Haas v. Burlington County:
Exceptions to the Florence Strip Search Decision?

By Expert:  Gary DeLand

 

BACKGROUND

On April 2, 2012, the United States Supreme Court decided a landmark strip search case, Florence v. Board of Chosen Freeholders of County of Burlington,[1]  striking down the existing restrictions of strip searches imposed by nine circuits of the U.S. Court of Appeals.  The ruling in Florence was welcomed by jail administrators across the nation who had been faced with arguably illogical challenges to their legitimate safety and security interests.   The prior rulings which the Supreme Court overturned were based on a premise that the dangerousness of an arrestee brought to jail for booking was defined by the crime for which he was currently being booked and required that for arrestees being booked on charges not involving serious felonies, violence, or weapons, officials could not conduct strip searches without being able to articulate reasonable suspicion that the arrestee possessed drugs, weapons, or other contraband.Following that landmark decision, I was surprised to hear a colleague warn that jail officials should be cautious about changing their admission strip search policies because of Part IV of the decision and because lawyers and judges who disagreed with the ruling would find ways to distinguish – or carve out exceptions to – the Florence decision.  Before the ink was dry on the Supreme Court’s decision,an effort was initiated to challenge the policies again. Florence was a class-action suit; however, two plaintiffs Haas and Szczpaniak had opted out of the class action to pursue their claims in a separate action. Following the Supreme Court’s decision, Haas and Szczpaniak amended their complaints and petitioned the court to allow them to continue to litigate their claims.

Although the Florence decision eliminated the requirement that jail officials articulate reasonable or individualized suspicion that the arrestee possessed contraband, two of the justices in the majority – Chief Justice Roberts and Justice Alito – in Part IV of the decision questioned the applicability of the ruling for prisoners who would not be placed in general population.  According to Justice Alito, “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 . . . who could be held in available facilities apart from the general population.”[2]  Justices Alito and Roberts left open the possibility of an exception for prisoners who would be released before entering the general population or who could be held separate in available facilities from general population.

 

The Haas motion to amend was heard and approved by a U.S. Judge Magistrate who relied upon four dissenting opinions (justices who disagreed with the majority ruling) and the two concurring opinions which speculated about possible future exceptions.  The Magistrate the decided the plaintiffs had a plausible chance of to prevail if their motion to amend was granted.[3]  The Haas ruling allows a closer look at the Supreme Court’s rationale or reasoning in approving strip searches at admission without the need for reasonable suspicion.

 

Though only a ruling from a single magistrate court, it is possible that other plaintiffs may try to cox similar rulings from other courts to get around the Florence decision.  Putting aside the interesting approach used by the magistrate to find the four dissenting and two concurring opinions more persuasive than in the clear language of the majority opinion, I believe it worthwhile to compare the magistrate’s ruling with the language in the Supreme Court’s ruling.

 

It would appear that the magistrate finds three possible exceptions to the Florence decision, including:

  • “a situation where a person was arrested for a ‘minor’ offense”;
  • the person was “not admitted to the general population”; and
  • “there was no reasonable suspicion she/he was carrying contraband.”[4]

This article will discuss each of the magistrate’s three exceptions.

 

PERSONS ARRESTED FOR MINOR OFFENSES

Did the Supreme Court rule that there was an exception for persons arrested for minor offenses?  The Judge Magistrate in Haas saw a possible exception in “situation where a person was arrested for a ‘minor’ offense.”  Clearly, Justice Kennedy took the opposite approach. It should be remembered that the plaintiff in the Florence case was arrested during a traffic stop on a bench warrant for failure to appear; however, it was later determined that the fine had been paid.  Florence was not exactly John Dillinger.  Perhaps, the best way to put that claimed exception to rest is to quote relevant passages from the majority opinion.  Justice Kennedy writing for the Court made the following statements in the ruling.

