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

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FLORENCE v. BOARD OF CHOSEN FREEHOLDERS
OF COUNTY OF BURLINGTON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 10–945. Argued October 12, 2011—Decided April 2, 2012
Petitioner was arrested during a traffic stop by a New Jersey state
trooper who checked a statewide computer database and found a
bench warrant issued for petitioner’s arrest after he failed to appear
at a hearing to enforce a fine. He was initially detained in the Bur-
lington County Detention Center and later in the Essex County Cor-
rectional Facility, but was released once it was determined that the
fine had been paid. At the first jail, petitioner, like every incoming
detainee, had to shower with a delousing agent and was checked for
scars, marks, gang tattoos, and contraband as he disrobed. Petition-
er claims that he also had to open his mouth, lift his tongue, hold out
his arms, turn around, and lift his genitals. At the second jail, peti-
tioner, like other arriving detainees, had to remove his clothing while
an officer looked for body markings, wounds, and contraband; had an
officer look at his ears, nose, mouth, hair, scalp, fingers, hands, arm-
pits, and other body openings; had a mandatory shower; and had his
clothes examined. Petitioner claims that he was also required to lift
his genitals, turn around, and cough while squatting. He filed a 42
U. S. C. §1983 action in the Federal District Court against the gov-
ernment entities that ran the jails and other defendants, alleging
Fourth and Fourteenth Amendment violations, and arguing that per-
sons arrested for minor offenses cannot be subjected to invasive
searches unless prison officials have reason to suspect concealment of
weapons, drugs, or other contraband. The court granted him sum-
mary judgment, ruling that “strip-searching” nonindictable offenders
without reasonable suspicion violates the Fourth Amendment. The
Third Circuit reversed.
Held: The judgment is affirmed.
2 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Syllabus
621 F. 3d 296, affirmed.
JUSTICE KENNEDY delivered the opinion of the Court, except as to
Part IV, concluding that the search procedures at the county jails
struck a reasonable balance between inmate privacy and the needs of
the institutions, and thus the Fourth and Fourteenth Amendments
do not require adoption of the framework and rules petitioner pro-
poses. Pp. 5−18, 19.
(a) Maintaining safety and order at detention centers requires the
expertise of correctional officials, who must have substantial discre-
tion to devise reasonable solutions to problems. A regulation imping-
ing on an inmate’s constitutional rights must be upheld “if it is rea-
sonably related to legitimate penological interests.” Turner v. Safley,
482 U. S. 78, 89. This Court, in Bell v. Wolfish, 441 U. S. 520, 558,
upheld a rule requiring pretrial detainees in federal correctional fa-
cilities “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[s],” deferring 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.
In Block v. Rutherford, 468 U. S. 576, 586−587, the Court upheld a
general ban on contact visits in a county jail, noting the smuggling
threat posed by such visits and the difficulty of carving out exceptions
for certain detainees. The Court, in Hudson v. Palmer, 468 U. S. 517,
522−523, also recognized that deterring the possession of contraband
depends in part on the ability to conduct searches without predictable
exceptions when it upheld the constitutionality of random searches of
inmate lockers and cells even without suspicion that an inmate is
concealing a prohibited item. These cases establish that correctional
officials must be permitted to devise reasonable search policies to de-
tect and deter the possession of contraband in their facilities, and
that “in the absence of substantial evidence in the record to indicate
that the officials have exaggerated their response to these considera-
tions courts should ordinarily defer to their expert judgment in such
matters,” Block, supra, at 584–585.
Persons arrested for minor offenses may be among the detainees to
be processed at jails. See Atwater v. Lago Vista, 532 U. S. 318, 354.
Pp. 5−9.
(b) The question here is whether undoubted security imperatives
involved in jail supervision override the assertion that some detain-
ees must be exempt from the invasive search procedures at issue ab-
sent reasonable suspicion of a concealed weapon or other contraband.
Correctional officials have a significant interest in conducting a thor-
ough search as a standard part of the intake process. The admission
of new inmates creates risks for staff, the existing detainee popula-
Cite as: 566 U. S. ____ (2012) 3
Syllabus
tion, and the new detainees themselves. Officials therefore must
screen for contagious infections and for wounds or injuries requiring
immediate medical attention. It may be difficult to identify and treat
medical problems until detainees remove their clothes for a visual in-
spection. Jails and prisons also face potential gang violence, giving
them reasonable justification for a visual inspection of detainees for
signs of gang affiliation as part of the intake process. Additionally,
correctional officials have to detect weapons, drugs, alcohol, and
other prohibited items new detainees may possess. Drugs can make
inmates aggressive toward officers or each other, and drug trading
can lead to violent confrontations. Contraband has value in a jail’s
culture and underground economy, and competition for scarce goods
can lead to violence, extortion, and disorder. Pp. 9−13.
(c) Petitioner’s proposal―that new detainees not arrested for seri-
ous crimes or for offenses involving weapons or drugs be exempt from
invasive searches unless they give officers a particular reason to sus-
pect them of hiding contraband―is unworkable. The seriousness of
an offense is a poor predictor of who has contraband, and it would be
difficult to determine whether individual detainees fall within the
proposed exemption. Even persons arrested for a minor offense may
be coerced by others into concealing contraband. 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.
It also may be difficult to classify inmates by their current and pri-
or offenses before the intake search. Jail officials know little at the
outset about an arrestee, who may be carrying a false ID or lie about
his identity. The officers conducting an initial search often do not
have access to criminal history records. And those records can be in-
accurate or incomplete. Even with accurate information, officers
would encounter serious implementation difficulties. They would be
required to determine quickly whether any underlying offenses were
serious enough to authorize the more invasive search protocol. Other
possible classifications based on characteristics of individual detain-
ees also might prove to be unworkable or even give rise to charges of
discriminatory application. To avoid liability, officers might be in-
clined not to conduct a thorough search in any close case, thus creat-
ing unnecessary risk for the entire jail population. While the re-
strictions petitioner suggests would limit the intrusion on the privacy
of some detainees, it would be at the risk of increased danger to eve-
ryone in the facility, including the less serious offenders. The Fourth
and Fourteenth Amendments do not require adoption of the proposed
framework. Pp. 13−18, 19.
4 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Syllabus
KENNEDY, J., delivered the opinion of the Court, except as to Part IV.
ROBERTS, C. J., and SCALIA and ALITO, JJ., joined that opinion in full,
and THOMAS, J., joined as to all but Part IV. ROBERTS, C. J., and ALITO,
J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in
which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
Cite as: 566 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–945
_________________
ALBERT W. FLORENCE, PETITIONER v. BOARD OF
CHOSEN FREEHOLDERS OF THE COUNTY OF
BURLINGTON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 2, 2012]
JUSTICE KENNEDY delivered the opinion of the Court,
except as to Part IV.*
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. The specific
measures being challenged will be described in more
detail; but, in broad terms, the controversy concerns
whether every detainee who will be admitted to the gen-
eral population may be required to undergo a close visual
inspection while undressed.
The case turns in part on the extent to which this Court
——————
* JUSTICE THOMAS joins all but Part IV of this opinion.
2 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Opinion of the Court
has sufficient expertise and information in the record to
mandate, under the Constitution, the specific restrictions
and limitations sought by those who challenge the visual
search procedures at issue. In addressing this type of
constitutional claim courts must defer to the judgment of
correctional officials unless the record contains substantial
evidence showing their policies are an unnecessary or un-
justified response to problems of jail security. That
necessary showing has not been made in this case.
