Florence v. Board of Chosen Freeholders of the County of Burlington (2012)

566 U.S. _

Case Year: 2012

Case Ruling: 5-4, Affirmed

Opinion Justice: Kennedy

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Alito, Roberts, Scalia, Thomas


1st Concurring Opinion

Author: Alito


1st Dissenting Opinion

Author: Breyer

Joiner(s): Ginsburg, Sotomayor, Kagan

2nd Concurring Opinion

Author: Roberts


2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


On March 3, 2005, Albert W. Florence was a passenger in a sports utility vehicle driven by his wife on Interstate 395 in Burlington County, New Jersey. The car was pulled over by a New Jersey state trooper on a routine traffic matter. In the course of the roadside investigation, the trooper obtained Florence’s name and discovered, upon checking computerized records, that there was an outstanding warrant for his arrest for failure to pay a fine on a minor charge to which he had pleaded guilty. Florence protested that the fine already had been paid, but the trooper arrested him and transported him to the Burlington County jail.

Jail personnel subjected Florence to a strip and visual body cavity search during the intake process. The search required Florence to remove all his clothing, open his mouth and lift his tongue, lift his genitals, and shower while corrections officers observed him. He remained in the jail for 6 days, after which he was transferred to the Essex County jail. When he arrived at the Essex jail, he was again strip searched. This search was similar to the previous one, except it was done in the presence of four other new inmates, and he was required to squat and cough while facing away from the inspecting officers. In addition, two officers observed him while he showered. One day later, the charges related to his failure to pay a fine were dismissed, and Florence was released.

Florence filed suit against Burlington County and others, claiming that the strip searches constituted unreasonable searches and seizures in violation of the Fourth Amendment. The federal district court ruled in his favor, but the court of appeals for the Third Circuit reversed. Florence then requested review by the U.S. Supreme Court. The justices focused on the following question: Does the Fourth Amendment permit a jail to conduct suspicionless strip searches of all inmates, including inmates arrested for minor offenses?

The county argued that routine strip searches of inmates during the induction process are constitutionally reasonable because of the security and disciplinary interests inherent in the operation of a jail facility. Florence took the position that strip searches are constitutionally unreasonable when performed on an inmate arrested for a minor offense when there are no grounds for reasonable suspicion that he might be smuggling unauthorized materials into the facility.



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. This 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. The term “jail” is used here in a broad sense to include prisons and other detention facilities. . . . [This] controversy concerns whether every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed. . . . The difficulties of operating a detention center must not be underestimated by the courts. Jails (in the stricter sense of the term, excluding prison facilities) admit more than 13 million inmates a year. The largest facilities process hundreds of people every day; smaller jails may be crowded on weekend nights, after a large police operation, or because of detainees arriving from other jurisdictions. Maintaining 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. The 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.” Turner [v. Safley (1987)]. The Court’s opinion in Bell v. Wolfish(1979) is the starting point for understanding how this framework applies to Fourth Amendment challenges. That case addressed a rule requiring pretrial detainees in any correctional facility run by the Federal Bureau of Prisons “to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution.” . . . The Court . . . upheld the search policy. It deferred to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items inside. The Court explained that there is no mechanical way to determine whether intrusions on an inmate’s privacy are reasonable. The need for a particular search must be balanced against the resulting invasion of personal rights.

Policies designed to keep contraband out of jails and prisons have been upheld in cases decided since Bell. In Block v. Rutherford (1984), for example, the Court concluded that the Los Angeles County Jail could ban all contact visits because of the threat they posed. . . .

The Court has also recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions. In Hudson v. Palmer (1984), it addressed the question of whether prison officials could perform random searches of inmate lockers and cells even without reason to suspect a particular individual of concealing a prohibited item. The Court upheld the constitutionality of the practice, recognizing that “[f]or one to advocate that prison searches must be conducted only pursuant to an enunciated general policy or when suspicion is directed at a particular inmate is to ignore the realities of prison operation.” Inmates would adapt to any pattern or loopholes they discovered in the search protocol and then undermine the security of the institution.

These cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities. . . .

In 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. . . .

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. Petitioner has not met this standard, and the record provides full justifications for the procedures used.

