April 02, 2012

Supreme Court Decides Florence v. Board of Chosen Freeholders of County of Burlington

On April 2, 2012, the U.S. Supreme Court decided Florence v. Board of Chosen Freeholders of County of Burlington, No. 10-945, holding that persons arrested and detained in a detention facility even for minor offenses may be subjected to invasive searches for weapons, drugs, and other contraband without violating the Fourth and Fourteenth Amendments.

A New Jersey state trooper arrested Albert Florence during a traffic stop, when a check of a statewide computer database found a bench warrant for his arrest after he failed to appear at a hearing to enforce a fine. Florence was detained in county detention centers but released once it was determined that the fine had been paid. At the detention centers, he was forced to shower, and to be searched while naked (including body cavity searches, lifting of genitals, and coughing while squatting). He filed a 42 U.S.C. § 1983 action in federal court alleging violations of the Fourth and Fourteenth Amendments and arguing that persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband. The district court granted him summary judgment. The Third Circuit reversed. The Supreme Court granted certiorari to address differing conclusions among the Federal Courts of Appeals. (The First, Second, Fourth, Fifth, Sixth, and Tenth Circuits had required reasonable suspicion that an arrestee is concealing weapons or contraband before a strip search of one arrested for a minor offense can take place. The Ninth and Eleventh Circuits had not imposed that requirement.)

A divided Supreme Court affirmed, 5-4. The Court stated: "Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies. … In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security. That necessary showing has not been made in this case." The Court stated that the "record provides evidence that the seriousness of an offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption. People detained for minor offenses can turn out to be the most devious and dangerous criminals. … Experience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail."

The Court explained that the fact that persons arrested for minor offenses may be among the detainees processed at detention facilities is "a consequence of the exercise of state authority" approved in Atwater v. Lago Vista, 532 U.S. 318 (2001).  Atwater holds that officers may make a custodial arrest based upon probable cause to believe that the person has committed a criminal offense in their presence, even if the offense could not result in jail time and there was no compelling need for immediate detention.

Part IV of the Court's decision left open several issues: what types of searches would be reasonable in instances where a detainee would be held without assignment to the general jail population and without substantial contact with other detainees; whether such searches can be conducted when the detention has not been reviewed by a judicial officer; what consequences arise from officers engaging in intentional humiliation and other abusive practices; and how to address concerns about the invasiveness of searches that involve the touching of detainees.

Justice Kennedy delivered the opinion of the Court, which Chief Justice Roberts and Justices Scalia and Alito joined in full and Justice Thomas joined except for Part IV. Chief Justice Roberts and Justice Alito filed concurring opinions. Justice Breyer filed a dissenting opinion, joined by Justices Ginsburg, Sotomayor, and Kagan.

Download Opinion of the Court

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