Florence v. Board of Chosen Freeholders

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 09-3603 & 09-3661

ALBERT W. FLORENCE

v.

BOARD OF CHOSEN FREEHOLDERS
OF THE COUNTY OF BURLINGTON;
BURLINGTON COUNTY JAIL;
WARDEN JUEL COLE,
Individually and officially as Warden
of Burlington County Jail;
ESSEX COUNTY CORRECTIONAL FACILITY;
ESSEX COUNTY SHERIFF'S DEPARTMENT;
STATE TROOPER JOHN DOE,
Individually and in his capacity as a State Trooper;
JOHN DOES 1-3 of Burlington County Jail &
Essex County Correctional Facility who
performed the strip searches;
JOHN DOES 4-5

Essex County Correctional Facility;
Essex County Sheriff's Department, Appellants in 09-3603

Board of Chosen Freeholders of the County of Burlington;
Warden Juel Cole, Appellants in 09-3661
 On Appeal from the United States District Court
for the District of New Jersey
(D. C. No. 1-05-cv-03619)
District Judge: Honorable Joseph J. Rodriguez

Argued April 15, 2010

Before: SLOVITER and HARDIMAN, Circuit Judges
and *POLLAK, District Judge.

(Filed: September 21, 2010)

Susan C. Lask [Argued]
Suite 2369
244 Fifth Avenue
New York, NY 10001

Michael V. Calabro
Suite 200
466 Bloomfield Avenue
Newark, NJ 07104-0000
Attorneys for Appellee Albert W. Florence

*
Hon. Louis H. Pollak, Senior District Judge for the U.S.
District Court for the Eastern District of Pennsylvania, sitting by
designation.

2
J. Brooks DiDonato [Argued]
Stacy L. Moore, Jr.
Parker McCay
7001 Lincoln Drive West
3 Greentree Centre, P.O. Box 974
Marlton, NJ 08053-0000
Attorney for Burlington County Board of
Chosen Freeholders and Juel Cole;
Appellees in 09-3603 & Appellants in 09-3661

Alan Ruddy [Argued]
Office of County Counsel
County of Essex
465 Martin Luther King Boulevard
Hall of Records, Room 535
Newark, NJ 07102-0000
Attorney for Essex County Correctional Facility and
Essex County Sheriff’s Department;
Appellants in 09-3603 & Appellees in 09-3661

Sean X. Kelly
Sean Robins
Marks, O'Neill, O'Brien & Courtney
6981 North Park Drive
Suite 300
Pennsauken, NJ 08091-0000
Attorney for Amicus Appellant County of Atlantic and
Gary Merline

Seth R. Lesser
Klafter Olsen & Lesser

3
Two International Drive
Suite 350
Rye Brook, NY 10573
Attorney for Amicus Appellees Ronald Allen, Edward
Bizarro, Joseph DePietro, Donald Dillard,
Mel Free El, Tammy Marie Hass, Alphonso Johnson,
John Moore, Konstanti Sidieras, Paul M. Takacs,
April Wedding, Harvey Weintraub, Justin Wennah,
Sandra King Wilson and Richard Wright

Ernest R. Bazzana
Mary Massaron-Ross
Plunkett Cooney
535 Griswold Street
Buhl Building, Suite 2400
Detroit, MI 48226-0000
Attorneys for Amicus Appellant Meadowbrook Inc.,
New Jersey County Jail Wardens Association,
Sheriffs Association of New Jersey

Edward L. Barocas
American Civil Liberties Union of New Jersey Foundation
89 Market Street
P.O. Box 32159
Newark, NJ 07102-0000
Attorney for Amicus Appellees Robert J. Del Tufo;
Zulima Farber, John Farmer, Peter C. Harvey,
Deborah T. Poritz

James M. Mets
Mets, Schiro McGovern

4
655 Florida Grove Road
P.O. Box 668
Woodbridge, NJ 07095-0000
Attorney for Amicus Appellant Policemens Benevolent
Association Local 249

Jennifer R. Clarke
Public Interest Law Center of Philadelphia
1709 Benjamin Franklin Parkway
United Way Building
Philadelphia, PA 19103

David Rudovsky
Kairys, Rudovsky, Messing & Feinberg
718 Arch Street
Suite 501 South
Philadelphia, PA 19106-0000
Attorney for Amicus Appellee Pennsylvania Prison
Society

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This interlocutory appeal requires us to decide whether
it is constitutional for jails to strip search arrestees upon their
admission to the general population. Although the question is
one of first impression for this Court, the Supreme Court’s

5
decision in Bell v. Wolfish, 441 U.S. 520 (1979), and the many
cases that followed it inform our analysis.

In Bell, the Supreme Court rejected a Fourth Amendment
challenge to a policy of visual body cavity searches for all
detainees—regardless of the reason for their
incarceration—after contact visits with outsiders. Id. at 560.
The Court applied a balancing test and concluded that the visual
body cavity searches were reasonable because the prison’s
security interest justified the intrusion into the detainees’
privacy.

