By Brenner M. Fissell, J.D. Candidate

            This fall, the Supreme Court will hear argument in a case centering on the practice of “strip searches” conducted when individuals are processed as inmates in a prison. Florence v. Board of Chosen Freeholders of the County of Burlington, coming up from the Third Circuit (most likely in recognition of a nascent circuit-split), addresses the Fourth Amendment issue of the constitutionality of routine strip searches of all new inmates, regardless of their alleged crimes or the suspicion that they are a threat.[1]

            Petitioner Albert Florence was driving with his family when he was pulled over by a police cruiser. Because the officer believed there was a valid, outstanding arrest warrant for the petitioner, Florence was arrested and brought to Burlington County Jail. The arrest warrant was only for civil contempt, though: Florence had failed to pay a fine that was assessed by a court in a prior judgment. At the first facility to which he was brought, Florence “was directed to remove all of his clothing, then open his mouth and lift his tongue, hold out his arms and turn around, and lift his genitals.”[2]At the second facility, “he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough.”[3]

            After he was released, he immediately filed suit in a §1983 action against the municipality. The district court held that “blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons, or other contraband, [are] unconstitutional.”[4]  The court ordered summary judgment on one of the claims, but others remained. Consequently, the respondents filed an interlocutory appeal with the Third Circuit, and the district court certified the following question on review: “Whether a blanket policy of strip searching all non-indictable arrestees admitted to a jail facility without first articulating reasonable suspicion violates the Fourth Amendment of the United States Constitution as applied to the States through the Fourteenth Amendment.”[5]

            The Third Circuit took up the question in Florence v. Bd. of Chosen Freeholders of Cnty.  of Burlington, 621 F.3d 296, 308 (3d Cir. 2010), cert. granted, 131 S. Ct. 1816 (U.S. 2011), and was acutely aware of the divided state of the law. At that time, the practice of suspicionless, blanket strip searches of all inmates, regardless of the alleged offense, was unconstitutional in ten circuits, but had been upheld by the Eleventh and Ninth Circuits sitting en banc.[6]Of those who had found it to be unconstitutional, “[t]he critical factor in balancing the competing interests was the belief that individuals arrested for minor offenses presented a relatively slight security risk because they usually are arrested unexpectedly whereas the contact visits in Bell may have been arranged specifically for the purpose of smuggling weapons or drugs.”[7]

            The Third Circuit decided to join the Eleventh and the Ninth Circuits and found that the practice did not violate the Fourth Amendment. The Third Circuit took Bell v. Wolfish as its starting point; in Bell, the Supreme Court held that visual body-cavity searches of prison inmates after they were permitted to visit with family and friends were reasonable, even absent suspicion.[8]Bell, of course, merely utilized the larger Fourth Amendment methodology: a balancing test.[9] Note, though, that this presupposed an answer to a larger question—and one that looms large over the upcoming appeal—namely, whether prisoners retain any protection under the Fourth Amendment. The prison proffered institutional interests that it believed justified an invasion of inmate privacy: “(1) the detection and deterrence of smuggling weapons, drugs or other contraband into the facility, (2) the identification of gang members by observing their tattoos, and (3) the prevention of disease, specifically Methicillin-Rresistant Staphylococcus Aureus (MRSA).”[10]

            The Third Circuit agreed. First, it noted that no distinction could be drawn between “non-indictable” inmates and those who could face trial or had been convicted—the security concerns were the same.[11]Moreover, it rejected that an individualized suspicion need be taken into account, noting that the Court inBell had only done its balancing test by looking at the policy as a whole.[12]The petitioner had also argued that the unexpected nature of low-level arrests mitigated the risk of inmates carrying contraband or sneaking it into a facility.  But, the court rejected this as well, arguing that such a policy, if known by inmates, could permit collusion with friends on the outside, who could cause themselves to be brought in for a minor offense and import contraband into the facility.[13]In any case, the court found that the amount of risk was irrelevant, as even the valid after-visit searches in Bell admittedly were conducted upon only a small risk of contraband.[14]There was no need to show statistical evidence that contraband was a problem; it was obvious.[15]The court shored up its decision by citing to strong Supreme Court precedent favoring deference to jail administrators and experts and also noted that a blanket policy avoids the usual criticism of suspicion-based searches, such as the potential of abusive or discriminatory use of discretion.[16]

            There is a great difference in style and content between the petitioner’s and the respondent’s briefs. The petitioner tells evocatively of the damaging psychological effects of strip searches, and at the same time of the often absurdly minor “offenses” for which individuals have been subjected to strip searches.[17]While this approach is scant in its legal references, it bears noting that the Court is dealing with an inherently amorphous “reasonableness” balancing test. At the end of the day, it will be a common sense judgment. The petitioner also stridently attacks the argument made by the Third Circuit that points to a risk of collusion with outsiders, saying in one hilarious passage:  “Respondents must imagine that petitioner drove around with his family with drugs strapped below his genitals hoping the car would be pulled over without even engaging in a moving violation, having paid a fine precisely to terminate the warrant for his arrest, while carrying the paperwork with him to ensure that he was never wrongly arrested, all as a giant effort at misdirection.”[18]Beyond this, the petitioner again stresses the lack of any evidence that contraband smuggling is a problem and proposes that a reasonable suspicion threshold for strip searches is more workable in that it will save countless man hours wasted on searches that yield nothing.[19]

           The respondents, represented by Sidley Austin and Drinker Biddle, offer a more legally buttressed, technical argument. However, they begin their brief with what seems to be a rather shocking claim (at first blush): The Fourth Amendment offers no protection to inmates.[20]Analogizing from a sentence in the Hudsondecision, where inmates were held to possess no reasonable expectation of privacy in their cells,[21]the respondents suggest that the same principle applies to the persons of the inmates themselves.[22]The second pillar of the respondents’ argument is the strong precedent favoring institutional deference.[23]Their final attack is aimed at the “workability” of the proposed reasonable suspicion regime, with the relationship between offense level and level of danger being decried as unreliable, as well as the impossibility of grounding “reasonable suspicion” simply upon the nature of the offense or charge.[24]

          As with any circuit split, it is difficult to predict which side has the stronger position. Intelligent minds have scrutinized both positions, and the divide is often one of fundamental presuppositions about law, politics, or the Constitution.

          The most consequential element of this case, and the one that the Court can no longer avoid, is the proposition that inmates possess no Fourth Amendment rights. By appealing to precedent, the Third Circuit was quick to dismiss any distinction between the different types of inmates in a prison.[25]However, there are important differences that should be noted before a categorical holding is made, predicating itself solely upon the universal concerns of institutional safety. There is another side of the Fourth Amendment balancing test—the individual’s privacy interest—and the differing character of inmates ought to allow for a sliding scale of Fourth Amendment deprivations. Jails contain convicted felons and misdemeanants, those awaiting trial (presumed innocent), and those who are being held but who may never be charged. In the first case, the jail serves any number of the ends of punishment (rehabilitation, retribution, etc.), but in the latter two onlyincapacitation is justified. It is simply unreasonable to permit these classes of inmates to suffer the same Fourth Amendment deprivations of those who are convicted.  While institutional security remains constant, the legal and constitutional status of those who are within that institution do not.