Florence v. Board of Chosen Freeholders

Thus, аs well. possessors to those applies FLORENCE Albert W. fails. argument

Mundy’s first no bet- argument fares Mundy’s second Note Application to an points He ter. part, in 2D1.2, relevant FREEHOLDERS provided,

§ which CHOSEN BOARD OF only in a case applies BURLINGTON; guideline “This OF OF COUNTY of a stat- is convicted the defendant which Jail; County Juel Burlington Warden in a trafficking drug of utory violation officially Individually Cole, § 2D1.2 U.S.S.G. location.” protected County Jail; Burlington Warden added). traf- “Drug (emphasis cmt. n. Facility; County Correctional Essex purposes not a defined term ficking” is Department; County Essex Sheriffs posses- that Mundy contends § 2D1.2. Individually Doe, Trooper John State not con- to distribute does intent sion with Trooper; capacity and in his as State “drug trafficking” because “drug stitute County Burlington Does 1-3 of John ” or dis- the actual sale trafficking entails County Fa Correctional Jail & Essex therefore does drugs, tribution cility performed who 2D1.2(a)(l) § enhancement. trigger searches; Does 4-5 John contention, notes Mundy support of his purposes of Congress, for the Facility; County Correctional Essex “drug traffick[ing]” § defines U.S.C. County Department, Essex Sheriffs See actual distribution. require Appellants in 09-3603 Mundy posits that § U.S.C. 862. meaning carry that same phrase should Freeholders of Board of Chosen Note to Application in the when used Burlington; Warden Juel 2D1.2, trig- § an enhancement U.S.S.G. Cole, Appellants in 09-3661. neighbor, §of 862’s gered by the violation Mundy § Br. at 25. 860. 09-3603, 09-3661. Nos. Mundy’s argument unpersuasive is § un- Commentary 2D1.2’s light of Appeals, States Court United 2D1.2(a)(l) ap- § equivocal instruction Third Circuit. Mundy’s— drug offenses—like plies to § 860. See 2010. Argued April committed violation Thus, Mundy’s § sec- 2D1.2 cmt. U.S.S.G. Sept. Filed: fails. argument ond District Court did not hold that the We enhancement to applying two-level

err under

Mundy’s offense level Guidelines 2D1.2(a)(l).

§

IV. above, we will

For the reasons stated judgment of conviction sen-

affirm the the District Court.

tence of Barocas, L. American Lib-

Edward Civil Foundation, Jersey of New erties Union NJ, Newark, Attorney Appel- for Amicus Farber, Tufo; lees J. Del Zulima Robert Farmer, Harvey, John Peter C. Deborah T. Poritz. Mets, Mets, McGovern,

James M. Schiro NJ, Woodbridge, Attorney Ap- for Amicus pellant Policemens Benevolent Association York, Lask, [Argued], New Susan C. Local 249. Calabro, Newark, NJ, NY, At- Michael V. Clarke, Jennifer R. Public Interest Law torneys Appellee for Albert Florence. W. PA, Philadelphia, Philadelphia, Center DiDonato, Stacy L. [Argued], J. Brooks Rudovsky, Kairys, Rudovsky, David Mess- NJ, Moore, Jr., Marlton, McCay, Parker PA, ing Feinberg, Philadelphia, & Attor- Attorney Burlington County for Board of ney Pennsylvania Appellee for Amicus Cole; Appel- Freeholders and Juel Chosen Society. Prison Appellants lees 09-3603 & 09-3661. HARDIMAN, Before: SLOVITER and County Ruddy, [Argued], Alan Office of *POLLAK, Judges and Circuit District Counsel, Essex, Newark, NJ, County of Judge. Attorney County for Essex Correctional Facility County De- and Essex Sheriffs THE OPINION OF COURT partment; Appellants Appel- in 09-3603 & HARDIMAN, Judge. Circuit lees 09-3661. interlocutory appeal requires This us to Robins, Marks, Kelly, X. Sean Sean jails it decide whether is constitutional for O’Neill, Pennsauken, Courtney, O’Brien & upon search arrestees their admis- NJ, Attorney Appellant for Amicus general population. Although sion to the Gary of Atlantic and Merline. question impression is one of first Lesser, Lesser, Seth R. Klafter Olsen & Court, this decision Court’s Brook, NY, Rye Attorney Ap- for Amicus Wolfish, Bell v. Allen, Bizarro, pellees Ronald Edward Jo- (1979), many 60 L.Ed.2d 447 and the DePietro, Dillard, seph Donald Mel Free analysis. cases that followed it inform our El, Hass, Tammy Alphonso Marie John- rejeсted Court son, Moore, Sidieras, John Konstanti Paul challenge Fourth Amendment to a Takacs, Harvey April Wedding, ‍‌​​‌​​‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​‌​​​‌​​​​​‌​​​‌​‌‌‌‌​​​‍M. Wein- body cavity of visual searches for all de- traub, Wennah, King Justin Sandra Wilson regardless of the reason for them tainees — Wright. and Richard incarceration —after contact visits with Bazzana, Mary R. Ernest Massaron- outsiders. Id. at 99 S.Ct. 1861. The Ross, Detroit, MI, Cooney, Plunkett Attor- applied balancing test and con- neys Appellant body cavity for Amicus Meadowbrook cluded visual Inc., Jersey County prison’s reasonable New Jail Wardens were because secu- Association, rity justified Association of New the intrusion into Sheriffs interest Jersey. privacy. detainees’ * Poliak, Judge Pennsylvania, sitting by designa- Hon. Louis H. Senior District District of