Since Bell was decided, ten circuit courts of appeals
applied its balancing test and uniformly concluded that an
arrestee charged with minor offenses may not be strip searched
consistent with the Fourth Amendment unless the prison has
reasonable suspicion that the arrestee is concealing a weapon or
other contraband. Things changed in 2008, however, when the
en banc Court of Appeals for the Eleventh Circuit reversed its
prior precedent and held that a jail’s blanket policy of strip
searching all arrestees upon entering the facility was reasonable
even in the absence of individualized suspicion. Powell v.
Barrett, 541 F.3d 1298, 1314 (11th Cir. 2008) (en banc). A year
later, the en banc Court of Appeals for the Ninth Circuit also
reversed its prior precedent and upheld a blanket policy of strip
searching all arrestees before they enter San Francisco’s general
jail population. Bull v. City and County of San Francisco, 595
F.3d 964, 975 (9th Cir. 2010) (en banc).

Confronted with a clear dichotomy between the en banc
decisions of the Ninth and Eleventh Circuits on the one hand

6
and the numerous cases that preceded them on the other, we
must determine which line of cases is more faithful to the
Supreme Court’s decision in Bell.

I.

A.

We begin with the facts surrounding the arrest and
detention of lead Plaintiff Albert Florence. On March 3, 2005,
a New Jersey state trooper stopped the car in which Florence
was a passenger and arrested him based on an April 25, 2003
bench warrant from Essex County. The warrant charged
Florence with a non-indictable variety of civil contempt. Though
Florence protested the validity of the warrant by insisting he had
already paid the fine on which it was based, he was arrested and
taken to the Burlington County Jail (BCJ).

According to Florence, he was subjected to a strip and
visual body-cavity search by corrections officers at BCJ.
During the jail’s intake process, Florence was directed to
remove all of his clothing, then open his mouth and lift his
tongue, hold out his arms and turn around, and lift his genitals.
The officer conducting the search sat approximately arms-length
in front of him, and directed Florence to shower once the search
was complete. Florence was held at BCJ for six days.

During Florence’s sixth day at BCJ, the Essex County
Sheriff’s Department took custody of him and transported him
to the Essex County Correctional Facility (ECCF). Florence
alleges that he was subjected to another strip and visual

7
body-cavity search upon his arrival at ECCF. As described by
Florence, he and four other detainees were instructed to enter
separate shower stalls, strip naked and shower under the
watchful eyes of two corrections officers. After showering,
Florence was directed to open his mouth and lift his genitals.
Next, he was ordered to turn around so he faced away from the
officers and to squat and cough. After donning ECCF-issued
clothing and visiting a nurse, Florence joined the general jail
population until the following day, when the charges against
him were dismissed.

After his release, Florence sued BCJ, ECCF, and various
individuals and municipal entities (collectively, the Jails) under
42 U.S.C. § 1983. While Florence asserted numerous
constitutional claims, the only claim germane to this appeal is
his Fourth Amendment challenge to the strip search procedures
at BCJ and ECCF.

B.

On March 20, 2008, the District Court granted Florence’s
motion for class certification, defining the plaintiff class as:

All arrestees charged with non-indictable offenses
who were processed, housed or held over at
Defendant Burlington County Jail and/or
Defendant Essex County Correctional Facility
from March 3, 2003 to the present date who were
directed by Defendants’ officers to strip naked
before those officers, no matter if the officers
term that procedure a “visual observation” or

8
 otherwise, without the officers first articulating a
reasonable belief that those arrestees were
concealing contraband, drugs or weapons[.]

Florence v. Bd. of Chosen Freeholders of the County of
Burlington, 2008 WL 800970, at *17 (D.N.J. Mar. 20, 2008).1

Following discovery, the parties filed cross motions for
summary judgment. In reviewing the motions, the District
Court first considered whether the intake procedures at each
facility rose to the level of a “strip search.” Florence v. Bd. of
Chosen Freeholders of the County of Burlington, 595 F. Supp.
2d 492, 502 (D.N.J. 2009). To resolve this question, the District
Court reviewed the Jails’ written search policies2 as well as the

1
Florence sought class certification only on his strip
search claims; he did not seek certification on his claim that he
was subjected to a visual body cavity search. Florence v. Bd. of
Chosen Freeholders of the County of Burlington, 2008 WL
800970, at *8 n.5 (D.N.J. Mar. 20, 2008).
2
BCJ’s written policy defined a strip search as “[a]
physical search of an inmate by the same sex officer while
unclothed consisting of routine and systematic visual
observation of the inmate’s physical body to look for
distinguished identifying marks, scars or deformities, signs of
illness, injury or disease and/or the concealment of contraband
on the inmate’s body.” Burlington County Detention
Center/Corrections & Work Release Center Policies and
Procedures: Search of Inmates - No. Section 1186, Supp. App.
at 42.

9
deposition testimony of correctional officers and the wardens
at each facility. Ultimately, the District Court concluded that,
while there were facts in dispute—such as whether non-
indictable male arrestees at BCJ were required to lift their
genitals during the search—these disputes were immaterial
because even the undisputed procedures of instructing arrestees
to remove all of their clothing and subject their naked bodies to
visual inspection “rose to the level of a strip search” under the
Fourth Amendment. Id. at 502-03 (“Whatever the case may be,
a discrepancy of this sort does not necessarily provide a genuine
issue of material fact. . . . ‘It’s just common sense. Take off all
your clothes. You’re strip[] searched.’” (quoting Plaintiffs’
counsel)).

