Florence v. Board of Chosen Freeholders

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 09-3603 & 09-3661

ALBERT W. FLORENCE

v.

BOARD OF CHOSEN FREEHOLDERS

OF THE COUNTY OF BURLINGTON;

BURLINGTON COUNTY JAIL;

WARDEN JUEL COLE,

Individually and officially as Warden

of Burlington County Jail;

ESSEX COUNTY CORRECTIONAL FACILITY;

ESSEX COUNTY SHERIFF'S DEPARTMENT;

STATE TROOPER JOHN DOE,

Individually and in his capacity as a State Trooper;

JOHN DOES 1-3 of Burlington County Jail &

Essex County Correctional Facility who

performed the strip searches;

JOHN DOES 4-5

Essex County Correctional Facility;

Essex County Sheriff's Department, Appellants in 09-3603

Board of Chosen Freeholders of the County of Burlington;

Warden Juel Cole, Appellants in 09-3661

On Appeal from the United States District Court

for the District of New Jersey

(D. C. No. 1-05-cv-03619)

District Judge: Honorable Joseph J. Rodriguez

Argued April 15, 2010

Before: SLOVITER and HARDIMAN, Circuit Judges

and *POLLAK, District Judge.

(Filed: September 21, 2010)

Susan C. Lask [Argued]

Suite 2369

244 Fifth Avenue

New York, NY 10001

Michael V. Calabro

Suite 200

466 Bloomfield Avenue

Newark, NJ 07104-0000

Attorneys for Appellee Albert W. Florence

*

Hon. Louis H. Pollak, Senior District Judge for the U.S.

District Court for the Eastern District of Pennsylvania, sitting by

designation.

2

J. Brooks DiDonato [Argued]

Stacy L. Moore, Jr.

Parker McCay

7001 Lincoln Drive West

3 Greentree Centre, P.O. Box 974

Marlton, NJ 08053-0000

Attorney for Burlington County Board of

Chosen Freeholders and Juel Cole;

Appellees in 09-3603 & Appellants in 09-3661

Alan Ruddy [Argued]

Office of County Counsel

County of Essex

465 Martin Luther King Boulevard

Hall of Records, Room 535

Newark, NJ 07102-0000

Attorney for Essex County Correctional Facility and

Essex County Sheriff’s Department;

Appellants in 09-3603 & Appellees in 09-3661

Sean X. Kelly

Sean Robins

Marks, O'Neill, O'Brien & Courtney

6981 North Park Drive

Suite 300

Pennsauken, NJ 08091-0000

Attorney for Amicus Appellant County of Atlantic and

Gary Merline

Seth R. Lesser

Klafter Olsen & Lesser

3

Two International Drive

Suite 350

Rye Brook, NY 10573

Attorney for Amicus Appellees Ronald Allen, Edward

Bizarro, Joseph DePietro, Donald Dillard,

Mel Free El, Tammy Marie Hass, Alphonso Johnson,

John Moore, Konstanti Sidieras, Paul M. Takacs,

April Wedding, Harvey Weintraub, Justin Wennah,

Sandra King Wilson and Richard Wright

Ernest R. Bazzana

Mary Massaron-Ross

Plunkett Cooney

535 Griswold Street

Buhl Building, Suite 2400

Detroit, MI 48226-0000

Attorneys for Amicus Appellant Meadowbrook Inc.,

New Jersey County Jail Wardens Association,

Sheriffs Association of New Jersey

Edward L. Barocas

American Civil Liberties Union of New Jersey Foundation

89 Market Street

P.O. Box 32159

Newark, NJ 07102-0000

Attorney for Amicus Appellees Robert J. Del Tufo;

Zulima Farber, John Farmer, Peter C. Harvey,

Deborah T. Poritz

James M. Mets

Mets, Schiro McGovern

4

655 Florida Grove Road

P.O. Box 668

Woodbridge, NJ 07095-0000

Attorney for Amicus Appellant Policemens Benevolent

Association Local 249

Jennifer R. Clarke

Public Interest Law Center of Philadelphia

1709 Benjamin Franklin Parkway

United Way Building

Philadelphia, PA 19103

David Rudovsky

Kairys, Rudovsky, Messing & Feinberg

718 Arch Street

Suite 501 South

Philadelphia, PA 19106-0000

Attorney for Amicus Appellee Pennsylvania Prison

Society

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This interlocutory appeal requires us to decide whether

it is constitutional for jails to strip search arrestees upon their

admission to the general population. Although the question is

one of first impression for this Court, the Supreme Court’s

5

decision in Bell v. Wolfish, 441 U.S. 520 (1979), and the many

cases that followed it inform our analysis.

In Bell, the Supreme Court rejected a Fourth Amendment

challenge to a policy of visual body cavity searches for all

detainees—regardless of the reason for their

incarceration—after contact visits with outsiders. Id. at 560.

The Court applied a balancing test and concluded that the visual

body cavity searches were reasonable because the prison’s

security interest justified the intrusion into the detainees’

privacy.

Since Bell was decided, ten circuit courts of appeals

applied its balancing test and uniformly concluded that an

arrestee charged with minor offenses may not be strip searched

consistent with the Fourth Amendment unless the prison has

reasonable suspicion that the arrestee is concealing a weapon or

other contraband. Things changed in 2008, however, when the

en banc Court of Appeals for the Eleventh Circuit reversed its

prior precedent and held that a jail’s blanket policy of strip

searching all arrestees upon entering the facility was reasonable

even in the absence of individualized suspicion. Powell v.

Barrett, 541 F.3d 1298, 1314 (11th Cir. 2008) (en banc). A year

later, the en banc Court of Appeals for the Ninth Circuit also

reversed its prior precedent and upheld a blanket policy of strip

searching all arrestees before they enter San Francisco’s general

jail population. Bull v. City and County of San Francisco, 595

F.3d 964, 975 (9th Cir. 2010) (en banc).

Confronted with a clear dichotomy between the en banc

decisions of the Ninth and Eleventh Circuits on the one hand

6

and the numerous cases that preceded them on the other, we

must determine which line of cases is more faithful to the

Supreme Court’s decision in Bell.

I.

A.