I
In 1998, seven years before the incidents at issue, peti-
tioner Albert Florence was arrested after fleeing from
police officers in Essex County, New Jersey. He was
charged with obstruction of justice and use of a deadly
weapon. Petitioner entered a plea of guilty to two lesser
offenses and was sentenced to pay a fine in monthly in-
stallments. In 2003, after he fell behind on his payments
and failed to appear at an enforcement hearing, a bench
warrant was issued for his arrest. He paid the outstand-
ing balance less than a week later; but, for some unex-
plained reason, the warrant remained in a statewide
computer database.
Two years later, in Burlington County, New Jersey,
petitioner and his wife were stopped in their automobile
by a state trooper. Based on the outstanding warrant in
the computer system, the officer arrested petitioner and
took him to the Burlington County Detention Center. He
was held there for six days and then was transferred to
the Essex County Correctional Facility. It is not the ar-
rest or confinement but the search process at each jail that
gives rise to the claims before the Court.
Burlington County jail procedures required every ar-
restee to shower with a delousing agent. Officers would
check arrestees for scars, marks, gang tattoos, and contra-
band as they disrobed. App. to Pet. for Cert. 53a–56a.
Cite as: 566 U. S. ____ (2012) 3
Opinion of the Court
Petitioner claims he was also instructed to open his
mouth, lift his tongue, hold out his arms, turn around, and
lift his genitals. (It is not clear whether this last step was
part of the normal practice. See ibid.) Petitioner shared a
cell with at least one other person and interacted with
other inmates following his admission to the jail. Tr. of
Oral Arg. 17.
The Essex County Correctional Facility, where peti-
tioner was taken after six days, is the largest county jail
in New Jersey. App. 70a. It admits more than 25,000 in-
mates 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. Id., at 57a–59a; App. to Pet.
for Cert. 137a–144a. This policy applied regardless of the
circumstances of the arrest, the suspected offense, or the
detainee’s behavior, demeanor, or criminal history. Peti-
tioner alleges he was required to lift his genitals, turn
around, and cough in a squatting position as part of the
process. After a mandatory shower, during which his
clothes were inspected, petitioner was admitted to the
facility. App. 3a–4a, 52a, 258a. He was released the next
day, when the charges against him were dismissed.
Petitioner sued the governmental entities that operated
the jails, one of the wardens, and certain other defendants.
The suit was commenced in the United States District
Court for the District of New Jersey. Seeking relief under
42 U. S. C. §1983 for violations of his Fourth and Four-
teenth Amendment rights, petitioner maintained that per-
sons arrested for a minor offense could not be required
4 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Opinion of the Court
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. The District Court certified a class of
individuals who were charged with a nonindictable offense
under New Jersey law, processed at either the Burlington
County or Essex County jail, and directed to strip naked
even though an officer had not articulated any reasonable
suspicion they were concealing contraband.
After discovery, the court granted petitioner’s motion
for summary judgment on the unlawful search claim. It
concluded that any policy of “strip searching” nonindict-
able offenders without reasonable suspicion violated the
Fourth Amendment. A divided panel of the United States
Court of Appeals for the Third Circuit reversed, holding
that the procedures described by the District Court struck
a reasonable balance between inmate privacy and the
security needs of the two jails. 621 F. 3d 296 (2010). The
case proceeds on the understanding that the officers
searched detainees prior to their admission to the general
population, as the Court of Appeals seems to have as-
sumed. See id., at 298, 311. Petitioner has not argued
this factual premise is incorrect.
The opinions in earlier proceedings, the briefs on file,
and some cases of this Court refer to a “strip search.” The
term is imprecise. It may refer simply to the instruction
to remove clothing while an officer observes from a dis-
tance of, say, five feet or more; it may mean a visual in-
spection from a closer, more uncomfortable distance; it
may include directing detainees to shake their heads or to
run their hands through their hair to dislodge what might
be hidden there; or it may involve instructions to raise
arms, to display foot insteps, to expose the back of the
ears, to move or spread the buttocks or genital areas, or to
Cite as: 566 U. S. ____ (2012) 5
Opinion of the Court
cough in a squatting position. In the instant case, the
term does not include any touching of unclothed areas
by the inspecting officer. There are no allegations that
the detainees here were touched in any way as part of the
searches.
The Federal Courts of Appeals have come to differing
conclusions as to whether the Fourth Amendment requires
correctional officials to exempt some detainees who will be
admitted to a jail’s general population from the searches
here at issue. This Court granted certiorari to address the
question. 563 U. S. ___ (2011).
II
The difficulties of operating a detention center must not
be underestimated by the courts. Turner v. Safley, 482
U. S. 78, 84–85 (1987). Jails (in the stricter sense of
the term, excluding prison facilities) admit more than 13
million inmates a year. See, e.g., Dept. of Justice, Bureau
of Justice Statistics, T. Minton, Jail Inmates at Midyear
2010—Statistical Tables 2 (2011). 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 re-
quires 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 ex-
plained that a regulation impinging on an inmate’s consti-
tutional rights must be upheld “if it is reasonably related
to legitimate penological interests.” Turner, supra, at 89;
see Overton v. Bazzetta, 539 U. S. 126, 131–132 (2003).
But see Johnson v. California, 543 U. S. 499, 510–511
(2005) (applying strict scrutiny to racial classifications).
The Court’s opinion in Bell v. Wolfish, 441 U. S. 520(1979), is the starting point for understanding how this
6 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Opinion of the Court
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.” Id., at
558. Inmates at the federal Metropolitan Correctional
Center in New York City argued there was no security
justification for these searches. Officers searched guests
before they entered the visiting room, and the inmates
were under constant surveillance during the visit. Id., at
577–578 (Marshall, J., dissenting). There had been but
one instance in which an inmate attempted to sneak con-
traband back into the facility. See id., at 559 (majority
opinion). The Court nonetheless 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 prohib-
ited items inside. Id., at 558. The Court explained that
there is no mechanical way to determine whether intru-
sions on an inmate’s privacy are reasonable. Id., at 559.
The need for a particular search must be balanced against
the resulting invasion of personal rights. Ibid.Policies designed to keep contraband out of jails and
prisons have been upheld in cases decided since Bell. In
Block v. Rutherford, 468 U. S. 576 (1984), for example, the
Court concluded that the Los Angeles County Jail could
ban all contact visits because of the threat they posed:
“They open the institution to the introduction of
drugs, weapons, and other contraband. Visitors can
easily conceal guns, knives, drugs, or other contra-
band in countless ways and pass them to an inmate
unnoticed by even the most vigilant observers. And
these items can readily be slipped from the clothing of
an innocent child, or transferred by other visitors
Cite as: 566 U. S. ____ (2012) 7
Opinion of the Court
permitted close contact with inmates.” Id., at 586.
There were “many justifications” for imposing a general
ban rather than trying to carve out exceptions for certain
detainees. Id., at 587. Among other problems, it would be
“a difficult if not impossible task” to identify “inmates who
have propensities for violence, escape, or drug smuggling.”
Ibid. This was made “even more difficult by the brevity of
detention and the constantly changing nature of the in-
mate population.” Ibid.The Court has also recognized that deterring the posses-
sion of contraband depends in part on the ability to con-
duct searches without predictable exceptions. In Hudson
v. Palmer, 468 U. S. 517 (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.
Id., at 522–523. 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.’ ” Id., at 529 (quoting Marrero v. Common-
wealth, 222 Va. 754, 757, 284 S. E. 2d 809, 811 (1981)).
Inmates would adapt to any pattern or loopholes they
discovered in the search protocol and then undermine the
security of the institution. 468 U. S., at 529.
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.