for the U.S. District Court for the Eastern tion. decided, was ten circuit courts Burlington Since Bell ed and taken to the County Jail (BCJ). applied balancing its test and appeals an uniformly concluded arrestee Florence, According subjected he was may minor charged with offenses a strip body-cavity and visual consistent with the Fourth strip searched corrections officers at During BCJ. Amendment unless the has reason jail’s process, intake Florence was directed able that the arrestee is conceal all clothing, remove of his then open his ing weapon Things or other contraband. mouth and lift his tongue, hold out his 2008, however, changed in when the en around, arms and turn and lift genitals. his Appeals banc Court of for the Eleventh The officer conducting ap- the search sat prior precedent proximately Circuit reversed its and arms-length him, in front of jail’s held that a and directed blanket of Florence to shower once the complete. search was searching upon all arrestees Florence was held entering the days. at BCJ for six facility was reasonable even the absence suspicion. of individualized Powell v. Bar During BCJ, Florence’s day sixth the (11th rett, Cir.2008) County Essex Department Sheriffs took (en banc). later, yearA the en banc Court custody of him transported and him to the Appeals of for the Ninth Circuit also re County Essex Correctional Facility prior precedent versed its upheld and a (ECCF). Florence alleges that he was strip searching blanket all arres subjected to another strip and visual body- tees before enter San Francisco’s cavity upon his arrival at ECCF. general population. City Bull v. and by Florence, As described he and four Francisco, County San other detainees were instructed to enter (9th Cir.2010) (en banc). stalls, separate shower strip naked and shower under eyes the watchful of two dichotomy Confronted with a clear be- corrections officers. After showering, tween the en banc decisions of the Ninth open Florence was directed to his mouth and Eleventh Circuits on the one hand and Next, and genitals. lift his he was ordered the preceded numerous cases that them on to turn around so away he faced from the other, we must determine which line of officers squat cough. and to After cases is more faithful donning ECCF-issued clothing visiting decision in Court’s Bell. nurse, joined a Florence general jail population until following day, whеn I. the charges against him were dismissed. A. release, BCJ, After his Florence sued begin We with the surrounding facts the ECCF, and various individuals and munici- arrest and detention of lead Plaintiff Al- Jails) pal entities (collectively, the under 3, 2005, bert Florence. On March a New § 42 U.S.C. 1983. While Florence assert- Jersey trooper stopped state the car claims, ed numerous only constitutional which passenger Florence was a and ar- claim germane appeal to this is his Fourth rested him April based on an challenge Amendment to the strip search bench warrant from County. Essex The procedures at BCJ and ECCF.

warrant charged Florence with a non-in- B.

dictable variety contempt. of civil Though protested validity Florence of the war- 20, 2008, On March the District Court rant insisting already paid he had granted Florence’s motion class certifi- based, fíne on it cation, which was he was defining plaintiff arrest- class as: officers and the wardens at each non-indict- rectional charged All arrestees processed, Ultimately, who were District Court facility. able offenses Bur- at Defendant that, or held оver housed while there were facts concluded County Jail Defendant lington and/or non-indictable dispute as whether —such from County Facility Essex Correctional required were male arrestees BCJ who present 2003 to the date March genitals during lift their the search —these officers to by Defendants’ were directed immaterial because even the disputes were officers, no those strip naked before instructing ar- undisputed procedures proce- matter if the officers term clothing to remove all of their restees otherwise, a observation” or dure “visual subject inspec- their naked bodies to visual articulating a officers first without the search” tion “rose to the level of those arrestees reasonable belief the Fourth Amendment. under contraband, drugs or concealing were (“Whatever be, may the case 502-03 weapons[.] not necessari- discrepancy of this sort does Freeholders Florence v. Bd. Chosen of material ly provide genuine issue Burlington, 2008 WL just sense. Take off fact.... ‘It’s common (D.N.J. 2008).1 *17 Mаr. strip[ your ] all clothes. You’re ” discovery, parties filed Following the counsel)). (quoting Plaintiffs’ searched.’ summary judgment. motions for cross found that BCJ’s The District Court motions, reviewing the the District Court “entails a strip policy “blanket” search proce- considered whether the intake first by an complete disrobing, followed exami- facility at each rose to the level of dures bruises, nation of the nude inmate for “strip search.” Florence v. Bd. Chosen of marks, distinguishing wounds other fea- Burlington, the Freeholders of of officer, by supervising tures the which is (D.N.J.2009). To F.Supp.2d by supervised then followed shower District question, resolve this the delousing agent.” Id. at 502. The Court policies2 reviewed the Jails’ written search strip- similar deposition testimony as well as the of cor- found ECCF utilized sought only 1. class certification on arrestees were to be searched re- Florence claims; he did not seek certi- quired Department his search to shower. Public of Safe- subjected 89-17, he fication on his claim that was ty Supp.App. Order No. 34. A General body cavity v. Bd. a visual search. Florence policy "strip under the written is to of search” County Burling- Chosen Freeholders of "observing] carefully consist of an officer ton, (D.N.J. 2008 WL at *8 n. 5 Mar. examining while the inmate undresses” and 20, 2008). ears, nose, scalp, hair and arrestee’s mouth, hands, fingers, arms interior of defined a search BCJ’s written armpits, body openings and and all physical search an inmate "[a] thighs. superceding poli- inner The ECCF consisting while unclothed same sex officer cy, Department Corrections Administrative systematic routine and visual observation of 06, requires Directive No. that officers 04— physical body the inmate’s to look for distin- thorough "conduct a search of individual in- marks, guished identifying scars or deformi- mates,” during in- ties, illness, direct arrestees to shower injury signs of or disease and/or take, document, writing, and "observe and of contraband on the in- concealment a) body markings body.” Burlington County any evidence notable mate’s Detention of: ‘tattoos;’ disease; b) [b]ody & WorkRelease Center Poli- such as vermin or Center/Corrections wounds, scars, sores, c) cies and Procedures: Search Inmates —No. [o]pen visible [and] 1186, Supp.App. at 42. Section Supp. injuries” bodies. [or] on arrestees’ Septem- The in effect at ECCF from App. at 40. through April provided that all ber 2002 supervised-shower procedures; 1292(b), § der search 28 U.S.C. this court exercis- however, procedures the ECCF were plenary es question review over the certi- slightly more intrusive because “Essex of- Rumsfeld, fied.” Morris v. carefully (3d Cir.2005). observed the entire naked

ficers inmate, body including body open- ings thighs.” and inner Id. at 503.3 Hav- II. ing respective thus defined the Jails’ The Fourth protects Amendment policies, the conclud- search District Court right of the people “[t]he to be secure in procedures ed that the failed the Bell bal- persons ... against unreasonable ancing test and observed that “blanket Const, and seizures.” U.S. offenders, strip searches of non-indictable amend. IV. To guarantee, enforce this performed without reasonable government officials are only limited to contraband, drugs, weapons, or othеr those searches which are reasonable. De unconstitutional.” Id. at 513. Based [are] Prouse, 648, 653-54, laware v. holding, on this granted District Court (1979). 59 L.Ed.2d 660 Rea summary the Plaintiffs’ motion for judg- sonableness under the Fourth Amendment claim, ment on the unlawful search but standard, Warwick, is a flexible Bodine v. request prelimi- denied the Plaintiffs’ for a (3d Cir.1995), capa “not nary injunction. Id. at 519. The Court precise ble of definition or mechanical ap denied Defendants’ cross-motion which plication,” 441 U.S. at sought qualified and Eleventh Amendment 1861. “In each requires case it a balanc immunity. Id. ing of the particular need for the decision, Following the the Jails moved against personal the invasion of rights that certify summary District Court to its the search entails.” Id.