We begin with the facts surrounding the arrest and

detention of lead Plaintiff Albert Florence. On March 3, 2005,

a New Jersey state trooper stopped the car in which Florence

was a passenger and arrested him based on an April 25, 2003

bench warrant from Essex County. The warrant charged

Florence with a non-indictable variety of civil contempt. Though

Florence protested the validity of the warrant by insisting he had

already paid the fine on which it was based, he was arrested and

taken to the Burlington County Jail (BCJ).

According to Florence, he was subjected to a strip and

visual body-cavity search by corrections officers at BCJ.

During the jail’s intake process, Florence was directed to

remove all of his clothing, then open his mouth and lift his

tongue, hold out his arms and turn around, and lift his genitals.

The officer conducting the search sat approximately arms-length

in front of him, and directed Florence to shower once the search

was complete. Florence was held at BCJ for six days.

During Florence’s sixth day at BCJ, the Essex County

Sheriff’s Department took custody of him and transported him

to the Essex County Correctional Facility (ECCF). Florence

alleges that he was subjected to another strip and visual

7

body-cavity search upon his arrival at ECCF. As described by

Florence, he and four other detainees were instructed to enter

separate shower stalls, strip naked and shower under the

watchful eyes of two corrections officers. After showering,

Florence was directed to open his mouth and lift his genitals.

Next, he was ordered to turn around so he faced away from the

officers and to squat and cough. After donning ECCF-issued

clothing and visiting a nurse, Florence joined the general jail

population until the following day, when the charges against

him were dismissed.

After his release, Florence sued BCJ, ECCF, and various

individuals and municipal entities (collectively, the Jails) under

42 U.S.C. § 1983. While Florence asserted numerous

constitutional claims, the only claim germane to this appeal is

his Fourth Amendment challenge to the strip search procedures

at BCJ and ECCF.

B.

On March 20, 2008, the District Court granted Florence’s

motion for class certification, defining the plaintiff class as:

All arrestees charged with non-indictable offenses

who were processed, housed or held over at

Defendant Burlington County Jail and/or

Defendant Essex County Correctional Facility

from March 3, 2003 to the present date who were

directed by Defendants’ officers to strip naked

before those officers, no matter if the officers

term that procedure a “visual observation” or

8

otherwise, without the officers first articulating a

reasonable belief that those arrestees were

concealing contraband, drugs or weapons[.]

Florence v. Bd. of Chosen Freeholders of the County of

Burlington, 2008 WL 800970, at *17 (D.N.J. Mar. 20, 2008).1

Following discovery, the parties filed cross motions for

summary judgment. In reviewing the motions, the District

Court first considered whether the intake procedures at each

facility rose to the level of a “strip search.” Florence v. Bd. of

Chosen Freeholders of the County of Burlington, 595 F. Supp.

2d 492, 502 (D.N.J. 2009). To resolve this question, the District

Court reviewed the Jails’ written search policies2 as well as the

1

Florence sought class certification only on his strip

search claims; he did not seek certification on his claim that he

was subjected to a visual body cavity search. Florence v. Bd. of

Chosen Freeholders of the County of Burlington, 2008 WL

800970, at *8 n.5 (D.N.J. Mar. 20, 2008).

2

BCJ’s written policy defined a strip search as “[a]

physical search of an inmate by the same sex officer while

unclothed consisting of routine and systematic visual

observation of the inmate’s physical body to look for

distinguished identifying marks, scars or deformities, signs of

illness, injury or disease and/or the concealment of contraband

on the inmate’s body.” Burlington County Detention

Center/Corrections & Work Release Center Policies and

Procedures: Search of Inmates - No. Section 1186, Supp. App.

at 42.

9

deposition testimony of correctional officers and the wardens

at each facility. Ultimately, the District Court concluded that,

while there were facts in dispute—such as whether non-

indictable male arrestees at BCJ were required to lift their

genitals during the search—these disputes were immaterial

because even the undisputed procedures of instructing arrestees

to remove all of their clothing and subject their naked bodies to

visual inspection “rose to the level of a strip search” under the

Fourth Amendment. Id. at 502-03 (“Whatever the case may be,

a discrepancy of this sort does not necessarily provide a genuine

issue of material fact. . . . ‘It’s just common sense. Take off all

your clothes. You’re strip[] searched.’” (quoting Plaintiffs’

counsel)).

The policy in effect at ECCF from September 2002

through April 2005 provided that all arrestees were to be strip

searched and required to shower. Department of Public Safety

General Order No. 89-17, Supp. App. 34. A “strip search”

under the written policy is to consist of an officer “observ[ing]

carefully while the inmate undresses” and examining the

arrestee’s ears, nose, hair and scalp, the interior of the mouth,

fingers, hands, arms and armpits, and all body openings and the

inner thighs. Id. The superceding ECCF policy, Department of

Corrections Administrative Directive No. 04-06, requires that

officers “conduct a thorough search of individual inmates,”

direct arrestees to shower during intake, and “observe and

document, in writing, any evidence of: a) notable body markings

such as ‘tattoos;’ b) [b]ody vermin or disease; [and] c) [o]pen

sores, visible wounds, scars, [or] injuries” on the arrestees’

bodies. Supp. App. at 40.

10

The District Court found that BCJ’s “blanket” strip

search policy “entails a complete disrobing, followed by an

examination of the nude inmate for bruises, marks, wounds or

other distinguishing features by the supervising officer, which

is then followed by a supervised shower with a delousing

agent.” Id. at 502. The Court found that ECCF utilized similar

strip-search and supervised-shower procedures; however, the

ECCF procedures were slightly more intrusive because “Essex

officers carefully observed the entire naked body of the inmate,

including body openings and inner thighs.” Id. at 503.3 Having

thus defined the Jails’ respective search policies, the District

Court concluded that the procedures failed the Bell balancing

test and observed that “blanket strip searches of non-indictable

offenders, performed without reasonable suspicion for drugs,

weapons, or other contraband, [are] unconstitutional.” Id. at

513. Based on this holding, the District Court granted the

Plaintiffs’ motion for summary judgment on the unlawful search

claim, but denied the Plaintiffs’ request for a preliminary

injunction. Id. at 519. The Court denied Defendants’ cross-

motion which sought qualified and Eleventh Amendment

immunity. Id.

