Constitutional law--permitting blanket strip-search policies for all arrestees entering general jail population--Florence v. Board of Chosen Freeholders of Burlington County, 621 F.3d 296 (3d Cir. 2010).

Author:Beler, Michael

The Fourth Amendment of the United States Constitution prevents government officials from executing unreasonable searches and seizures. (1) The Supreme Court has established that enforcing a policy to strip-search all inmates after contact visits is permissible under the Fourth Amendment, however, the circuit courts are split as to whether a similar policy is constitutional for all arrestees entering the general jail population. (2) In Florence v. Board of Chosen Freeholders of Burlington County, (3) the United States Court of Appeals for the Third Circuit considered whether a policy to strip-search all arrestees, regardless of offense, was constitutional. (4) The Third Circuit held that a blanket policy to strip-search all incoming inmates was constitutionally permissible because a prisons' security interests trumped the privacy interests of the inmates. (5)

On March 3, 2005, a New Jersey State Trooper stopped a vehicle in which Albert Florence was a passenger. (6) The trooper arrested Florence pursuant to a bench warrant for a non-indictable form of civil contempt, previously issued on April 25, 2003. (7) Florence protested his arrest to the officer and claimed that he had paid the fine. (8) The trooper took Florence into custody and transported him to the Burlington County Jail ("BCJ"). (9) After six days of detention, Florence was transferred to Essex County Correctional Facility ("ECCF"). (10)

During intake at BCJ and ECCF, corrections officers performed a strip-search and body-cavity search on Florence. (11) At BCJ, Florence was directed to remove all of his clothing, open his mouth and lift his tongue, lift his arms and turn around, and lift his genitals while an officer observed. (12) At ECCF, officers directed Florence and four other inmates to strip naked and shower in separate stalls. (13) While Florence showered, a corrections officer looked on and informed Florence to open his mouth, lift his genitals, and then turn around, squat, and cough. (14) The charges against Florence were dismissed the following day and, after his release, he brought this action against BCJ and ECCF for violating his Fourth Amendment rights. (15) The district court granted summary judgment for Florence but certified its order for appeal. (16)

The Fourth Amendment of the United States Constitution ensures that government officials do not perform unreasonable searches and seizures against or upon citizens of the United States. (17) The Constitution's application in prisons has changed as the judiciary's approach has evolved from "hands off" to a model based on deference to the judgment of prison administrators. (18) The applicable precedent governing this case clearly states that inmates do not lose their constitutional rights upon entering prison; their rights, however, are not as extensive as those possessed by the ordinary citizen. (19) Inmates' rights are limited because prisons are unique institutions fraught with inherent dangers. (20) The tension between protecting constitutional rights and preventing inherent danger within a prison requires a careful balancing of inmate rights and institutional objectives. (21) A court must balance the fact that prison management is the province of the executive and legislative branches with the knowledge that prisoners cannot address their grievances at the ballot box but must use the courts. (22)

The Court in Bell v. Wolfish, examining the legality of body cavity searches after contact visits, noted that a court 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. " (23) The Ninth and Eleventh Circuits have applied the Bell test and held that blanket strip-search policies during booking were constitutional. (24) The First, Second, Fourth, Fifth, Sixth, and Eighth Circuits have addressed this issue and found strip-searches unconstitutional under Bell (25) To satisfy Fourth Amendment concerns, the majority of the circuit courts have required reasonable suspicion for corrections officials to strip-search arrestees. (26)

The Supreme Court has clearly stated that it has a limited role in prison management. (27) The Court has noted, however, that the judiciary should no longer take a deferential stance when substantial evidence exists that corrections officials are overreacting to institutional needs. (28) Strip-searches have been described as one of the most invasive intrusions to a person's privacy, leading some detainees to commit suicide as a result. (29) Judges and researchers have also noted the minimal threat that arrestees and pretrial detainees pose to smuggling contraband into prisons. (30)

In Florence, the Third Circuit considered whether strip-searches of all arrestees entering a general jail population are permissible under the Fourth Amendment. (31) Joining the Ninth and Eleventh Circuits, the court held that the strip-searches were reasonable because the jail's interest in maintaining security outweighed the privacy interest of the inmates. (32) The court first assumed that prisoners retain some constitutional rights in prisons and stated that strip-searches are considerable invasions on individual privacy. (33) The court then discussed the Bell factors and noted that the searches before the court were less intrusive than those considered in Bell. (34) The court moved to the second and fourth factors, finding that strip-searches occurred in a similar place and manner as those in Bell. (35)

The court finally addressed the justification for initiating the search, the third factor of the Bell test, and stated that the potential for inmates to smuggle drugs, weapons, and other contraband was the greatest threat to security facing prisons. (36) Relying again on the Bell decision, the court reasoned that non-indictable arrestees could not be considered a lesser security risk than other inmates. (37) The court relied on its conclusion that a person may get arrested on purpose for a non-indictable offense in order to take advantage of a procedure where non-indictable arrestees were not strip-searched. (38) The plaintiffs contended that no evidence existed of a smuggling threat from non-indictable arrestees, but the court stated it was unnecessary because Bell did not require such evidence. (39) The court finally stated that a blanket policy removes discretionary authority from corrections officers, ensuring similar treatment of all arrestees and therefore easing equal protection concerns. (40) For the foregoing reasons, the Third Circuit held that a blanket strip-search policy for all arrestees entering the general jail population was constitutional. (41)

In the instant case, the Third Circuit improperly deferred to the judgment of prison officials where ample evidence exists of the impropriety of blanket strip-search policies. (42) While smuggling in prisons is a serious issue that must be dealt with by prison officials, a strip-search is one of the most invasive procedures to a person's privacy, and can subject victims to serious psychological damage. (43) The court attempted to balance these concerns but failed to note that incoming arrestees are unlikely vehicles for smuggling contraband. (44) As a result, the application of these polices will require the strip-searches of both the convicted drug trafficker and the person arrested for failing to leash a dog. (45)

The Florence court also incorrectly interpreted Bell when it stated that the justifications for each search were similar...

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