On March 3, 2005, Albert and April Florence were driving with their four-year-old son along Interstate 295 in New Jersey, en route to a relative's to celebrate the Florences’ purchase of a new home. The flashing lights of a New Jersey state trooper appeared, and April pulled the car to the side of the road.
From the passenger’s seat, Albert identified himself as the car's owner. The trooper ran a records search that returned an outstanding warrant for a fine that Albert had already paid. As the Florences’ son watched from the backseat, Albert was removed from the car and arrested.
Albert Florence spent the next six days in a county jail where he was strip-searched. According to testimony, officers ordered him to open his mouth and lift his tongue, hold out his arms, rotate, and lift his genitals. On the sixth day, he was transferred to the Essex County Correctional Facility and strip-searched a second time. After a week of detention, Florence appeared before a judge who ordered his immediate release.
Florence sued, arguing that his alleged minor offense failed to justify such invasive searches without suspicion of concealed contraband. Seven years later on April 2, 2012, the Supreme Court ruled in Florence v. Board of Chosen Freeholders of the County of Burlington that Florence's Fourth Amendment right against “unreasonable search and seizure” had not been violated. Justice Anthony Kennedy, writing for a 5-4 majority, held that officials may conduct a strip-search without suspicion for any offense.
Justice Stephen Breyer argued in dissent that empirical evidence suggests there is no reasonable basis for a suspicionless search. He cited a study conducted by the New York Federal District Court where 23,000 people underwent a strip-search of some kind while in jail. The searches revealed five incidents of drugs, but in only one case would no "reasonable suspicion" have been present.
Albert Florence
Aaron Houston/The New York Times/Redux
The Florence ruling harkens back to an earlier era of Fourth Amendment jurisprudence with regard to the imprisoned. In Hudson v. Palmer (1984), the Court held 5-4 that protection against unreasonable searches did not apply “within the confines of the prison.” Chief Justice Warren Burger wrote in his majority opinion that “the paramount interest in institutional security” outweighed all privacy concerns. In United States v. Edwards (1974), the Court also held that any items collected during a warrantless search incident to arrest or incarceration can be used as evidence.
In his majority opinion for Florence, Justice Kennedy made clear his deference to the expertise of prison officials in handling such matters. “The difficulties of operating a detention center must not be underestimated by the courts.” This includes the deterrence of smuggled weapons, drugs, and other prohibited items. In the specific circumstances of Florence, Kennedy cited examples of other inmates arrested on minor charges who turned out to be dangerous criminals once behind bars.
Though Chief Justice John Roberts voted with the majority in Florence, his concurrence showed some hesitation to fully embrace the Court’s ruling. “The Court is nonetheless wise to leave open the possibility of exceptions, to ensure that we not ‘embarrass the future.’”
The “factual nuances” of this case, as Chief Justice Roberts described them, did not play a significant role, because both the trial court and appeals courts viewed the factual disputes as “immaterial” to their positions. Since Florence was detained under a warrant for his arrest, albeit a mistaken one, there was apparently no alternative to a strip-search prior to entering the general jail population.
The Chief Justice clarified Florence was not searched only for a minor traffic offense, but rather was searched upon his entry into the general prison population because law enforcement officials believed that Florence had an outstanding warrant. However, such a case might be the future that the Chief Justice alluded to in his concurrence.
Justice Alito in his concurrence also noted that the Court did not address whether it is always reasonable to strip-search an arrestee before a judicial officer has reviewed the detention. He argued that most arrested for minor offenses are not dangerous, and many are released from custody prior to appearing before a judge.
“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.”
Florence demonstrates that, once police move beyond evidence-gathering in a case, Fourth Amendment rights are diminished. Even prior to any conviction, a suspect's rights are fundamentally altered by handcuffs alone.
Richard Kling
Professor, iit chicago-kent college of law
In a 5-4 decision in 2013, the Court ruled in Maryland v. King that states may collect and analyze DNA from people after arrest. The 2013 ruling validated DNA collection laws prior to conviction in 29 states. While Justice Anthony Kennedy agreed DNA swabs constituted a search under the Fourth Amendment, he argued it was not “unreasonable” because a suspect’s criminal history is a crucial part of his identity. DNA could help unveil that history.
In his dissent in King, Justice Antonin Scalia leveraged this distinction, arguing that the Court’s majority wrongfully justified DNA collection on the basis of “identification” when it was instead used for “investigation.” “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous [emphasis in original].”
The distinction between identification and investigation has its roots in City of Indianapolis v. Edmond. In the 2000 case, the Court held that highway checkpoints with the intent to intercept illegal drugs violated the Fourth Amendment. In a 6-3 opinion delivered by Justice Sandra Day O’Connor, the Court concluded, “we cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.”
Justice O’Connor’s opinion limited police power to conduct suspicionless searches for the general purpose of investigation. Justice Kennedy took care to distinguish DNA collection as solely a means of identification.
During oral arguments in King, Katherine Winfree, Chief Deputy Attorney General for Maryland, began by citing the results of DNA collection used in unsolved cases. The cornerstone of the state’s argument was that individuals are taken into custody on the basis of probable cause, which “surrenders a substantial amount of liberty and privacy.”
Justice Elena Kagan, who questioned Winfree’s justification, pointed to the significance between collecting DNA for identification and DNA used to solve cold cases.
The Roberts Court has indicated post-arrest as the pivot point, when circumstances significantly limit Fourth Amendment rights. Its allowance of DNA collection prior to any conviction reflects its deference to state officials when dealing with offenders, as was also evident in its ruling with Florence. Once an individual is under the authority of law enforcement, be it during the booking or detention phase, the careful balance between police and privacy swings toward the former.