FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON

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, Washington, 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

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No. 10–945

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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. 1

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 general population may be required to undergo a close visual inspection while undressed.

The case turns in part on the extent to which this 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 unjustified 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, petitioner 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 installments. 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 outstanding balance less than a week later; but, for some unexplained 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 arrest or confinement but the search process at each jail that gives rise to the claims before the Court.

Burlington County jail procedures required every arrestee to shower with a delousing agent. Officers would check arrestees for scars, marks, gang tattoos, and contraband as they disrobed. App. to Pet. for Cert. 53a–56a. 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 petitioner was taken after six days, is the largest county jail in New Jersey. App. 70a. It admits more than 25,000 inmates 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. Petitioner 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 Fourteenth Amendment rights, petitioner maintained that persons arrested for a minor offense could not be required 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” nonindictable 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 assumed. 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 distance of, say, five feet or more; it may mean a visual inspection 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 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 –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 requires 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 explained that a regulation impinging on an inmate’s constitutional 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 –132 (2003). But see Johnson v. California, 543 U. S. 499 –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 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 contraband 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 prohibited items inside. Id., at 558. The Court explained that there is no mechanical way to determine whether intrusions 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 contraband 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 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 inmate population.” Ibid.

The Court has also recognized that deterring the possession of contraband depends in part on the ability to conduct 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. Commonwealth, 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 interests 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 considerations 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 requiring 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 Francisco, 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 question of who may be deprived of liberty and taken to jail in the first place. The case involved a woman who was arrested after a police officer noticed neither she nor her children were wearing their seatbelts. The arrestee argued 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 immediate 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 precise 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 rejected 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 principles, that officers may make an arrest based upon probable 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 discretionary judgment in the field be converted into an occasion for constitutional review.” Id., at 347.

Atwater did not address whether the Constitution imposes 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 imperatives involved in jail supervision override the assertion 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 officials 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 quotation marks omitted). Petitioner has not met this standard, and the record provides full justifications for the procedures used.

A

Correctional officials have a significant interest in conducting 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 introducing 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); Clinical 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 remove 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 increasing number of gang members who go through the intake process. See Brief for Policemen’s Benevolent Association, Local 249, et al. as Amici Curiae 14 (hereinafter 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.” Carlson & 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 identification 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 identification and isolation of gang members in prison).

Detecting contraband concealed by new detainees, furthermore, 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 Wardens 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 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 textbook 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 violation 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 potential weapons. Cell phones are used to orchestrate violence and criminality both within and without jailhouse walls. Pills and medications enhance suicide risks. Chewing gum can block locking devices; hairpins 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 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 punishment 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 contraband 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 offense involving a weapon or drugs. In his view these detainees 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 misdemeanant 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 Methodical 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 Speeding 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 offenses 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 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 examples. 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 country. See United States Brief 25, n. 15.

Even if people arrested for a minor offense do not themselves wish to introduce contraband into a jail, they may be coerced into doing so by others. See New Jersey Wardens Brief 16; cf. Block, 468 U. S., at 587 (“It is not unreasonable to assume, for instance, that low security risk detainees would be enlisted to help obtain contraband or weapons by their fellow inmates who are denied contact visits”). 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, approach the person and coerce him into hiding the fruits of a crime, a weapon, or some other contraband. As an expert in this case explained, “the interaction and mingling between misdemeanants and felons will only increase the amount of contraband in the facility if the jail can only conduct admission searches on felons.” App. 381a. 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. 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 Department 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 possession 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 proposed regime, would encounter serious implementation difficulties. They would be required, in a few minutes, to determine whether any of the underlying offenses were serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics 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 pressures of the intake process. Bull, 595 F. 3d, at 985–987 (Kozinski, C. J., concurring); see also Welsh v. Wisconsin, 466 U. S. 740 –762 (1984) (White, J., dissenting) (“[T]he Court’s approach will necessitate a case-by-case evaluation of the seriousness of particular crimes, a difficult 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. 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 suspected 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 complicated 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 Constitution 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 serious 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 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 touching of detainees. These issues are not implicated on the facts of this case, however, and it is unnecessary to consider 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.

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1  Justice Thomas joins all but Part IV of this opinion.

SUPREME COURT OF THE UNITED STATES

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No. 10–945

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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 . . . suspicionless 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 question involves more than undressing and taking a shower (even if guards monitor the shower area for threatened disorder). Rather, the searches here involve close observation of the private areas of a person’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 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 testicles 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 except 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 “unreasonable 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 protections 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 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 mechanical application. In each case it requires a balancing 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 intrusion, the manner in which it is conducted, the justification 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 “meaning 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. Chicago, 723 F. 2d 1263, 1272 (CA7 1984) (internal quotation 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 –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 interests.’ ” 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 present 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 individuals 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 (describing 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 muffler, 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 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 arrested 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 housing to avoid violence, and (3) to detect contraband, including 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 regulations 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 normally defer to the expertise of jail and prison administrators 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 further 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 undergarments 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 suggesting 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 Behavior 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 between 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 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 probative 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 justified 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 standard that forbids suspicionless strip searches. And it has done so after consultation with the American Jail Association, National Sheriff’s Association, National Institute 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 Handbook, §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/DirectivesPolicy/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 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) (similar); 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 contraband 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, 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 contraband 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 prostitution 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 associated statistics indicate that the policy of conducting visual cavity searches of all those admitted to the general population 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 anywhere else could not have been discovered through a policy that required reasonable suspicion for strip searches. And without some such indication, I am left without an example 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 minimum these examples, including San Francisco’s statistics, do not provide a significant counterweight to those presented 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” requirements 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 requirements 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 “contact 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 provide precedent for the proposition that the word of prison officials (accompanied by a “single instance” of empirical 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 determination 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 released 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 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 individuals even when admitted to jail, and several jurisdictions provide that such individuals be released without detention 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 invasions of their personal privacy. I consequently dissent.

SUPREME COURT OF THE UNITED STATES

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No. 10–945

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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 administrators 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 inspection. As part of the inspection, the arrestees may be required to manipulate their bodies.

Undergoing such an inspection is undoubtedly humiliating and deeply offensive to many, but there are reasonable 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 contraband into the jail. Some detainees may have lice, which can easily spread to others in the facility, and some detainees 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 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 position to make such a determination, and the threat to the health and safety of detainees and staff, should the officers 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 reviewed by a judicial officer and who could be held in available 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 segregate 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).*

The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee’s detention 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 opinion of the Court in full.

__________________________________

1 * 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 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.

SUPREME COURT OF THE UNITED STATES

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No. 10–945

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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 announces. Justice Kennedy explains that the circumstances 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 general 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 “immaterial” to their conflicting dispositions, 621 F. 3d 296, 300 (CA3 2010), and before this Court Florence challenged suspicionless strip searches “no matter what the circumstances.” Pet. for Cert. i.

The Court makes a persuasive case for the general applicability of the rule it announces. The Court is nonetheless 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.).

Print this transcript Transcript: 

ORAL ARGUMENT OF THOMAS C. GOLDSTEIN ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 10-945, Florence v. The Board of Chosen Freeholders of the County of Burlington.

Mr. Goldstein.

Mr. Goldstein: Mr. Chief Justice, may it please the Court:

We ask this Court to hold that a jail may strip search an arrestee in cases of reasonable suspicion.

That is the rule that was applied throughout almost the entire country in the 3 decades after Bell v. Wolfish, without either administrative difficulty or any apparent increase in smuggling.

We are here today, of course, because both the Burlington Jail and the Essex County Jail require every arrestee to stand 2 feet in front of a correctional officer and strip naked.

Justice Ruth Bader Ginsburg: Do you apply the reasonable suspicion rule to all arrestees?

I thought you were making a distinction between felons and less serious offenders.

Mr. Goldstein: We do apply it to all arrestees.

The Respondents in the U.S. Bureau of Prisons do draw a line at major versus minor offenders.

I think they do that because they think that people who commit more serious crimes might be inclined to greater criminality.

But our rule is one of reasonable suspicion.

Our question presented draws the line at minor offenders because this class definition is only people who were arrested for minor offenses.

Justice Anthony Kennedy: Is the reasonable suspicion test more easily met if it's a felon detained for a serious felony?

Mr. Goldstein: It is in the view of the courts that have considered this question, absolutely.

In our view--

Justice Anthony Kennedy: In your, in your view?

Mr. Goldstein: --Yes.

And, in fact--

Justice Anthony Kennedy: Well, then you are going on a case by case basis based on the offense.

Mr. Goldstein: --The category -- There is a categorical rule, and that is -- that was adopted by these Respondents, by the Bureau of Prisons and four court of appeals, that says: If you are arrested for a more serious offense, categorically there exists reasonable suspicion.

Our case by case rule, it's true, applies with respect to minor offenders.

And again, that was the class that was defined here.

Justice Samuel Alito: Well, how would this work with respect to individuals who have been arrested for serious offenses?

