The Future of Strip Searches

Photo by: James Clayton

The Fourth Amendment, originally adopted in the Bill of Rights in response to abuse of the writ of assistance (a type of general search warrant) during the American Revolution, contains the well-known prohibition against unreasonable searches and seizures.  The rights granted by this amendment have been extended into the walls of prisons across the country, particularly to detainees and inmates who retain most of their constitutional rights while incarcerated.  The strip search, a process detainees undergo after an arrest, helps to ensure smooth operation of such institutions, but has often been criticized as a violation of privacy.

The recent Supreme Court ruling in Florence v. Burlington was a defeat for those who generally oppose strip searches of detainees upon entering jail.  The majority opinion written by Justice Kennedy held that strip searches do not require reasonable suspicion so long as the detainee is being entered into the general population.  The decision was a close 5-4 vote, with two concurring opinions.

The petitioner, Albert W. Florence from Burlington County, New Jersey, was arrested during a traffic stop.  The state trooper who made the stop subsequently found Florence had an outstanding warrant for his arrest.  The warrant had been issued after Florence failed to appear at a hearing to enforce a fine.  Florence was detained in the Burlington County Detention Center, but was released once it was determined the fine had actually been paid.  The main issue in this case resulted from Florence’s strip search at the detention center, which included a delousing shower, checks for contraband and gang tattoos, and a physical examination.  Florence filed a 42 U.S.C. § 1983 action against the governmental agencies in charge of operating the jails, alleging his Fourth and Fourteenth Amendment rights had been violated.  He argued that individuals arrested for minor offenses should not be forced to undergo such invasive searches unless there is reasonable suspicion that the detainee possesses contraband, weapons, or drugs.  The Federal District Court granted Florence summary judgment, ruling that strip searches of minor offenders without reasonable suspicion violated the Fourth Amendment.  But the Third Circuit reversed, and the judgment was affirmed by the Supreme Court.

The ruling was handed down on April 2, and stirred up controversy.  As jails admit more than 13 million inmates each year, there is a legitimate need to strike a reasonable balance between the rights of inmate privacy and the need of jails to maintain a safe and secure environment.  Kennedy, in the majority opinion, began with an acknowledgment of this balance.  “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 . . . [t]he Court has confirmed 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.”

However, many saw this as a direct violation of privacy that was not reasonably related to legitimate interests.  The dissent, written by Justice Breyer, describes the strip searches as ones involving “close observation of the private areas of a person’s body” that “constitute a far more serious invasion of that person’s privacy.”   The dissenting justices emphasized that such a search was only unreasonable if the detainee was not being held for a crime involving drugs or violence and that minor offenses should not warrant such an invasive procedure.

Critics of the ruling felt the court went too far in that prison officers and officials will now have too much freedom to strip search almost anyone for practically any offense. But the two concurring opinions were quick to point out that the holding, though strict, is narrow.  The holding only applies to detainees who enter the general population, and searches are not required for detainees who are released after being arrested.  The permitted strip searches must remain purely visual, with no physical contact between the detainee and the prison official.  Justice Alito’s concurring opinion suggested that a policy allowing general searches might not always be appropriate under the Fourth Amendment.  “The Court,” Alito wrote, “does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.”

While this concurrence may not satisfy opponents, the Court felt the safety of prisons was too important to leave up to the “reasonable suspicion” standard suggested by the petitioner.  Justice Kennedy and the majority countered that “people detained for minor offenses can turn out to be the most devious and dangerous criminals,” citing the examples of Timothy McVeigh, responsible for the Oklahoma City bombing and serial killer Joel Rifkin, both stopped by state troopers for driving without a license plate.  Kennedy concluded that “evidence [of] 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.”  This grant of flexibility given by the Court’s decision will allow prison officers to continue their searches.  Still, the procedures discussed by the majority are forbidden in at least ten states, per state statute.

Gregory Wallace, professor of constitutional law and criminal procedure at Campbell University School of Law, viewed the decision as important, though relatively minor.  Wallace pointed out Florence’s situation is not one that will be heard in courts very often.  “Atwater v. Lago Vista gave police officers permission to arrest someone for a minor offense,” noted Wallace.  “The case here involving Albert Florence is simply addressing the downstream affects of Atwater.”  Wallace also agreed with the majority opinion in that the petitioner’s proposed standard of reasonable suspicion, as well as the minimum viewing space of ten feet between the detainee and the prison official during the search, is unworkable.  “Why ten feet,” asked Wallace,  “Why not eight?”

Despite flaws in the petitioner’s arguments, Wallace understood why this particular decision was controversial and resulted in such a close vote.  “The egregious nature of the facts, as well as the outcome, struck a lot of people as being outrageous,” he said.  “However, understanding how criminal procedure cases are decided is crucial.  A bright line rule will be unfair to some, while on the other hand benefiting police officers in the field by giving them directions to deal with the unusual situations they face.”

With the future of strip searches secure, Wallace predicts this issue will not likely reappear in courts any time soon.  “I don’t see this decision causing more fall out,” he noted.  In the absence of another court decision, strip searches can be expected from detainees ushered into the general populations of prisons and jails.



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About Kathryn Barge Jagoda, Former Associate Editor (10 Articles)
Kathryn graduated from Campbell Law School in 2013. During law school, Kathryn committed her time outside of the classroom to developing a future law career in public service. The summer after her first year of law school, Kathryn interned with the North Carolina Department of Justice in the Transportation Section. During her second year, Kathryn was an intern in both the Federal Public Defender's Office and the office of the Raleigh City Attorney. Kathryn spent her following summer as an intern for Judge Ann Marie Calabria at the North Carolina Court of Appeals. Kathryn also served as the vice-president of Campbell's Military Law Student Association, in part to honor the first twenty years of her life spent as an "Army Brat."
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