See Bell, 441 U. S., at 546 (“[M]aintaining institutional
security and preserving internal order and discipline are
essential goals that may require limitation or retraction of
retained constitutional rights of both convicted prisoners
and pretrial detainees”). The task of determining whether
a policy is reasonably related to legitimate security inter-
8 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Opinion of the Court
ests is “peculiarly within the province and professional
expertise of corrections officials.” Id., at 548. This Court
has repeated the admonition that, “ ‘in the absence of
substantial evidence in the record to indicate that the
officials have exaggerated their response to these consid-
erations courts should ordinarily defer to their expert
judgment in such matters.’ ” Block, supra, at 584–585;
Bell, supra, at 548.
In many jails officials seek to improve security by re-
quiring some kind of strip search of everyone who is to be
detained. These procedures have been used in different
places throughout the country, from Cranston, Rhode
Island, to Sapulpa, Oklahoma, to Idaho Falls, Idaho. See
Roberts v. Rhode Island, 239 F. 3d 107, 108–109 (CA1
2001); Chapman v. Nichols, 989 F. 2d 393, 394 (CA10
1993); Giles v. Ackerman, 746 F. 2d 614, 615 (CA9 1984)
(per curiam); see also, e.g., Bull v. City and Cty. of San
Francisco, 595 F. 3d 964 (CA9 2010) (en banc) (San Fran-
cisco, California); Powell v. Barrett, 541 F. 3d 1298 (CA11
2008) (en banc) (Fulton Cty., Ga.); Masters v. Crouch, 872
F. 2d 1248, 1251 (CA6 1989) (Jefferson Cty., Ky.); Weber v.
Dell, 804 F. 2d 796, 797–798 (CA2 1986) (Monroe Cty.,
N. Y.); Stewart v. Lubbock Cty., 767 F. 2d 153, 154 (CA5
1985) (Lubbock Cty., Tex.).
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 that was the
subject of Atwater v. Lago Vista, 532 U. S. 318 (2001).
Atwater addressed the perhaps more fundamental ques-
tion of who may be deprived of liberty and taken to jail in
the first place. The case involved a woman who was ar-
rested after a police officer noticed neither she nor her
children were wearing their seatbelts. The arrestee ar-
gued the Fourth Amendment prohibited her custodial
arrest without a warrant when an offense could not result
in jail time and there was no compelling need for immedi-
Cite as: 566 U. S. ____ (2012) 9
Opinion of the Court
ate detention. Id., at 346. The Court held that a Fourth
Amendment restriction on this power would put officers in
an “almost impossible spot.” Id., at 350. Their ability to
arrest a suspect would depend in some cases on the pre-
cise weight of drugs in his pocket, whether he was a repeat
offender, and the scope of what counted as a compelling
need to detain someone. Id., at 348–349. The Court re-
jected the proposition that the Fourth Amendment barred
custodial arrests in a set of these cases as a matter of
constitutional law. It ruled, based on established princi-
ples, that officers may make an arrest based upon proba-
ble cause to believe the person has committed a criminal
offense in their presence. See id., at 354. The Court
stated that “a responsible Fourth Amendment balance is
not well served by standards requiring sensitive, case-by-
case determinations of government need, lest every discre-
tionary judgment in the field be converted into an occasion
for constitutional review.” Id., at 347.
Atwater did not address whether the Constitution im-
poses special restrictions on the searches of offenders
suspected of committing minor offenses once they are
taken to jail. Some Federal Courts of Appeals have held
that corrections officials may not conduct a strip search of
these detainees, even if no touching is involved, absent
reasonable suspicion of concealed contraband. 621 F. 3d,
at 303–304, and n. 4. The Courts of Appeals to address
this issue in the last decade, however, have come to the
opposite conclusion. See 621 F. 3d 296 (case below); Bame
v. Dillard, 637 F. 3d 380 (CADC 2011); Powell, supra;
Bull, supra. The current case is set against this precedent
and governed by the principles announced in Turner and
Bell.
III
The question here is whether undoubted security im-
peratives involved in jail supervision override the asser-
10 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Opinion of the Court
tion 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 offi-
cials in charge of the jail unless there is “substantial
evidence” demonstrating their response to the situation is
exaggerated. Block, 468 U. S., at 584–585 (internal quota-
tion marks omitted). Petitioner has not met this standard,
and the record provides full justifications for the proce-
dures used.
A
Correctional officials have a significant interest in con-
ducting 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 intro-
ducing lice or contagious infections, for example, is well
documented. See, e.g., Deger & Quick, The Enduring
Menace of MRSA: Incidence, Treatment, and Prevention
in a County Jail, 15 J. Correctional Health Care 174, 174–
175, 177–178 (2009); Bick, Infection Control in Jails and
Prisons, 45 Healthcare Epidemiology 1047, 1049 (2007).
The Federal Bureau of Prisons recommends that staff
screen new detainees for these conditions. See Clinical
Practice Guidelines, Management of Methicillin-Resistant
Staphylococcus aureus (MRSA) Infections 2 (2011); Clini-
cal Practice Guidelines, Lice and Scabies Protocol 1 (2011).
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 re-
move their clothes for a visual inspection. See Prison and
Jail Administration: Practice and Theory 142 (P. Carlson
& G. Garrett eds., 2d ed. 2008) (hereinafter Carlson &
Garrett).
Jails and prisons also face grave threats posed by the
Cite as: 566 U. S. ____ (2012) 11
Opinion of the Court
increasing number of gang members who go through the
intake process. See Brief for Policemen’s Benevolent As-
sociation, Local 249, et al. as Amici Curiae 14 (hereinaf-
ter PBA Brief); New Jersey Comm’n of Investigation,
Gangland Behind Bars: How and Why Organized Criminal
Street Gangs Thrive in New Jersey’s Prisons . . . And
What Can Be Done About It 10–11 (2009). “Gang rivalries
spawn a climate of tension, violence, and coercion.” Carl-
son & Garrett 462. The groups recruit new members by
force, engage in assaults against staff, and give other
inmates a reason to arm themselves. Ibid. Fights among
feuding gangs can be deadly, and the officers who must
maintain order are put in harm’s way. PBA Brief 17.
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 identi-
fication and isolation of gang members before they are
admitted protects everyone in the facility. Cf. Fraise v.
Terhune, 283 F. 3d 506, 509–510 (CA3 2002) (Alito, J.)
(describing a statewide policy authorizing the identifica-
tion and isolation of gang members in prison).
Detecting contraband concealed by new detainees, fur-
thermore, is a most serious responsibility. Weapons,
drugs, and alcohol all disrupt the safe operation of a jail.
Cf. Hudson, 468 U. S., at 528 (recognizing “the constant
fight against the proliferation of knives and guns, illicit
drugs, and other contraband”). 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. See Bull, 595
F. 3d, at 967, 969; Brief for New Jersey County Jail War-
dens Association as Amicus Curiae 17–18 (hereinafter
New Jersey Wardens Brief). They have also found crack,
heroin, and marijuana. Brief for City and County of San
Francisco et al. as Amici Curiae 9–11 (hereinafter San
Francisco Brief). The use of drugs can embolden inmates
12 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Opinion of the Court
in aggression toward officers or each other; and, even
apart from their use, the trade in these substances can
lead to violent confrontations. See PBA Brief 11.
There are many other kinds of contraband. The text-
book definition of the term covers any unauthorized item.
See Prisons: Today and Tomorrow 237 (J. Pollock ed.