Following the decision, the Jails moved the District Court

to certify its summary judgment as an appealable order pursuant

to 28 U.S.C. § 1292(b). The District Court agreed that the order

“involve[d] a controlling question of law as to which there is

substantial ground for difference of opinion,” id., and we

3

The Jails do not challenge the District Court’s factual

findings regarding the scope of the strip search policies. Rather,

they assert that such searches are permissible under Bell.

11

granted permission to appeal. The District Court certified the

following question for our review: “whether a blanket policy of

strip searching all non-indictable arrestees admitted to a jail

facility without first articulating reasonable suspicion violates

the Fourth Amendment of the United States Constitution as

applied to the States through the Fourteenth Amendment.”

Florence v. Bd of Chosen Freeholders of the County of

Burlington, 657 F. Supp. 2d 504, 511 (D.N.J. 2009) (order

certifying issue for appeal). “In reviewing an interlocutory

appeal under 28 U.S.C. § 1292(b), this court exercises plenary

review over the question certified.” Morris v. Rumsfeld, 420

F.3d 287, 290 (3d Cir. 2005).

II.

The Fourth Amendment protects “[t]he right of the

people to be secure in their persons . . . against unreasonable

searches and seizures.” U.S. Const. amend. IV. To enforce this

guarantee, government officials are limited to only those

searches which are reasonable. Delaware v. Prouse, 440 U.S.

648, 653-54 (1979). Reasonableness under the Fourth

Amendment is a flexible standard, Bodine v. Warwick, 72 F.3d

393, 398 (3d Cir. 1995), “not capable of precise definition or

mechanical application,” Bell, 441 U.S. at 559. “In each case it

requires a balancing of the need for the particular search against

the invasion of personal rights that the search entails.” Id.

Detention in a correctional facility “carries with it the

circumscription or loss of many significant rights.” Hudson v.

Palmer, 468 U.S. 517, 524 (1984). “The curtailment of certain

rights is necessary, as a practical matter, to accommodate a

12

myriad of institutional needs and objectives of prison facilities,

chief among which is internal security.” Id. (internal quotation

marks and citations omitted). Because privacy is greatly

curtailed by the nature of the prison environment, a detainee’s

Fourth Amendment rights are likewise diminished. See id. at

526 (holding that “the Fourth Amendment proscription against

unreasonable searches does not apply within the confines of the

prison cell”); Bell, 441 U.S. at 537 (“Loss of freedom of choice

and privacy are inherent incidents of confinement in such a

facility.”).

While the Supreme Court has “repeatedly held that

prisons are not beyond the reach of the Constitution[,]” Hudson,

468 U.S. at 523, it has also emphasized that the judiciary has a

“very limited role” in the administration of detention facilities,

Block v. Rutherford, 468 U.S. 576, 584 (1984). Indeed,

detention facilities have been described as “unique place[s]

fraught with serious security dangers,” Bell, 441 U.S. at 559, the

management of which “courts are ill equipped to deal with,” id.

at 548 n.30. Therefore, authorities are entitled to considerable

latitude in designing and implementing prison management

policies. Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989).

As the Supreme Court cautioned in Bell: “[p]rison

administrators . . . should be accorded wide-ranging deference

in the adoption and execution of policies and practices that in

their judgment are needed to preserve internal order and

discipline and to maintain institutional security.” 441 U.S. at

547. In addition to prison administrators’ “professional

expertise,” separation of powers and federalism concerns

support “wide-ranging deference” to the decisions of prison

authorities. Id. at 548 (“[J]udicial deference is accorded not

13

merely because the administrator ordinarily will, as a matter of

fact in a particular case, have a better grasp of his domain than

the reviewing judge, but also because the operation of our

correctional facilities is peculiarly the province of the

Legislative and Executive branches of our Government, not the

Judicial.”); Turner v. Safley, 482 U.S. 78, 84-85 (1987)

(“[S]eparation of powers concerns counsel a policy of judicial

restraint. Where a state penal system is involved, federal courts

have . . . additional reason to accord deference to the appropriate

prison authorities.”).

A.

Having explained the general standards that govern our

inquiry, we turn to the Supreme Court’s pathmarking decision

in Bell v. Wolfish. Although there are factual differences

between Bell and the instant case, they are sufficiently similar

to warrant a detailed review of Bell.

In Bell, pretrial detainees and convicted prisoners

confined at the Metropolitan Correctional Center (MCC)—a

federally operated short-term custodial facility—filed suit

challenging numerous prison practices and conditions of

confinement. 441 U.S. at 523-24. Although the primary

purpose of MCC was to house pretrial detainees awaiting trial

on federal criminal charges, the facility also housed: witnesses

in protective custody, contemnors, inmates awaiting sentencing

or transportation to federal prison, inmates serving relatively

short sentences, and inmates lodged under writs of habeas

corpus issued to ensure their presence at trial. Id. at 524. The

population at MCC was quite transient, with 50% of its inmates

14

spending fewer than 30 days at the facility and 73% of the

population spending fewer than 60 days at MCC. Id. at 524 n.3.

Among the conditions of confinement challenged by the

inmates at MCC was the policy of strip and visual body-cavity

searches after contact visits with outsiders. Under that policy,

all persons housed at MCC—regardless of the reason for their

detention—were “required 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. For males, this required “lift[ing] [the] genitals and

bend[ing] over to spread [the] buttocks for visual inspection.”

Id. at 558 n.39. “The vaginal and anal cavities of female

inmates also [were] visually inspected.” Id. Inmates were not

touched by officers during the searches. Id.

The district court in Bell upheld the strip searches but

held the visual body cavity searches unreasonable under the

Fourth Amendment. Id. at 558. The Court of Appeals for the

Second Circuit affirmed, finding that the “gross violation of

personal privacy inherent in such a search cannot be outweighed

by the government’s security interest in maintaining a practice

of so little actual utility.” Id. (internal quotation marks

omitted).

