Federal Corner: Will All Arrestees Be Required to Squat and Cough? – By F. R. Buck Files Jr.


Over the years, I have listened to so many clients relate the pain and embarrassment that they felt as they went through the book-in process at a jail. At least in Texas, Louisiana, and Mississippi, “jail officials may strip search a person arrested for a minor offense and detained for the posting of bond only if they possess a reasonable suspicion that he is hiding a weapon or contraband.Kelly v. Forti, 77 F.3d 819, 821 (5th Cir. 1996) (emphasis added).

That may change—and not for the better. On April 4, 2011, the Supreme Court granted a Petition for Writ of Certiorari in Florence v. Board of Chosen Freeholders, ___ S.Ct. ___, 2011 WL 202772 (2011). The question presented by Petitioner Albert W. Florence is “whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.” (Petitioner’s Brief, Florence v. Board of Chosen Freeholders of the County of Burlington, ___ S.Ct. ___, 2011 WL 220710 (2011).

Florence is seeking relief at the Supreme Court from the decision of the United States Court of Appeals for the Third Circuit, which found a suspicionless strip search to be appropriate. Florence v. Board of Chosen Freeholders of the County of Burlington, 621 F.3d 296 (3rd Cir. 2010) [The panel: Circuit Judges Sloviter, Hardiman, and Pollard. Opinion by Sloviter; dissent by Pollard.]

Judge Sloviter’s opinion reads, in part, as follows:

[The Facts]

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 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.

[The Proceedings in the District Court]

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.

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 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).


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. 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.

[The Path to the Court of Appeals]

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 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).

[The Legal Landscape for the Issue before the Court]

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 decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (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, 99 S.Ct. 1861. 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 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.

[The Fourth Amendment and Personal Rights]

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, 99 S.Ct. 1391, 59 L.Ed.2d 660 (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, 99 S.Ct. 1861. “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.

[The Fourth Amendment and Its Application in Detention Facilities]

Detention in a correctional facility “carries with it the circumscription or loss of many significant rights.” Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). “The curtailment of certain rights is necessary, as a practical matter, to accommodate a 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, 104 S.Ct. 3194 (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, 99 S.Ct. 1861 (“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, 104 S.Ct. 3194, 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, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). Indeed, detention facilities have been described as “unique place[s] fraught with serious security dangers,” Bell, 441 U.S. at 559, 99 S.Ct. 1861, the management of which “courts are ill equipped to deal with,” id. at 548 n. 30, 99 S.Ct. 1861. Therefore, authorities are entitled to considerable latitude in designing and implementing prison management policies. Thornburgh v. Abbott, 490 U.S. 401, 407–08, 109 S.Ct. 1874, 104 L.Ed.2d 459 (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, 99 S.Ct. 1861. 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, 99 S.Ct. 1861 (“[J]udicial deference is accorded not 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, 107 S.Ct. 2254, 96 L.Ed.2d 64 (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.”).

[Bell and the Split in the Circuits]

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. In 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, 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)).

[Applying the Balancing Test from Bell]

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.


Like the Supreme Court in Bell, we assume detainees maintain some Fourth Amendment rights against searches of their person upon entry to a detention facility.


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 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.

[The Court’s Conclusion]

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.

My Thoughts

With an eight/three split in the Circuits, it is no surprise that the Supreme Court granted certiorari in Florence. Because Florence was innocent of the charges that the officer believed were pending against him, he makes a sympathetic petitioner. Will that carry any weight with the justices as they ponder this case? I would bet not. If I had to predict—which one should never do with the Supreme Court—I would think that more and more of our citizens are going to be introduced to the emotional trauma of a strip search for even the least of offenses.

Send your letters, pictures, gripes, bonehead gaffes, or what-have-you to .

F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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