Let's say someone has been arrested for -- for assault.

Say it's a case of domestic violence, assault.

Would that be enough to justify a search?

Mr. Goldstein: I think you will have to ask -- I know you want me to answer the question.

Let me just be very clear.

This is their rule.

The Respondents draw the major-minor offense line.

The Respondents apply a reasonable suspicion standard.

Now, in my view--

Justice Samuel Alito: I understand.

You say that you don't want to draw that line; you want to apply it to everybody.

Mr. Goldstein: --Yes.

Justice Samuel Alito: And I'm asking you whether the mere fact that someone has been arrested for a violent offense would in your judgment be sufficient to provide reasonable suspicion.

Mr. Goldstein: If the jail made that judgment, we would think that a court would not overturn that judgment.

We think that illustrates that, by contrast to when someone is arrested for not paying a fine, that there is no justification whatsoever, because the logic of their own policy is that this is a person who's inclined to violence.

Justice Anthony Kennedy: But I take it -- I take it what we're trying to do is to protect the individual dignity of the detainee.

But it seems to me that you risk compromising that individual dignity if you say we have reasonable suspicion as to you, but not as to you.

You are just setting us up.

And you are setting the detainee up for a classification that may be questioned at the time, and will be seen as an affront based on the person's race, based on what he said or she said to the officers coming in.

Mr. Goldstein: Right.

Justice Anthony Kennedy: So it seems to me that your rule imperils individual dignity in a way that the blanket rule does not.

Mr. Goldstein: Well, a couple of points, Justice Kennedy.

I think it's an incredibly important issue.

They don't have a blanket rule.

Remember, the Respondents apply a reasonable suspicion standard.

They do strip everyone naked, but if they are going to look for contraband, that is look at the person's mouth, look at their anus, they apply a reasonable suspicion standard.

Now, to your various concern that maybe we are inviting discrimination or at least an appearance of discrimination, remember that their rule is going to produce more of that problem than ours, because their rule is not that they have to stitch strip -- they have to strip search everyone for contraband, but their rule is they can, they can make a choice.

This Court in the Fourth -- they say we--

Justice Anthony Kennedy: Well, I'm not sure if it's their rule or our rule.

Ultimately it's going to be our rule.

Mr. Goldstein: --Yes, okay.

Well then, first let me say I hope not.

I hope that your rule is that there has to be a reasonable suspicion standard, which is the rule that was applied almost everywhere in the wake of Bell v. Wolfish, without--

Justice Ruth Bader Ginsburg: To do -- to do what?

Mr. Goldstein: --Yes.

Justice Ruth Bader Ginsburg: You just said stripped naked is different from a different strip search.

Mr. Goldstein: Yes, exactly.

Justice Ruth Bader Ginsburg: So what is permitted?

There are various things.

What, is showering in the presence of officers?

Mr. Goldstein: Showering in the presence of officers is not something that requires reasonable suspicion.

The courts have uniformly concluded that if you are just generally in an area in which you are being monitored by the officers, that's not a Fourth Amendment search that violates a reasonable expectation of privacy.

This is different.

Justice Ruth Bader Ginsburg: They -- they can be inspected without their clothes?

Just it's more than that?

Mr. Goldstein: There are two different scenarios.

One is a common room where everyone is standing around and for jail security purposes--

Justice Anthony Kennedy: A common?

Mr. Goldstein: --A common room, a common shower area, and of course for security purposes.

This is different, Justice Ginsburg.

You asked what is prohibited in the absence of reasonable suspicion.

What is prohibited is standing 2 feet away from the person--

Justice Ruth Bader Ginsburg: No, I want to know what is permitted.

Mr. Goldstein: --Yes, what is permitted is anything -- what is not subject to a reasonable suspicion standard is anything other than looking at a close inspection of the person at arm's length.

What the courts of appeals have uniformly recognized and the lower courts and what the literature recognizes and really what I think concerned this Court in the Safford case is that when you are standing so close to the person inspecting their genitals, looking directly at their most private parts of their bodies, that is a direct intrusion on their individual privacy--

Justice Sonia Sotomayor: Sorry.

Are you suggesting -- three different levels.

Stripping naked: It's okay to stand 5 feet away, but not 2?

Mr. Goldstein: --I don't think that the courts have had to confront 5 feet versus 2 feet.

What they have confronted is, they acknowledge that jails are places that require security and so if you are just observing a shower room that does not implicate a reasonable expectation of privacy.

Justice Sonia Sotomayor: All right.

So are you -- are you taking the position that it's the purpose of the search--

Mr. Goldstein: No, I'm--

Justice Sonia Sotomayor: --that -- that's at issue?

Mr. Goldstein: --No, it's the closeness of it.

There is not a problem, I think, with the question of 2, 3, 4, or 5 feet.

These searches all occur in the same way, and that is the officer stands directly in front of you.

The testimony here is 2 feet away.

That seems to be the common--

Justice Sonia Sotomayor: I'm still unsure.

Mr. Goldstein: --Yes.

Justice Sonia Sotomayor: If it's okay to shower--

Mr. Goldstein: Yes.

Justice Sonia Sotomayor: --and have an officer watch you shower naked--

Mr. Goldstein: Yes.

Justice Sonia Sotomayor: --what is the greater intrusion is that you are standing 2 as opposed to 5 feet away?

Mr. Goldstein: 2 versus 10 feet away or just generally observing the room.

This is exactly--

Justice Sonia Sotomayor: That is a line that doesn't make much sense to me.

Mr. Goldstein: --Okay.

Justice Sonia Sotomayor: Then let's go to the next line, which is -- that's one kind of search.

Mr. Goldstein: Yeah.

Justice Sonia Sotomayor: The second is I think what some have called a visual cavity search.

Mr. Goldstein: Yes.

Justice Sonia Sotomayor: Whether you are going to have the individual open or expose private parts.

Mr. Goldstein: Yes.

Justice Sonia Sotomayor: Can you make an argument that that is different than just a visual search?

Mr. Goldstein: You can.

So let me just say, let me try and close up my answer to the question of the 5 versus 10 feet and then turn immediately to this visual body cavity search.

Remember, this is -- the Court will recall that this is a reprise of the argument in the Safford case, where the schools there argued that, well, there is an observation of these students in gym class, they shower together naked, they undress naked.

And the Court said it's quite different when you're standing right there looking over the student.

And so that's what implicates a Fourth Amendment right of privacy, and the distinction did make sense.

As to your question, yes, there is a material difference, we think, although we think both should be covered by our rule.

But a visual body cavity inspection as occurred in the Essex facility here, where you require someone to bend over and cough, which is what the testimony is in this case--

Justice Ruth Bader Ginsburg: One, not the other?

Mr. Goldstein: --That's correct.

--that after the second jail had a slightly different search protocol, in which the testimony is that he was required to bend over and cough and expose his anus for inspection, and the Respondents themselves regard that as a more significant intrusion and they apply a reasonable suspicion standard themselves to that--

Justice Antonin Scalia: Mr. Goldstein, what -- what you propose is reasonable enough, I suppose, and some States could adopt that kind of a protocol instead of what they have.

But what you are asserting is that the Fourth Amendment prohibits them from adopting it, and the obstacle I see is that at the time the Fourth Amendment was adopted, this -- this was standard practice, to strip search people who were admitted to prisons.

So how could it be deemed an unreasonable invasion of privacy when it -- when it was done all the time and nobody thought it was unconstitutional?

Mr. Goldstein: --We don't believe that the premise is correct.

If you read history differently than me, I'm not going to be able to persuade you.

But our understanding of the history is that the closest they can come to is two things: First, that people were strip searched upon arrest, and that certainly is not the rule under the Fourth Amendment; and that in certain jails at the time of the founding other inmates in a process of ablution which, as almost kind of a ritual cleansing, would strip search new inmates.

It had nothing to do with the jail officials themselves or trying to intercept contraband.

Justice Antonin Scalia: That is somehow less of an intrusion on your privacy, to be naked in front of a whole bunch of inmates, rather than one jail official inspecting?

Mr. Goldstein: Well, first, it wasn't a nearly -- the nearly uniform practice that I think your question assumes.

And it's just a different kettle of fish entirely, that -- we don't believe, obviously, that that historical lesson obtains today that the prisoners can strip search new inmates, new arrestees as they come in.

I do agree with the basic premise of your question that it's -- our position can't just be that, hey, I've got a reasonable rule.

I do have to in, either under the terms of Bell v. Wolfish or Turner v. Safley, establish that this is an exaggerated response, that this is much more, materially more than is necessary to accomplish their goals.

Justice Ruth Bader Ginsburg: But less intrusive than the one, than the search in Bell v. Wolfish, which involved pretrial detainees?

Mr. Goldstein: No, Justice Ginsburg, we disagree with that.

At least as to the second search, we think that there is no difference between the degree of intrusion here and in Bell.