The Supreme Court reversed, holding that the visual

body-cavity searches were reasonable under the Fourth

Amendment. Id. As a preliminary matter, the Court assumed

without deciding that both convicted prisoners and pretrial

detainees retain some Fourth Amendment rights upon

commitment to a correctional facility. Id. It then explained that,

15

in each case, the test of Fourth Amendment reasonableness

requires “a balancing of the need for the particular search

against the invasion of personal rights that the search entails,”

and instructed courts to consider four factors in assessing

reasonableness: “the scope of the particular intrusion, the

manner in which it is conducted, the justification for initiating

it, and the place in which it is conducted.” Id. at 559.

In applying the balancing test to the search policy, the

Supreme Court cited MCC’s dual objectives of detecting and

deterring smuggling of weapons and other contraband,

recognizing that “[s]muggling of money, drugs, weapons, and

other contraband is all too common an occurrence.” Id. The

Court upheld the policy despite the absence of any evidence of

smuggling problems at MCC as the record contained only one

instance where an inmate was caught with contraband in a body

cavity. Id. Nevertheless, the Court found the lack of evidence

supported the prison’s interest in the policy because it was

“more a testament to the effectiveness of this search technique

as a deterrent than to any lack of interest on the part of inmates

to secrete and import such items when the opportunity arises.”

Id.

Significantly, Bell included just one sentence discussing

the scope of the privacy intrusion, in which the Court stated that

it “d[id] not underestimate the degree to which these searches

may invade the personal privacy of inmates.” Id. at 560. And

though it acknowledged that correctional officers may

sometimes conduct the searches in an impermissibly abusive

fashion, the Supreme Court did not address that issue; rather, it

limited its review to the policy as a whole, “deal[ing] . . . with

16

the question whether visual body-cavity inspections as

contemplated by the MCC rules can ever be conducted on less

than probable cause grounds.” Id. The Court answered that

question in the affirmative. Moreover, the Court rejected the

district court’s consideration of alternative, less-intrusive means

of detecting contraband. Even assuming the availability of such

alternatives, the Court deferred to MCC’s choice of security

procedure because it had not been shown to be “irrational or

unreasonable.” Id. at 559 n.40.

B.

In the years following Bell, ten circuit courts of appeals

applied the Supreme Court’s balancing test to strip searches of

individuals arrested for minor offenses and found the searches

unconstitutional where not supported by reasonable suspicion

that the arrestee was hiding a weapon or contraband.4 In

4

See Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.

2001) (blanket policy of strip searches upon intake to jail

unreasonable when applied to DUI arrestee absent reasonable

suspicion); Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir.

2001) (blanket policy of strip searching arrestees was

unreasonable as applied to those arrested for minor offenses);

Kelly v. Foti, 77 F.3d 819, 821 (5th Cir. 1996) (“Jail officials

may strip search a person arrested for a minor offense and

detained pending the posting of bond only if they possess a

reasonable suspicion that he is hiding weapons or contraband.”);

Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.)

(“[A]uthorities may not strip search persons arrested for traffic

violations and nonviolent minor offenses solely because such

17

persons ultimately will intermingle with the general population

at a jail when there were no circumstances to support a

reasonable belief that the detainee will carry weapons or other

contraband into the jail.”), cert. denied, 493 U.S. 977 (1989);

Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986) (“[T]he Fourth

Amendment precludes prison officials from performing

strip/body cavity searches of arrestees charged with . . . minor

offenses unless the officials have a reasonable suspicion that the

arrestee is concealing weapons or other contraband.”), cert.

denied, 483 U.S. 1020 (1987); Jones v. Edwards, 770 F.2d 739,

742 (8th Cir. 1985) (strip search of misdemeanor detainee

arrested for violation of leash law where police had no reason to

suspect arrestee would secrete weapon or contraband into

holding cell was unreasonable under Bell); Giles v. Ackerman

746 F.2d 614, 615 (9th Cir. 1984) (“[A]rrestees for minor

offenses may be subjected to a strip search only if jail officials

have a reasonable suspicion that the particular arrestee is

carrying or concealing contraband or suffering from a

communicable disease.”), cert. denied, 471 U.S. 1053 (1985);

Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984)

(unreasonable to strip search individual arrested for traffic

violation on way to work at 7:30 a.m. because there was no

reasonable suspicion that he was concealing contraband even

though arrestee was briefly intermingled with the general jail

population); Mary Beth G. v. City of Chicago, 723 F.2d 1263,

1273 (7th Cir. 1983) (strip search of female arrestees charged

with minor offenses were unreasonable “without a reasonable

suspicion by the authorities that either of the twin dangers of

concealing weapons or contraband existed”); Logan v. Shealy,

660 F.2d 1007, 1013 (4th Cir. 1981) (“An indiscriminate strip

18

general, these courts concluded that the extreme invasion of

privacy caused by a strip and/or visual body-cavity search

outweighed the prison’s minimal interest in searching an

individual charged with a minor crime shortly after arrest. See,

e.g., Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984);

Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.

1983). The critical factor in balancing the competing interests

was the belief that individuals arrested for minor offenses

presented a relatively slight security risk because they usually

are arrested unexpectedly whereas the contact visits in Bell may

have been arranged specifically for the purpose of smuggling

weapons or drugs. See, e.g., Shain v. Ellison, 273 F.3d 56, 64

(2d Cir. 2001) (“It is far less obvious that misdemeanor arrestees

frequently or even occasionally hide contraband in their bodily

orifices. Unlike persons already in jail who receive contact

visits, arrestees do not ordinarily have notice that they are about

to be arrested and thus an opportunity to hide something.”);

Roberts v. Rhode Island, 239 F.3d 107, 111 (1st Cir. 2001)

(“[T]he deterrent rationale for the Bell search is simply less

relevant given the essentially unplanned nature of an arrest and

subsequent incarceration.”).

Recently, the Eleventh and Ninth Circuits, sitting en

banc, reversed their prior precedents and held that Bell

authorizes a policy of blanket strip searches for all arrestees

entering the general population of a jail. See Powell v. Barrett,

search policy routinely applied to detainees . . . cannot be

constitutionally justified simply on the basis of administrative

ease in attending to security considerations.”), cert. denied, 455

U.S. 942 (1982).

19

541 F.3d 1298 (11th Cir. 2008) (en banc) (overruling Wilson v.

Jones, 251 F.3d 1340 (11th Cir. 2001)); Bull v. City and County

of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc)

(overruling Giles v. Ackerman 746 F.2d 614 (9th Cir. 1984)).

