Albert Florence and his attorney

Today’s case is Flo­rence v. Board of Cho­sen Free­hold­ers of Burling­ton County. To begin, we need to look at the Bill of Rights.

The Fourth Amend­ment states, in full:

The right of the peo­ple to be secure in their per­sons, houses, papers, and effects, against unrea­son­able searches and seizures, shall not be vio­lated, and no War­rants shall issue, but upon prob­a­ble cause, sup­ported by Oath or affir­ma­tion, and par­tic­u­larly describ­ing the place to be searched, and the per­sons or things to be seized.

Does this pro­tect cit­i­zens against strip searches, when no crime has been com­mit­ted or even alleged? Or may a county jail strip search some­one detained on a minor traf­fic vio­la­tion — even mis­tak­enly — with­out sus­pi­cion of any­thing more seri­ous going on?

The Lit­i­gants

Albert W. Flo­rence of Mount Holly, New Jer­sey kept a 2003 doc­u­ment with him show­ing that he had paid a fine for a pre­vi­ous traf­fic offense, because he was con­vinced the police in some areas of New Jer­sey engage in racial pro­fil­ing. In March of 2005, he was a pas­sen­ger in his BMW, which was being dri­ven by his wife. Their four-​​year-​​old son was in the back. A state trooper pulled them over, report­edly for speeding.

The trooper ran a records search, found a sup­pos­edly unpaid fine, and arrested Mr. Flo­rence, despite being shown the doc­u­ment as evi­dence that the fine had, in fact, been paid. Mr. Flo­rence spent eight days in jail in two coun­ties (Essex and Burling­ton) before being released, with no charges; he was strip-​​searched twice dur­ing that period. He sued in fed­eral court, alleg­ing his Con­sti­tu­tional rights had been violated.

The Back­ground

The rea­son for being taken into cus­tody was the sup­pos­edly unpaid fine, which had, in fact, been paid. Even if it hadn’t been paid, fail­ure to pay a traf­fic fine in New Jer­sey is not a crime. Being strip searched for some­thing other than a crime is ille­gal in New Jer­sey,

… unless ‘there exists prob­a­ble cause that a weapon, drug or evi­dence of a crime will be found.’ In order to sue state and local offi­cials for mon­e­tary dam­ages under the Fed­eral Civil Rights Act, a per­son must allege a vio­la­tion of his/​her rights pro­tected by the “Con­sti­tu­tion and laws” of the United States.

More­over, a state offi­cial is immune from such suits unless there is clearly estab­lished law that the search was unlawful.

A New Jer­sey fed­eral judge, the Hon­or­able Joseph Rodriguez, ruled in favor of Flo­rence last year. Later, the Third Cir­cuit U.S. Court of Appeals in Philadel­phia heard the appeal, and found against him.

Police depart­ments, cor­rec­tional depart­ments, var­i­ous cities and coun­ties, the Amer­i­can Bar Asso­ci­a­tion, Attor­neys Gen­eral, and even a group of psy­chi­a­trists, have filed briefs in sup­port of the Peti­tioner or the Respon­dents. See here for a listing.

The Ques­tions

In 1979, in Bell v. Wolfish, the Supreme Court found that it was within the bounds of the Con­sti­tu­tion for a cor­rec­tional insti­tu­tion to per­form a body and cav­ity search on inmates, regard­less for the rea­son for their incar­cer­a­tion; this is the basis for the Third Cir­cuit rul­ing. There is also a con­tra­dic­tory his­tory on this question:

The fed­eral courts of appeal are divided over whether blan­ket poli­cies requir­ing jail­house strip-​​searches of peo­ple arrested for minor offenses vio­late the Fourth Amend­ment. Eight courts have ruled that such searches are proper only if there is a rea­son­able sus­pi­cion that the arrested per­son has weapons or contraband.

The more recent trend, from appeals courts in Atlanta, San Fran­cisco and Philadel­phia, is to allow searches no mat­ter how minor the charge. Some poten­tial exam­ples cited by dis­sent­ing judges in those cases: vio­lat­ing a leash law, dri­ving with­out a license, fail­ing to pay child support.

Your Thoughts

  • Does the Fourth Amend­ment here favor Mr. Florence?
  • Do cor­rec­tional insti­tu­tions have the Con­sti­tu­tional power to per­form body and cav­ity searches when there is no sus­pi­cion of any crime hav­ing been committed?
  • Does the fact that his par­tic­u­lar search was ille­gal under New Jer­sey law play into the qus­tion of its Constitutionality?
  • If this level of pri­vacy vio­la­tion is to be per­mit­ted, what are the lim­its of the Fourth Amend­ment? In what sense, and under what cir­cum­stances, are Amer­i­cans safe from “unrea­son­able searches and seizures”?