But there is another significant reason not just in the nature of the search, but a big difference between this case and Bell is that the inmates in that case made a voluntary choice.

They decided to have the contact visit that was--

Justice Ruth Bader Ginsburg: Do we know if the pretrial detainees in Bell were also inspected on entry into the facility?

Mr. Goldstein: --We do not.

I tried everything I could to check the record of that case and there was no record of an admission strip search at the MCC at the time.

Chief Justice John G. Roberts: Counsel, is there -- there's a distinction between the simple strip search and the visual body cavity search.

You say that they apply reasonable suspicion standard to the visual body cavity search.

Mr. Goldstein: Yes.

Chief Justice John G. Roberts: So is the visual cavity search therefore off the table?

Mr. Goldstein: No, it is not.

We contend that the Fourth Amendment prohibited the visual body cavity search at the Essex facility.

So--

Chief Justice John G. Roberts: Right, right.

But you would say that they had to have a reasonable articulable suspicion before they could do that?

Mr. Goldstein: --We say that under their written policy they should have, but they didn't.

The Burlington County -- the only evidence about a conclusion of the jail about reasonable suspicion is that the Burlington county intake officer filled out a form saying there is no reasonable suspicion here.

And Essex I don't believe contends that there was reasonable suspicion to engage in a visual body cavity search.

They deny, as a matter of fact, that it happened.

Chief Justice John G. Roberts: So -- so you see a distinction between what they actually do and the written policy.

Mr. Goldstein: I -- I do with respect to the Essex -- I apologize -- no.

What happened here is that Essex after this search occurred, and this is described in the Essex brief in opposition, in case you want to look at it later, at 3 in note 1 -- Essex after the search in this case changed its policy.

We were denied an injunction going forward under L.A. v. Lyons, so we -- it's just a question of damages for the search that occurred at the time under their old policy.

Justice Samuel Alito: I'm confused about your--

Justice Elena Kagan: Could I--

Justice Samuel Alito: --your position.

Suppose a jurisdiction has the policy of requiring every inmate who is arrested and is going to be held in custody to disrobe and take a shower and apply medication for the prevention of the spread of lice and is observed while this is taking place from some distance by a corrections officer, let's say 10 feet away.

Is that -- does that require a reasonable suspicion?

Mr. Goldstein: It does not.

The -- and -- and--

Justice Samuel Alito: So your -- your only concern is searches that go further than that.

Mr. Goldstein: --That's exactly right.

The very close inspection of the individual's genitals, which can occur absolutely so long as there is some minimal level of suspicion that's created.

I do want to return to Justice Kennedy's concern about dignitary interests here and whether drawing any sort--

Justice Samuel Alito: Could I just follow up on that?

Is there a dispute of fact as to whether anything beyond that occurred in Burlington County?

Mr. Goldstein: --In Burlington County, there is a dispute about the so-called genital lift, whether Mr. Florence was required to lift his genitals or not.

There is no dispute that he was required directly in front of an officer to strip naked, despite the officer having made a finding, which is on page 390 of the joint appendix, that there was no reasonable suspicion to conduct a strip search.

That is the only factual dispute--

Justice Sonia Sotomayor: Counsel--

Mr. Goldstein: --in the entire case.

Justice Sonia Sotomayor: --Could you clarify two points for me?

The first is, was he admitted into the general population at Burlington?

Mr. Goldstein: The record is not entirely clear.

What the record says is that for the first few days of his stay -- remember, he inexplicably was kept for 6 days.

For the first several days, he was kept in a cell with only one other inmate, or possibly two, and one time he had lunch with other people.

In Essex, he was admitted to the general population.

Justice Sonia Sotomayor: The prior charge against your client was the use -- involved the use of a deadly weapon.

Assuming the prison knew this, wouldn't that provide the reasonable suspicion that you argue was missing?

Mr. Goldstein: No, because it depends because of the breadth of the phrase "possession of a deadly weapon", as this case illustrates.

The record shows that the possession of the deadly weapon -- and that's why this charge was not pursued by the State -- is -- was that he was pulled over at a traffic stop and he drove away.

The deadly weapon is the car--

Justice Sonia Sotomayor: So now you are -- you are feeding into your adversary's argument that what you are asking the police to do on intake, or the corrections facility on intake, is to investigate in that fine detail?

They can't even look at the rap sheet--

Mr. Goldstein: --No--

Justice Sonia Sotomayor: --and see use of a deadly weapon and say, ah, this guy could be dangerous?

Mr. Goldstein: --No, Justice Sotomayor.

The rap sheet does not contain that charge.

What the rap sheet does show, and we are perfectly fine with them looking at the rap sheet -- the rap sheet, and it's in the joint appendix -- the rap sheet says that he had a single charge, he pleaded guilty, he got a term of probation.

There is nothing about that the jail would have had any information suggesting that he had some charge involving a deadly weapon.

And that's why they themselves certified that there was no reasonable suspicion--

Justice Anthony Kennedy: Well, is the rap sheet always available immediately?

I thought it was rather common -- correct me if I'm wrong; it's based on practice some years ago -- that it -- it would take maybe 24 hours, 48 hours for the wiretap -- for the wire services and the Internet to -- to report that he's wanted for questioning for some very, very serious crime in some other State?

I think -- in my practice at least -- county jails were much more dangerous than penitentiaries, because you don't know who these people are.

You arrest them for traffic and they may be some serial killer.

You do not know.

Mr. Goldstein: --Sure.

First, that is not the view of the jails in this case.

Remember, they apply a reasonable suspicion standard.

They did not find any concern in their own policies -- neither does the Marshals Service, ICE, with this prospect of some prior offense.

As to what the rule is, and how common it is and whether this works in practice, the jails here did look him up in the New Jersey Criminal Justice Information System.

That's in the record.

They are required by New Jersey law to do that.

It's a -- every single one of these jails has computer access to the NJCJIS, and also to the NCIC; they just type in his identifying information.

They were able to pull him up without any difficulty, and they have not complained that they didn't have enough information about him.

They filled out a form saying there is no reasonable suspicion here.

And remember, our rule only operates in a system, Justice Kennedy, in which the jail does have enough information.

When -- our point is this: If the jail has the facts, as it did here, to affirmatively determine that there is no reasonable suspicion, which is what they decided about Mr. Florence, then it is an extraordinary intrusion on dignity and autonomy to strip him naked when they have no reason to do so.

Chief Justice John G. Roberts: Counsel -- counsel, my understanding of the statistics -- and correct me if I'm wrong -- is that they get about 70 new people going through this process a day.

Is there anything in the record about how much additional time it would require to look at each one, to look at their record, to determine which category they should fall into, to strip search or not, as opposed to having a blanket rule?

Mr. Goldstein: Sure.

There is because they do this already.

They -- it is not an administrative problem.

They apply our rule today.

Remember, Mr. Chief Justice, when he arrived at the Burlington County Jail, they did an assessment of him and determined that there was no reasonable suspicion.

The jails in this case did pull up his prior criminal history, and they have no problem doing that.

They apply our standard today.

It is not a difficult one.

But--

Justice Antonin Scalia: Mr. Goldstein, you have acknowledged that we -- we have held that when you have visitors, you may be stripped -- strip searched after the visit, and the same kind of close examination that you object to here.

Now, your explanation why that is okay is that that is voluntary--

Mr. Goldstein: --I have two explanations--

Justice Antonin Scalia: --That you don't have to have visitors.

Can you really condition your -- your -- your having visitors on your waiver of your Fourth Amendment rights?

Mr. Goldstein: --Yes.

Block establishes that you have no right whatsoever to have contact visits, so under Schneckloth v. Bustamonte, of course, you can say I voluntarily relinquish my Fourth Amendment right in exchange for this privilege.

But I have a second--

Justice Antonin Scalia: Are -- are you sure about that?

Mr. Goldstein: --I--

Justice Antonin Scalia: You can -- you can condition certain -- certain privileges upon a waiver of -- of constitutional privileges?

Mr. Goldstein: --Yes, I believe that that's -- I think that's a fair statement of the law.

I do have a second point, though.

And that is that the principal reason underlying Bell v. Wolfish's holding that those searches were reasonable is that it was essential to deter smuggling, and that deterrence rationale has much more of an attenuated relationship to this case.

Remember that the inmate in that case was having a planned meeting with someone, and the representation of the government is that our problem is if you plan to have somebody come visit you and you are going to have a contact visit, you can plan for them to try and sneak something to you.

This Court has set--

Justice Elena Kagan: --Mr. Goldstein, there of course were guards there who were watching the visits.

And as I understand that case, there was really no empirical evidence that smuggling came about as a result of these visits.

Mr. Goldstein: --Well, can I just read to you what the Court said about that, just so -- the Court did have a slightly different take, I think.

