Should Authorities Be Allowed to Strip Search Anyone Who Is Arrested?

Professor Barbara Armacost

April 4, 2012

In a 5-4 decision on Monday, the U.S. Supreme Court found that correctional officials may strip-search anyone arrested for any offense — no matter how minor — before admitting them to jail, regardless of whether the authorities suspect that smuggled drugs or weapons might be present.

Writing for the majority in Florence v. Board of Chosen Freeholders of County of Burlington, Justice Anthony Kennedy said correctional officers have a legitimate interest and responsibility to ensure jails are not made less secure by contraband that arrestees carry in on their bodies.

Do you agree with the court's majority opinion that strip-searching anyone who is arrested does not violate the Fourth Amendment? Professors Barbara Armacost, Darryl Brown and Brandon Garrett respond.

Barbara Armacost

Barbara Armacost teaches criminal investigation, civil rights litigation, torts and First Amendment (religion clauses). She wrote about Florence in the most recent issue of UVA Lawyer.

"At one level, Florence seems like an easy case. There are good reasons for extending a significant amount of deference to prison officials making decisions about how best to run detention facilities. Prisons are dangerous places. Prison guards have a grave responsibility to keep weapons and other items that can be used to do violence or (in the case of communication devices, direct others to do violence) out of the hands of inmates. Justice Kennedy's opinion is dramatic with descriptions of the unique and cunning strategies prisoners use to smuggle weapons and contraband into detention centers. In light of these descriptions it would have been surprising if the case had gone any other way.

That the Supreme Court framed the case as a prison case, however, obscures a more troubling implication of its holding, which the majority acknowledges only in passing. The court's automatic strip-search rule applies to anyinmate no matter how minor the offense for which he or she was detained. Even more dramatically, the court's rule applies even if the underlying offense for which the individual was detained was a non-jailable offense, e.g. could not subject the individual to jail time even if she was actually convicted. While Florence is not wholly responsible for this scenario, it increased the stakes dramatically for minor offenders.

The case that first sent us down this road is Atwater v. Lago Vista (2001). In Atwater, the Supreme Court held that police may arrest (and search-incident-to-arrest) for even minor, fine-only criminal offenses. (In Atwater, a female driver was arrested, searched and hauled down to the police station for failure to wear a seatbelt.) The combination of Atwater and Florence means that minor offenders can automatically be strip-searched, at least if they find themselves in the "general prison population." (Several of the justices suggested that there might be a different rule for detainees not exposed to other inmates or not placed in the general prison population.)

The combination of Atwater and Florence also raises a different concern, one that had been long-recognized by criminal justice scholars. Because an arrest comes with an automatic search (and under certain circumstances [search] the physical area surrounding where the suspect was arrested), police sometimes use an arrest as an investigative tool in order to search. This tool is especially effective for suspects arrested in automobiles. Given the wide range of minor criminal offense that a driver might violate — offenses such as a broken tail light, failing to signal, failing to wear a seatbelt, speeding — police can almost always find a reason for a traffic stop. If they arrest the driver, police can search the driver and can almost always obtain a search of the car in which the suspect was arrested. (Arizona v. Gant made such searches a little less certain, but not much.) Depending upon how lower courts handle the justices' signals about how to handle minor offenders not placed in the general prison population, Florence may provide additional incentives to use arrests to obtain intrusive searches. (If Justice Kennedy is correct that minor offenders often hide contraband in body cavities and in other private places, police and prison officials would have every incentive to do so.)

The dissent in Florence makes these arguments with considerable force. The dissent also provides important empirical data challenging some of the majority's most important assumptions, for example, that automatic strip searches (rather than searches supported by reasonable suspicion) are essential to making sure prison officials find weapons and contraband, that minor offenders are very likely to be dangerous and that prison officials are of one mind that a carefully worked out reasonable-suspicion standard for strip searches of minor offenders would be unworkable. These arguments should be taken seriously in refining the rule in Florence as applied to minor offenders."

Darryl Brown

Professor Darryl Brown is an expert in criminal law, criminal procedure and evidence.

"What is disconcerting about the holding in Florenceis how it adds to the power that states can give police under Atwater v. Lago VistaAtwater held that it is constitutional to arrest people and take them into custody even for petty offenses, like a seat-belt violation, that carry only a $50 fine and no possibility of jail time as punishment. Now Florence says that, once a person is arrested for that seat belt violation, it is also constitutional for them to be strip-searched as part of the arrest process, even if there is no suspicion that they have a weapon or illegal contraband such as drugs.

Fortunately, a number of states and the federal government don't permit this as a matter of statute or police policy."

Brandon Garrett

Professor Brandon Garrett is an expert on criminal procedure, wrongful convictions, habeas corpus, policing and constitutional law. He is the author of the 2011 book, "Convicting the Innocent: Where Criminal Prosecutions Go Wrong."

"Prison facilities are allowed to do searches to keep their facilities safe and they have to balance security concerns with the privacy rights of inmates. But the language about how that balance has to be made is somewhat vague.

Also, I would add that the dissent points out that standards for sound correctional practices forbid blanket policies of suspicionless strip searches, as do laws in some states. Blanket strip searches rarely uncover any contraband, suggesting their goal is simply to humiliate. The dissent also makes the sound point that people stopped unexpectedly for minor offenses do not have a reason, or time, to hide contraband in bodily cavities. It does not pose any significant burden on prison officials to merely have some individualized, reasonable suspicion to justify the strip search.

Finally, it is important — and Justice Alito concurred to highlight this point — that though the court found blanket strip searches permissible for arrestees in the [jail's] general population, it may not be reasonable to admit all arrestees to the general population, and then submit them to the accompanying conditions. Alito's concurring opinion also suggests an important and maybe counterproductive effect of this opinion — allowing more humiliating conditions may actually heighten the standards for deciding when arrestees can be placed in the general population."

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