judgment as an appealable pursuant order 1292(b). § to 28 U.S.C. The District Detention in a correctional facili agreed ty that the order a “involve[d] “carries with it the circumscription or controlling question of law as to which of many significant rights.” loss Hudson Palmer, is ground 517, 524, there substantial for difference v. 468 U.S. 104 S.Ct. id., opinion,” 3194, (1984). of granted permission and we 82 L.Ed.2d 393 “The curtail appeal. The District Court certified the ment of certain rights necessary, is as a following question matter, practical our review: “wheth- a myriad accommodate er a blanket of strip searching all of objectives institutional needs and of facilities, non-indictable arrestees prison admitted to among chief which in is facility (internal articulating without first reason- security.” ternal quotation omitted). able suspicion violates the Fourth Amend- marks and citations Because ment of the United privacy States Constitution as greatly is curtailed the nature applied through to the States prison environment, Four- of the a detainee’s teenth Amendment.” Florence v. Bd. rights Fourth Amendment are likewise di Chosen Freeholders 526, Bur- minished. See id. at 104 S.Ct. 3194 (D.N.J. lington, F.Supp.2d 657 511 (holding that “the Fourth pro Amendment 2009) (order certifying for appeal). scription against issue unreasonable searches reviewing “In an interlocutory appeal un- apply does not within the confines of the challenge 3. The permissible Jails do not the District sеrt such searches are under findings regarding scope Court’s factual Bell. Rather, policies. as- (1987) -Bell, cell”); (“[S]eparation powers at 99 64 441 U.S. prison (“Loss judicial restraint. of choice and cerns counsel of freedom S.Ct. 1861 involved, penal system of confine- is inherent incidents Where state privacy are ... facility.”). federal courts have additional reason ment in such a appropriate deference to the to accord Supreme Court has “re While the authorities.”). prison beyond prisons held that are peatedly Constitution[,]” the reach of Hudson> A. 3194, it has also 468 U.S. at 104 S.Ct. general standards Having explained the “very has a judiciary emphasized turn govern inquiry, our we to the of de limited role” the administration pathmarking decision Court’s facilities, Rutherford, 468 Block v. tention Although there are factu- Bell v. Wolfish. 576, 584, 104 82 L.Ed.2d U.S. al differences between Bell and the instant (1984). Indeed, detention facilities case, they sufficiently are similar to war- “unique placets] have been described rant a detailed review ‍‌​​‌​​‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​‌​​​‌​​​​​‌​​​‌​‌‌‌‌​​​‍of Bell. fraught security dangers,” with serious Bеll, pretrial detainees and convicted 99 S.Ct. U.S. prisoners Metropolitan confined at ill management of which “courts are (MCC) federally Correctional Center —a with,” n. equipped to deal id. operated facility— custodial short-term Therefore, authorities are en S.Ct. 1861. challenging filed suit numerous in designing titled to latitude considerable practices and conditions of confinement. implementing prison management pol 523-24, 99 S.Ct. 1861. Al- Abbott, Thornburgh icies. though primary purpose of MCC was 407-08, 1874, 104 L.Ed.2d pretrial awaiting detainees trial house (1989). As the Court cautioned charges, facility on federal criminal ... “[pjrison in Bell: administrators in protective also housed: witnesses custo- wide-ranging deference should be accorded contemnors, dy, awaiting inmates sentenc- adoption policies and execution in- ing transportation prison, to federal judgment that in are practices sentences, relatively serving mates short preserve needed to internal order and dis- lodged and inmates under writs of habeas cipline and tо maintain institutional securi- at corpus presence issued to ensure their 547, ty.” 441 at 1861. In U.S. trial. at popu- Id. 99 S.Ct. 1861. The prison “profes- addition to administrators’ transient, at quite lation MCC was expertise,” separation powers sional and spending than 50% its inmates fewer support “wide-ranging federalism concerns days facility popula- at the and 73% of the au- deference” to the decisions of spending days tion fewer than 60 at MCC. (“[J]u- thorities. Id. 99 S.Ct. 1861 Id. 524 n. 99 S.Ct. 1861. merely dicial deference is accorded not will, ordinarily Among because the administrator the conditions of confinement case, challenged by fact in a the inmates at was the particular as matter of MCC grasp policy body-cavity than the and visual have better his domain reviewing judge, op- but also the searches after contact visits with outsiders. because pe- policy, persons of our correctional facilities is all housed at eration Under culiarly Legislative regardless the of the reason for their province MCC— Government, “required expose Executivе branches of our detention —were Judicial.”); Safley, body inspection part not the Turner v. cavities for visual as a 78, 84-85, every of a search conducted after 107 S.Ct. L.Ed.2d money, drugs, weapons, from outside person visit with a and other con- contact Id. at 99 S.Ct. 1861. is all too common an institution.” traband occurrence.” the males, required “lift[ing].. this The upheld policy despite [the] For Id. Court the spread bend[ing] any [the] over to genitals smuggling the absence of evidence of inspection.” Id. at 558 buttocks for visual problems at MCC as the record contained vaginal 1861. “The and anal n. 99 S.Ct. only one instance where an inmate was [were] cavities of female inmates also visu- caught body with contraband in a cavity. were not ally inspected.” Id. Inmates Nevertheless, Id. the Court found the lack by during officers the searches. touched supported prison’s evidence the interest Id. because it was “more a testa- ment to the effectiveness of this search upheld district court in Bell