And this is from page 559 of -- of the Court's opinion:

"That there has been only one instance where an MCC inmate was discovered attempting to smuggle contraband into the institution on this person may be more a testament to the effectiveness of the search technique as a deterrent than to any lack of interest on the part of the inmates to secrete and import such items when the opportunity arises. "

And our point is that that -- when you have an unexpected arrest here -- remember, Mr. Florence showed the paperwork that he was not wanted for arrest.

And that's going to be generally true in all kinds of traffic stops and the like--

Justice Stephen G. Breyer: Well, which is it you're doing?

I mean, I imagine -- I thought you were saying you always need a reasonable suspicion, so I imagine a case where the person is going to be arrested, put into the general prison population, there is a warrant out against him for second-degree murder, and the policeman stopping him for a traffic offense arrests him because he knows he is wanted on a warrant in another place, and the jail has a policy that says when you're -- come in here because of second-degree murder, we strip search.

Okay?

Can they do that under your rule or not?

Mr. Goldstein: --Yes.

Justice Stephen G. Breyer: That's all they know.

Mr. Goldstein: Yes.

That's reasonable suspicion.

Justice Stephen G. Breyer: Then you do not want to -- then you are not saying it always has to be reasonable suspicion.

Mr. Goldstein: It's just a debate about words.

We think that is reasonable suspicion.

Justice Stephen G. Breyer: Oh, all right.

That isn't helping me.

Mr. Goldstein: I'm sorry.

Justice Stephen G. Breyer: What helps me is to know what the category of things is that the jail in your opinion is going to have to look into the characteristics of this individual person, and when I look at the ABA, they talked about minor arrests.

Mr. Goldstein: Yes.

Justice Stephen G. Breyer: And when I look at some of the cases, there is a long list, like violence, drugs, and so forth, where you don't have to, where you can just use the general fact that he was arrested--

Mr. Goldstein: Right.

Justice Stephen G. Breyer: --for the thing.

But there are other ones, minor ones, where you do.

So what is your rule on that?

Mr. Goldstein: Our rule that we would expect is that, with respect to minor offenders, that's when you assess--

Justice Stephen G. Breyer: Okay.

Then the next question which we'll get--

Mr. Goldstein: --Yes.

Justice Stephen G. Breyer: --who is a minor offender and how do you administer that rule?

Mr. Goldstein: Okay.

I think that is a great question for them, because that's their rule.

They have a rule that says for minor offender that you have to have reasonable suspicion to search for contraband.

Justice Ruth Bader Ginsburg: But you are trying to state the constitutional rule, and you keep talking about what is their rule, and we are trying to find out what are the limits--

Mr. Goldstein: Yes.

Justice Ruth Bader Ginsburg: --of the rule, and I think you've already qualified what you said opening.

Opening, you said reasonable suspicion is the rule for everyone, the felon as well as the minor offenders.

Now you seem to be saying, well, this case involves only minor offenders, so let's limit it to that.

That's what I thought you were saying now.

Mr. Goldstein: Yes, that's right.

Because this case only involves minor offenders, we have articulated a rule with respect to minor offenders.

Justice Stephen G. Breyer: I mean, that of course--

Mr. Goldstein: Okay.

Justice Stephen G. Breyer: --unfortunately, I'm asking you and not them, and -- and it's the same question.

Mr. Goldstein: Okay.

Sure.

Justice Stephen G. Breyer: How do you want us to write this so that jail personnel all over the country--

Mr. Goldstein: Yes.

Justice Stephen G. Breyer: --have to be able to follow it and know exactly what they are supposed to do.

Mr. Goldstein: For 3 decades the rule that was articulated by the Federal courts and applied without difficulty is one that says for minor offenses.

When that was applied in practice it was basically done at a felony versus misdemeanor line.

The court accepted that if you are -- the courts accepted that if you are suspected of a more serious offense, then for administrative reasons and because we just think you might be engaged in more criminality, then you don't have to have any individualized inquiry whatsoever.

Justice Antonin Scalia: I can understand that -- I can understand that for cavity searches, but -- but why for the search to see if -- if the person has any fleas or cooties or, you know, any -- any other communicable disease before he is put into the general population?

Are -- are felons more likely to have those than non-felons?

Mr. Goldstein: No, they are not.

Justice Antonin Scalia: So that line makes no sense for -- for that aspect of the search which is -- is just we want to make sure that we have a clean prison.

Mr. Goldstein: That is not correct.

That aspect -- what the testimony in this case establishes is that the jail guards allow any sort of medical rationale for the search to be conducted by medical personnel, not by the guards themselves.

All these inmates are examined by a medical person, a nurse or the like, and they are responsible for -- for--

Justice Antonin Scalia: And that -- that's where the Fourth Amendment invasion of privacy line is to be drawn?

If you're examined close up by someone who has a medical degree, it's okay?

And on the other hand, if it's someone who does not have a medical degree, it's not okay?

Mr. Goldstein: --That is correct.

Justice Antonin Scalia: That can't be the line as to whether your privacy is being invaded.

Mr. Goldstein: It -- it can be the line and it is the line that has been accepted for decades.

Justice Anthony Kennedy: But -- but you -- you would have to--

Justice Ruth Bader Ginsburg: --dividing line?

Justice Anthony Kennedy: --keep the person in custody, say, for 24, 48 hours until the medical personnel could come.

Do you have 24-hour medical personnel for intakes that are 2 in the morning?

Mr. Goldstein: Yes.

The intake process, the testimony is that--

Justice Ruth Bader Ginsburg: But they are--

Justice Anthony Kennedy: You are -- you are telling us that every county jail in -- in the United States has medical personnel on duty 24 hours a day ready to do a -- a search?

Mr. Goldstein: --No, I apologize, Justice Kennedy.

I'm telling you what is in the record in this case.

And that is--

Justice Stephen G. Breyer: What you said before was 2 feet is too close, but 5 feet is okay.

Are you sticking with that?

Mr. Goldstein: --Justice Breyer, I'm saying that a close inspection which is intended to examine the person's individual--

Justice Stephen G. Breyer: Yes.

Mr. Goldstein: --genitals, and whether it's at 2 feet or 4 feet I don't think is the relevant line.

If I could make one point, and then reserve the remainder of my time, would that--

Justice Ruth Bader Ginsburg: --Made I just ask, on your medical personnel, children in school get inspected for -- for head lice, prisoners for body lice.

You don't need a doctor to do that?

Mr. Goldstein: --No, that's right, but if that is right, what happens is that medical professionals are the people who are assigned that responsibility.

That's the testimony in this case.

The only last point that I wanted to make is--

Justice Ruth Bader Ginsburg: But that's not constitutionally required.

Mr. Goldstein: --I -- I agree.

That--

Justice Ruth Bader Ginsburg: So that's another thing that -- that you don't need to -- to -- they can inspect for body lice, and that's -- that's okay?

Mr. Goldstein: --If that's what they're doing, I think that that is okay.

The courts have said that that is not itself a -- because of the prospect of handling that problem with shampoo, which is what these jails do, that that's not a sufficient -- a sufficient justification to require the person to strip naked.

The only other point that I did want to make is that this is the rule, not just at Burlington and Essex, but also of the U.S. Marshal Service, which has the intake of 220,000 inmates every year, and also of the Bureau of Immigration Customs Enforcement, which intakes 384,000 a year.

Justice Ruth Bader Ginsburg: But the government tells us that that's true only if they don't put the arrestee in the general population.

Mr. Goldstein: That's not correct.

That is only the policy of the U.S. Bureau of Prisons, which has an intake of minor offenders of only a few thousand people a year.

For the Marshals Service and for ICE, which have a combined 600,000 people every year, they do not have that separate housing rule.

If I could reserve the remainder of my time.

Chief Justice John G. Roberts: We will give you rebuttal time, but maybe just to be clear--

Mr. Goldstein: Yes.

Chief Justice John G. Roberts: --You don't -- do you or do you not have an objection to the superseding ECCF policy?

Mr. Goldstein: We -- if the -- we do, because they still have to stand naked directly in front of the correctional officer under the superseding policy.

What the superseding policy is, which is Burlington's policy throughout this, is that they will not search the person for contraband, which is their supposed interest here, for contraband, in the absence of reasonable suspicion.

Both jails at the time of this search and also now will still require the person to strip naked, supposedly for contraband, even though their own policy says we won't search for -- we won't engage in the depth of search that is required, we won't look at the anus, we won't look in the person's mouth, in the absence of reasonable suspicion.

Chief Justice John G. Roberts: That is the current policy?

Mr. Goldstein: That is the current policy.

Chief Justice John G. Roberts: And you have no problem with that.

Mr. Goldstein: We do have--

Chief Justice John G. Roberts: I mean, you have no problem with the reasonable, articulable suspicion aspect of the body cavity search.

Mr. Goldstein: --That's correct.

Chief Justice John G. Roberts: Okay.

And with respect to the simple strip search--

Mr. Goldstein: Yes.

Chief Justice John G. Roberts: --your only objection is that the guard is too close to the inmate?