In Powell, the Eleventh Circuit reviewed a policy of strip

searching all arrestees at the time of intake implemented by the

Fulton County Jail in Georgia. The policy required that all

persons entering the jail’s general population be strip searched

regardless of the crime charged and without any individualized

suspicion. Powell, 541 F.3d at 1301. The booking process

required groups of 30 to 40 arrestees to enter a large shower

room, simultaneously remove all of their clothing, place it in

boxes and then shower. Id. “After the group shower each

arrestee either singly, or standing in a line with others, is

visually inspected front and back by deputies. Then each man

takes his clothes to a counter and exchanges his own clothes for

a jail jumpsuit.” Id. (internal quotation marks, brackets, and

citations omitted). The Eleventh Circuit discussed in great

detail the facts and circumstances surrounding the searches at

issue in Bell, which demonstrated the high level of intrusiveness

that the Supreme Court countenanced as reasonable. The

Eleventh Circuit also noted the paltry record of body-cavity

smuggling at MCC as evidence of the significant deference

provided to prison administrators by the Court in Bell. In light

of these points, the Eleventh Circuit determined that most courts

(and its own prior precedent) misinterpreted Bell to require

reasonable suspicion for strip searches of minor offenders. Id.

at 1307. It opined that the decisions requiring reasonable

suspicion failed to give appropriate deference to the judgments

of prison administrators and ignored the fact that in upholding

20

visual body-cavity searches, the Supreme Court in Bell neither

required individualized suspicion of smuggling nor

differentiated the degree of suspicion required based on the type

of offender. Id. at 1307-11.

The Powell court also disagreed with the majority view

that security interests at the time of intake are less important

than those arising after an inmate’s contact visit with an

outsider, describing “an inmate’s initial entry into a detention

facility” as “coming after one big and prolonged contact visit

with the outside world.” Id. at 1313. The court asserted that the

“need for strip searches at all detention facilities, including

county jails, is not exaggerated.” Id. at 1310. Citing other

cases, the court noted the problem of gang violence in prisons

and observed that gang members might “coerce, cajole, or

intimidate lesser violators into smuggling contraband into the

facility.” Id. at 1311 (citation omitted). In light of these

security concerns, the Eleventh Circuit held that “a policy or

practice of strip searching all arrestees as part of the process of

booking them into the general population of a detention facility,

even without reasonable suspicion to believe that they may be

concealing contraband, is constitutionally permissible” at least

where the search is no more intrusive than the search in Bell. Id.

at 1300.

Like the Eleventh Circuit in Powell, the Ninth Circuit in

Bull v. City and County of San Francisco reversed prior

precedent and upheld the San Francisco Sheriff’s policy

authorizing strip searches of all arrestees before they are placed

in the general population of a county jail. Bull, 595 F.3d at 966.

In rejecting its prior requirement of reasonable suspicion for

21

arrestee strip searches, the Bull court relied on much of the same

reasoning as the Eleventh Circuit in Powell, including its view

that decisions interpreting Bell v. Wolfish to require reasonable

suspicion to strip search minor offenders were analytically

flawed. Id. at 977-78. The Ninth Circuit concluded that “the

scope, manner, and justification for San Francisco’s strip search

policy was not meaningfully different from the scope, manner,

and justification for the strip search policy in Bell.” Id. at 975.

Based on the record presented, the justification for searching

arrestees at the time of intake was even higher than the

justification for the post-contact visit searches in Bell because

San Francisco had amassed a record demonstrating “a pervasive

and serious problem with contraband inside San Francisco’s

jails” as well as instances of contraband smuggled within body

cavities. Id.

C.

Mindful of the newly-minted circuit split we have

described, we proceed to apply Bell’s balancing test to the

question certified for interlocutory appeal in this case.5 The

5

In Bull, the Ninth Circuit held the constitutionality of a

prison strip search was governed by Turner v. Safley, 482 U.S.

78 (1987), in addition to Bell v. Wolfish. Bull, 595 F.3d at 973-

74. Neither the Supreme Court nor this Court has applied the

rational-relationship test of Turner to a Fourth Amendment

challenge to prison policies. While it is arguable that some

Fourth Amendment rights are “inconsistent with proper

incarceration” and therefore covered by Turner, see Johnson v.

California, 543 U.S. 499, 510 (2005) (internal quotation marks

22

Jails rely heavily on Powell in support of their argument that

strip searches satisfy the reasonableness standard of Bell. They

argue that the searches serve the valid prison interests of

“eliminating weapons and drugs from the jail environment,

serving to mitigate gang violence and preventing disease,” and

that these concerns apply to indictable and non-indictable

arrestees alike. On behalf of the Plaintiff class, Florence

counters that the District Court properly applied Bell, and that

we should adopt the reasonable suspicion requirement applied

by the majority of our sister circuits. Florence also challenges

the legitimacy of the gang, health, and contraband concerns as

justifications for the strip search of non-indictable arrestees as

unsupported by the record and argues that there are less

intrusive alternatives to satisfy the Jails’ security interests.

Like the Supreme Court in Bell, we assume detainees

maintain some Fourth Amendment rights against searches of

omitted), absent an express statement from the Supreme Court

that Turner supplanted Bell, we find its framework for the

analysis of detainee constitutional claims inapplicable here. See

Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our

decisions remain binding precedent until we see fit to reconsider

them, regardless of whether subsequent cases have raised doubts

about their continuing vitality.”). Moreover, the Jails do not

seek application of Turner to Plaintiffs’ Fourth Amendment

claims. See Appellants’ Reply Br. at 17 (“Some courts have

ruled that the Turner case, with its easier standard, has overruled

Bell. Appellants have not argued that Turner, and the rational

basis test, should be the standard before the Court.”).

23

their person upon entry to a detention facility.6 See Bell, 441

U.S. at 558; but see Doe v. Delie, 257 F.3d 309, 316 (3d Cir.

2001) (noting that under Hudson v. Palmer, 468 U.S. 517

(1984), “prisoners do not have a Fourth Amendment right to

privacy in their cells”). To determine whether the strip search

procedures at BCJ and ECCF violate the Fourth Amendment,

we first consider the scope of the searches at issue.

We have previously recognized that a strip search

constitutes a “significant intrusion on an individual’s privacy.”