The technique any as a deterrent than to lack bоdy searches but held the visual of interest on the part of inmates to se- cavity searches unreasonable under import crete and such items when the Fourth Amendment. Id. opportunity arises.” Id. The Court of for the Appeals Sec- affirmed, finding ond Circuit Significantly, just Bell included one sen- “gross personal privacy violation of inher- discussing scope tence of the privacy outweighed ent in such a search cannot be intrusion, in which the Court stated that it government’s security interest not underestimate degree “d[id] maintaining practice of so little actual which may these searches invade the per- (internal utility.” quotation Id. marks sonal privacy of inmates.” Id. at omitted). though S.Ct. 1861. And it acknowledged that correctional reversed, may officers holding

The Court sometimes conduct the impermissibly an body-cavity that the visual searches were fashion, abusive Court did reasonable under the Fourth Amendment. issue; rather, not address that matter, it limited preliminary Id. As a the Court whole, its review to the as a deciding that assumed without both “dealing] ... question with the whether prisoners pretrial victed detainees re- body-cavity inspections visual as contem- rights tain Fourth Amendment upon some plated by the MCC rules can ever be con- facility. commitment to a correctional that, case, probable ducted on less than cause explained It then each grounds.” Id. The Court answered that test of Fourth Amendment reasonableness question Moreover, in the affirmative. requires balancing “a of the need for the rejected the district court’s consid- particular against the invasion of alternative, eration of entails,” less-intrusive means personal rights that the search detecting assuming of contraband. Even and instructed four fac- courts consider availability alternatives, the of such the assessing tors in reasonableness: “the intrusion, Court deferred to MCC’s choice of scope particular the man- procedure it conducted, because had not been shown justifica- ner in which it is the it, to be “irrational or unreasonable.” initiating place tion for and thе which 40, 559 n. 99 559, S.Ct. 1861. it is conducted.” Id. at 99 S.Ct. 1861. applying balancing In test to the B. policy,

search Court cited objectives detecting years following MCC’s dual of In the ten circuit deterring smuggling weapons appeals applied of and other courts of contraband, recognizing that “[s]muggling balancing strip Court’s test to searches of