Mr. Goldstein: That's right.

Chief Justice John G. Roberts: Okay.

Thank you.

Mr. Phillips.

ORAL ARGUMENT OF CARTER G. PHILLIPS ON BEHALF OF THE RESPONDENTS

Mr. Phillips: Thank you, Mr. Chief Justice, and may it please the Court:

I -- I actually appreciate the clarification that your questions brought to this case, because I think there is a bit of confusion that I would like to try to clear up, although my -- my colleague's movement in terms of answering some of the questions left me a little bit perplexed as to exactly what the nature of their claims are.

The -- the first question that it seems to me the Court should focus on is what policy is at issue here.

And obviously, since the class certification deals with one set of issues and the plaintiff's claims deem with another set of issues, I think you have to be careful.

I think you have to focus on the policies that existed in 2005.

That was the basis on which he was in fact searched under these circumstances.

And the policy in Burlington was that -- was primarily aimed, frankly, at health and tattoos, and the policy at Essex was aimed primarily at contraband and then secondarily at tattoos and health.

And the policy at Burlington was largely a -- you come into prison, you give up your clothes, they look through your clothes, you take a shower, they examine you fairly cursorily, but look at you, and then give you prison garb and move along your way.

Chief Justice John G. Roberts: I'm sorry.

Is the shower and look at you cursorily, are those separate things?

Or is it during the shower?

Mr. Phillips: It -- it's before or during.

Chief Justice John G. Roberts: Because your friend places a lot of significance on how close the examination is.

Mr. Phillips: Right.

Chief Justice John G. Roberts: So under that policy how close was the examination?

Mr. Phillips: Yes.

It almost certainly would have been about an arm's length, because at that -- I mean, the problem is if you ar exchanging clothes with somebody, you are handing them clothes to change into, it is sort of hard to be longer than arm's length and actually get the clothes into his hand.

So that--

Justice Antonin Scalia: Two arms' lengths.

I mean, he could reach out, right?

Mr. Phillips: --Okay.

Two arms' lengths.

[Laughter]

Chief Justice John G. Roberts: Well, that's not right.

They could take--

Mr. Phillips: But I'm not--

Chief Justice John G. Roberts: --That's not right.

You could take the clothes off, put them in a bin--

Mr. Phillips: --Right.

Chief Justice John G. Roberts: --The person examines the bin.

Mr. Phillips: Right.

And that's actually what they do in Essex.

In Essex, they do it that way.

The difference between Essex is that Essex in fact does have -- part of the problem is terminological, all right.

You know, Burlington is basically a body visual observation, and the district court said that's unconstitutional, that just observing at all is unconstitutional.

To some extent it seems to me my -- my friend here has given up that part of the district court's decision, which clearly the court of appeals to the extent it reversed that part ought to be affirmed on that ground alone.

Justice Stephen G. Breyer: Visual observation for more than 2 feet, or less than 2 feet?

Mr. Phillips: Right, although that -- that was not the district court's theory.

The district court didn't say 2 to 3 feet.

Justice Stephen G. Breyer: What happened?

Do we know?

Was it within 2 feet or not within 2 feet?

Mr. Phillips: Well, it depends on whose version of it.

Justice Stephen G. Breyer: Do you know?

Mr. Phillips: You have to remember, the district court granted summary judgment to the plaintiff in this case, so you would have to -- you would have to interpret -- you would have to give us the benefit of the interpretation, which was that it was more than 2 feet.

But the court of appeals reversed, of course, without regard to that, because the court of appeals said, look, if you -- if you apply this Court's decision in Bell v. Wolfish, it doesn't matter, because you can engage in a much more intrusive true body cavity search, which frankly is more intrusive than even what Essex County does in this case, because he wasn't asked to bend over and to -- and to have a body cavity anal search.

What he was asked to do was to squat and cough, in the event that -- because ordinarily that will cause the contraband then to fall out, and you can -- and you can catch it under those circumstances.

So this is -- that's -- that's sort of the context in which this issue comes up.

Justice Elena Kagan: Mr. Phillips, if I could understand your position, you think that there is no reasonable suspicion even for that more intrusive body cavity search, is that right.

Mr. Phillips: That's correct, That's the rule of law.

Justice Elena Kagan: And does it matter to you whether the person is being introduced into the general prison population, or would you also say that if the person is not being introduced into the general prison population?

Do you still think that there is no reasonable suspicion requirement?

Mr. Phillips: I would say from my perspective, I think even -- even if they weren't going to be admitted into the general prison population, because the risks remain too substantial.

But the truth is, I don't have to defend that argument, because both -- both of these jails admit their inmates into the -- into the general population 99.9 percent of the time.

Justice Elena Kagan: Would a manual search--

Mr. Phillips: So that's not a line we draw.

Justice Samuel Alito: Would you say that regardless of the offense for which the person is arrested?

There have been some stories in the news recently about cities that have taken to arresting people for traffic citations.

Suppose someone is just arrested because they have a lot of tickets for being caught on speed cameras, let's say.

That person can be subjected to the searches that you are describing?

Mr. Phillips: Yes, Justice Alito.

I think the basic principle we are asking for is that deference to the jails and -- and to the administrators of the jails requires that this Court respect their judgment that you can't make a distinction based on that specific individual; that whether somebody is a minor offender or a major offender, one, is never all that clear in the first place; and two, isn't a basis on which to distinguish the risks that it poses to the--

Justice Stephen G. Breyer: Try the ABA.

The ABA is minor offenses, not drugs, not violence, and there you have to have reasonable suspicion.

Now, I've read through the briefs and I can't find a lot of contrabanders that were caught in that category.

In fact, my law clerk thinks it's one out of 64,000 or less.

So -- so what is the justification for a rule to avoid reasonable suspicion in that category?

Mr. Phillips: --If -- if you look at the expert testimony that was before the court in the district court in this case, both the expert testimony of the plaintiff and the expert testimony of the defendant -- this is at 348a of the joint appendix, it says

"a greater presence of contraband amongst those individuals that have minor offenses. "

That's his -- that's their expert's characterization, that minor offenders bring in more contraband than major offenders.

Our experts said misdemeanants can be more dangerous and more likely to bring in contraband.

Justice Stephen G. Breyer: It's a conclusion, and we have a lot of practical experience because different States have different rules and San Francisco came in with I think the toughest on your side, for your side.

I just say, looking through that, it's very hard to find somebody who really was in this minor offender category, who really was found to have contraband.

So what should I look at to show that my initial reaction from the quick reading is wrong?

Mr. Phillips: Well, I--

Justice Stephen G. Breyer: Do I just say--

Mr. Phillips: --I think you can go back to Bell v. Wolfish, where this Court said that the fact that there is not a lot of contraband being found may be a testament to the effectiveness of the deterrent.

Justice Sonia Sotomayor: So why do we change the policy?

In Bell we found that the policy was successful.

Even though there were searches, contraband still got in.

So virtually every circuit in practice in the Federal system have been following this reasonable suspicion for minor crimes and they have been fairly successful.

So why do we change the constitutional rule to let them do more?

Mr. Phillips: Well, I think that--

Justice Sonia Sotomayor: To invade more.

Mr. Phillips: --Well, I mean, I think first of all anybody who thinks that the problems of contraband are less serious today than they were in 1978 is -- is ignoring reality.

Justice Sonia Sotomayor: I understand contraband is serious.

But most of the studies point to it not being on intake, but coming in through guards, coming in through contact visits.

The great cause today is that from corrupt correction officials.

Mr. Phillips: Well, we can debate that.

But, Justice Sotomayor, it seems to me that the fundamental principle that ought to undergird the entirety of the Court's analysis here comes out of Turner v. Safley and that line of cases.

Justice Sonia Sotomayor: Counsel, could I ask you something just in terms of your rule.

I think your brief says your rule is you are not entitled constitutionally to any right of privacy in prison.

Mr. Phillips: No.

Justice Sonia Sotomayor: If that's the case, are you saying that if the prisons decide on a manual search, every prisoner who comes in, correction officers can manually check their cavities?

Mr. Phillips: No, Justice Sotomayor.

No.

Justice Sonia Sotomayor: So there is some privacy rule there?

Mr. Phillips: I can be clear about this.

It seems to me that Hudson v. Palmer and the -- and the history of the Fourth Amendment clearly suggest that there is no reasonable expectation of privacy of being viewed naked in a prison.

And therefore, the ordinary Burlington approach of having somebody take a shower and looking at him or her naked for tattoos and health and incidental contraband, clearly constitutional, clearly doesn't even raise a Fourth Amendment issue.

When you get beyond that point and start to begin the -- what Essex does, which is not a true anal cavity search, but simply an anal focus and genital focus search, I think that is subject to the Turner v. Safley and-or the Bell v. Wolfish standard.

Justice Sonia Sotomayor: Can we go back to Justice Alito's question?

Isn't one of the factors that we look at under the Fourth Amendment reasonableness?