The policy in effect at ECCF from September 2002
through April 2005 provided that all arrestees were to be strip
searched and required to shower. Department of Public Safety
General Order No. 89-17, Supp. App. 34. A “strip search”
under the written policy is to consist of an officer “observ[ing]
carefully while the inmate undresses” and examining the
arrestee’s ears, nose, hair and scalp, the interior of the mouth,
fingers, hands, arms and armpits, and all body openings and the
inner thighs. Id. The superceding ECCF policy, Department of
Corrections Administrative Directive No. 04-06, requires that
officers “conduct a thorough search of individual inmates,”
direct arrestees to shower during intake, and “observe and
document, in writing, any evidence of: a) notable body markings
such as ‘tattoos;’ b) [b]ody vermin or disease; [and] c) [o]pen
sores, visible wounds, scars, [or] injuries” on the arrestees’
bodies. Supp. App. at 40.

10
 The District Court found that BCJ’s “blanket” strip
search policy “entails a complete disrobing, followed by an
examination of the nude inmate for bruises, marks, wounds or
other distinguishing features by the supervising officer, which
is then followed by a supervised shower with a delousing
agent.” Id. at 502. The Court found that ECCF utilized similar
strip-search and supervised-shower procedures; however, the
ECCF procedures were slightly more intrusive because “Essex
officers carefully observed the entire naked body of the inmate,
including body openings and inner thighs.” Id. at 503.3 Having
thus defined the Jails’ respective search policies, the District
Court concluded that the procedures failed the Bell balancing
test and observed that “blanket strip searches of non-indictable
offenders, performed without reasonable suspicion for drugs,
weapons, or other contraband, [are] unconstitutional.” Id. at
513. Based on this holding, the District Court granted the
Plaintiffs’ motion for summary judgment on the unlawful search
claim, but denied the Plaintiffs’ request for a preliminary
injunction. Id. at 519. The Court denied Defendants’ cross-
motion which sought qualified and Eleventh Amendment
immunity. Id.

Following the decision, the Jails moved the District Court
to certify its summary judgment as an appealable order pursuant
to 28 U.S.C. § 1292(b). The District Court agreed that the order
“involve[d] a controlling question of law as to which there is
substantial ground for difference of opinion,” id., and we

3
The Jails do not challenge the District Court’s factual
findings regarding the scope of the strip search policies. Rather,
they assert that such searches are permissible under Bell.

11
granted permission to appeal. The District Court certified the
following question for our review: “whether a blanket policy of
strip searching all non-indictable arrestees admitted to a jail
facility without first articulating reasonable suspicion violates
the Fourth Amendment of the United States Constitution as
applied to the States through the Fourteenth Amendment.”
Florence v. Bd of Chosen Freeholders of the County of
Burlington, 657 F. Supp. 2d 504, 511 (D.N.J. 2009) (order
certifying issue for appeal). “In reviewing an interlocutory
appeal under 28 U.S.C. § 1292(b), this court exercises plenary
review over the question certified.” Morris v. Rumsfeld, 420
F.3d 287, 290 (3d Cir. 2005).

II.

The Fourth Amendment protects “[t]he right of the
people to be secure in their persons . . . against unreasonable
searches and seizures.” U.S. Const. amend. IV. To enforce this
guarantee, government officials are limited to only those
searches which are reasonable. Delaware v. Prouse, 440 U.S.
648, 653-54 (1979). Reasonableness under the Fourth
Amendment is a flexible standard, Bodine v. Warwick, 72 F.3d
393, 398 (3d Cir. 1995), “not capable of precise definition or
mechanical application,” Bell, 441 U.S. at 559. “In each case it
requires a balancing of the need for the particular search against
the invasion of personal rights that the search entails.” Id.

Detention in a correctional facility “carries with it the
circumscription or loss of many significant rights.” Hudson v.
Palmer, 468 U.S. 517, 524 (1984). “The curtailment of certain
rights is necessary, as a practical matter, to accommodate a

12
myriad of institutional needs and objectives of prison facilities,
chief among which is internal security.” Id. (internal quotation
marks and citations omitted). Because privacy is greatly
curtailed by the nature of the prison environment, a detainee’s
Fourth Amendment rights are likewise diminished. See id. at
526 (holding that “the Fourth Amendment proscription against
unreasonable searches does not apply within the confines of the
prison cell”); Bell, 441 U.S. at 537 (“Loss of freedom of choice
and privacy are inherent incidents of confinement in such a
facility.”).

While the Supreme Court has “repeatedly held that
prisons are not beyond the reach of the Constitution[,]” Hudson,
468 U.S. at 523, it has also emphasized that the judiciary has a
“very limited role” in the administration of detention facilities,
Block v. Rutherford, 468 U.S. 576, 584 (1984). Indeed,
detention facilities have been described as “unique place[s]
fraught with serious security dangers,” Bell, 441 U.S. at 559, the
management of which “courts are ill equipped to deal with,” id.
at 548 n.30. Therefore, authorities are entitled to considerable
latitude in designing and implementing prison management
policies. Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989).
As the Supreme Court cautioned in Bell: “[p]rison
administrators . . . should be accorded wide-ranging deference
in the adoption and execution of policies and practices that in
their judgment are needed to preserve internal order and
discipline and to maintain institutional security.” 441 U.S. at
547. In addition to prison administrators’ “professional
expertise,” separation of powers and federalism concerns
support “wide-ranging deference” to the decisions of prison
authorities. Id. at 548 (“[J]udicial deference is accorded not

13
merely because the administrator ordinarily will, as a matter of
fact in a particular case, have a better grasp of his domain than
the reviewing judge, but also because the operation of our
correctional facilities is peculiarly the province of the
Legislative and Executive branches of our Government, not the
Judicial.”); Turner v. Safley, 482 U.S. 78, 84-85 (1987)
(“[S]eparation of powers concerns counsel a policy of judicial
restraint. Where a state penal system is involved, federal courts
have . . . additional reason to accord deference to the appropriate
prison authorities.”).