304 may arranged specifically individuals arrested for minor offenses and have been purpose smuggling weapons of or found the searches unconstitutional where See, Ellison, drugs. e.g., Shain v. 273 supported by suspicion not reasonable (2d Cir.2001) (“It 56, F.3d 64 is far less a or hiding weapon the arrestee was obvious that misdemeanor arrestees fre- general, these courts con- traband.4 quently occasionally or even hide contra- privacy cluded that the extreme invasion of bodily per- band orifices. Unlike strip body-cavity caused a visual and/or already jail sons who receive contact outweighed prison’s search minimal in- visits, not ordinarily arrestees do have no- searching charged terest an individual tice that are about be arrested and shortly a minor crime with after arrest. an opportunity something.”); thus to hide See, Ackerman, 614, e.g., 746 Giles v. F.2d Island, 107, Roberts v. Rhode 239 111 F.3d (9th Cir.1984); Mary City 617 Beth G. v. (1st Cir.2001) (“[T]he deterrent rationale (7th 1263, Chicago, 723 F.2d 1273 Cir. for the simply Bell search is less relevant 1983). balancing The critical factor in given essentially unplanned nature competing interests was the belief that incarceration.”). an subsequent arrest and individuals arrested for minor offenses presented relatively slight security a risk Recently, the Eleventh and Ninth Cir- they usually cuits, banc, because are sitting arrested unex- en reversed their prior pectedly precedents whereas contact visits in Bell and held that Bell a authorizes Jones, 1340, (strip 4. See Wilson v. 251 F.3d 1343 search of misdemeanor detainee arrest- (11th Cir.2001) (blanket policy strip police ed for violation of leash law where had upon jail suspect intake to unreasonable no reason to arrestee would secrete applied weapon when to DUI arrestee holding absent reason- or contraband into cell was Island, suspicion); Bell); Ackerman, able Roberts v. Rhode 239 unreasonable under Giles v. 107, (1st Cir.2001) (blanket 614, (9th Cir.1984) (“[Ajrrestees F.3d 113 746 F.2d 615 strip searching may arrestees was subjected unreasonable as for minor offenses to a offenses); applied to those arrested only jail for minor search if officials have a reasonable Foti, 819, (5th 1996) Kelly v. 77 suspicion particular F.3d 821 Cir. carry- arrestee is (“Jail may strip person ing officials concealing search a ar- suffering contraband or disease.”), denied, rested a pend- for minor offense and detained from a communicable cert. ing posting only they possess of bond if 471 U.S. 105 85 L.Ed.2d (1985); suspicion hiding reasonable weap- Bogans, that he is 479 Hill v. 735 F.2d contraband.’’); Crouch, (10th Cir.1984) (unreasonable ons or v. Masters search (6th Cir.) (“[Ajuthorities F.2d may way individual arrested for traffic violation on persons arrested for traffic to work at 7:30 a.m. because there was no violations and nonviolent minor offenses sole- concealing reasonable that he was ly persons ultimately because such though will inter- briefly contraband even arrestee was mingle general population intermingled general jail at a population); with the when support Mary City there were no Chicago, circumstances Beth G. v. 723 F.2d (7th Cir.1983) carry reasonable belief that the detainee will (strip search of weapons jail.”), or other charged contraband into the female arrestees with minor offenses denied, cert. were unreasonable “without reasonable sus (1989); Dell, L.Ed.2d picion by Weber v. the authorities that either of the (2d Cir.1986) ("[Tjhe dangers concealing weapons Fourth Amend twin or con precludes existed”); perform ment Logan officials from Shealy, traband ing slrip/body cavity (4th Cir.1981) (“An searches of arrestees 1013 indiscriminate charged with strip ... minor offenses policy routinely applied unless the to detain suspicion officials have a reasonable ... constitutionally justified ees cannot be contraband.”), concealing weapons simply arrestee is or other on the basis of administrative ease in denied, considerations.”), attending security t. 483 U.S. 107 cert. cer (1987); denied, 97 L.Ed.2d 762 v. Jonеs Edwards, (8th 1985) (1982). 770 F.2d Cir. L.Ed.2d 653 ignored all ar- ministrators and the fact strip of searches for that in blanket entering general population body-cavity searches, the of upholding restees visual the Barrett, 541 F.3d jail. See Powell v. in required Bell neither banc) (11th Cir.2008) (en (overruling suspicion smuggling individualized of nor (11th Jones, 251 F.3d 1340 Cir. Wilson degree suspicion differentiated the of re- 2001)); City County Bull v. and San quired type based on the of offender. Id. of Cir.2010) (9th (en Francisco, at 1307-11. banc) Ackerman, 746 (overruling Giles v. disagreed The Powell court also with the (9th Cir.1984)). F.2d 614 majority view that interests at the Powell, In the Eleventh Circuit re- important time of intake are less than strip searching viewed a all arres- arising those after an inmate’s contact visit implemented by at the of intake tees time outsider, with an describing “an inmate’s County in Georgia. the Fulton Jail The entry facility” initial into a detention policy required persons entering that all “coming big after one prolonged con- jail’s general population be tact visit with the outside world.” Id. at regardless charged searched of the crime The 1313. court asserted that the “need any suspicion. individualized and without for strip facilities, searches at all detention Powell, booking at The 1301. jails, including county is not exaggerated.” to 40 process required groups arres- cases, Id. at Citing 1310. other the court room, a large tees to enter shower simulta- problem gang noted the violence in pris- neously clothing, place remove all of their gang ons and observed that members it in boxes and then shower. Id. “After “coerce, might cajole, or intimidate lesser either group shower each arrestee sin- smuggling violators into contraband into others, in a gly, standing or line is (citation omitted). facility.” Id. at 1311 visually inspected by depu- front and back light security concerns, of these ‍‌​​‌​​‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​‌​​​‌​​​​​‌​​​‌​‌‌‌‌​​​‍man ties. Then each takes his clothes to a Eleventh Circuit that “a policy held exchanges counter and his own clothes for practice strip searching all arrestees as (internal jail jumpsuit.” quotation part process of the booking them into omitted). marks, brackets, and citations general populаtion of a detention facili- in great The Eleventh Circuit discussed ty, even without reasonable suspicion to detail facts and circumstances sur- that they may concealing believe rounding the in issue traband, constitutionally is permissible” high which demonstrated the level of in- least where the search is no more intrusive trusiveness Court coun- than in the search Bell. Id. at 1300. tenanced as reasonable. The Eleventh Powell, Like the Eleventh in Circuit paltry Circuit also noted the record of Ninth City Circuit Bull v. body-cavity smuggling at MCC as evidence prior precedent San Francisco reversed significant provided deference to of upheld the San Francisco Sheriffs prison administrators the Court Bell. policy authorizing strip searches of all ar- In light points, of these the Eleventh Cir- (and placed restees are gen- before cuit determined most courts its Bull, population county jail. eral aof prior precedent) misinterpreted own Bell In rejecting prior require- F.3d 966. its require suspicion reasonable for suspicion ment of searches of minor offenders. Id. at reasonable arrestee searches, opined requiring It that the decisions rea- the Bull court relied on reasoning much of the same as the Elev- give appropriate sonable failed to Powell, judgments including enth deference ad- Circuit its view environment, drugs ons and from the interpreting that decisions Bell Wolfish suspicion strip to require serving mitigate gang pre- reasonable to violence and analytically- search minor offenders were disease,” venting and that these concerns The Ninth Circuit flawed. Id. 977-78. indictable and non-indictable ar- apply to manner, scope, that and concluded “the restees alike. On behalf of the Plaintiff strip justification for San Francisco’s class, Florence counters that the District meaningfully differ- search was Bell, properly applied that Court and we manner, justifica- from and scope, ent the adopt should reasonable re- in strip tion for the search Bell.” quirement applied by majority of our presented, on the record Id. 975. Based challenges sister circuits. Florence also justification searching for arrestees at health, legitimacy gang, higher time of intake was even than justifications contraband concerns as justification post-contact for the visit search of non-indictable arrestees in Bell because San Francisco by unsupported argues the record and demonstrating had amassed a record “a that there are less intrusive alternatives to pervasive problem serious with contra- satisfy the Jails’ interests. jails” band inside San Francisco’s as well smuggled as instances contraband with- Bell, Supreme Like the we body cavities. assume detainees maintain some Fourth rights against

Amendment searches of C. entry their person upon to a detention Bell, facility.6 See 441 U.S. at newly-minted Mindful of the circuit split 1861; Delie, 5.Ct. but see Doe v. described, proceed we have we to apply (3d Cir.2001) (noting that under balancing question Bell’s test to the certi- Palmer, Hudson v. 468 U.S. 104 S.Ct. interlocutory fied for appeal this case.5 (1984), 82 L.Ed.2d “prisoners do rely heavily The Jails in support on Powell not have a Fourth right Amendment argument of their that searches satis- cells”). privacy in their To determine fy the reasonableness standard Bell. They argue procedures the searches serve the whether prison “eliminating weap- valid interests of BCJ and ECCF violate the Fourth Bull, 236, 252-53, the Ninth Circuit held the constitu- 118 S.Ct. 141 L.Ed.2d 242 tionality prison strip governed (1998) ("Our of a search was binding prece- remain decisions by Safley, Turner v. 482 U.S. 107 S.Ct. them, dent until we see fit to reconsider re- (1987), 96 L.Ed.2d 64 in addition to gardless subsequent of whether have cases Bull, Bell v. 595 F.3d at 973-74. Wolfish. continuing raised doubts about their vitali- Neither the Court nor this Court has Moreover, ty.”). appli- the Jails do not seek applied rational-relationship test of Turner cation of Turner to Plaintiffs' Fourth Amend- challenge a Fourth Amendment Appellants' Reply ment claims. See Br. at 17 policies. arguable While it is that some ("Some have courts ruled that the Turner rights Fourth Amendment are "inconsistent case, standard, with its easier has overruled proper incarceration” therefore cov- Turner, Appellаnts argued Bell. have not Turner, California, ered see Johnson v. test, and the rational basis should be the 499, 510, 160 L.Ed.2d Court.”). standard before the (2005) (internal quotation marks omit- ted), express absent an statement from the further, appeals gone 6. Other courts of have supplanted Court that Turner holding that "the Fourth Amendment does analysis we find its framework for the apply bodily privacy to the invasion of inapplicable detainee constitutional claims States, Bull, prisons.” See Hohn v. United here. See F.3d at 974-75.