And should we be thinking about the fact that many of these people who are now being arrested are being put into general populations or into jails, sometimes not just overnight but for longer periods of time, like this gentleman, for 6 days before he sees a magistrate?

Should we be considering a rule that basically says your right to search someone depends on whether that individual has in fact been arrested for a crime that's going to lead to jail time or not, whether that person's been presented to a magistrate to see whether there is in fact probable cause for the arrest and detention of this individual?

I mean, there is something unsettling about permitting the police to arrest people for things, like kids who are staying out after curfew with no other, based on probably nothing else.

Mr. Phillips: Justice Sotomayor, I think what is disturbing about this case is in fact that he was arrested under circumstances in which he candidly shouldn't have been arrested as a matter of State law.

I understand that.

But I think to change the constitutional rule and to change the Turner v. Safley and Bell v. Wolfish standards and ignore what the underlying inquiry should be here, which is these policies which apply across the board impinge constitutional protections, but nevertheless represent the good faith judgment of our jailers.

Justice Sonia Sotomayor: But what are we doing with the presumption of innocence?

That's also a constitutional right.

And so shouldn't the degree to which a search is permitted be conditioned in some way on whether or not this person has been presented to a magistrate?

Mr. Phillips: If you ask me the way I would analyze it, I would -- if you want to adopt a different set of standards about who ought to be arrested and who ought to be taken to jail, that's fine.

I understand that.

Justice Sonia Sotomayor: Sure.

Mr. Phillips: But I think once you are talking about actually bringing someone into the jail to be admitted into the general population and what is without question one of the most dangerous, most risky environments, in that context I would hope that this court, rather than asking individual jailers to make decisions on the basis of -- where they clearly will not have the kind of information you are asking them to make and where if they make a judgment wrong in either direction all it means is litigation.

Either they--

Chief Justice John G. Roberts: I thought -- I thought your friend said that is exactly what you do with respect to the visual body cavity search, reasonable articulable suspicion, under the new policy.

Mr. Phillips: --That's what we do with a true anal body cavity search.

What we -- I mean, we changed the policy to be sure.

Chief Justice John G. Roberts: Right.

Mr. Phillips: We changed the policy because of litigation concerns.

Chief Justice John G. Roberts: Well now, as I understand it, with respect to--

Mr. Phillips: Liability concerns.

Chief Justice John G. Roberts: --with respect to visual body cavity searches, you require a particular individual reason, right?

Mr. Phillips: Yes.

Chief Justice John G. Roberts: Okay.

And you don't require that with respect to simple strip search?

Mr. Phillips: Right.

Chief Justice John G. Roberts: Okay.

So you agree with your friend that the only thing at issue here is how close the guard is going to be to the individual who you have no reasonable suspicion to think is different from anybody else during a simple strip search?

Mr. Phillips: Well--

Chief Justice John G. Roberts: You want -- he says 2 feet is too close, 5 feet or whatever is okay.

You want to go to 2 feet.

You don't want to have to stand back to 6 feet.

That's all the case comes down to?

Mr. Phillips: --I don't -- well, you can characterize it that way.

But I think the better way to think about it is that what Essex wants, what Essex policy permitted it to do, was to examine the--

Chief Justice John G. Roberts: I'm not interested in what Essex policy permitted it to do in the past.

I -- I'm looking at the new policy, all right?

Under the new policy, you have reasonable articulable suspicion--

Mr. Phillips: --Right.

Chief Justice John G. Roberts: --for everything except simple strip search and observation.

Mr. Phillips: Well, see, that's the problem, is that the language there is different.

Because the -- the truth is that the line that the new policy draws is between a true -- what I -- what I think Bell v. Wolfish was describing, where you ask the inmate to bend over and expose his or her anus for a cavity search.

On that score, that's what -- we don't do that.

But we do, in fact, ask--

Justice Sonia Sotomayor: Mr. Phillips--

Chief Justice John G. Roberts: I'm sorry.

Could I finish and find out what you do?

You said we don't do that.

We do what?

Mr. Phillips: --Right.

What we do is ask the individual to lift his genitals and to squat and cough.

Chief Justice John G. Roberts: Okay.

So you do more than a simple strip search.

Mr. Phillips: Right, slightly more than a simple--

Justice Antonin Scalia: But -- but we've just acknowledged here--

Mr. Phillips: --But I don't think that is the line to draw.

Justice Antonin Scalia: --But there is still an -- an issue in the case beyond the ordinary visual inspection, and that is this, even though you have changed your policy now--

Mr. Phillips: Right, we are still liable.

Justice Antonin Scalia: --The question remains whether that change in policy was constitutionally required, so that when -- when you treated the -- the plaintiff in a different fashion under the old policy, that was a violation of the Constitution.

Doesn't -- doesn't that question remain in the case?

Mr. Phillips: That question clearly remains in the case.

I'm not--

Justice Antonin Scalia: Okay.

So the -- we have to consider both, the pure visual and also the inspection for contraband.

Mr. Phillips: --Right.

And all I'm -- all I -- the only point I have been trying to make here is that if you -- if you look at the way the district court analyzed the case, the district court split it up, and it's the basis of the class distinction versus the--

Justice Anthony Kennedy: Does the record or common experience justify an argument that if you have the person who's stopped just for a traffic ticket, but that person is going to be in custody for five or six days, that person might well prefer an institution where everyone has been searched before he or she is put into the population with this?

Mr. Phillips: --Justice Kennedy, there actually is testimony in the record from the warden saying that in order to ensure everybody's safety, we are better off with a blanket policy that says we are going to engage in -- in some form of a search -- Essex has a slightly more intrusive one -- but it's all designed to accomplish the same thing.

It's not just designed to ensure against contraband and -- and that -- it's designed to ensure that there isn't somebody like Mr. Florence who is going to end up being poked or otherwise--

Justice Stephen G. Breyer: --Is there any evidence -- I count seven or eight States anyway that have some variation of the reasonable suspicion rule like what they want -- roughly.

Is there any evidence at all that in those seven or eight States, there is more contraband being smuggled in?

Mr. Phillips: --Well, there is the testimony in the record from their expert, who said that in Kentucky, there is today -- the single biggest problem in Kentucky prisons and the biggest cause of death is drug overdose, which suggests that there is a serious contraband issue in Kentucky.

Kentucky is in one of those -- is one of those -- is inside one of the circuits that has had a reasonable suspicion requirement as a constitutional matter forever.

So I would say there yes, there is some evidence from which you could infer that it's worse now than it was.

But I would also ask the Court to rely on its common sense and it its own -- what is essentially took judicial notice of in Bell v. Wolfish and Rutherford v. Black, which is this is a serious problem, and it is no less a serious problem today than it was more than 30 years ago, when this Court--

Justice Ruth Bader Ginsburg: Are there any -- are there any constitutional limits, in your view?

You say you didn't attempt the kind of search that was done in Bell v. Wolfish.

Is there any constitutional impediment to your doing so?

Mr. Phillips: --I -- I don't believe that -- my position would be no, there isn't a constitutional impediment, but--

Justice Ruth Bader Ginsburg: So there's no--

Mr. Phillips: --The balance would tip in favor of the -- of the institution under those circumstances.

I do think -- obviously, there is a limit between a manual physical body cavity search, and that it seems to me, yes, I think -- that would -- that would be a very different balance of the equation, and I -- I suspect I would be very hard pressed to just -- to convince five members of this Court that that's the--

Justice Antonin Scalia: You -- you want us to write an opinion that applies only to squatting and coughing.

Is that it?

Mr. Phillips: --Well, you may want to write it slightly differently.

Justice Antonin Scalia: Yes.

[Laughter]

Mr. Phillips: No, but what -- but what I would really like is an opinion that recognizes that deference to the prison and to their judgment is what's appropriate under these circumstances, and that extends all the way to the Bell v. Wolfish line.

The only difference being that I would like for the Court to analyze it under Turner v. Safley, in which -- in which the analysis is, is there -- you know, is there a logical nexus between the rule that the -- that the prisons have in preventing a problem, and the answer is yes, and are there reasonable alternatives.

And there, the answer is no.

If the--

Justice Ruth Bader Ginsburg: --You are saying that they can do the full -- as far as the Constitution is concerned, all of these searches are permissible.

Mr. Phillips: --All -- clearly, all of our searches are permissible, and I would go--

Justice Ruth Bader Ginsburg: In Bell v. Wolfish--

Mr. Phillips: --In Bell v. Wolfish.

Yes.

I think that's exactly the holding of Bell v. Wolfish.

Bell v. Wolfish was not tied in its opinion itself to the fact that they--

Justice Ruth Bader Ginsburg: --But they did -- they didn't stress -- they didn't stress that there was a visitor who could -- who could give the inmate contraband.

Bell v. Wolfish doesn't -- and I asked Mr. Goldstein whether we know whether the pretrial detainees in New York were searched that way on entry, and he said there is nothing that shows one way or the other.

