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Strip Search – Detainee – Jail Policy

Florence v. Board of Chosen Freeholders of County of Burlington et al., USSC No. 10-945, 4/2/12, affirming 621 F.3d 296 (3rd Cir. 2010)

A jail policy requiring that every detainee who will be admitted to the facility’s general population may be required to undergo close visual inspection while undressed is reasonable under the fourth amendment.

The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Block, 468 U. S., at 584–585 (internal quotation marks omitted). Petitioner has not met this standard, and the record provides full justifications for the procedures used.

The Court splits 5-4: the majority upholds suspicionless strip searches for any and all general population detainees, while the 4 dissenters would require reasonable suspicion to strip search a detainee “arrested for a minor offense that does not involve drugs or violence—saya traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor[.]” In other words, neither reasonable suspicion, nor any other particularized showing, is required for a “strip search” at a pretrial detention facility. The result apparently overrules caselaw in this Circuit, Mary Beth G. v. City of Chicago, 723 F. 2d 1263, 1273 (7th Cir. 1984) (“strip searching plaintiffs-appellees was unreasonable without a reasonable suspicion by the authorities that either of the twin dangers of concealing weapons or contraband existed”).) Note, however, the statutory limitations on the practice, § 968.225 which defines, authorize and regulates “strip searches” (as well as “body cavity” searches) of certain pre-sentencing detainees – as a matter of statutory construction, those categories of misdemeanor arrestees not specifically included within § 968.225((1)(a)2. are seemingly not subject to strip searches at all. And strip (and body cavity) searches of those arrestees falling within statutory authorization must, again as a matter of statutory construction, must follow the prescribed procedure. Slight digression: note the existence of caselaw declining to acknowledge suppression as a remedy for violating § 968.225, State v. Wallace, 2002 WI App 61, ¶25, 251 Wis. 2d 625, 642 N.W.2d 549 (“§ 968.255 does not require suppression of evidence obtained in violation of its provisions”). However, that conclusion is no longer supportable; see, e.g., State v. Popenhagen, 2008 WI 55, ¶ 69, 309 Wis. 2d 601, 749 N.W.2d 611 (holding that statutory violations indeed support suppression, and specifically describing Wallace as drawing “the erroneous proposition that suppression is barred except when a statute expressly requires suppression”).

There is much more that can – and will – be said about Florence. But not here, except to highlight the following points.

  • The decision limits itself to suspicionless searches of detainees assigned to the facility’s general population, and reserves judgment where the person is held “without substantial contact with other detainees.” (The quoted language is from Part IV, which Justice Thomas, otherwise in the 5-vote majority, enigmatically declines to join without saying why.) But the 4 dissenters not only would require reasonable suspicion even for a general population detainee but also characterize the “case [as] limited to strip searches of those arrestees entering a jail’s general population.” Pretty clear, then, that the Court breaks 8-1 in favor of the Part IV limitation.
  • The Court expressly defers to correctional administrators: “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.” Must defer unless unnecessary or unjustified. Wiggle room, then. Not much, to be sure, but you never know.
  • “Strip search”: The very term, the majority says, “is imprecise. It may refer simply to the instruction to remove clothing while an officer observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to raise arms, to display foot insteps, to expose the back of the ears, to move or spread the buttocks or genital areas, or to cough in a squatting position. In the instant case, the term does not include any touching of unclothed areas by the inspecting officer. There are no allegations that the detainees here were touched in any way as part of the searches.” If nothing else, “touching” may be a boundary. The dissenters stress the allegation “that officers inspected his genitals from an arm’s length away, required him to lift his genitals, and examined his anal cavity” – hard to say, as a result, where the definitional line between “cavity” and “strip” searches is drawn, beyond touching anyway.
  • Rules vs. standards. The majority favors a one-size-fits-all rule, on policy grounds: “The laborious administration of prisons would become less effective, and likely less fair and evenhanded, were the practical problems inevitable from the rules suggested by petitioner to be imposed as a constitutional mandate. … To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population.” The dissenters are more inclined toward a standard that weighs cases individually. Thus, the majority mentions examples of contraband smuggling; the dissent, the “humiliations of a visual strip search” suffered by a nun arrested for trespassing during a demonstration. If the numbers are impressive, neither side musters them. It is enough that a concrete example exists – if you think security the overriding concern, then you want a margin of error as close to zero as possible; if you think the reviewer’s thumb should be placed on the personal dignity side of the scale, then you want to deter intrusions of individual privacy.
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