1997) (“Contraband is any item that is possessed in viola-
tion of prison rules. Contraband obviously includes drugs
or weapons, but it can also be money, cigarettes, or even
some types of clothing”). Everyday items can undermine
security if introduced into a detention facility:
“Lighters and matches are fire and arson risks or po-
tential weapons. Cell phones are used to orchestrate
violence and criminality both within and without jail-
house walls. Pills and medications enhance suicide
risks. Chewing gum can block locking devices; hair-
pins can open handcuffs; wigs can conceal drugs and
weapons.” New Jersey Wardens Brief 8–9.
Something as simple as an overlooked pen can pose a
significant danger. Inmates commit more than 10,000
assaults on correctional staff every year and many more
among themselves. See Dept. of Justice, Bureau of Justice
Statistics, J. Stephan & J. Karberg, Census of State and
Federal Correctional Facilities, 2000, p. v (2003).
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.” New Jersey Wardens Brief 2.
Gangs exacerbate the problem. They “orchestrate thefts,
commit assaults, and approach inmates in packs to take
the contraband from the weak.” Id., at 9–10. This puts
the entire facility, including detainees being held for a
brief term for a minor offense, at risk. Gangs do coerce
inmates who have access to the outside world, such as
Cite as: 566 U. S. ____ (2012) 13
Opinion of the Court
people serving their time on the weekends, to sneak things
into the jail. Id., at 10; see, e.g., Pugmire, Vegas Suspect
Has Term to Serve, Los Angeles Times, Sept. 23, 2005,
p. B1 (“Weekend-only jail sentences are a common punish-
ment for people convicted of nonviolent drug crimes . . .”).
These inmates, who might be thought to pose the least
risk, have been caught smuggling prohibited items into
jail. See New Jersey Wardens Brief 10. Concealing con-
traband 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.
B
Petitioner acknowledges that correctional officials must
be allowed to conduct an effective search during the intake
process and that this will require at least some detainees
to lift their genitals or cough in a squatting position.
These procedures, similar to the ones upheld in Bell, are
designed to uncover contraband that can go undetected by
a patdown, metal detector, and other less invasive
searches. See Brief for United States as Amicus Curiae 23
(hereinafter United States Brief); New Jersey Wardens
Brief 19, n. 6. 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
14 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Opinion of the Court
offense involving a weapon or drugs. In his view these de-
tainees 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.
1
People detained for minor offenses can turn out to be
the most devious and dangerous criminals. Cf. Clements v.
Logan, 454 U. S. 1304, 1305 (1981) (Rehnquist, J., in
chambers) (deputy at a detention center shot by misde-
meanant who had not been strip searched). Hours after
the Oklahoma City bombing, Timothy McVeigh was
stopped by a state trooper who noticed he was driving
without a license plate. Johnston, Suspect Won’t Answer
Any Questions, N. Y. Times, Apr. 25, 1995, p. A1. Police
stopped serial killer Joel Rifkin for the same reason.
McQuiston, Confession Used to Portray Rifkin as Method-
ical Killer, N. Y. Times, Apr. 26, 1994, p. B6. One of
the terrorists involved in the September 11 attacks was
stopped and ticketed for speeding just two days before
hijacking Flight 93. The Terrorists: Hijacker Got a Speed-
ing Ticket, N. Y. Times, Jan. 8, 2002, p. A12. 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 of-
fenses have tried to smuggle prohibited items into jail,
sometimes by using their rectal cavities or genitals for the
concealment. They may have some of the same incentives
as a serious criminal to hide contraband. A detainee
might risk carrying cash, cigarettes, or a penknife to
Cite as: 566 U. S. ____ (2012) 15
Opinion of the Court
survive in jail. Others may make a quick decision to hide
unlawful substances to avoid getting in more trouble at
the time of their arrest. This record has concrete exam-
ples. Officers at the Atlantic County Correctional Facility,
for example, discovered that a man arrested for driving
under the influence had “2 dime bags of weed, 1 pack of
rolling papers, 20 matches, and 5 sleeping pills” taped
under his scrotum. Brief for Atlantic County et al. as
Amici Curiae 36 (internal quotation marks omitted). A
person booked on a misdemeanor charge of disorderly
conduct in Washington State managed to hide a lighter,
tobacco, tattoo needles, and other prohibited items in his
rectal cavity. See United States Brief 25, n. 15. San
Francisco officials have discovered contraband hidden in
body cavities of people arrested for trespassing, public
nuisance, and shoplifting. San Francisco Brief 3. There
have been similar incidents at jails throughout the coun-
try. See United States Brief 25, n. 15.
Even if people arrested for a minor offense do not them-
selves wish to introduce contraband into a jail, they may
be coerced into doing so by others. See New Jersey War-
dens Brief 16; cf. Block, 468 U. S., at 587 (“It is not unrea-
sonable to assume, for instance, that low security risk
detainees would be enlisted to help obtain contraband or
weapons by their fellow inmates who are denied contact
visits”). 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. If, for example, a person
arrested and detained for unpaid traffic citations is not
subject to the same search as others, this will be well
known to other detainees with jail experience. A hardened
criminal or gang member can, in just a few minutes, ap-
proach the person and coerce him into hiding the fruits of
a crime, a weapon, or some other contraband. As an ex-
pert in this case explained, “the interaction and mingling
between misdemeanants and felons will only increase the
16 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Opinion of the Court
amount of contraband in the facility if the jail can only
conduct admission searches on felons.” App. 381a. Ex-
empting people arrested for minor offenses from a stand-
ard search protocol thus may put them at greater risk and
result in more contraband being brought into the deten-
tion facility. This is a substantial reason not to mandate
the exception petitioner seeks as a matter of constitutional
law.
2
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. See New Jersey Wardens
Brief 11–14. 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.
See, e.g., App. 235a; New Jersey Wardens Brief 13. And
those records can be inaccurate or incomplete. See De-
partment of Justice v. Reporters Comm. for Freedom of
Press, 489 U. S. 749, 752 (1989). Petitioner’s rap sheet is
an example. It did not reflect his previous arrest for pos-
session of a deadly weapon. Tr. of Oral Arg. 18–19. 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.
Even if they had accurate information about a detainee’s
current and prior arrests, officers, under petitioner’s pro-
posed regime, would encounter serious implementation
difficulties. They would be required, in a few minutes, to
determine whether any of the underlying offenses were
Cite as: 566 U. S. ____ (2012) 17
Opinion of the Court
serious enough to authorize the more invasive search
protocol. Other possible classifications based on charac-
teristics of individual detainees also might prove to be
unworkable or even give rise to charges of discriminatory
application. Most officers would not be well equipped to
make any of these legal determinations during the pres-
sures of the intake process. Bull, 595 F. 3d, at 985–987
(Kozinski, C. J., concurring); see also Welsh v. Wisconsin,
466 U. S. 740, 761–762 (1984) (White, J., dissenting)
(“[T]he Court’s approach will necessitate a case-by-case
evaluation of the seriousness of particular crimes, a dif-
ficult task for which officers and courts are poorly
equipped”). To avoid liability, officers might be inclined
not to conduct a thorough search in any close case, thus
creating unnecessary risk for the entire jail population.
Cf. Atwater, 532 U. S., at 351, and n. 22.
The Court addressed an analogous problem in Atwater.
The petitioner in that case argued the Fourth Amendment
prohibited a warrantless arrest when being convicted of
the suspected crime “could not ultimately carry any jail
time” and there was “no compelling need for immediate
detention.” Id., at 346. That rule “promise[d] very little in
the way of administrability.” Id., at 350. Officers could
not be expected to draw the proposed lines on a moment’s
notice, and the risk of violating the Constitution would
have discouraged them from arresting criminals in any
questionable circumstances. Id., at 350–351 (“An officer
not quite sure the drugs weighed enough to warrant jail
time or not quite certain about a suspect’s risk of flight
would not arrest, even though it could perfectly well turn
out that, in fact, the offense called for incarceration and
the defendant was long gone on the day of trial”). The
Fourth Amendment did not compel this result in Atwater.