United States v. Whitted, 541 F.3d 480, 486 (3d Cir. 2008).

Here, the strip search policies require the arrestees to undress

completely and submit to a visual observation of their naked

bodies before taking a supervised shower. We do not minimize

the extreme intrusion on privacy associated with a strip search

by law enforcement officers; however, the searches at issue here

are less intrusive than the visual body-cavity searches

considered by the Supreme Court in Bell. In fact, they are closer

to the strip searches upheld by the lower court in Bell.

The searches were also conducted in a similar manner

and place as those in Bell—by correctional officers at a

detention facility. The policies governing strip searches at BCJ

require that they be conducted “in private . . . under sanitary

conditions . . . [and] in a professional and dignified manner.”

Moreover, the searches are relatively brief, such that between

the search and supervised shower, an arrestee is not required to

6

Other courts of appeals have gone further, holding that

“the Fourth Amendment does apply to the invasion of bodily

privacy in prisons.” See Bull, 595 F.3d at 974-75.

24

remain naked for more than several minutes. Because the scope,

manner, and place of the searches are similar to or less intrusive

than those in Bell, the only factor on which Plaintiffs could

distinguish this case is the Jails’ justification for the searches.

Detention facilities are “unique place[s] fraught with

serious security dangers.” Bell, 441 U.S. at 559. We have

recognized that New Jersey jails, like most correctional

facilities, face serious problems caused by the presence of

gangs. See Fraise v. Terhune, 283 F.3d 506, 521-22 (3d Cir.

2002) (upholding New Jersey prison policy of identifying gang

members and transferring core members to Security Threat

Group Management Unit). The Jails cite three specific security

interests to justify strip searches: (1) the detection and

deterrence of smuggling weapons, drugs or other contraband

into the facility, (2) the identification of gang members by

observing their tattoos, and (3) the prevention of disease,

specifically Methicillin-resistant Staphylococcus aureus

(MRSA). Of these three, the potential for smuggling of

weapons, drugs, and other contraband poses the greatest security

threat.

It is self-evident that preventing the introduction of

weapons and drugs into the prison environment is a legitimate

interest of concern for prison administrators. See Bell, 441 U.S.

at 540 (“[T]he Government must be able to take steps to

maintain security and order at the institution and make certain

no weapons or illicit drugs reach detainees.”); see also Overton

v. Bazzetta, 539 U.S. 126, 134 (2003) (“Drug smuggling and

drug use in prison are intractable problems.”) (citing Bell, Block,

and Hudson); Block, 468 U.S. at 586 (upholding total ban on

25

contact visits as reasonably related to prison interest in

preventing security concerns including “open[ing] the institution

to the introduction of drugs, weapons, and other contraband”).

Prevention of the entry of illegal weapons and drugs is vital to

the protection of inmates and prison personnel alike. See Bell,

441 U.S. at 547 (“Prison officials must be free to take

appropriate action to ensure the safety of inmates and

corrections personnel . . . .”); Bull, 595 F.3d at 967 (citing

instance in which inmate used razor-blades secreted in rectal

cavity to attempt suicide); see also E.E.O.C. v. The GEO Group,

Inc., - - - F.3d - - - -, 2010 WL 2991380, at *8 (3d Cir. Aug. 2,

2010) (“A prison is not a summer camp and prison officials have

the unenviable task of preserving order in difficult

circumstances”).

Like the Ninth and Eleventh Circuit Courts of Appeals,

we conclude that the security interest in preventing smuggling

at the time of intake is as strong as the interest in preventing

smuggling after the contact visits at issue in Bell. We reject

Plaintiffs’ argument that blanket searches are unreasonable

because jails have little interest in strip searching arrestees

charged with non-indictable offenses. This argument cannot be

squared with the facts and law of Bell. First, the Bell court

explicitly rejected any distinction in security risk based on the

reason for detention. Bell, 441 U.S. at 546 n.28 (“There is no

basis for concluding that pretrial detainees pose any lesser

security risk than convicted inmates.”). Instead, the security risk

was defined by the fact of detention in a correctional facility.7

7

For similar reasons, we reject Plaintiffs’ argument that

the searches are unreasonable because non-indictable arrestees

26

See also, Fuentes v. Wagner, 206 F.3d 335, 347 (3d Cir. 2000)

(“[I]t is impractical to draw a line between convicted prisoners

and pretrial detainees for the purpose of maintaining jail

security.” (citation omitted)).

Second, Bell did not require individualized suspicion for

each inmate searched; it assessed the facial constitutionality of

the policy as a whole, as applied to all inmates at MCC.8 Bell,

have greater Fourth Amendment rights than the pretrial

detainees in Bell. We are not presented with an argument that

it was improper for the Jails to detain members of the Plaintiff

class in the first place; thus we address only the constitutionality

of the policy as applied to people properly assigned to the Jails

and entering the general population. The Bell analysis applies

equally to all individuals so assigned—whether they be

convicted inmates, indicted pretrial detainees, contemnors,

material witnesses, or arrestees awaiting preliminary hearings

before a magistrate.

8

The absence of an individualized suspicion requirement

in Bell is consistent with the Fourth Amendment doctrine of

special needs searches. “[T]here are instances when a search

furthers a ‘special governmental need’ beyond that of normal

law enforcement such that the search, although not supported by

the typical quantum of individualized suspicion, can nonetheless

still be found constitutionally ‘reasonable.’” Neumeyer v.

Beard, 421 F.3d 210, 214 (3d Cir. 2005) (prison policy of

randomly searching visitors’ vehicles was reasonable because

privacy intrusion was outweighed by prison’s “special need to

maintain the security and safety of the prison”).

27

441 U.S. at 560 (bypassing concerns regarding abuses during

particular searches to uphold policy as a whole, stating: “we deal

here with the question whether visual body-cavity inspections as

contemplated by the MCC rules can ever be conducted on less

than probable cause. Balancing the significant and legitimate

security interests of the institution against the privacy interests

of the inmates, we conclude that they can.”). MCC housed

pretrial detainees, convicted inmates, and even non-offenders

held as material witnesses, all of whom were included in the

plaintiff class. See Bell, 441 U.S. at 524.

