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U.S. High Court Issues Split Ruling On Blanket Strip-Search Policy

WASHINGTON, D.C. - (Mealey's) Strip searching all new arrestees with or without suspicion before mixing them with the general jail population is appropriate, a split U.S. Supreme Court ruled April 2 (Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington, et al., No.10-945, U.S. Sup.). 

(Opinion. Document #43-120406-016Z.) 

"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.  Facility personnel, other inmates, and the new detainee himself or herself may be in danger if these threats are introduced into the jail population," wrote Justice Anthony M. Kennedy, who delivered the opinion of the high court majority except as to Part IV.  In that portion of the opinion, the majority declined to consider what type of searches would be appropriate for detainees who will not be mingling with the general jail population.   

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel Anthony Alito Jr. joined in the majority opinion in full.  Justice Clarence Thomas joined in the majority opinion except as to Part IV.   

Chief Justice Roberts and Justice Alito filed concurring opinions.  Justice Stephen G. Breyer filed a dissenting opinion in which Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined.   

Bench Warrant 

Albert Florence was the passenger in a vehicle stopped by a New Jersey state trooper on March 3, 2005.  Florence was arrested based on an April 25, 2003, bench warrant from Essex County.  The warrant charged Florence with a nonindictable variety of civil contempt.  Though Florence protested the validity of the warrant by insisting he had already paid the fine, he was arrested and taken to Burlington County, N.J., Jail (BCJ). 

Florence claimed that he was subjected to a strip and visual body cavity search by corrections officers at BCJ.  During Florence's sixth day at BCJ, the Essex County Sheriff's Department took custody of him and transported him to Essex County, N.J., Correctional Facility (ECCF).  Florence alleged that once there, he was again subjected to a strip and visual body cavity search. 

After his release, Florence sued BCJ, ECCF and various people and municipal entities under 42 U.S. Code Section 1983.  On March 20, 2008, the U.S. District Court for the District of New Jersey granted Florence's motion for class certification.  The District Court granted Florence's motion for summary judgment on the unlawful search claim but denied his request for preliminary injunction.  The court also denied the defendants' cross-motion, which sought qualified and 11th Amendment immunity.  The defendants appealed. 

A split Ninth Circuit U.S. Court of Appeals panel ruled 2-1 to reverse the District Court ruling, finding that the strip search procedures at BCJ and ECCF were reasonable.  Florence appealed to the U.S. high court. 

Differing Opinions

In a concurring one-page opinion, Justice Roberts opined that the high court's ruling does not eliminate the possibility for exceptions to the rule.  Justice Alito, in three pages, similarly wrote that the limits of the majority's holding must be noted.  "Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate.  In some cases, the charges are dropped.  In others, arrestees are released either on their own recognizance or on minimal bail.  In the end, few are sentenced to incarceration.  For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.  For example, the Federal Bureau of Prisons (BOP) and possibly even some local jails appear to segregate temporary detainees who are minor offenders from the general population,"  Justice Alito wrote.   

Dissenting, Justice Breyer opined that such invasive searches without suspicion are not justified.  "Indeed, neither the majority's opinion nor the briefs set forth any clear example of an instance in which contraband was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard," Justice Breyer wrote, adding that he doesn't find the lack of examples surprising.   

"After all," he continued, "those arrested for minor offenses are often stopped and arrested unexpectedly.  And they consequently will have had little opportunity to hide things in their body cavities.  Thus, the widespread advocacy by prison experts and the widespread application in many States and federal circuits of 'reasonable suspicion' requirements indicates an ability to apply such standards in practice without unduly interfering with the legitimate penal interest in preventing the smuggling of contraband." 


Edward L. Barocas of ACLU of New Jersey in Trenton, N.J., filed an amicus brief on behalf of former attorneys general of New Jersey.  David J. Bederman of Emory Law School filed an amicus brief on behalf of Medical Society of New Jersey, the Center for Prisoner Health and Human Rights and Medical Experts.  Michigan Solicitor General John J. Bursch in Lansing, Mich., filed an amicus brief on behalf of Michigan and 11 other states.  R. Matthew Cains of The Voice of the Defense Bar in Chicago filed an amicus brief on behalf of DRI.  Cook County Assistant State Attorney Paul A. Castiglione in Chicago filed an amicus brief on behalf of Cook County.  Danny Chou of the San Francisco City Attorney's Office in San Francisco filed an amicus brief on behalf of the City and County of San Francisco. 

Jessica L. Ellsworth of Hogan Lovells in Washington filed an amicus brief on behalf of Domestic Violence Legal Empowerment and Appeals Project, the National Clearinghouse for the Defense of Battered Women and the Coalition against Sexual Assault.  Meir Feder of Jones Day in New York filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers.  Kenneth N. Flaxman in Chicago filed an amicus brief on behalf of the National Police Accountability Project.  David Iglesias of Flowers Davis in Tyler, Texas, filed an amicus brief on behalf of the Texas Association of Counties, the Texas Municipal League, the Texas Municipal League Intergovernmental Risk Pool, the Texas Conference of Urban Counties and the Texas Chief Deputies Association.  Sean X. Kelly of Marks, O'Neill, O'Brein & Courtney in Pennsauken, N.J., filed an amicus brief on behalf of Atlantic County and Gary Merline, an administrator of the Atlantic County Correctional Facility.  Stephen B. Kinnaird of Paul Hastings in Washington filed an amicus brief on behalf of New Jersey County Jail Wardens Association.  Robert L. Knupp of Knupp Law Offices in Harrisburg, Pa., filed an amicus brief on behalf of County Commissioners Association of Pennsylvania. 

Barrett S. Litt of Litt, Estuar & Kitson in Los Angeles filed an amicus brief on behalf of Sister Bernie Galvin, a Catholic nun.  Peter T. Marchesi of Wheeler & Arey in Waterville, Maine, filed an amicus brief on behalf of Maine County Commissioners Association.  James M. Mets of Mets, Schiro & McGovern in Iselin, N.J., filed an amicus brief on behalf of Policemen's Benevolent Association.  Evan P. Schultz of Washington filed an amicus brief on behalf of Academics on Gang Behavior.  Robert M. Spence of Rosen Harwood in Tuscaloosa, Ala., filed an amicus brief on behalf of National Sheriffs' Association.  Craig A. Stewart of Arnold & Porter in New York filed an amicus brief on behalf of current and former jail and corrections professionals.  Seth P. Waxman of Wilmer, Cutler, Pickering, Hale & Dorr in Washington filed an amicus brief on behalf of psychiatrists.  Stephen N. Zack of the American Bar Association in Chicago filed an amicus brief on behalf of the American Bar Association. 

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