Mr. Phillips: --Right.

I think that's -- I think that's correct.

We don't know.

And of course, part of -- part of the empirical problem in -- in that is that that facility had only been opened for four months anyway.

So it was really going to be difficult, if you were going to adopt the policy they had adopted in Bell, to insist on some sort of empirical proof--

Justice Elena Kagan: --The one significant difference between Bell and this case was that in Bell, there was a real opportunity for people to plan, to conspire together to bring in contraband.

Here, you are talking about somebody who is arrested on the spot, there is no opportunity for planning, for conspiracy with respect to contraband, is there?

Mr. Phillips: --No, but the policy itself -- may I answer the question?

The policy is aimed at all people, not just Mr. Florence, and if you aim it at all people, there are people who self-report who obviously have got an opportunity to bring in contraband, and there are a lot of people who just get arrested and happen to have drugs or something on them, and rather than show those when they are being stopped for a speeding ticket, will likely stick it in their pocket or put it somewhere else.

Thank you, Your Honor.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Saharsky?

ORAL ARGUMENT BY NICOLE A. SAHARSKY ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE SUPPORTING THE RESPONDENTS

Ms Saharsky: Mr. Chief Justice, and may it please the Court:

The searches at issue in Bell are very similar to the searches at issue in this case, and they should be upheld.

I want to start with Justice Kagan's question.

It is true that contact visits with Bell are different from a person coming into the jail for the first time, in that there might be a greater opportunity for planning, but as one of the Justices pointed out, there was less of an opportunity to actually get contraband, the person coming in was going to be searched, the inmate, as Justice Marshall pointed out, was wearing a one-piece zip-up jumper, and he was being watched the entire time.

The visit -- the contraband situation in this case at intake, the person does have an opportunity, even if they are not self-reporting, knowing that they are going to be arrested.

Protesters, for example, who decide deliberately to get arrested.

They might be stopped by the police, they see the squad car behind them.

They might have a gun or contraband in their car and think hey, I'm going to put that on my person, I just need to get it somewhere that is not going to be found during a patdown search, and then potentially they have the contraband with them.

Also, the process of going from the arrest -- point of arrest to the general jail population is not a quick one.

The person typically goes, for example, to a metropolitan police department -- that is what happens here -- and the person would mix potentially there in a holding cell with other offenders.

If this Court for example adopted a rule saying that minor offenders would not be searched in a way that other offenders would, I have no doubt that there are some offenders in those circumstances, all on the bus together to go to the general jail population, who would give the stuff to the minor offenders--

Justice Ruth Bader Ginsburg: Then how do you get--

Ms Saharsky: --To try to get them to bring it in.

Justice Ruth Bader Ginsburg: --That's not the Federal rules, and by the way, the brief was really confusing.

When what -- when I read page 1, page 1 tells me that the BOP policy requires all incoming pretrial detainees to be subject to visual body cavity inspections.

And then it isn't until page 30 that I learn that there is an exception, for the very category of arrestee that we are talking about here.

That they are not subject to body cavity inspections unless there is reasonable suspicion that they are carrying contraband.

That the misdemeanor or civil contempt offender is not subject.

Ms Saharsky: I'm sorry if that was confusing.

The Bureau of Prisons policy is that a prisoner will not be put in the general population, being allowed to mix with other offenders, unless he or she has undergone the strip search--

Justice Ruth Bader Ginsburg: Yes, but I want to know how people in this category are treated in the Federal system.

As you -- you--

Ms Saharsky: --The people--

Justice Ruth Bader Ginsburg: --You reversed it.

They -- those people are not subject to this visual body cavity search.

Ms Saharsky: --Those people when they go into the jail would be asked whether they are willing to consent to this type of search.

In most cases, they do consent.

If they don't consent and there is not reasonable suspicion, then they are not placed in the general jail population; they are kept separate from the other offenders.

So it is the case, the rule that the Third Circuit identified which is: A blanket policy that anyone that's going to go into the general jail population and mix with everyone else has to be strip searched.

That is the Federal Bureau of Prisons' policy.

I should note that--

Chief Justice John G. Roberts: I'm sorry.

I'm sure I missed something.

You say when they go in they are asked: Will you consent to a more intrusive body cavity search and be put into the general population; or if you don't, you don't have to be searched and we put you in some place else.

Who consents to that?

Ms Saharsky: --Well, the general jail population has certain facilities, you know, computer facilities and others that you don't get when you are in a cell by yourselves.

As a practical matter this arises very infrequently in the Federal system.

We are talking about fewer than 1 percent of offenders.

And the question before the Court at this point really is, you have before you a blanket policy saying we need to strip search everyone and is that something that is unreasonable or irrational in the way that the Court has considered its normal deference to prison officials and I just -- I would like--

Justice Anthony Kennedy: I understand most of the general proposition that your side is advancing, but I have to say, I was somewhat surprised at the evidence, the amount of contraband that was discovered and the amount of weapons that was discovered that is in the literature and citations was somewhat skimpy.

I thought there would be a stronger showing than I found in the briefs.

Ms Saharsky: --Well, there are not empirical studies of this type of information.

Typically it arises when there are incidents at a facility and incident reports are written up.

They are not published regularly.

There is not some kind of laboratory study that you can do.

The facilities have an incident that they try to deal with.

Sometimes it makes the news.

Those are the things that we reported.

I would hate for the Court to think that there is not evidence of people who committed -- minor offenders in the record bringing in very serious things into prisons jails.

I point you to footnote 15 in the government's brief which talks about people being arrested for traffic offenses and smuggling pipes in body cavities.

I'd point the Court to both experts in this case cited by Mr. Phillips.

I'd point the Court to the record in Bull, the San Francisco case.

Justice Sonia Sotomayor: The issue has to be certainly some misdemeanor.

Some people charged with misdemeanor crimes will try to smuggle things in.

The issue is how many of them would not have been found on a reasonable suspicion standard.

I think Justice Breyer said in the San Francisco study it appears only one.

Ms Saharsky: I think that that is a very hazardous thing for courts to do with 20/20 hindsight.

You know, the Court could look back at individual offenders and might have information--

Justice Sonia Sotomayor: But we don't have 20/20.

We have how many years, 15 years since Bell where prisons have been applying the reasonable suspicion standard.

And the most you could muster under that standard is one example of a case where someone has entered?

At some point empirical evidence has to mean something in terms of us judging the question of reasonableness.

Ms Saharsky: --I agree with you, but what I'm saying is that the individuals who are doing the searches at issue have very limited information about people.

This is when you have people who are coming into the first -- the system for the first time.

They have had the most contact with the outside world.

You have the least amount of information about them.

In the Federal system you don't know--

Justice Sonia Sotomayor: I don't have a question about that today.

I know it's bad to base your judgments on your own personal experiences.

When I was a prosecutor, it took sometimes days to get a rap sheet.

I understand that that's no longer the case today?

That there virtually almost always accessible by computers today?

Ms Saharsky: --That may be true but it's not the information that the people who do intake and are doing the searches have.

They do not have that information on their fingertips in the Federal system.

They have name, date of birth, and the offense the person was charged with.

They don't have anything else.

And the question before the Court, if I may, is whether there are reasons for a blanket rule that this Court should defer to, and I would say there are several.

First of all you cannot say that there are some minor offenders that don't pose a contraband risk.

They are documented in the record.

Second you have individuals who are making very quick determination.

They have large numbers of people to get through into the general prison population.

They have very little time, and if they guess wrong, those mistakes can be deadly.

Third the rule needs to be--

Justice Samuel Alito: Suppose we accept the Petitioner's concession that it is permissible to require everybody who is arrested to disrobe and shower under the observation of the corrections officer from a certain distance.

Now the question would become: How many people who do that will still be able to smuggle in contraband?

Ms Saharsky: --Well there would be contraband found that would be found in body cavities.

And we have documented in this record and other records, in our brief that there are folks who do that, and that contraband is not found until they do these--

Justice Stephen G. Breyer: That's my -- that is my problem.

You -- I overstated the strength of your evidence.

I was just trying to throw it out, but I understated it.

San Francisco's point is really the 30 to 60 percent or some very high percentage of people who come in for minor crimes are high on drugs or have been -- and there is just that footnote really which has a few examples.

Definitely they are there in this category.

So would it be helpful if you included in the excluded part people who were high on drugs?

You see, so we give you the high on drugs people.

It's the drug offense, and those who are high on drugs, and those -- I mean is there a way of drawing this rule that we could catch most of the people--

Ms Saharsky: --I think the fundamental question for the Court is who is supposed to be doing this line drawing.

And you've said case after case after case after case you are going to defer to the prison officials who have seen this stuff on the ground day to day.

Justice Stephen G. Breyer: --The simplest thing for any prison official is say do it for everybody.