The Court held that officers who have probable cause to
believe even a minor criminal offense has been committed
in their presence may arrest the offender. See id., at 354.
18 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
Opinion of Kthe Court
Opinion of ENNEDY, J.
Individual jurisdictions can of course choose “to impose
more restrictive safeguards through statutes limiting
warrantless arrests for minor offenders.” Id., at 352.
One of the central principles in Atwater applies with
equal force here. Officers who interact with those sus-
pected of violating the law have an “essential interest in
readily administrable rules.” Id., at 347; accord, New York
v. Belton, 453 U. S. 454, 458 (1981). The officials in charge
of the jails in this case urge the Court to reject any compli-
cated constitutional scheme requiring them to conduct less
thorough inspections of some detainees based on their
behavior, suspected offense, criminal history, and other
factors. They offer significant reasons why the Constitu-
tion must not prevent them from conducting the same
search on any suspected offender who will be admitted to
the general population in their facilities. 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 seri-
ous offenders themselves.
IV
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. This describes the circumstances in
Atwater. See 532 U. S., at 324 (“Officers took Atwater’s
‘mug shot’ and placed her, alone, in a jail cell for about one
hour, after which she was taken before a magistrate and
released on $310 bond”). The accommodations provided in
these situations may diminish the need to conduct some
aspects of the searches at issue. Cf. United States Brief 30
(discussing the segregation, and less invasive searches, of
individuals held by the Federal Bureau of Prisons for
misdemeanors or civil contempt). The circumstances
Cite as: 566 U. S. ____ (2012) 19
Opinion of the Court
before the Court, however, do not present the opportunity
to consider a narrow exception of the sort JUSTICE ALITO
describes, post, at 2–3 (concurring opinion), which might
restrict whether an arrestee whose detention has not yet
been reviewed by a magistrate or other judicial officer,
and who can be held in available facilities removed from
the general population, may be subjected to the types of
searches at issue here.
Petitioner’s amici raise concerns about instances of
officers engaging in intentional humiliation and other
abusive practices. See Brief for Sister Bernie Galvin et al.
as Amici Curiae; see also Hudson, 468 U. S., at 528(“[I]ntentional harassment of even the most hardened
criminals cannot be tolerated by a civilized society”); Bell,
441 U. S., at 560. There also may be legitimate concerns
about the invasiveness of searches that involve the touch-
ing of detainees. These issues are not implicated on the
facts of this case, however, and it is unnecessary to con-
sider them here.
V
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.
Cite as: 566 U. S. ____ (2012) 1
ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–945
_________________
ALBERT W. FLORENCE, PETITIONER v. BOARD OF
CHOSEN FREEHOLDERS OF THE COUNTY OF
BURLINGTON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 2, 2012]
CHIEF JUSTICE ROBERTS, concurring.
I join the opinion of the Court. As with JUSTICE ALITO,
however, it is important for me that the Court does not
foreclose the possibility of an exception to the rule it an-
nounces. JUSTICE KENNEDY explains that the circum-
stances before it do not afford an opportunity to consider
that possibility. Ante, at 18–19. Those circumstances
include the facts that Florence was detained not for a
minor traffic offense but instead pursuant to a warrant for
his arrest, and that there was apparently no alternative, if
Florence were to be detained, to holding him in the gen-
eral jail population.
Factual nuances have not played a significant role as
this case has been presented to the Court. Both courts
below regarded acknowledged factual disputes as “imma-
terial” to their conflicting dispositions, 621 F. 3d 296, 300
(CA3 2010), and before this Court Florence challenged
suspicionless strip searches “no matter what the circum-
stances.” Pet. for Cert. i.
The Court makes a persuasive case for the general
applicability of the rule it announces. The Court is none-
theless wise to leave open the possibility of exceptions, to
ensure that we “not embarrass the future.” Northwest
Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944)
(Frankfurter, J.).
Cite as: 566 U. S. ____ (2012) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–945
_________________
ALBERT W. FLORENCE, PETITIONER v. BOARD OF
CHOSEN FREEHOLDERS OF THE COUNTY OF
BURLINGTON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 2, 2012]
JUSTICE ALITO, concurring.
I join the opinion of the Court but emphasize the limits
of today’s holding. The Court holds that jail adminis-
trators 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. To perform the searches, officers may direct the
arrestees to disrobe, shower, and submit to a visual in-
spection. As part of the inspection, the arrestees may be
required to manipulate their bodies.
Undergoing such an inspection is undoubtedly humiliat-
ing and deeply offensive to many, but there are reason-
able grounds for strip searching arrestees before they are
admitted to the general population of a jail. As the Court
explains, there is a serious danger that some detainees
will attempt to smuggle weapons, drugs, or other contra-
band into the jail. Some detainees may have lice, which
can easily spread to others in the facility, and some de-
tainees may have diseases or injuries for which the jail
is required to provide medical treatment. In addition, if a
detainee with gang-related tattoos is inadvertently housed
with detainees from a rival gang, violence may ensue.
Petitioner and the dissent would permit corrections
officers to conduct the visual strip search at issue here
2 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
ALITO, J., concurring
only if the officers have a reasonable basis for thinking
that a particular arrestee may present a danger to other
detainees or members of the jail staff. But as the Court
explains, corrections officers are often in a very poor posi-
tion to make such a determination, and the threat to the
health and safety of detainees and staff, should the offic-
ers miscalculate, is simply too great.
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 re-
viewed by a judicial officer and who could be held in avail-
able facilities apart from the general population. 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 segre-
gate temporary detainees who are minor offenders from
the general population. See, e.g., Brief for United States
as Amicus Curiae 30; Bull v. City & Cty. of San Francisco,
595 F. 3d 964, 968 (CA9 2010) (en banc).*
——————
* In its amicus brief, the United States informs us that, according to
BOP policy, prison and jail officials cannot subject persons arrested for
misdemeanor or civil contempt offenses to visual body-cavity searches
without their consent or without reasonable suspicion that they are
concealing contraband. Brief for United States 30. Those who are not
searched must be housed separately from the inmates in the general
population. Ibid. Similarly, as described by the Court of Appeals in
Bull, 595 F. 3d 964, the San Francisco County jail system distinguishes
between arrestees who are eligible for release because, for instance,
they can post bail within 12 hours and those who must be housed for an
Cite as: 566 U. S. ____ (2012) 3
ALITO, J., concurring
The Court does not address whether it is always reason-
able, without regard to the offense or the reason for deten-
tion, to strip search an arrestee before the arrestee’s de-
tention has been reviewed by a judicial officer. The lead
opinion explicitly reserves judgment on that question. See
ante, at 18–19. In light of that limitation, I join the opin-
ion of the Court in full.
