Florence v. Board of Chosen Freeholders

The Fourth Amendment protects individuals from “unreasonable” searches. Whether a search is unreasonable depends on the context of the search: specifically, a balancing of “the need for the particular search against the invasion of personal rights the search entails.” The United States Court of Appeals for the Third Circuit held that the strip searches in this case were reasonable because the security interests of the Respondent prisons outweighed the privacy interests of their detainees.

Petitioner Florence claims that the Fourth Amendment requires an official to have a reasonable suspicion of contraband to perform strip searches of detainees during prison intake. Florence argues that the circumstances of his arrest did not create the reasonable suspicion that would outweigh his legitimate expectation of privacy from intrusive searches In contrast, Respondents BCF and Essex argue that the penological interests of a prison in conducting searches at intake outweigh the privacy interests of detainees.

Does the Fourth Amendment apply to detainees?

Petitioner Florence argues that the Fourth Amendment protects individuals from intake searches, absent reasonable suspicion, in the prison setting. In addition, Florence claims that, in most cases, an individualized reasonable suspicion to justify a strip search must be found for each detainee. He asserts that the context of a search determines the reasonableness of privacy expectations, and that detainees in a prison context still maintain an expectation of privacy that the Fourth Amendment must protect. In addition, because the government lacks the authority to punish individuals who have not been convicted, Florence maintains that a court should consider the reasonableness of a detainee’s expectation of privacy differently from that of convicted inmates.

According to BCF and Essex, Fourth Amendment protections against searches in the prison context are either severely limited, or absent altogether. Essex argues that this is because the custodial relationship of a prison to a detainee substantially delimits a detainee’s reasonable expectation of privacy. Additionally, BCF and Essex argue that, because a prison requires surveillance of inmates and strict controls over entrance, the expectation of privacy is much lower than in a home or car. Essex also claims that the historical context of the Fourth Amendment shapes the meaning of a legitimate expectation of privacy: The Founders ratified the amendment during a time when prisons cleansed and strip-searched new inmates. Essex adds that, because prisons are highly monitored, there is no reason to distinguish between a pre-trial detainee and a convicted inmate. Accordingly, Essex argues that the prison setting diminishes the reasonable expectation of privacy of detainees and does not protect detainees from searches under the Fourth Amendment.

If the Fourth Amendment applies, does it protect certain detainees from strip searches?

Florence argues that a high level of reasonable suspicion is necessary to justify a procedure as intrusive as a strip search under the Fourth Amendment. According to Florence, a strip search invades the core of privacy that the Fourth Amendment protects, threatening damage to an individual’s dignity, self-esteem, and psychological wellbeing. He claims that the circumstances of his arrest—being pulled over for speeding during a family trip with relatives and brought in on an outstanding warrant for a non-indictable offense—did not establish an individualized suspicion, sufficient to justify a strip search, that he would smuggle contraband into prison. Florence adds that, even if the prison officials had reasonable suspicion, they performed his strip searches in a manner so degrading as to render each search unreasonable.

In response, BCF and Essex argue that legitimate penological interests outweigh the expectation of privacy in prison. Essex asserts that a detainee’s expectation of privacy must be measured objectively and that the prison context necessarily diminishes this expectation. Furthermore, BCF argues that, because of the context of confinement, a detainee invokes a sufficient level of suspicion to warrant a strip search. Accordingly, BCF and Essex maintain that prison interests weigh in favor of strip searches and a general rule that confined individuals, both inmates and detainees, are subject to a general level of suspicion, rather than individualized suspicion.

Even if the Supreme Court applies a more deferential standard to prisons than the Fourth Amendment balancing test, Florence argues that governmental interests in preventing and deterring the smuggling of contraband fail, in light of less intrusive alternatives, to justify strip searching all detainees. Florence contends that the strip search, however degrading, is not effective in uncovering hidden contraband, unlike an exhaustive body-cavity search. According to Florence, less intrusive alternatives to the strip search include pat-down searches, metal detectors, and visual observation with undergarments. Florence maintains that, if an officer finds reason to suspect smuggling, the officer may investigate with a more intrusive search. To address the privacy interest of detainees, Florence offers the alternative policy of separating those arrested for minor offenses from other inmates.

BCF and Essex argue that, even if a prison policy intrudes on a detainee’s privacy, the prison practice is valid if it “reasonably relates to a legitimate penological interest.” Essex argues that the risk of smuggling contraband is sufficiently significant to justify prison administrators' exercise of discretion in including strip searches during intake procedures. Claiming that prison security is a legitimate interest, Essex further argues that an individual who was arrested for a nonfelonious crime is not less likely to smuggle contraband into prison. Additionally, BCF cites the prevention of gang violence and spread of lice as legitimate penological interests that outweigh a detainee’s expectation of privacy. Finally, Essex argues that implementing Florence’s suggested alternatives would increase training and administrative costs, without achieving the requisite level of prison security.