  1. “There were many justifications for imposing a general ban rather than trying to carve out exceptions for certain detainees. Among other problems, it would be ‘a difficult if not impossible task’ to identify ‘inmates who have propensities for violence, escape, or drug smuggling.’ This was made ‘even more difficult by the brevity of detention and the constantly changing nature of the inmate population.’”[5]
  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.  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. And those records can be inaccurate or incomplete. 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.”[6]
  3. “Even if [jail officials] had accurate information about a detainee’s current and prior arrests, officers . . . 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. 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.”[7]
  4. “The Court has also recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions.”[8]
  5. Citing Hudson v. Palmer,[9]  the Court recognized 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.  Inmates would adapt to any pattern or loopholes they discovered in the search protocol and then undermine the security of the institution.”
  6. “The restrictions [on strip searches] 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.”[10]

It should be clear that Justice Kennedy provided no support for an exception to strip searches based on the severity of the crime for which a prisoner is being booked.  The Magistrate’s ruling in Haas leads to an unsupportable conclusion that dangerous criminals never commit petty crimes.  One look at the criminal histories of dangerous and violent criminals will reveal a mix of felonies, misdemeanors, and even traffic related offences.  Is it possible that a felon is only dangerous if his current offence is a violent crime and will act like a choir boy if his current arrest is only for a minor crime?  Such reasoning would seem to defy logic.

 

PERSONS NOT PLACED IN GENERAL POPULATION

 

Should jail officials be prohibited from strip searching an arrestee who will not been admitted to the general population?   According to Part IV of the Florence decision that is a question not fully considered by the decision.

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.

Part IV raises the question, “What is general population?”  The language used by Chief Justice Roberts in writing Part IV of the decision refers to prisoners “without substantial contact with other detainees.”  At this point, it may be important for jail official to provide a more precise definition of “general population” and to distinguish “general population” from “general housing.”  The Court recognized “the risk of increased danger to everyone in the facility,including the less serious offenders themselves”[11] if prisoners are not strip searched, and Chief Justice Roberts in Part IV questions whether Florence covers prisoners who do not have “substantial contact with other detainees.”  Thus, it would not be unreasonable to conclude that general population would also include holding areas where prisoners may be housed together – often for several hours – awaiting admission processing.

 

The Courts full majority approved strip searches and found them essential to protect prisoners and staff by:

  1. Discovering contagious disease, lice, and other vermin;
  2. Identifying tattoos and other indicators of gang involvement; and
  3. Interdicting contraband (i.e., drugs, weapons).

Each of the reasons listed above for strip searching arrestees before they are moved to general  housing, also apply to persons being held in intake areas.  This many jails are now defining “general population” as any area where prisoners are being held in “substantial contact with other detainees.” “General housing” would be defined as cell assignments which are made following classification.  Thus, the only possible exception would be for a prisoner who is held in a manner that does not provide substantial contact with other prisoners and who will be released from custody prior to such contact with others.

 

NO REASONABLE SUSPICION – ARRESTEE WAS CARRYING CONTRABAND

 

The Haas decision also offers a third exception to conducting strip searches at admission when “there was no reasonable suspicion she/he was carrying contraband.”[12] What?   That is what Florence was all about; overturning the large majority of U.S. Courts of Appeals that had adopted that requirement.  Part III of the Florence decision begins with a paragraph addressing that issue directly:

 

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.[13]

 

Citing Hudson v. Palmer,[14]  the Court recognized that “[f]or one to advocate that prison searches must be conducted only . . . when suspicion is directed at a particular inmate is to ignore the realities of prison operation.  Inmates would adapt to any pattern or loopholes they discovered in the search protocol and then undermine the security of the institution.”  The majority decision recognizes the nature of jail populations.  If plaintiffs had prevailed in Florence the resulting increase in contraband, the greater difficulty in identifying gang members and segregating members of security threat groups, and the potential for introducing vermin and infectious disease into the jail would have been contrary to the health, safety, and well-being of the prisoners themselves.

 


ANNOTATION

[1]566 U.S.        ; 132 S.Ct. 1510 (2012).

[2]Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1524 (2012) (Alito, J., concurring) (emphasis added).

[3]Haas v. Burlington County, 1:08-cv-01102-NLH-JS (D.C. N.J. 11/13/12).

[4]Haas v. Burlington County, 1:08-cv-01102-NLH-JS (D.C. N.J. 11/13/12),p. 6.

 

[5]Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1516 (2012)(emphasis added) (internal citations omitted).

[6]Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1521 (2012) (emphasis added).

[7]Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1522 (2012) (internal citations omitted) (emphasis added). (internal citations omitted).

[8]Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1516 (2012) (internal citations omitted) (emphasis added). (emphasis added).

[9]468 U. S. 517,529 (1984).

[10]Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1521 (2012).

[11]Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1522 (2012).

[12]Haas v. Burlington County, 1:08-cv-01102-NLH-JS (D.C. N.J. 11/13/12), p. 6.

[13]Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1521 (2012),quoting Block v. Rutherford, 468 U. S. 576, 584–585 (internal quotation marks omitted).

[14]468 U. S. 517, 529 (1984).