——————
extended period of time. Id., at 968. The former are kept in holding
cells at a temporary intake and release facility where they are pat
searched and scanned with a metal detector but apparently are not
strip searched. Ibid. The latter are transported to a jail with custodial
housing facilities where they are then strip searched prior to their
admission into the general population. Ibid.Cite as: 566 U. S. ____ (2012) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–945
_________________
ALBERT W. FLORENCE, PETITIONER v. BOARD OF
CHOSEN FREEHOLDERS OF THE COUNTY OF
BURLINGTON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 2, 2012]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
The petition for certiorari asks us to decide
“[w]hether the Fourth Amendment permits a . . . suspi-
cionless strip search of every individual arrested for
any minor offense . . . .” Pet. for Cert. i. This question
is phrased more broadly than what is at issue. The
case is limited to strip searches of those arrestees
entering a jail’s general population, see 621 F. 3d 296,
298 (CA3 2010). And the kind of strip search in ques-
tion involves more than undressing and taking a
shower (even if guards monitor the shower area for
threatened disorder). Rather, the searches here in-
volve close observation of the private areas of a per-
son’s body and for that reason constitute a far more
serious invasion of that person’s privacy.
The visually invasive kind of strip search at issue
here is not unique. A similar practice is well described
in Dodge v. County of Orange, 282 F. Supp. 2d 41(SDNY 2003). In that New York case, the “strip
search” (as described in a relevant prison manual)
involved:
“ ‘a visual inspection of the inmate’s naked body. This
should include the inmate opening his mouth and
2 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
BREYER, J., dissenting
moving his tongue up and down and from side to side,
removing any dentures, running his hands through
his hair, allowing his ears to be visually examined,
lifting his arms to expose his arm pits, lifting his feet
to examine the sole, spreading and/or lifting his testi-
cles to expose the area behind them and bending over
and/or spreading the cheeks of his buttocks to expose
his anus. For females, the procedures are similar ex-
cept females must in addition, squat to expose the
vagina.’ ” Id., at 46.
Because the Dodge court obtained considerable empirical
information about the need for such a search in respect
to minor offenders, and because the searches alleged in
this case do not differ significantly, I shall use the succinct
Dodge description as a template for the kind of strip
search to which the Question Presented refers. See, e.g.,
App. to Pet. for Cert. 3a–4a (alleging that officers in-
spected his genitals from an arm’s length away, required
him to lift his genitals, and examined his anal cavity).
In my view, such a search of an individual arrested for a
minor offense that does not involve drugs or violence—say
a traffic offense, a regulatory offense, an essentially civil
matter, or any other such misdemeanor—is an “unreason-
able searc[h]” forbidden by the Fourth Amendment, unless
prison authorities have reasonable suspicion to believe
that the individual possesses drugs or other contraband.
And I dissent from the Court’s contrary determination.
I
Those confined in prison retain basic constitutional
rights. Bell v. Wolfish, 441 U. S. 520, 545 (1979); Turner
v. Safley, 482 U. S. 78, 84 (1987) (“Prison walls do not
form a barrier separating prison inmates from the protec-
tions of the Constitution”). The constitutional right at
issue here is the Fourth Amendment right to be free of
“unreasonable searches and seizures.” And, as the Court
Cite as: 566 U. S. ____ (2012) 3
BREYER, J., dissenting
notes, the applicable standard is the Fourth Amendment
balancing inquiry announced regarding prison inmates in
Bell v. Wolfish, supra. The Court said:
“The test of reasonableness under the Fourth
Amendment is not capable of precise definition or me-
chanical application. In each case it requires a bal-
ancing of the need for the particular search against
the invasion of personal rights that the search entails.
Courts must consider the scope of the particular in-
trusion, the manner in which it is conducted, the justi-
fication for initiating it, and the place in which it is
conducted.” Id., at 559.
I have described in general terms, see supra, at 1–2, the
place, scope and manner of “the particular intrusion.”
Bell, 441 U. S., at 559. I now explain why I believe that
the “invasion of personal rights” here is very serious and
lacks need or justification, ibid.—at least as to the cate-
gory of minor offenders at issue.
II
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 in-
vasion of privacy. We have recently said, in respect to a
schoolchild (and a less intrusive search), that the “mean-
ing 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, 557 U. S. ___, ___
(2009) (slip op., at 11). The Courts of Appeals have more
directly described the privacy interests at stake, writing,
for example, that practices similar to those at issue here
are “demeaning, dehumanizing, undignified, humiliating,
terrifying, unpleasant, embarrassing, [and] repulsive,
signifying degradation and submission.” Mary Beth G. v.
4 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
BREYER, J., dissenting
Chicago, 723 F. 2d 1263, 1272 (CA7 1984) (internal quota-
tion marks omitted); see also, e.g., Blackburn v. Snow, 771
F. 2d 556, 564 (CA1 1985) (“ ‘[A]ll courts’ ” have recognized
the “ ‘ severe if not gross interference with a person’s pri-
vacy’ ” that accompany visual body cavity searches (quoting
Arruda v. Fair, 710 F. 2d 886, 887 (CA1 1983))). These
kinds of searches also gave this Court the “most pause” in
Bell, supra, at 558 (guards strip searched prisoners after
they received outside visits). Even when carried out in a
respectful manner, and even absent any physical touching,
see ante at 4–5, 19, 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.
In Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001),
for example, police arrested a mother driving with her two
children because their seat belts were not buckled. This
Court held that the Constitution did not forbid an arrest
for a minor seatbelt offense. Id., at 323. But, in doing so,
it pointed out that the woman was held for only an hour
(before being taken to a magistrate and released on bond)
and that the search—she had to remove her shoes, jew-
elry, and the contents of her pockets, id., at 355—was not
“ ‘unusually harmful to [her] privacy or . . . physical inter-
ests.’ ” Id., at 354 (quoting Whren v. United States, 517
U. S. 806, 818 (1996)). Would this Court have upheld the
arrest had the magistrate not been immediately available,
had the police housed her overnight in the jail, and had
they subjected her to a search of the kind at issue here?
Cf. County of Riverside v. McLaughlin, 500 U. S. 44, 56
(1991) (presentment must be within 48 hours after arrest).
The petitioner, Albert W. Florence, states that his pre-
Cite as: 566 U. S. ____ (2012) 5
BREYER, J., dissenting
sent arrest grew out of an (erroneous) report that he had
failed to pay a minor civil fine previously assessed because
he had hindered a prosecution (by fleeing police officers
in his automobile). App. 25a–26a. He alleges that he was
held for six days in jail before being taken to a magistrate
and that he was subjected to two strip searches of the kind
in question. App. to Pet. for Cert. 3a.
Amicus briefs present other instances in which individ-
uals arrested for minor offenses have been subjected to
the humiliations of a visual strip search. They include a
nun, a Sister of Divine Providence for 50 years, who was ar-
rested for trespassing during an antiwar demonstration.
Brief for Sister Bernie Galvin et al. as Amici Curiae 6.
They include women who were strip-searched during
periods of lactation or menstruation. Id., at 11–12 (de-
scribing humiliating experience of female student who was
strip searched while menstruating); Archuleta v. Wagner,
523 F. 3d 1278, 1282 (CA10 2008) (same for woman lac-
tating). They include victims of sexual violence. Brief
for Domestic Violence Legal Empowerment and Appeals
Project et al. as Amici Curiae. They include individuals
detained for such infractions as driving with a noisy muf-
fler, driving with an inoperable headlight, failing to use a
turn signal, or riding a bicycle without an audible bell.
Brief for Petitioner 11, 25; see also Mary Beth G., supra, at
1267, n. 2 (considering strip search of a person arrested for
having outstanding parking tickets and a person arrested
for making an improper left turn); Jones v. Edwards, 770
F. 2d 739, 741 (CA8 1985) (same for violation of dog leash
law). They include persons who perhaps should never
have been placed in the general jail population in the first
place. See ante, at 2 (ALITO, J. concurring) (“admission to
general jail population, with the concomitant humiliation
of a strip search, may not be reasonable” for those “whose
detention has not been reviewed by a judicial officer and
who could not be held in available facilities apart from the
6 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
BREYER, J., dissenting
general population”).