We also disagree with Plaintiffs’ contention that the risk

that non-indictable offenders will smuggle contraband is low

because arrest for this category of offenses is often

unanticipated. Even assuming that most such arrests are

unanticipated, this is not always the case. It is plausible that

incarcerated persons will induce or recruit others to subject

themselves to arrest on non-indictable offenses to smuggle

weapons or other contraband into the facility. This would be

especially true if we were to hold that those incarcerated on non-

indictable offenses are, as a class, not subject to search. For that

reason, we agree with the concern expressed by the Eleventh

Circuit in Powell that gang members would be likely to exploit

an exception from security procedures for minor offenders. 541

F.3d at 1311.

A similar risk was recognized by the Supreme Court in

Block v. Rutherford, where the Court upheld a prison policy

denying contact visits to pretrial detainees regardless of the

crime charged. 468 U.S. 576, 589 (1984). In Block, the district

court permitted the denial of contact visits for high risk

28

detainees, but required the jail to provide visits for pretrial

detainees “concerning whom there is no indication of drug or

escape propensities.” Id. at 580 n.2. The Supreme Court

rejected the lower court’s characterization of a blanket ban on

contact visits as disproportionate to the risks posed by low level

detainees. In doing so, the Court reasoned that inmates would

likely take advantage of any gap in security: “[i]t is not

unreasonable 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.”

Id. at 587.

It is also important to note that the opportunity for

smuggling during the contact visits in Bell was low. As

described by the district court in that case, “inmates and their

visitors are in full view during the visits and fully clad. The

secreting of objects in rectal or genital areas becomes in this

situation an imposing challenge to nerves and agility.” Wolfish

v. Levi, 439 F. Supp. 114, 147 (S.D.N.Y. 1977). Despite these

obstacles to an inmate obtaining contraband from a visitor and

hiding it in a body cavity, the Supreme Court still found that

MCC’s interest in detecting and deterring this low risk of

smuggling outweighed the privacy intrusion. If it is reasonable

to assume that a prisoner will try to arrange for a visitor to

deliver contraband during a contact visit, it is equally reasonable

to assume that a detainee will arrange for an accomplice on the

outside to subject himself to arrest for a non-indictable offense

to smuggle contraband into the facility. Thus, the Jails’ interest

in preventing smuggling at the time of intake is just as high as

MCC’s interest after the contact visits in Bell.

29

The Plaintiff class argues that the Jails cannot rely on an

interest in preventing smuggling because they have not

presented any evidence of a past smuggling problem or any

instance of a non-indictable arrestee attempting to secrete

contraband. It is true that the Jails’ justifications for strip

searches would be stronger if supported by evidence regarding

discovery of contraband on indictable and non-indictable

offenders during intake, and the incidence with which gang

members are arrested for non-indictable offenses. See, e.g.,

Bull, 595 F.3d at 975. Nonetheless, our interpretation of the

Supreme Court’s decision in Bell leads us to conclude that the

Jails are not required to produce such a record.

In Bell, the single instance of attempted smuggling did

not undermine MCC’s justification for the search. Quite to the

contrary, the Court considered the absence of a record to be

evidence of the policy’s successful deterrent effect. Bell, 441

U.S. at 559. Likewise here, strip searches at the time of intake

also have significant deterrent value. If non-indictable offenders

were not subject to automatic search it would create a security

gap which offenders could exploit with relative ease.

The Bell court did not require a record of smuggling to

justify MCC’s interest in preventing it (in fact, there was no

time for a long history of smuggling to have developed as the

Bell plaintiffs filed their case only four months after MCC

opened). Id. at 526. The Supreme Court declared that

“[s]muggling of money, drugs, weapons, and other contraband

is all too common an occurrence” at detention facilities. Id. at

559. In addition to the sole instance of smuggling in the record,

Bell relied upon cases concerning other detention facilities for

30

the proposition that inmates attempt to secrete items in their

body cavities. See id. (citing Ferraro v. United States, 590 F.2d

335 (6th Cir. 1978), and United States v. Park, 521 F.2d 1381,

1382 (9th Cir. 1975)).

Finally, we also find significant that the Supreme Court

repeatedly has emphasized that courts must defer to the policy

judgments of prison administrators. See, e.g., Bell, 441 U.S. at

531 (repeating “admonition” from Procunier v. Martinez, 416

U.S. 396, 405 (1974), that “courts are ill equipped to deal with

the increasingly urgent problems of prison administration,” and

therefore “it would ‘not be wise for [a court of appeals] to

second-guess the expert administrators on matters on which they

are better informed.’” (internal brackets omitted)); Cutter v.

Wilkinson, 544 U.S. 709, 725 n.13 (2005) (“It bears repetition,

however, that prison security is a compelling state interest, and

that deference is due to institutional officials’ expertise in this

area.”). Moreover, we have stated that “deference is especially

appropriate when a regulation implicates prison security.”

Fraise, 283 F.3d at 516; see also Overton, 539 U.S. at 133

(internal security is “perhaps the most legitimate of penological

goals”). This emphasis on deference further supports the

proposition that the absence of evidence of smuggling at a

particular correctional institution does not demonstrate the

unreasonableness of a policy implemented to prevent smuggling.

A detention facility need not suffer a pattern of security

breaches before it takes steps to prevent them where those steps

are neither “irrational [n]or unreasonable.” See Bell, 441 U.S.

at 559 n.40; E.E.O.C., - - - F.3d at - - - - , 2010 WL 2991380, at

*8.

31

Plaintiffs assert that the Jails’ interest in preventing

smuggling could be achieved through means less intrusive than

strip searches. Specifically, Plaintiffs point to the Body Orifice

Scanning System (BOSS Chair), “[a] non-intrusive scanning

system designed to detect small weapons or contraband metal

objects concealed in oral, anal, or vaginal cavities,” a security

method already used by ECCF. In Bell, the Supreme Court

rejected the district court’s reliance on the less-intrusive means

of metal detection in evaluating searches at MCC. Id. The

Court found metal detection to be less effective than the visual

search procedure and deferred to the prison administrator’s

decision to use the visual search method. Florence’s argument

regarding the BOSS Chair fails for the same reasons. Aside

from the fact that there is no evidence regarding the efficacy of

the BOSS Chair in detecting metallic objects, it would not detect

drugs and other non-metallic contraband. Accordingly, the

decision not to rely exclusively on the BOSS Chair is not

unreasonable.

