While driving with his family in March 2005, Albert Florence was stopped by a New Jersey state trooper, who, after checking the vehicle’s registration, arrested Florence on an Essex County, New Jersey bench warrant for failing to pay a court fine.  Florence had, in fact, paid the fine years before and the matter was eventually resolved – but not before Florence had been repeatedly strip-searched by prison officials during a six-day stay in county correctional facilities.  As a recent Washington Post article points out, the invasiveness of the facility’s intake procedures is jarring, especially in light of the inconsequentiality of Florence’s purported offense.  But are the procedures constitutional?

The Supreme Court will soon decide.  In a brief filed with the Court, Florence contends that jailers’ policy of strip-searching all inmates entering correctional facilities – including those accused of minor offenses – violates the Fourth Amendment’s protection against unreasonable searches and seizures.  To effect a search as invasive as the one Florence underwent, officials must have a “reasonable suspicion” that an inmate is attempting to smuggle drugs or weapons into the facility.

Counsel for the prisons counter, however, asserting that suspicionless strip searches are necessary mechanisms to ensure the safety and security of state and federal prisons.  Any interest inmates have in individual privacy is dwarfed by the state’s interest in detecting the smuggling of contraband into prison.  Indeed, altering existing policy might spur inmates to coerce others into getting arrested on minor charges in order to smuggle contraband undetected.

As a tactical matter, Florence seeks to minimize the state’s interest in suspicionless strip searches, deriding the practice’s efficacy in detecting contraband.  Florence points to a variety of statistics suggesting that suspicionless strip searches prove a poor screening mechanism for smuggled materials.  For instance, eighteen states prohibit suspicionless strip searches with no indication that prisons therein suffer from an increased incidence of smuggling.  Florence also points to Dodge v. County of Orange, 282 F. Supp. 2d 41 (S.D.N.Y. 2003), in which a court in the Southern District of New York examined a prison policy whereby all inmates were strip-searched before entering a particular facility.  The Court looked at every arrest record to determine whether a “reasonable suspicion” regime – in which strip searches were limited to prisoners whose crimes and/or backgrounds evinced a propensity to smuggle – would increase the amount of contraband introduced into prison.  The Court concluded that of the 23,000 searches conducted over a four-year period, there was only one instance in which a person smuggling drugs might have evaded detection under a reasonable suspicion regime.

Florence’s reliance on statistics to cast doubt of the state’s interest in security may prove to be a tactical error.  First, recitations of statistics from other jurisdictions or other prisons do not necessarily speak to the realities of the prisons in which Florence was housed.  As one of the respondents points outs, the jail where Florence was strip-searched is one of the most dangerous in New Jersey, where contraband is “found on a daily basis.”[1]  Though the facility in Dodge may not have benefitted from a suspicionless strip search regime, the present prison might.

Moreover, the Court has defended highly invasive searches absent probable cause in prior cases, even where such practices appear to possess limited utility.  In Bell v. Wolfish, 441 U.S. 520 (1979), for instance, the Court upheld a prison policy subjecting prisoners to body cavity searches upon receiving outside visitors, despite the fact that such searches had discovered contraband in only one instance.  However, Bell does not necessarily ring the death knell for Florence’s appeal.  The fact that the searches in Bell discovered little contraband is to be expected: if the inmates knew that they would be searched after visits with guests, there would be little incentive to have those guests smuggle in illicit items.  In contrast, inmates charged with minor offenses are unlikely to possess contraband because: (a) they possess no real criminal disposition and thus no desire to smuggle illicit items into prison or (b) their arrest was unpredictable and thus they lacked the time necessary to hide contraband materials on their person.  The Court’s dismissal of statistical data in Bell does not necessarily suggest they will reject it again in Florence.


[1] To be fair, the prison defines contraband as drugs, weapons, and “innocuous items” such as chewing gum and cigarettes that may be bartered by the prison population.

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2 Comments

  1. Jon Cioschi says:

    Great post.

    I’d just like to note a couple of things. First, assuming police procedures regarding arrests in NJ are not much different than those of the NYPD, any individual taken into custody is going to be fully frisked – or, in other words, patted down – and searched prior to even stepping in the police cruiser (i.e., search incident to “lawful” arrest). Assuming the officer is doing her job properly, any weapons on the arrestee and probably most other contraband not secreted in some cavity on the arrestee will be discovered and seized.

    How much contraband can be hidden beneath clothing not revealable by ordinary, thorough searches incident to arrest? It seems to me not that much, if any (especially unlikely that they will be weapons). The prison’s safety and security rationale thus is correspondingly weakened. The only other time such contraband might be secreted or stored on the arrestee is while he is being held in a cell in the police precinct or some other pre-arraignment/trial detention center other than the jail. But, as far as I know, any time a prisoner is taken from one detention site to another, she is frisked and searched comprehensively, providing yet another means by which contraband, especially weapons, might be detected. Again, the prison’s safety and security rationale is weakened.

    What really concerns me here is what might happen if a “reasonable suspicion” test is held to be too restrictive. That benchmark, as evidenced by hordes of cases regarding unlawful Terry stops and at least one case regarding unlawful strip searches in NY prisons, is routinely violated. The prison officials here might fire back and say that this is probative of the high public safety concern of those in charge of prisoner transport and oversight and thus the need to do away with the standard, but of course I would reply that that standard is perhaps the only thing protecting any prisoner from privacy invasions, even if it is a weak one.

    “Any interest inmates have in individual privacy is dwarfed by the state’s interest in detecting the smuggling of contraband into prison.”

    I’d just like to not

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