I need not go on. I doubt that we seriously disagree
about the nature of the strip search or about the serious
affront to human dignity and to individual privacy that it
presents. The basic question before us is whether such
a search is nonetheless justified when an individual ar-
rested for a minor offense is involuntarily placed in the
general jail or prison population.
III
The majority, like the respondents, argues that strip
searches are needed (1) to detect injuries or diseases, such
as lice, that might spread in confinement, (2) to identify
gang tattoos, which might reflect a need for special hous-
ing to avoid violence, and (3) to detect contraband, includ-
ing drugs, guns, knives, and even pens or chewing gum,
which might prove harmful or dangerous in prison. In
evaluating this argument, I, like the majority, recognize:
that managing a jail or prison is an “inordinately difficult
undertaking,” Turner, 482 U. S., at 85; that prison regula-
tions that interfere with important constitutional interests
are generally valid as long as they are “reasonably related
to legitimate penological interests,” id., at 89; that finding
injuries and preventing the spread of disease, minimizing
the threat of gang violence, and detecting contraband are
“legitimate penological interests,” ibid.; and that we nor-
mally defer to the expertise of jail and prison administra-
tors in such matters, id., at 85.
Nonetheless, the “particular” invasion of interests, Bell,
441 U. S., at 559, must be “ ‘reasonably related’ ” to the jus-
tifying “penological interest” and the need must not be
“ ‘exaggerated.’ ” Turner, supra, at 87. It is at this point
that I must part company with the majority. 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 fur-
Cite as: 566 U. S. ____ (2012) 7
BREYER, J., dissenting
ther the penal interests mentioned. And there are strong
reasons to believe they are not justified.
The lack of justification is fairly obvious with respect to
the first two penological interests advanced. The searches
already employed at Essex and Burlington include: (a)
pat-frisking all inmates; (b) making inmates go through
metal detectors (including the Body Orifice Screening
System (BOSS) chair used at Essex County Correctional
Facility that identifies metal hidden within the body); (c)
making inmates shower and use particular delousing
agents or bathing supplies; and (d) searching inmates’
clothing. In addition, petitioner concedes that detainees
could be lawfully subject to being viewed in their under-
garments by jail officers or during showering (for security
purposes). Brief for Petitioner 9; Tr. of Oral Arg. 7–8
(“Showering in the presence of officers is not something
that requires reasonable suspicion”). No one here has
offered any reason, example, or empirical evidence sug-
gesting the inadequacy of such practices for detecting
injuries, diseases, or tattoos. In particular, there is no
connection between the genital lift and the “squat and
cough” that Florence was allegedly subjected to and health
or gang concerns. See Brief for Academics on Gang Be-
havior as Amici Curiae; Brief for Medical Society of New
Jersey et al. as Amici Curiae.
The lack of justification for such a strip search is less
obvious but no less real in respect to the third interest,
namely that of detecting contraband. The information
demonstrating the lack of justification is of three kinds.
First, there are empirically based conclusions reached in
specific cases. The New York Federal District Court, to
which I have referred, conducted a study of 23,000 persons
admitted to the Orange County correctional facility be-
tween 1999 and 2003. Dodge, 282 F. Supp. 2d, at 69.
These 23,000 persons underwent a strip search of the kind
described, supra, at 1. Of these 23,000 persons, the court
8 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
BREYER, J., dissenting
wrote, “the County encountered three incidents of drugs
recovered from an inmate’s anal cavity and two incidents
of drugs falling from an inmate’s underwear during the
course of a strip search.” 282 F. Supp. 2d, at 69. The
court added that in four of these five instances there may
have been “reasonable suspicion” to search, leaving only
one instance in 23,000 in which the strip search policy
“arguably” detected additional contraband. Id., at 70. The
study is imperfect, for search standards changed during
the time it was conducted. Id., at 50–51. But the large
number of inmates, the small number of “incidents,” and
the District Court’s own conclusions make the study pro-
bative though not conclusive.
Similarly, in Shain v. Ellison, 273 F. 3d 56, 60 (CA2
2001), the court received data produced by the county
jail showing that authorities conducted body-cavity strip
searches, similar to those at issue here, of 75,000 new
inmates over a period of five years. Brief for Plaintiff-
Appellee-Cross-Appellant in No. 00–7061 etc. (CA2), p. 16
(citing to its App. 343a–493a). In 16 instances the
searches led to the discovery of contraband. The record
further showed that 13 of these 16 pieces of contraband
would have been detected in a patdown or a search of shoes
and outer-clothing. In the three instances in which contra-
band was found on the detainee’s body or in a body cavity,
there was a drug or felony history that would have justi-
fied a strip search on individualized reasonable suspicion.
Ibid.; Brief for National Police Accountability Project as
Amicus Curiae 10.
Second, there is the plethora of recommendations of
professional bodies, such as correctional associations, that
have studied and thoughtfully considered the matter. The
American Correctional Association (ACA)—an association
that informs our view of “what is obtainable and what is
acceptable in corrections philosophy,” Brown v. Plata, 563
U. S. ___, ___ (2011) (slip op., at 43)—has promulgated a
Cite as: 566 U. S. ____ (2012) 9
BREYER, J., dissenting
standard that forbids suspicionless strip searches. And
it has done so after consultation with the American Jail
Association, National Sheriff’s Association, National In-
stitute of Corrections of the Department of Justice, and
Federal Bureau of Prisons. ACA, Performance-Based
Standards for Adult Local Detention Facilities, Standard
4–ALDF–2C–03, p. 36 (4th ed. 2004); Dept. of Justice,
Federal Performance-Based Detention Standards Hand-
book, §C. 6, p. 99 (Feb. 23, 2011, rev.-2), http://www.
justice.gov/ofdt/fpbds02232011.pdf (all Internet materials
as visited Mar. 30, 2012, and available in Clerk of Court’s
case file); ACA, Core Jail Standards §1–CORE–2C–02,
pp. vii, 23 (2010). A standard desk reference for general
information about sound correctional practices advises
against suspicionless strip searches. Dept. of Justice,
National Institute of Corrections, M. Martin & T. Rosazza,
Resource Guide for Jail Administrators 4, 113 (2004); see
also Dept. of Justice, National Institute of Corrections, M.
Martin & P. Katsampes, Sheriff’s Guide to Effective Jail
Operations 50 (2007).
Moreover, many correctional facilities apply a reason-
able 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. See U. S. Marshals
Serv., Policy Directive, Prisoner Custody-Body Searches
§9.1(E)(3) (2010), http://www.usmarshals.gov/foia / Directives-
Policy / prisoner_ops / body_searches.pdf; Immigration and
Customs Enforcement (ICE) Detention Standard: Searches
of Detainees 1 (2008), http://www.ice.gov/doclib/
dro/ detention-standards / pdf/searches_of_detainees.pdf;
ICE/DRO, Detention Standard: Admission and Release 4–5
(2008), http://www.ice.gov/doclib/dro/detention-standards/
pdf/environmental_health_and_safety.pdf; Bureau of Indian
Affairs, Office of Justice Servs., BIA Adult Detention
Facility Guidelines 22 (Draft 2010). The Federal Bureau
10 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
BREYER, J., dissenting
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. See Dept. of Justice, BOP
Program Statement 5140.38, p. 5. (2004), http://www.
bop.gov/policy/progstat/5140_038.pdf.
Third, there is general experience in areas where the
law has forbidden here-relevant suspicionless searches.