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. . . . Persons just arrested may have wounds or other injuries requiring immediate medical attention. It may be difficult to identify and treat these problems until detainees remove their clothes for a visual inspection.

Jails and prisons also face grave threats posed by the increasing number of gang members who go through the intake process. Gang rivalries spawn a climate of tension, violence, and coercion. The groups recruit new members by force, engage in assaults against staff, and give other inmates a reason to arm themselves. Fights among feuding gangs can be deadly, and the officers who must maintain order are put in harm’s way. These considerations provide a reasonable basis to justify a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process. The identification and isolation of gang members before they are admitted protects everyone in the facility. Detecting 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 use of drugs can embolden inmates in aggression toward officers or each other; and, even apart from their use, the trade in these substances can lead to violent confrontations. . . .

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.” Gangs exacerbate the problem. They “orchestrate thefts, commit assaults, and approach inmates in packs to take the contraband from the weak.” This puts the entire facility, including detainees being held for a brief term for a minor offense, at risk. . . . Concealing contraband often takes little time and effort. It might be done as an officer approaches a suspect’s car or during a brief commotion in a group holding cell. Something small might be tucked or taped under an armpit, behind an ear, between the buttocks, in the instep of a foot, or inside the mouth or some other body cavity.

It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places. There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population. . . . 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.

People detained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93. Reasonable correctional officials could conclude these uncertainties mean they must conduct the same thorough search of everyone who will be admitted to their facilities.

Experience 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. . . .

Even if people arrested for a minor offense do not themselves wish to introduce contraband into a jail, they may be coerced into doing so by others. This could happen any time detainees are held in the same area, including in a van on the way to the station or in the holding cell of the jail. . . . Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility. This is a substantial reason not to mandate the exception petitioner seeks as a matter of constitutional law.

It also may be difficult, as a practical matter, to classify inmates by their current and prior offenses before the intake search. Jails can be even more dangerous than prisons because officials there know so little about the people they admit at the outset. An arrestee may be carrying a false ID or lie about his identity. The officers who conduct an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete. Petitioner’s rap sheet is an example. It did not reflect his previous arrest for possession of a deadly weapon. In the absence of reliable information it would be illogical to require officers to assume the arrestees in front of them do not pose a risk of smuggling something into the facility.

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. . . .

. . . The restrictions suggested by petitioner would limit the intrusion on the privacy of some detainees but at the risk of increased danger to everyone in the facility, including the less serious offenders themselves.

Even assuming all the facts in favor of petitioner, the search procedures at the Burlington County Detention Center and the Essex County Correctional Facility struck a reasonable balance between inmate privacy and the needs of the institutions. The Fourth and Fourteenth Amendments do not require adoption of the framework of rules petitioner proposes.

The judgment of the Court of Appeals for the Third Circuit is affirmed.

It is so ordered.


I join the opinion of the Court but emphasize the limits of today’s holding. The Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers. . . .

It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. . . . 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.

. . . The lead opinion explicitly reserves judgment on that question. In light of that limitation, I join the opinion of the Court in full.


A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy. We have recently said, in respect to a schoolchild (and a less intrusive search), that the “meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.” Safford Unified School Dist. #1 v. Redding (2009). Even when carried out in a respectful manner, and even absent any physical touching such searches are inherently harmful, humiliating, and degrading. And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass.

. . . I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strong reasons to believe they are not justified. . . .

Moreover, many correctional facilities apply a reasonable suspicion standard before strip searching inmates entering the general jail population, including the U.S. Marshals Service, the Immigration and Customs Service, and the Bureau of Indian Affairs. The Federal Bureau of Prisons (BOP) itself forbids suspicionless strip searches for minor offenders, though it houses separately (and does not admit to the general jail population) a person who does not consent to such a search. . . .

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. . . .

Nor do I find the majority’s lack of examples surprising. After all, 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.

The majority is left with the word of prison officials in support of its contrary proposition. And though that word is important, it cannot be sufficient. For the reasons set forth, I cannot find justification for the strip search policy at issue here—a policy that would subject those arrested for minor offenses to serious invasions of their personal privacy. I consequently dissent.