307 Unit). Amendment, scope Group Management consider the of Threat we first The at issue. the searches cite specific Jails three interests (1) justify strip to searches: the detection a previously recognized that We have and deterrence of smuggling weapons, a in- “significant constitutes strip search drugs facility, or other contraband into the privacy.” trusion on an individual’s Unit- (2) (3d gang the identification of Whitted, by members 541 F.3d 486 ed States v. tattoos, (3) Cir.2008). Here, observing preven- and strip policies search disease, require complete- specifically the arrestees to undress tion of Methieillin-re- to a ly (MRSA). and submit visual observation Staphylococcus sistant aureus taking super- before a their naked bodies three, potential Of these smuggling vised shower. We do not minimize the weapons, drugs, and other contraband privacy intrusion on associated extreme poses the greatest security threat. by law enforcement It is self-evident that preventing the in officers; however, at the searches issue troduction of weapons drugs and into the here are less intrusive than the visual prison legitimate environment is a interest body-cavity by searches considered the Su- prison of concern for administrators. See fact, they in preme Court Bell. are Bell, (“[T]he 441 at U.S. 99 S.Ct. 1861 upheld by closer to the searches Government must be able to steps take lower court in Bell. maintain security and order at the institu The searches were also conducted tion and make certain weapons no or illicit place manner and as those in similar detainees.”); drugs reach see also Overton by at a correctional officers deten- Bell— Bazzetta, 126, 134, governing The facility. policies tion (2003) 2162, 156 (“Drug smug L.Ed.2d 162 require searches at BCJ be con- gling drug prison and use in are intracta ... private sanitary ducted “in under Bell, Block, problems.”) (citing ble and ... professional ditions and [and] Hudson)-, Block, 586, 104 468 at U.S. S.Ct. Moreover, manner.” dignified (upholding total ban on contact visits brief, relatively are such that be- searches reasonably prison related to interest shower, supervised the search and tween preventing security concerns including required an arrestee is not to remain “opening] the institution than introduc naked for more several minutes. Be- manner, scope, place drugs, weapons, cause the and tion of and other contra band”). are similar to or less intrusive entry illegal Prevention of the Bell, only than those factor on which weapons drugs protec is vital to the distinguish Plaintiffs could this ease is the prison personnel tion of inmates and alike. justification Jails’ for the searches. Bell, See U.S. 99 S.Ct. 1861 (“Prison officials must free to take ap “unique place[s] Detention facilities are safety propriate action ensure the fraught security dangers.” with serious personnel....”); inmates and corrections We Bull, (citing instance in recognized Jersey jails, have like New which inmate used razor-blades secreted in facilities, most correctional face serious cavity suicide); attempt rectal see also problems presence gangs. caused Inc., Terhune, Group, E.E.O.C. v. The GEO See Fraise v. 521- 265, 275, (3d (3d Cir.2002) F.3d 2010 WL at *8 Jersey (upholding New 2010) (“A Aug. prison is not a prison policy identifying gang members Cir. officials have transferring Security camp core members to summer preserving unenviable task of order in dif- (bypassing U.S. S.Ct. 1861 circumstances”). ficult regarding during particular cerns abuses whole, uphold policy searches to aas stat- Like the Ninth and Eleventh Cir ing: question “we deal here with the cuit of Appeals, Courts we conclude that body-cavity visual inspections whether as security in preventing smug interest contemplated by the can MCC rules ever gling at strong the time of intake is as as probable be conducted on less than cause. in preventing smuggling the interest after Balancing significant legitimate and the contact visits at issue Bell. We security against interests of the institution reject argument Plaintiffs’ that blanket privacy inmates, interests we jails searches are unreasonable because can.”). they conclude that MCC housed in strip searching have little interest arres detainees, inmates, pretrial convicted charged tees with non-indictable offenses. even non-offenders held as material wit- argument This cannot squared with the nesses, all of whom were included in the First, facts and law of Bell. the Bell court Bell, plaintiff class. See explicitly rejected any distinction in securi 99 S.Ct. 1861. ty risk based on the reason for detention. Bell, 441 U.S. at 546 n. 99 S.Ct. 1861 disagree We also with Plaintiffs’ conten- (“There concluding is no basis for that tion that the risk that non-indictable of- pretrial pose any security detainees lesser smuggle fenders will contraband is low inmates.”). Instead, than risk convicted because arrest category for this of offenses security risk was defined the fact of unanticipated. is often assuming Even detention in a facility.7 correctional See that most such unanticipated, arrests are also, Wagner, Fuentes v. 206 F.3d always this is not plausible case. It is (3d Cir.2000) (“[I]t impractical is to draw a persons incarcerated will induce or line between prisoners pre convicted recruit subject others to themselves to ar- trial detainees for the purpose of maintain on rest non-indictable smuggle offenses to (citation omitted)). ing jail security.” weapons or other contraband into the facil-

