Texas, when she, too, is stopped by the police. (31) Upon inquiry, she is informed that the officer stopped her because he noticed that neither Gail nor her children were wearing seat belts. (32) Before Gail can proceed very far with an explanation, the officer does something that strikes her as unnecessary--he announces that he is going to arrest her for her seat belt transgression. (33) When she realizes the officer is serious about his intentions, she asks if she might first take her children to a friend's house nearby. (34) The officer rejects the request and continues with the arrest (fortunately, a friend is able to come and retrieve Gail's children). (35) Gail is then handcuffed and placed in the squad car. She is taken to the local police station and processed, which involves having her "mug shots" taken, and being placed alone in a jail cell. (36) When she is able to see a magistrate, she quickly pleads no contest to the misdemeanor seat belt offense, pays money for a fine and bail bond, and is released. (37)

   The facts contained in the first story have now been widely publicized. (38) It is a summarized account of Albert Florence's arrest in 2005. (39) Following his ordeal, Florence commenced a lawsuit pursuant to 42 U.S.C. [section] 1983, alleging that the suspicionless strip searches to which he was exposed constituted violations of his Fourth Amendment rights. (40) His case was eventually heard by the Supreme Court. The second story, though less current and perhaps less widely known, is also salient. It is the story of Gail Atwater's arrest in 1997 in Lago Vista, Texas. Following her ordeal, Gail, too, commenced a lawsuit pursuant to 42 U.S.C. [section] 1983, and her case also made it as far as the Supreme Court. (41) Ultimately, however, both sets of claims were rebuffed--the Court found that the authorities had acted within the purview of the Constitution.

   I provide these stories for two reasons. First, they convey the reality of living through an arrest and a strip search. Much of the literature on this topic is filled with references to Supreme Court precedent and...