Florence v. Board of Chosen Freeholders of County of Burlington

(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.