A.

Having explained the general standards that govern our
inquiry, we turn to the Supreme Court’s pathmarking decision
in Bell v. Wolfish. Although there are factual differences
between Bell and the instant case, they are sufficiently similar
to warrant a detailed review of Bell.

In Bell, pretrial detainees and convicted prisoners
confined at the Metropolitan Correctional Center (MCC)—a
federally operated short-term custodial facility—filed suit
challenging numerous prison practices and conditions of
confinement. 441 U.S. at 523-24. Although the primary
purpose of MCC was to house pretrial detainees awaiting trial
on federal criminal charges, the facility also housed: witnesses
in protective custody, contemnors, inmates awaiting sentencing
or transportation to federal prison, inmates serving relatively
short sentences, and inmates lodged under writs of habeas
corpus issued to ensure their presence at trial. Id. at 524. The
population at MCC was quite transient, with 50% of its inmates

14
spending fewer than 30 days at the facility and 73% of the
population spending fewer than 60 days at MCC. Id. at 524 n.3.

Among the conditions of confinement challenged by the
inmates at MCC was the policy of strip and visual body-cavity
searches after contact visits with outsiders. Under that policy,
all persons housed at MCC—regardless of the reason for their
detention—were “required 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. For males, this required “lift[ing] [the] genitals and
bend[ing] over to spread [the] buttocks for visual inspection.”
Id. at 558 n.39. “The vaginal and anal cavities of female
inmates also [were] visually inspected.” Id. Inmates were not
touched by officers during the searches. Id.

The district court in Bell upheld the strip searches but
held the visual body cavity searches unreasonable under the
Fourth Amendment. Id. at 558. The Court of Appeals for the
Second Circuit affirmed, finding that the “gross violation of
personal privacy inherent in such a search cannot be outweighed
by the government’s security interest in maintaining a practice
of so little actual utility.” Id. (internal quotation marks
omitted).

The Supreme Court reversed, holding that the visual
body-cavity searches were reasonable under the Fourth
Amendment. Id. As a preliminary matter, the Court assumed
without deciding that both convicted prisoners and pretrial
detainees retain some Fourth Amendment rights upon
commitment to a correctional facility. Id. It then explained that,

15
in each case, the test of Fourth Amendment reasonableness
requires “a balancing of the need for the particular search
against the invasion of personal rights that the search entails,”
and instructed courts to consider four factors in assessing
reasonableness: “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.

In applying the balancing test to the search policy, the
Supreme Court cited MCC’s dual objectives of detecting and
deterring smuggling of weapons and other contraband,
recognizing that “[s]muggling of money, drugs, weapons, and
other contraband is all too common an occurrence.” Id. The
Court upheld the policy despite the absence of any evidence of
smuggling problems at MCC as the record contained only one
instance where an inmate was caught with contraband in a body
cavity. Id. Nevertheless, the Court found the lack of evidence
supported the prison’s interest in the policy because it was
“more a testament to the effectiveness of this search technique
as a deterrent than to any lack of interest on the part of inmates
to secrete and import such items when the opportunity arises.”
Id.

Significantly, Bell included just one sentence discussing
the scope of the privacy intrusion, in which the Court stated that
it “d[id] not underestimate the degree to which these searches
may invade the personal privacy of inmates.” Id. at 560. And
though it acknowledged that correctional officers may
sometimes conduct the searches in an impermissibly abusive
fashion, the Supreme Court did not address that issue; rather, it
limited its review to the policy as a whole, “deal[ing] . . . with

16
the question whether visual body-cavity inspections as
contemplated by the MCC rules can ever be conducted on less
than probable cause grounds.” Id. The Court answered that
question in the affirmative. Moreover, the Court rejected the
district court’s consideration of alternative, less-intrusive means
of detecting contraband. Even assuming the availability of such
alternatives, the Court deferred to MCC’s choice of security
procedure because it had not been shown to be “irrational or
unreasonable.” Id. at 559 n.40.

B.