Second, ity. require especially Bell did not This would be indi true if we vidualized suspicion for each were to hold that inmate those incarcerated on searched; it are, class, assessed the facial constitu non-indictable offenses as a not tionality whole, of the ap subject reason, as as to search. For that we plied to all inmates at agree MCC.8 with the concern expressed by the reasons, reject 7. For similar we Plaintiffs' ar- 8. The absеnce of an individualized gument the searches are unreasonable requirement in Bell is consistent with the greater because non-indictable arrestees have special Fourth Amendment doctrine of needs rights Fourth pretrial Amendment than the “[T]here searches. are instances when a presented detainees in Bell. We are not ‘special governmental search furthers a need’ argument improper an that it was for the Jails beyond that of normal law enforcement such to detain members of the Plaintiff class in the search, although supported by place; only first thus we address the constitu- typical quantum suspicion, of individualized tionality applied people of the can nonetheless constitutionally still be found properly assigned entering to the Jails and ” Beard, Neumeyer ‘reasonable.’ general population. analysis applies The Bell (3d Cir.2005) (prison policy of ran- equally assigned to all individuals so —wheth- domly searching visitors’ vehicles was reason- inmates, er pretrial be convicted indicted detainees, privacy contemnors, witnesses, able because intrusion was out- material weighed by prison’s “special awaiting preliminary hearings arrestees need to maintain be- magistrate. fore safety prison”). visit, during mem- traband a contact it gang equally in Powell that is Eleventh Circuit reasonable to assume that a detainee likely exploit exception an will would be bers arrange accomplice for an on the outside for minor offend- security procedures from subject himself to arrest non- ers. smuggle indictable offense to contraband recognized risk was A similar Thus, facility. into the the Jails’ interest Rutherford, in Block v. Supreme Court in preventing smuggling at the time of upheld where the Court just high intake is as MCC’s interest detainees denying pretrial contact visits to contact in after the visits Bell. charged. of the crime 468 U.S. regardless 576, 589, 3227, 82 L.Ed.2d 438 The Plaintiff argues class that the (1984). Block, permit- In court district rely cannot on an in prevent Jails interest high risk ted the denial of contact visits for ing smuggling because not pre have detainees, required provide but to any past sented evidence of a smuggling pretrial “concerning for detainees problem any visits or instance of a non-indictable drug there is no indication of attempting whom arrestee to secrete contraband. justifications Id. at n. 104 It is escape propensities.” true Jails’ ‍‌​​‌​​‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​‌​​​‌​​​​​‌​​​‌​‌‌‌‌​​​‍for rejected strip searches would if Supreme stronger sup S.Ct. 3227. The Court ported by regarding discovery of a evidence the lower court’s characterization contraband on indictable and non-indict dispropor- ban on contact visits as blanket intake, during able offenders and the inci posed by tionate to the risks low level gang dence with which members are ar so, In doing detainees. the Court rea- See, rested for non-indictable offenses. likely soned that inmates would take ad- Bull, Nonetheless, e.g., 595 F.3d at 975. vantage any gap security: in is not “[i]t interpretation Supreme our Court’s assume, instance, unreasonable to for that decision in Bell leads us to conclude that low risk detainees would be enlist- required produce the Jails are not to such help weapons ed to obtain contraband or a record. are by their fellow inmates who denied at

contact visits.” Id. 104 S.Ct. 3227. Bell, single attempted instance of smuggling justi- did not undermine MCC’s It is also to note that important Quite fication for the search. to the con- during opportunity smuggling con- trary, the Court considered the absence of in tact visits Bell was low. As described a record to policy’s be evidence of the case, by the district court in that “inmates Bell, successful deterrent effect. in full during and their visitors are view here, 99 S.Ct. 1861. Likewise fully secreting the visits and clad. The at the time of intake also have objects genital in rectal or areas becomes significant value. If deterrent non-indict- imposing challenge in this situation an subject able offenders were not to auto- agility.” nerves and Levi Wolfish matic it security gap search would create a (S.D.N.Y.1977). F.Supp. Despite exploit which offenders could with relative obtaining to an these obstacles inmate ease. hiding traband it in a frоm visitor body cavity, require Court still found The Bell court did not a record detecting smuggling justify that interest and de- of MCC’s MCC’s interest (in fact, terring smuggling preventing this low risk of out- it there was no time weighed privacy long history smuggling intrusion. If it is for a to have prisoner developed plaintiffs reasonable to assume that a will as the Bell filed their try only opened). arrange for visitor to deliver con- case four months after MCC steps prevent

Id. at 99 S.Ct. 1861. The breaches before it takes “[s]muggling declared that of mon- steps them where those are neither “irra- ey, drugs, weapons, and other contraband tional [n]or unreasonable.” See is all too common an occurrence” at deten- 1861; E.E.O.C., U.S. at 559 n. tion facilities. 99 S.Ct. 1861. 274-75, 616 F.3d at 2010 WL smug- In addition to the sole instance of *8. record, gling upon Bell relied cases

concerning other detention facilities for the Plaintiffs assert in the Jails’ proposition attempt inmates to se- in preventing smuggling terest could be body crete items cavities. See id. achieved through means less intrusive than Ferraro, (citing United States v. 590 F.2d strip searches. Specifically, Plaintiffs (6th Cir.1978), 335 States v. United point Body to the Scanning System Orifice Park, (9th Cir.1975)). 1381, 1382 (BOSS Chair), non-intrusive scanning “[a] system Finally, significant designed we also find to detect weapons small repeatedly Court has or emphasized objects contraband metal concealed that policy judg oral, anal, courts must defer to the cavities,” vaginal security See, prison ments of e.g., administrators. Bell, already by method used ECCF. In 441 U.S. at (repeat S.Ct. 1861 rejected the district ing “admonition” from Procunier v. Mar court’s reliance on the less-intrusive means tinez, 396, 405, 416 U.S. 94 S.Ct. 40 of metal in evaluating detection (1974), L.Ed.2d that ill “courts are at MCC. Id. The Court found metal de equipped increasingly to deal with the ur tection to be less effective than the visual gent administration,” problems search procedure and pris deferred to the and therefore “it would ‘not be wise for [a on administrator’s decision to use the visu appeals] second-guess court of the ex al search method. argument Florence’s pert administrators on matters on which regarding the BOSS Chair fails for the ” (internаl they are better informed.’ same reasons. Aside from the fact that omitted)); Wilkinson, brackets Cutter v. there is no regarding efficacy evidence 544 U.S. 725 n. 161 of the detecting BOSS Chair in metallic (2005) (“It L.Ed.2d 1020 repetition, bears objects, it drugs would not detect and oth however, prison security compel- is a er non-metallic Accordingly, contraband. ling interest, state and that deference is rely exclusively decision not to on the due to institutional expertise officials’ in BOSS Chair is not unreasonable. area.”). Moreover, this we have stated Jails, As policy asserted a blanket

that “deference especially appropriate is help potential will equal protection avoid regulation implicates when a prison securi- Fraise, concerns process as it ty.” 516; 283 F.3d at see also Overton, removes officer discretion in selecting 539 U.S. at 123 S.Ct. 2162 (internal which potential arrestees to search. The security “perhaps is the most le- for abuse in a gitimate suspicion” “reasonable penological goals”). This еm- phasis high, scheme is particularly on deference where reason- supports further proposition suspicion may able the absence of be based on such evidence of sub- jective smuggling particular at a ap- correctional in- characteristics as the arrestee’s pearance stitution does not demonstrate the unrea- and conduct at the time of arrest. See, Gallo, policy implemented sonableness of a e.g., Hartline v. (2d Cir.2008) (reasonable

prevent A smuggling. facility detention suspicion to need not suffer a pattern may search a misdemeanor arrestee crafted, finely charged, par comprehensive, on his on the crime be “based arrestee, characteristically thoughtful opinion. characteristics ticular of the arrest” the circumstances and/or