Laws in at least 10 States prohibit suspicionless strip
searches. See, e.g., Mo. Stat. Ann. §544.193.2 (2002) (“No
person arrested or detained for a traffic offense or an
offense which does not constitute a felony may be subject
to a strip search or a body cavity search . . . unless there is
probable cause to believe that such person is concealing a
weapon . . . or contraband”); Kan. Stat. Ann. §22–2521(a)
(2007) (similar); Iowa Code §804.30 (2009) (similar); 725
Ill. Comp. Stat., ch. 725, §5/103–1(c) (2011) (similar but
requiring “reasonable belief ”); 501 Ky. Admin. Regs.
3:120, §3(1)(b) (2011) (similar); Tenn. Code Ann. §40–7–
119 (2006) (similar); Colo. Rev. Stat. Ann. §16–3–405(1)
(2011) (no strip search absent individualized suspicion
unless person has been arraigned and court orders that
suspect be detained); Fla. Stat. §901.211(2) (2010) (simi-
lar); Mich. Comp. Laws Ann. §764.25a(2) (2000) (similar);
Wash. Rev. Code §10.79.130(1) (2010) (similar).
At the same time at least seven Courts of Appeals have
considered the question and have required reasonable
suspicion that an arrestee is concealing weapons or con-
traband before a strip search of one arrested for a minor
offense can take place. See, e.g., Roberts v. Rhode Island,
239 F. 3d 107, 112–113 (CA1 2001); Weber v. Dell, 804
F. 2d 796, 802 (CA2 1986); Logan v. Shealy, 660 F. 2d
1007, 1013 (CA4 1981); Stewart v. Lubbock Cty. Tex., 767
F. 2d 153, 156–157 (CA5 1985); Masters v. Crouch, 872
F. 2d 1248, 1255 (CA6 1989); Mary Beth G., 723 F. 2d, at
1266, 1273; Edwards, 770 F. 2d, at 742; Hill v. Bogans,
Cite as: 566 U. S. ____ (2012) 11
BREYER, J., dissenting
735 F. 2d 391, 394 (CA10 1984). But see 621 F. 3d, at 311(case below); Bull v. City and County of San Francisco,
595 F. 3d 964, 975 (CA9 2010) (en banc); Powell v. Barrett,
541 F. 3d 1298, 1307 (CA11 2008) (en banc). Respondents
have not presented convincing grounds to believe that
administration of these legal standards has increased the
smuggling of contraband into prison.
Indeed, neither the majority’s opinion nor the briefs set
forth any clear example of an instance in which contra-
band was smuggled into the general jail population during
intake that could not have been discovered if the jail was
employing a reasonable suspicion standard. The majority
does cite general examples from Atlantic County and
Washington State where contraband has been recovered
in correctional facilities from inmates arrested for driving
under the influence and disorderly conduct. Ante, at 15.
Similarly, the majority refers to information, provided by
San Francisco jail authorities, stating that they have
found handcuff keys, syringes, crack pipes, drugs, and
knives during body-cavity searches, including during
searches of minor offenders, including a man arrested for
illegally lodging (drugs), and a woman arrested for prosti-
tution and public nuisance (“bindles of crack cocaine”).
Brief for City and County of San Francisco et al. as Amici
Curiae 7–13; Bull, supra, at 969; ante, at 15. And associ-
ated statistics indicate that the policy of conducting visual
cavity searches of all those admitted to the general popu-
lation in San Francisco may account for the discovery of
contraband in approximately 15 instances per year. Bull,
supra, at 969.
But neither San Francisco nor the respondents tell us
whether reasonable suspicion was present or absent in any
of the 15 instances. Nor is there any showing by the
majority that the few unclear examples of contraband
recovered in Atlantic County, Washington State, or any-
where else could not have been discovered through a policy
12 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
BREYER, J., dissenting
that required reasonable suspicion for strip searches. And
without some such indication, I am left without an exam-
ple of any instance in which contraband was found on an
individual through an inspection of their private parts or
body cavities which could not have been found under a
policy requiring reasonable suspicion. Hence, at a mini-
mum these examples, including San Francisco’s statistics,
do not provide a significant counterweight to those pre-
sented in Dodge and Shain.
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 conse-
quently 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” re-
quirements 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. Cf. Dept. of Justice,
National Institute of Corrections, W. Collins, Jails and the
Constitution: An Overview 28–29 (2d ed. 2007) (Though
prison officials often “passionately believed” similar re-
quirements would lead to contraband-related security
problems, once those requirements were imposed those
“problems did not develop”).
The majority also relies upon Bell, 441 U. S. 520, itself.
Ante, at 5–6. In that case, the Court considered a prison
policy requiring a strip search of all detainees after “con-
tact visits” with unimprisoned visitors. 441 U. S., at 558.
The Court found that policy justified. Id., at 560. Con-
trary to the majority’s suggestion, that case does not pro-
vide precedent for the proposition that the word of prison
officials (accompanied by a “single instance” of empirical
Cite as: 566 U. S. ____ (2012) 13
BREYER, J., dissenting
example) is sufficient to support a strip search policy.
Ante, at 6. The majority correctly points out that there
was but “one instance” in which the policy had led to the
discovery of an effort to smuggle contraband. Bell, 441
U. S., at 558. But the Court understood that the prison
had been open only four months. Id., at 526. And the
Court was also presented with other examples where
inmates attempted to smuggle contraband during contact
visits. Id., at 559.
It is true that in Bell the Court found the prison jus-
tified in conducting postcontact searches even as to pre-
trial detainees who had been brought before a magistrate,
denied bail, and “committed to the detention facility only
because no other less drastic means [could] reasonably
assure [their] presence at trial.” 441 U. S., at 546, n. 28.
The Court recognized that those ordered detained by a
magistrate were often those “charged with serious crimes,
or who have prior records.” Ibid. For that reason, those
detainees posed at least the same security risk as con-
victed inmates, if not “a greater risk to jail security and
order,” and a “greater risk of escape.” Ibid. And, of
course, in Bell, both the inmates at issue and their visitors
had the time to plan to smuggle contraband in that case,
unlike those persons at issue here (imprisoned soon after
an unexpected arrest).
The Bell Court had no occasion to focus upon those
arrested for minor crimes, prior to a judicial officer’s de-
termination that they should be committed to prison. I
share JUSTICE ALITO’s intuition that the calculus may be
different in such cases, given that “[m]ost of those arrested
for minor offenses are not dangerous, and most are re-
leased from custody prior to or at the time of their initial
appearance before a magistrate.” Ante, at 2 (concurring
opinion). As he notes, this case does not address, and
“reserves judgment on,” whether it is always reasonable
“to strip search an arrestee before the arrestee’s detention
14 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF
COUNTY OF BURLINGTON
BREYER, J., dissenting
has been reviewed by a judicial officer.” Ante, at 3. In my
view, it is highly questionable that officials would be
justified, for instance, in admitting to the dangerous world
of the general jail population and subjecting to a strip
search someone with no criminal background arrested for
jaywalking or another similarly minor crime, supra, at 5.
Indeed, that consideration likely underlies why the Fed-
eral Government and many States segregate such individ-
uals even when admitted to jail, and several jurisdictions
provide that such individuals be released without deten-
tion in the ordinary case. See, e.g., Cal. Penal Code Ann.
§853.6 (West Supp. 2012).
In an appropriate case, therefore, it remains open for
the Court to consider whether it would be reasonable to
admit an arrestee for a minor offense to the general jail
population, and to subject her to the “humiliation of a strip
search,” prior to any review by a judicial officer. Ante, at 2
(ALITO, J., concurring).
* * *
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 inva-
sions of their personal privacy. I consequently dissent.