In the years following Bell, ten circuit courts of appeals
applied the Supreme Court’s balancing test to strip searches of
individuals arrested for minor offenses and found the searches
unconstitutional where not supported by reasonable suspicion
that the arrestee was hiding a weapon or contraband.4 In

4
See Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.
2001) (blanket policy of strip searches upon intake to jail
unreasonable when applied to DUI arrestee absent reasonable
suspicion); Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir.
2001) (blanket policy of strip searching arrestees was
unreasonable as applied to those arrested for minor offenses);
Kelly v. Foti, 77 F.3d 819, 821 (5th Cir. 1996) (“Jail officials
may strip search a person arrested for a minor offense and
detained pending the posting of bond only if they possess a
reasonable suspicion that he is hiding weapons or contraband.”);
Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.)
(“[A]uthorities may not strip search persons arrested for traffic
violations and nonviolent minor offenses solely because such

17
persons ultimately will intermingle with the general population
at a jail when there were no circumstances to support a
reasonable belief that the detainee will carry weapons or other
contraband into the jail.”), cert. denied, 493 U.S. 977 (1989);
Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986) (“[T]he Fourth
Amendment precludes prison officials from performing
strip/body cavity searches of arrestees charged with . . . minor
offenses unless the officials have a reasonable suspicion that the
arrestee is concealing weapons or other contraband.”), cert.
denied, 483 U.S. 1020 (1987); Jones v. Edwards, 770 F.2d 739,
742 (8th Cir. 1985) (strip search of misdemeanor detainee
arrested for violation of leash law where police had no reason to
suspect arrestee would secrete weapon or contraband into
holding cell was unreasonable under Bell); Giles v. Ackerman
746 F.2d 614, 615 (9th Cir. 1984) (“[A]rrestees for minor
offenses may be subjected to a strip search only if jail officials
have a reasonable suspicion that the particular arrestee is
carrying or concealing contraband or suffering from a
communicable disease.”), cert. denied, 471 U.S. 1053 (1985);
Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984)
(unreasonable to strip search individual arrested for traffic
violation on way to work at 7:30 a.m. because there was no
reasonable suspicion that he was concealing contraband even
though arrestee was briefly intermingled with the general jail
population); Mary Beth G. v. City of Chicago, 723 F.2d 1263,
1273 (7th Cir. 1983) (strip search of female arrestees charged
with minor offenses were unreasonable “without a reasonable
suspicion by the authorities that either of the twin dangers of
concealing weapons or contraband existed”); Logan v. Shealy,
660 F.2d 1007, 1013 (4th Cir. 1981) (“An indiscriminate strip

18
general, these courts concluded that the extreme invasion of
privacy caused by a strip and/or visual body-cavity search
outweighed the prison’s minimal interest in searching an
individual charged with a minor crime shortly after arrest. See,
e.g., Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984);
Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.
1983). The critical factor in balancing the competing interests
was the belief that individuals arrested for minor offenses
presented a relatively slight security risk because they usually
are arrested unexpectedly whereas the contact visits in Bell may
have been arranged specifically for the purpose of smuggling
weapons or drugs. See, e.g., Shain v. Ellison, 273 F.3d 56, 64
(2d Cir. 2001) (“It is far less obvious that misdemeanor arrestees
frequently or even occasionally hide contraband in their bodily
orifices. Unlike persons already in jail who receive contact
visits, arrestees do not ordinarily have notice that they are about
to be arrested and thus an opportunity to hide something.”);
Roberts v. Rhode Island, 239 F.3d 107, 111 (1st Cir. 2001)
(“[T]he deterrent rationale for the Bell search is simply less
relevant given the essentially unplanned nature of an arrest and
subsequent incarceration.”).

Recently, the Eleventh and Ninth Circuits, sitting en
banc, reversed their prior precedents and held that Bell
authorizes a policy of blanket strip searches for all arrestees
entering the general population of a jail. See Powell v. Barrett,

search policy routinely applied to detainees . . . cannot be
constitutionally justified simply on the basis of administrative
ease in attending to security considerations.”), cert. denied, 455
U.S. 942 (1982).

19
541 F.3d 1298 (11th Cir. 2008) (en banc) (overruling Wilson v.
Jones, 251 F.3d 1340 (11th Cir. 2001)); Bull v. City and County
of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc)
(overruling Giles v. Ackerman 746 F.2d 614 (9th Cir. 1984)).

In Powell, the Eleventh Circuit reviewed a policy of strip
searching all arrestees at the time of intake implemented by the
Fulton County Jail in Georgia. The policy required that all
persons entering the jail’s general population be strip searched
regardless of the crime charged and without any individualized
suspicion. Powell, 541 F.3d at 1301. The booking process
required groups of 30 to 40 arrestees to enter a large shower
room, simultaneously remove all of their clothing, place it in
boxes and then shower. Id. “After the group shower each
arrestee either singly, or standing in a line with others, is
visually inspected front and back by deputies. Then each man
takes his clothes to a counter and exchanges his own clothes for
a jail jumpsuit.” Id. (internal quotation marks, brackets, and
citations omitted). The Eleventh Circuit discussed in great
detail the facts and circumstances surrounding the searches at
issue in Bell, which demonstrated the high level of intrusiveness
that the Supreme Court countenanced as reasonable. The
Eleventh Circuit also noted the paltry record of body-cavity
smuggling at MCC as evidence of the significant deference
provided to prison administrators by the Court in Bell. In light
of these points, the Eleventh Circuit determined that most courts
(and its own prior precedent) misinterpreted Bell to require
reasonable suspicion for strip searches of minor offenders. Id.
at 1307. It opined that the decisions requiring reasonable
suspicion failed to give appropriate deference to the judgments
of prison administrators and ignored the fact that in upholding

20
visual body-cavity searches, the Supreme Court in Bell neither
required individualized suspicion of smuggling nor
differentiated the degree of suspicion required based on the type
of offender. Id. at 1307-11.