As asserted by the Jails, a blanket policy will help to

avoid potential equal protection concerns in the strip search

process as it removes officer discretion in selecting which

arrestees to search. The potential for abuse in a “reasonable

suspicion” scheme is high, particularly where reasonable

suspicion may be based on such subjective characteristics as the

arrestee’s appearance and conduct at the time of arrest. See,

e.g., Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir. 2008)

(reasonable suspicion to strip search a misdemeanor arrestee

may be “based on the crime charged, the particular

characteristics of the arrestee, and/or the circumstances of the

arrest” (internal quotations and citation omitted)); see also

32

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663 (1995)

(expressing preference for policy of drug-testing all student

athletes as opposed to testing based on suspicion of drug use

because suspicion-based testing “brings the risk that teachers

will impose testing arbitrarily upon troublesome but not

drug-likely students”). Subjecting all arrestees to the same

policy promotes equal treatment. See Bull, 595 F.3d at 983

(Kozinski, J., concurring) (observing that blanket searches of all

individuals participating in the same activity “trade the

protection afforded by individualized suspicion for the

protection derived from the fact that the government treats all

similarly situated people in precisely the same way”).

In sum, balancing the Jails’ security interests at the time

of intake before arrestees enter the general population against

the privacy interests of the inmates, we hold that the strip search

procedures described by the District Court at BCJ and ECCF are

reasonable. Accordingly, we will reverse the District Court’s

grant of summary judgment on Plaintiffs’ Fourth Amendment

strip search claim and remand for further proceedings consistent

with this opinion.9

9

Having found that the Jails’ valid interest in preventing

smuggling justifies the strip searches, we need not determine

whether the interests in identifying gang members and detecting

MRSA infection are sufficient to justify the searches.

33

Florence v. Board of Chosen Freeholders of the County of

Burlington, et al.

Nos. 09-3603 & 09-3661

POLLAK, District Judge, dissenting.

I.

I respectfully disagree with the court’s opinion. I think

Judge Rodriguez’s decision should be affirmed, and I would

expressly predicate the order of affirmance on his

comprehensive, finely crafted, and characteristically thoughtful

opinion.

II.

In upholding as constitutional strip searches of persons

detained on non-indictable offenses and with respect to whom

there is no individualized ground for suspicion that they may be

bringing contraband into a detention facility, the court finds the

en banc opinions of the Eleventh Circuit, Powell v. Barrett, 541

F.3d 1298 (11th Cir. 2008), and of the Ninth Circuit, Bull v. City

and County of San Francisco, 595 F.3d 964 (9th Cir. 2010),

persuasive. For my part, I find greater wisdom in Judge

Barkett’s dissent in Powell and Judge Thomas’s dissent in Bull.

Judge Thomas’s Bull dissent frames the issues this way:

The majority sweeps away twenty-five years of

jurisprudence, giving jailors the unfettered right to

conduct mandatory, routine, suspicionless body

cavity searches on any citizen who may be

arrested for minor offenses, such as violating a

leash law or a traffic code, and who pose no

credible risk for smuggling contraband into the

jail. Under its reconfigured regime, the majority

discards Bell’s requirement of balance the need

for a search against individual privacy and instead

blesses a uniform policy of performing body

cavity searches on everyone arrested and

designated for the general jail population,

regardless of the triviality of the charge or the

likelihood that the arrestee is hiding contraband.

The rationale for this abrupt precedential

departure is founded on quicksand. Indeed, the

government’s entire argument is based on the

logical fallacy cum hoc ergo propter hoc–

happenstance implies causation. The government

argues that contraband has been found in the San

Francisco jails. Thus, the government reasons,

individuals who are arrested must be smuggling

contraband into the jail. Therefore the

government concludes it must body cavity search

everyone who is arrested, even those who pose no

risk of concealing contraband, much less of trying

to smuggle contraband into the jail.

This reasoning finds no support from the record in

this case. Although there is evidence of some

arrestees attempting to conceal contraband during

their arrest, there is not a single document

example of anyone doing so with the intent of

2

smuggling contraband into the jail. More

importantly, for our purposes, there is not a single

example of anyone from the class defined by the

district court who was found to possess

contraband upon being strip search. Not one.

Bull, 595 F.3d at 990.

In his District Court opinion, Judge Rodriguez makes a

point which gives special cogency to Judge Thomas’s “Not

one”:

. . .[I]t is worth noting that neither county submits

supporting affidavits that detail evidence of a

smuggling problem specific to their respective

facilities.

Florence v. Bd. of Chosen Freeholders, 595 F. Supp. 2d 492,

513 (D.N.J. 2009).1

1

The court says that “[i]t is plausible that incarcerated

persons will induce or recruit others to subject themselves to

arrest on non-indictable offenses to smuggle weapons or other

contraband into the facility.” One might doubt that individuals

would deliberately commit minor offenses such as civil

contempt—the offense for which Florence was arrested—and

then secrete contraband on their person, all in the hope that they

will, at some future moment, be arrested and taken to jail to

make their illicit deliveries. Nonetheless, the point made by

Judge Rodriguez establishes that what might in some imagined

circumstances be “plausible” is without support in the record

3

Judge Barkett’s Powell dissent sums up the issues with

special force:

Like the majority, I recognize and appreciate the

deference due to jail administrators as they fulfill

their charge of ensuring security in jails, not only

for the jail officials but also for the inmates. See

Bell v. Wolfish, 441 U.S. 520, 547-48 (1979). At

the same time, “convicted prisoners do not forfeit

all constitutional protections by reason of their

conviction and confinement in prison.” Id. at 545.

This principle applies with at least as much force

to individuals detained prior to their trial on petty

misdemeanor charges such as failing to pay child

support, driving without a license, or trespassing.

See id. These protections, such as the right to be

free from degrading, humiliating, and

dehumanizing treatment and the right to bodily

integrity, include protection against forced

nakedness during strip searches in front of others.

Powell, 541 F.3d at 1315.

before Judge Rodriguez–the record binding on Judge Rodriguez

and on this court.

4