Ms Saharsky: That's--

Justice Stephen G. Breyer: And so the fact they do it for everybody and don't try to make some exclusion for traffic violators or something might be consistent with little or no evidence; it might be consistent with some.

That's why I keep looking for it.

Ms Saharsky: --There are many good reasons to have a policy to do it for everyone.

It is easily -- easy to administer when you have lots of people.

It is done for the protection of the people like Petitioner who don't want to be knifed in the shower--

Justice Ruth Bader Ginsburg: If there is so much sense to the policy, why isn't the Federal policy?

Before you said because there aren't that many offenders.

If there were more, then would there be -- would the Federal policy change so that even people who are in on a contempt charge or a minor crime--

Ms Saharsky: --Yes.

The Federal government thinks that that blanket policy is a good one.

It made one modification to its policy in 2003 when the weight of the circuits was against it.

But again this is a policy that is done for everyone's protection.

A point that Justice Kennedy made earlier is that there--

Justice Ruth Bader Ginsburg: --I'm sorry, I didn't understand.

You think the Feds think it's a good policy to inspect everyone?

Ms Saharsky: --Yes, to inspect everyone who would be put in the general jail population.

That the Third Circuit's holding, and that is what we are defending in this case.

Because when you have a rule that treats everyone the same, you don't have folks that are singled out.

You don't have any security gaps.

We urge you to affirm the judgment from the court below.

Chief Justice John G. Roberts: That you, counsel.

Mr. Goldstein, take four minutes.

REBUTTAL ARGUMENT BY THOMAS C. GOLDSTEIN ON BEHALF OF THE PETITIONER

Mr. Goldstein: Thank you, sir.

I have three points to make.

The first is that my friend from the United States says defer to the experts.

But the point that the United States consistently omits is that there are 600,000 offenders that go into the Federal system every year.

I don't understand the claim that one -- this only involves 1 percent of Federal offenders.

The marshal service and ICE admit 600,000 offenders every year under our standard.

They are not kept in separate housing.

These are cited in our brief.

600,000 people, is their expert judgment, are subject to a reasonable suspicion standard when they are admitted to jail.

The second point about numbers, Justice Breyer, there is a significant empirical study, and that is, the County of Orange case, the district judge there did an unbelievable detailed job going through the record of 26,000 admissions into the system and was able to identify only a single instance where contraband would have gotten in under a reasonable suspicion standard.

There is also evidence in this case, and the evidence, to my surprise, that my friends keep pointing to, there is a memorandum from the Essex jail system.

It's at page 70A to 71S of the Joint Appendix.

And it tells you two really relevant things.

It says, every year they admit 25,175 people into this jail, and that they only found 14 instances of contraband.

And they don't even make the claim that those 14 instances out of 25,000 would not have been found under a reasonable suspicion standard.

So you have evidence in this record about this particular case.

Third, a couple of points have been made about whether, Justice Breyer, you asked whether someone who is high on drugs.

The uniform rule, and this is not just the ABA but the expert standard of the American Correctional Association, what they say is that essentially -- almost anything will do.

What will not amount to reasonable suspicion is when you have a minor offender, and we do have -- There are 700,000 people in jail in the United States every year for misdemeanor offenses.

There are a lot of people who are having a very significant intrusion on privacy and the expert standard, the rule that was applied under Bell v. Wolfish is when you have people who come in on a minor offense, they don't have any drug history.

They are not high on drugs.

There was no opportunity to hide a weapon.

I'm not sure where they think the gun is going to be hidden that is not going to show up in the very close manual pat down that they do of every one of these people that isn't going to show up in--

Justice Samuel Alito: I don't think you are really arguing for an individualized reasonable suspicion standard.

I think you are arguing for a rule that draws distinctions based on categories that correspond only perhaps very roughly to reasonable suspicion.

Mr. Goldstein: --Well, first, there are real categories that are overinclusive in favor of the jails, like if it's a serious offense or if they have any drug history.

And then on top of that, if there is any individualized basis that the jails can articulate, that will do as well.

We are not saying that categorically people will be excluded from being searched.

We are saying that there are entire categories that is will automatically be searchable.

We are just saying don't throw the baby out with the bath water.

When somebody is pulled over like Mr. Florence and there's just -- it's laugh out loud funny to think he is smuggling in -- something into this jail; that it's too much of an intrusion to put him under the direct, you know, two feet away, I'm going to look at your genitals, as opposed to the ordinary intrusion of saying we are going to oversee the showers.

There is no when it comes to that group of people.

And there are a lot of them that they represent anything like a material threat of smuggling.

And this is a significant intrusion on individual privacy and individual dignity.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Kennedy has our opinion this morning in Case 10-945, Florence versus The Board of Chosen Freeholders.

Justice Anthony Kennedy: In this Case, the Court considers the extent to which the Constitution imposes restrictions on jail officials who search incoming detainees.

The petitioner is Albert Florence and he presses claims for himself and a larger class.

In 1998, Florence was arrested after attempting to flee from police officers.

He pled guilty to two offenses and was sentenced by a New Jersey state court to pay a fine in installments.

When he fell behind on his payments and failed to appear, a judge issued a warrant for his arrest.

Florence then paid the balance but the warrant remained in a state-wide computer database.

Some seven years later, the events that give rise to this case occurred.

Florence and his wife were stopped in their car by a New Jersey state trooper.

Based on the outstanding warrant, Florence was arrested and taken to the Burlington County Detention Center.

He was held there for six days and then transferred to the Essex County Correctional Center.

He was released a day later after the charges were dropped.

At the outset of his detention in each of the two facilities, Florence was subjected to a thorough -- thorough search, sometimes called a strip search.

The searches did not involve any touching or probing of the unclothed detainee, yet the two searches were thorough and no doubt intrusive.

At the Burlington Facility, jail policy required every arrestee to shower with a delousing soap.

Officers would check for scars, gang tattoos and contraband as the arrestee or detainee disrobed.

Florence claims he was also instructed to open his mouth, lift his tongue, hold out his arms, turn around and lift his genitals.

After being transferred to the Essex Facility, he was subject to a second similar search and the details are set out in the opinion.

Florence alleges that during this second search, he was required to lift his genitals, turn around and cough in a squatting position.

Florence brought a Section 1983 suit for violations of his Fourteenth and Fourth Amendment rights alleging an awful search.

He maintained that persons arrested for a minor offense cannot be required to remove their clothing and submit to a close visual inspection as a routine part of the intake process.

Rather he contends officials make -- conduct this kind of search only if they have reason to suspect a particular inmate of concealing a weapon or drugs or concealing other contraband.

The District Court agreed.

The United States Court Appeals for the Third Circuit reversed.

It held that a search -- that the search procedures at issue struck a reasonable balance between inmate privacy and the needs of the two jails.

This Court now affirms the judgment of the Court of Appeals.

The difficulties of operating a detention center must not be under estimated by the courts.

Jail officials have a responsibility to ensure the security of their facilities when detainees are admitted.

This is not an easy task. Jails admit 13 million inmates a year.

Now, the largest facilities process hundreds of people everyday, even smaller jails can be crowded on weekend nights or after a large police operation.

Some detainees are gang members, others may have contagious infection, and some of them possess a knife or drugs or other contraband.

Correctional officers have discretion to use their expertise to devise reasonable solutions to the problems they face.

Now, the precedents of this Court have established that deference was given to the judgment of correctional officers that these thorough searches serve not only to discover but also to deter the smuggling of contraband into detention facilities.

The cases have recognized that this deterrence depends in part on the ability to conduct search without predictable exceptions.

It is true that some people are held in jail for a minor offense.

And Florence argues they should be exempt from the general search policies here at issue.

He argues that absent a reasonable suspicion, officers should be prohibited from conducting a so-called strip search of someone who is not been arrested for an offense that involves a weapon or drugs or as otherwise considered serious.

It is reasonable, however, for correctional officials to find this framework unworkable, but one thing, people detained for a minor offense can turn out to be the most dangerous criminals.

Timothy McVeigh was stopped for a traffic offense before it was determined he was a perpetrator of the Oklahoma City bombing.

And there are many examples of people arrested for minor offenses, trying to bring contraband into jail, sometimes by using their body cavities.

In fact, an exception for the standard search protocol for minor offenders would increase the risk of their being coerced by others into hiding prohibited items.

Another problem is that it may be difficult to classify inmates by their current and prior offenses before the intake search.

Criminal history records may be inaccurate, incomplete or difficult to obtain.

And even with all the facts, it could be difficult for officers to know on the spot whether a prior offense is a constitutional matter serious enough to authorize the searches here.

The Fourth and Fourteenth Amendments do not require the restrictions Florence proposes.

The judgment of the United States Court of Appeals for the Third Circuit is affirmed.

Justice Thomas has joined all but Part IV of the Court's opinion.

The Chief Justice and Justice Alito have filed concurring opinions.

Justice Breyer has filed a dissenting opinion, in which Justices Ginsburg, Sotomayor and Kagan join.