The Powell court also disagreed with the majority view
that security interests at the time of intake are less important
than those arising after an inmate’s contact visit with an
outsider, describing “an inmate’s initial entry into a detention
facility” as “coming after one big and prolonged contact visit
with the outside world.” Id. at 1313. The court asserted that the
“need for strip searches at all detention facilities, including
county jails, is not exaggerated.” Id. at 1310. Citing other
cases, the court noted the problem of gang violence in prisons
and observed that gang members might “coerce, cajole, or
intimidate lesser violators into smuggling contraband into the
facility.” Id. at 1311 (citation omitted). In light of these
security concerns, the Eleventh Circuit held that “a policy or
practice of strip searching all arrestees as part of the process of
booking them into the general population of a detention facility,
even without reasonable suspicion to believe that they may be
concealing contraband, is constitutionally permissible” at least
where the search is no more intrusive than the search in Bell. Id.
at 1300.

Like the Eleventh Circuit in Powell, the Ninth Circuit in
Bull v. City and County of San Francisco reversed prior
precedent and upheld the San Francisco Sheriff’s policy
authorizing strip searches of all arrestees before they are placed
in the general population of a county jail. Bull, 595 F.3d at 966.
In rejecting its prior requirement of reasonable suspicion for

21
arrestee strip searches, the Bull court relied on much of the same
reasoning as the Eleventh Circuit in Powell, including its view
that decisions interpreting Bell v. Wolfish to require reasonable
suspicion to strip search minor offenders were analytically
flawed. Id. at 977-78. The Ninth Circuit concluded that “the
scope, manner, and justification for San Francisco’s strip search
policy was not meaningfully different from the scope, manner,
and justification for the strip search policy in Bell.” Id. at 975.
Based on the record presented, the justification for searching
arrestees at the time of intake was even higher than the
justification for the post-contact visit searches in Bell because
San Francisco had amassed a record demonstrating “a pervasive
and serious problem with contraband inside San Francisco’s
jails” as well as instances of contraband smuggled within body
cavities. Id.

C.

Mindful of the newly-minted circuit split we have
described, we proceed to apply Bell’s balancing test to the
question certified for interlocutory appeal in this case.5 The

5
In Bull, the Ninth Circuit held the constitutionality of a
prison strip search was governed by Turner v. Safley, 482 U.S.
78 (1987), in addition to Bell v. Wolfish. Bull, 595 F.3d at 973-
74. Neither the Supreme Court nor this Court has applied the
rational-relationship test of Turner to a Fourth Amendment
challenge to prison policies. While it is arguable that some
Fourth Amendment rights are “inconsistent with proper
incarceration” and therefore covered by Turner, see Johnson v.
California, 543 U.S. 499, 510 (2005) (internal quotation marks

22
Jails rely heavily on Powell in support of their argument that
strip searches satisfy the reasonableness standard of Bell. They
argue that the searches serve the valid prison interests of
“eliminating weapons and drugs from the jail environment,
serving to mitigate gang violence and preventing disease,” and
that these concerns apply to indictable and non-indictable
arrestees alike. On behalf of the Plaintiff class, Florence
counters that the District Court properly applied Bell, and that
we should adopt the reasonable suspicion requirement applied
by the majority of our sister circuits. Florence also challenges
the legitimacy of the gang, health, and contraband concerns as
justifications for the strip search of non-indictable arrestees as
unsupported by the record and argues that there are less
intrusive alternatives to satisfy the Jails’ security interests.

Like the Supreme Court in Bell, we assume detainees
maintain some Fourth Amendment rights against searches of

omitted), absent an express statement from the Supreme Court
that Turner supplanted Bell, we find its framework for the
analysis of detainee constitutional claims inapplicable here. See
Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our
decisions remain binding precedent until we see fit to reconsider
them, regardless of whether subsequent cases have raised doubts
about their continuing vitality.”). Moreover, the Jails do not
seek application of Turner to Plaintiffs’ Fourth Amendment
claims. See Appellants’ Reply Br. at 17 (“Some courts have
ruled that the Turner case, with its easier standard, has overruled
Bell. Appellants have not argued that Turner, and the rational
basis test, should be the standard before the Court.”).

23
their person upon entry to a detention facility.6 See Bell, 441
U.S. at 558; but see Doe v. Delie, 257 F.3d 309, 316 (3d Cir.
2001) (noting that under Hudson v. Palmer, 468 U.S. 517
(1984), “prisoners do not have a Fourth Amendment right to
privacy in their cells”). To determine whether the strip search
procedures at BCJ and ECCF violate the Fourth Amendment,
we first consider the scope of the searches at issue.

We have previously recognized that a strip search
constitutes a “significant intrusion on an individual’s privacy.”
United States v. Whitted, 541 F.3d 480, 486 (3d Cir. 2008).
Here, the strip search policies require the arrestees to undress
completely and submit to a visual observation of their naked
bodies before taking a supervised shower. We do not minimize
the extreme intrusion on privacy associated with a strip search
by law enforcement officers; however, the searches at issue here
are less intrusive than the visual body-cavity searches
considered by the Supreme Court in Bell. In fact, they are closer
to the strip searches upheld by the lower court in Bell.