(internal omitted)); citation quotations and II. Acton, Sch. Dist. see also Vernonia 47J as constitutional upholding 646, 663, 115 S.Ct. persons searches of detained on non-indict- (1995) (expressing preferenсe L.Ed.2d 564 respect able offenses and with to whom drug-testing all student ath for ground suspi- there is no individualized testing suspi on opposed letes as based they may bringing contraband cion that suspicion-based drug cion of use because facility, court into detention finds that teachers will testing “brings the risk Circuit, opinions en banc of the Eleventh arbitrarily trouble testing upon impose (11th Barrett, Powell v. 541 F.3d 1298 students”). drug-likely Sub some but Cir.2008), Circuit, and of the Ninth Bull v. all arrestees to the same jecting Francisco, City San Bull, treatment. See promotes equal (9th Cir.2010), persuasive. F.3d 964 For (ob (Kozinski, J., concurring) at 983 F.3d I in my part, greater Judge find wisdom all individ that blanket searches of serving Judge Barkett’s dissent Powell and activity in the same participating uals Thomas’s dissent in Bull. by afforded individu protection “trade Judge Thomas’s Bull dissent frames the protection for the derived alized way: issues this government fact that the treats from the precisely similarly people majority sweeps away twenty-five all situated The way”). jailors years jurisprudence, giving the same mandatory, right unfettered conduct sum, security in- balаncing the Jails’ routine, suspicionless body cavity arres- at the time of intake before terests any may searches on citizen who against general population tees enter the offenses, arrested for minor ‍‌​​‌​​‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​‌​​​‌​​​​​‌​​​‌​‌‌‌‌​​​‍such as vio- inmates, interests of the we privacy code, a traffic lating a leash law or procedures de- hold that the search pose smuggling who no credible risk for by the District Court BCJ scribed jail. into the Under its re- contraband Accordingly, we ECCF are reasonable. majority configured regime, the discards grant of will reverse the District Court’s requirement to balance the need Bell’s Plaintiffs’ Fourth summary judgment on against privacy for a search individual claim and remand Amendment search blesses a uniform and instead with proceedings for further consistent cavity on performing body ev- opinion.9 this eryone designated arrested and for the general jail population, regardless of the POLLAK, dissenting. Judge, District

triviality charge or the likelihood I. hiding that the arrestee is contraband. abrupt prece- for this respectfully disagree I with the court’s The rationale quick- Judge Rodriguez’s departure I think deci- dential is founded on opinion. Indeed, affirmed, government’s I would ex- sand. entire sion should be fallacy logical is based on the argument the order of affirmance pressly predicate gang identifying members and Having valid interest in interests in found that the Jails’ detecting jus- smuggling justifies MRSAinfection are sufficient to preventing searches, tify whether the we need not determine searches. ergo propter happen- cum hoc majority, recognize Like the I and ap- hoc— implies govern- preciate jail stance causation. The the deference due to admin- argues ment that contraband istrators as fulfill charge has been Thus, ensuring security jails, jails. only found in the San Francisco reasons, officials government individuals who but also for the inmates. Wolfish, See Bell v. smuggling are arrested must be contra- 547- (1979). jail. into the gov- band Therefore the L.Ed.2d 447 time, At body cavity ernment concludes it must the same “convicted prisoners arrested, everyone who is do not forfeit all protec- even constitutional by pose those who no risk of tions reason of their concealing conviction and contraband, in prison.” much less of confinement trying to Id. at smuggle jail. principle contraband into the S.Ct. 1861. This applies at least as much force to individuals reasoning support This finds no from prior detained petty their trial on Although the record this case. there charges failing misdemeanor such as is evidence of some attempting arrestees pay support, child li- driving without a to conceal during contraband their ar- cense, or trespassing. See id. These rest, there is not a single documented protections, right such as the to be free example anyone doing so with the degrading, from humiliating, and dehu- intent smuggling contraband into the manizing right treatment and the jail. More importantly, for our pur- bodily integrity, include protection poses, there is not a single example of against forced during strip nakedness anyone from the class defined front of others. district court who possess was found to contraband upon being strip Powell, search. 541 F.3d at 1315.

Not one.

Bull, 595 F.3d opinion, his District Judge

Rodriguez point gives makes a which spe-

cial cogency Judge Thomas’s “Not one”:

... noting [I]t is worth that neither county supporting submits affidavits America, UNITED STATES that detail evidence of a smuggling prob- Appellant in 08-3758 & specific lem respective to their facilities. 08-3759. Freeholders, Florence v. Bd. Chosen (D.N.J.2009).1 F.Supp.2d Sharpe James, Tamika RILEY and Judge Barkett’s Powell dissent up sums the issues with special force: Riley, Appellant Tamika 08-3361, says 1. The plausible will, court that person, "[i]t is hope on their all in the persons moment, incarcerated will induce or recruit at some future be arrested and taken subject others to themselves to arrest on non- to make their illicit deliveries. None- theless, smuggle weapons indictable point offenses to by Judge Rodriguez made facility.” other contraband into the might imagined One establishes that what in some might doubt that individuals would "plausible” deliber- sup- circumstances be is without ately commit port minor offenses such as civil Judge Rodriguez— in the record before contempt offense for which binding Judge Florence Rodriguez record on —the was arrested —and then secrete contraband on this court.

Case Details

Case Name: Florence v. Board of Chosen Freeholders

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 21, 2010

Citation: 621 F.3d 296

Docket Number: 09-3603, 09-3661

Court Abbreviation: 3rd Cir.