STRIP SEARCHES PERMITTED FOR ALL PERSONS GOING INTO THE GENERAL JAIL POPULATION
On April 2, 2012, the United States Supreme Court ruled, in a 5-4 decision, that visual body searches of arrestees being placed in the general jail population are constitutional, regardless of the nature of the underlying offense.
In the case of Florence v. Board of Chosen Freeholders of the County of Burlington, 2012 U.S. LEXIS 2712, the Court said that “(c)orrectional 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.”
The Court said that, “(t)his case presents the question of what rules, or limitations, the Constitution imposes on searches of arrested persons who are to be held in jail while their cases are being processed?” Furthermore, “(t)he term “jail” is used here in a broad sense to include prisons and other detention facilities.”
Facts
In 1998, Petitioner had pled guilty to two misdemeanors and received a fine which was to be paid over a period of time. In 2003 he fell behind in the payments and, after failing to appear for a hearing, a warrant was issued for his arrest. He paid the outstanding amount a week later but somehow the warrant was not recalled. As a result, two years later, when he was stopped for a traffic violation, while driving with his wife, he was taken into custody in Burlington, New Jersey.
He was taken to the Burlington County Detention Center where he was required to “shower with a delousing agent. Officers [then checked him] for scars, marks, gang tattoos, and contraband as [he] disrobed. Petitioner claims he was also instructed to open his mouth, lift his tongue,
hold out his arms, turn around, and lift his genitals.” This was standard procedure at the county jail and required of all inmates being held in the general jail population.
Six days later, he was transferred to the Essex County Correctional Facility, which is the largest county jail in New Jersey. The facility “admits more than 25,000 inmates each year and houses about 1,000 gang members at any given time. When petitioner was transferred there, all arriving detainees passed through a metal detector and waited in a group holding cell for a more thorough search. When they left the holding cell, they were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings. This policy applied regardless of the circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history.”
Petitioner was released the next day when charges were dismissed and, thereafter, he sued, “seeking relief under 42 U. S. C. §1983 for violations of his Fourth and Fourteenth Amendment rights, [and] maintained that persons arrested for a minor offense could not be required to remove their clothing and expose the most private areas of their bodies to close visual inspection as a routine part of the intake process. Rather, he contended, officials could conduct this kind of search only if they had reason to suspect a particular inmate of concealing a weapon, drugs, or other contraband.”
Ruling of the Court
“The difficulties of operating a detention center must not be underestimated by the courts.” Furthermore, “(m)aintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. [Previously, this] Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”
In citing to earlier decisions, the Supreme Court stated that “(t)he task of determining whether a policy is reasonably related to legitimate security interests is “peculiarly within the province and professional expertise of corrections officials.” The Court found that “(i)n many jails, officials seek to improve security by requiring some kind of strip search of everyone who is to be detained. These procedures have been used in different places throughout the country. . . . Persons arrested for minor offenses may be among the detainees processed at these facilities. This is, in part, a consequence of the exercise of state authority. . . .”
“Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of inmates creates numerous risks for facility staff, for the existing detainee population, and for a new detainee himself or herself. The danger of introducing lice or contagious infections, for example, is well documented.”
In finding additional justification for the intrusive inspections of inmates entering the jail population, the Court stated, “(d)etecting contraband concealed by new detainees, furthermore, is a most serious responsibility. Weapons, drugs, and alcohol all disrupt the safe operation of a jail. Correctional officers have had to confront arrestees concealing knives, scissors, razor blades, glass shards, and other prohibited items on their person, including in their body cavities.”
The Court also discusses other items which are considered contraband and how they have a negative impact on the safe operation of jails and prisons. “Contraband creates additional problems because scarce items, including currency, have value in a jail’s culture and underground economy. Correctional officials inform us “[t]he competition . . . for such goods begets violence, extortion, and disorder.”
“Petitioner maintains there is little benefit to conducting these more invasive steps on a new detainee who has not been arrested for a serious crime or for any offense involving a weapon or drugs. In his view these detainees should be exempt from this process unless they give officers a particular reason to suspect them of hiding contraband. It is reasonable, however, for correctional officials to conclude this standard would be unworkable. The record provides evidence that the seriousness of an offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption.”
The Court noted that “(e)xperience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment.” The Court points out, however, that these searches do not apply to all entering a lockup facility.
“This case does not require the Court to rule on the types of searches that would be reasonable in instances where, for example, a detainee will be held without assignment to the general jail population and without substantial contact with other detainees.” Finally, said the Court, the rules involved in this case, “struck a reasonable balance between inmate privacy and the needs of the institutions.”
HOW THIS AFFECTS YOUR AGENCY
This decision applies to all detention facilities and/or prisons when arrestees are going into the general jail population – the decision does not apply to short term detainees who are not placed in the general jail population. It is necessary, therefore, to review the policies governing an agency’s detention facilities and insure that intrusive search procedures are not applied in cases involving minor offenses, where there is no reasonable suspicion that the person arrested possesses weapons, drugs or other contraband.
However, a “blanket” policy, calling for these types of search procedures, will not be considered an unconstitutional invasion of privacy, even if the underlying charge is minor in nature, and no reasonable suspicion exists that the inmate possesses contraband, if that person is going into the general jail population.
This decision follows the analysis in the case of Bull v. City and County of San Franciscowhere the Ninth Circuit U.S. Court of Appeals held that the “blanket” policy of the San Francisco Sheriff was constitutional based on the need to insure safety in the City’s detention facilities. The firm of JONES & MAYER, as general counsel to the California State Sheriffs’ Association (CSSA) drafted and submitted an amicus curiae brief in that case, supporting the City’s position. [See J&M Client Alert Memo, 2/12/2010.]
In the instant case, CSSA was asked to join with the National Sheriffs’ Association in their amicus brief which was to be filed in support of Burlington County. Following review of the brief by JONES & MAYER, and after modifications requested by the firm were made, CSSA signed on to the brief in support of Burlington County, as well.
As in all matters involving legal interpretation, it is imperative that you confer with your agency’s legal counsel to secure advice and guidance in this situation. As always, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.