The searches were also conducted in a similar manner
and place as those in Bell—by correctional officers at a
detention facility. The policies governing strip searches at BCJ
require that they be conducted “in private . . . under sanitary
conditions . . . [and] in a professional and dignified manner.”
Moreover, the searches are relatively brief, such that between
the search and supervised shower, an arrestee is not required to

6
Other courts of appeals have gone further, holding that
“the Fourth Amendment does apply to the invasion of bodily
privacy in prisons.” See Bull, 595 F.3d at 974-75.

24
remain naked for more than several minutes. Because the scope,
manner, and place of the searches are similar to or less intrusive
than those in Bell, the only factor on which Plaintiffs could
distinguish this case is the Jails’ justification for the searches.

Detention facilities are “unique place[s] fraught with
serious security dangers.” Bell, 441 U.S. at 559. We have
recognized that New Jersey jails, like most correctional
facilities, face serious problems caused by the presence of
gangs. See Fraise v. Terhune, 283 F.3d 506, 521-22 (3d Cir.
2002) (upholding New Jersey prison policy of identifying gang
members and transferring core members to Security Threat
Group Management Unit). The Jails cite three specific security
interests to justify strip searches: (1) the detection and
deterrence of smuggling weapons, drugs or other contraband
into the facility, (2) the identification of gang members by
observing their tattoos, and (3) the prevention of disease,
specifically Methicillin-resistant Staphylococcus aureus
(MRSA). Of these three, the potential for smuggling of
weapons, drugs, and other contraband poses the greatest security
threat.

It is self-evident that preventing the introduction of
weapons and drugs into the prison environment is a legitimate
interest of concern for prison administrators. See Bell, 441 U.S.
at 540 (“[T]he Government must be able to take steps to
maintain security and order at the institution and make certain
no weapons or illicit drugs reach detainees.”); see also Overton
v. Bazzetta, 539 U.S. 126, 134 (2003) (“Drug smuggling and
drug use in prison are intractable problems.”) (citing Bell, Block,
and Hudson); Block, 468 U.S. at 586 (upholding total ban on

25
contact visits as reasonably related to prison interest in
preventing security concerns including “open[ing] the institution
to the introduction of drugs, weapons, and other contraband”).
Prevention of the entry of illegal weapons and drugs is vital to
the protection of inmates and prison personnel alike. See Bell,
441 U.S. at 547 (“Prison officials must be free to take
appropriate action to ensure the safety of inmates and
corrections personnel . . . .”); Bull, 595 F.3d at 967 (citing
instance in which inmate used razor-blades secreted in rectal
cavity to attempt suicide); see also E.E.O.C. v. The GEO Group,
Inc., - - - F.3d - - - -, 2010 WL 2991380, at *8 (3d Cir. Aug. 2,
2010) (“A prison is not a summer camp and prison officials have
the unenviable task of preserving order in difficult
circumstances”).

Like the Ninth and Eleventh Circuit Courts of Appeals,
we conclude that the security interest in preventing smuggling
at the time of intake is as strong as the interest in preventing
smuggling after the contact visits at issue in Bell. We reject
Plaintiffs’ argument that blanket searches are unreasonable
because jails have little interest in strip searching arrestees
charged with non-indictable offenses. This argument cannot be
squared with the facts and law of Bell. First, the Bell court
explicitly rejected any distinction in security risk based on the
reason for detention. Bell, 441 U.S. at 546 n.28 (“There is no
basis for concluding that pretrial detainees pose any lesser
security risk than convicted inmates.”). Instead, the security risk
was defined by the fact of detention in a correctional facility.7

7
For similar reasons, we reject Plaintiffs’ argument that
the searches are unreasonable because non-indictable arrestees

26
See also, Fuentes v. Wagner, 206 F.3d 335, 347 (3d Cir. 2000)
(“[I]t is impractical to draw a line between convicted prisoners
and pretrial detainees for the purpose of maintaining jail
security.” (citation omitted)).

Second, Bell did not require individualized suspicion for
each inmate searched; it assessed the facial constitutionality of
the policy as a whole, as applied to all inmates at MCC.8 Bell,

have greater Fourth Amendment rights than the pretrial
detainees in Bell. We are not presented with an argument that
it was improper for the Jails to detain members of the Plaintiff
class in the first place; thus we address only the constitutionality
of the policy as applied to people properly assigned to the Jails
and entering the general population. The Bell analysis applies
equally to all individuals so assigned—whether they be
convicted inmates, indicted pretrial detainees, contemnors,
material witnesses, or arrestees awaiting preliminary hearings
before a magistrate.
8
The absence of an individualized suspicion requirement
in Bell is consistent with the Fourth Amendment doctrine of
special needs searches. “[T]here are instances when a search
furthers a ‘special governmental need’ beyond that of normal
law enforcement such that the search, although not supported by
the typical quantum of individualized suspicion, can nonetheless
still be found constitutionally ‘reasonable.’” Neumeyer v.
Beard, 421 F.3d 210, 214 (3d Cir. 2005) (prison policy of
randomly searching visitors’ vehicles was reasonable because
privacy intrusion was outweighed by prison’s “special need to
maintain the security and safety of the prison”).

27
441 U.S. at 560 (bypassing concerns regarding abuses during
particular searches to uphold policy as a whole, stating: “we deal
here with the question whether visual body-cavity inspections as
contemplated by the MCC rules can ever be conducted on less
than probable cause. Balancing the significant and legitimate
security interests of the institution against the privacy interests
of the inmates, we conclude that they can.”). MCC housed
pretrial detainees, convicted inmates, and even non-offenders
held as material witnesses, all of whom were included in the
plaintiff class. See Bell, 441 U.S. at 524.

We also disagree with Plaintiffs’ contention that the risk
that non-indictable offenders will smuggle contraband is low
because arrest for this category of offenses is often
unanticipated. Even assuming that most such arrests are
unanticipated, this is not always the case. It is plausible that
incarcerated persons will induce or recruit others to subject
themselves to arrest on non-indictable offenses to smuggle
weapons or other contraband into the facility. This would be
especially true if we were to hold that those incarcerated on non-
indictable offenses are, as a class, not subject to search. For that
reason, we agree with the concern expressed by the Eleventh
Circuit in Powell that gang members would be likely to exploit
an exception from security procedures for minor offenders. 541
F.3d at 1311.

A similar risk was recognized by the Supreme Court in
Block v. Rutherford, where the Court upheld a prison policy
denying contact visits to pretrial detainees regardless of the
crime charged. 468 U.S. 576, 589 (1984). In Block, the district
court permitted the denial of contact visits for high risk

28
detainees, but required the jail to provide visits for pretrial
detainees “concerning whom there is no indication of drug or
escape propensities.” Id. at 580 n.2. The Supreme Court
rejected the lower court’s characterization of a blanket ban on
contact visits as disproportionate to the risks posed by low level
detainees. In doing so, the Court reasoned that inmates would
likely take advantage of any gap in security: “[i]t 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.”
Id. at 587.

It is also important to note that the opportunity for
smuggling during the contact visits in Bell was low. As
described by the district court in that case, “inmates and their
visitors are in full view during the visits and fully clad. The
secreting of objects in rectal or genital areas becomes in this
situation an imposing challenge to nerves and agility.” Wolfish
v. Levi, 439 F. Supp. 114, 147 (S.D.N.Y. 1977). Despite these
obstacles to an inmate obtaining contraband from a visitor and
hiding it in a body cavity, the Supreme Court still found that
MCC’s interest in detecting and deterring this low risk of
smuggling outweighed the privacy intrusion. If it is reasonable
to assume that a prisoner will try to arrange for a visitor to
deliver contraband during a contact visit, it is equally reasonable
to assume that a detainee will arrange for an accomplice on the
outside to subject himself to arrest for a non-indictable offense
to smuggle contraband into the facility. Thus, the Jails’ interest
in preventing smuggling at the time of intake is just as high as
MCC’s interest after the contact visits in Bell.

29
 The Plaintiff class argues that the Jails cannot rely on an
interest in preventing smuggling because they have not
presented any evidence of a past smuggling problem or any
instance of a non-indictable arrestee attempting to secrete
contraband. It is true that the Jails’ justifications for strip
searches would be stronger if supported by evidence regarding
discovery of contraband on indictable and non-indictable
offenders during intake, and the incidence with which gang
members are arrested for non-indictable offenses. See, e.g.,
Bull, 595 F.3d at 975. Nonetheless, our interpretation of the
Supreme Court’s decision in Bell leads us to conclude that the
Jails are not required to produce such a record.

In Bell, the single instance of attempted smuggling did
not undermine MCC’s justification for the search. Quite to the
contrary, the Court considered the absence of a record to be
evidence of the policy’s successful deterrent effect. Bell, 441
U.S. at 559. Likewise here, strip searches at the time of intake
also have significant deterrent value. If non-indictable offenders
were not subject to automatic search it would create a security
gap which offenders could exploit with relative ease.

The Bell court did not require a record of smuggling to
justify MCC’s interest in preventing it (in fact, there was no
time for a long history of smuggling to have developed as the
Bell plaintiffs filed their case only four months after MCC
opened). Id. at 526. The Supreme Court declared that
“[s]muggling of money, drugs, weapons, and other contraband
is all too common an occurrence” at detention facilities. Id. at
559. In addition to the sole instance of smuggling in the record,
Bell relied upon cases concerning other detention facilities for

30
the proposition that inmates attempt to secrete items in their
body cavities. See id. (citing Ferraro v. United States, 590 F.2d
335 (6th Cir. 1978), and United States v. Park, 521 F.2d 1381,
1382 (9th Cir. 1975)).

Finally, we also find significant that the Supreme Court
repeatedly has emphasized that courts must defer to the policy
judgments of prison administrators. See, e.g., Bell, 441 U.S. at
531 (repeating “admonition” from Procunier v. Martinez, 416
U.S. 396, 405 (1974), that “courts are ill equipped to deal with
the increasingly urgent problems of prison administration,” and
therefore “it would ‘not be wise for [a court of appeals] to
second-guess the expert administrators on matters on which they
are better informed.’” (internal brackets omitted)); Cutter v.
Wilkinson, 544 U.S. 709, 725 n.13 (2005) (“It bears repetition,
however, that prison security is a compelling state interest, and
that deference is due to institutional officials’ expertise in this
area.”). Moreover, we have stated that “deference is especially
appropriate when a regulation implicates prison security.”
Fraise, 283 F.3d at 516; see also Overton, 539 U.S. at 133
(internal security is “perhaps the most legitimate of penological
goals”). This emphasis on deference further supports the
proposition that the absence of evidence of smuggling at a
particular correctional institution does not demonstrate the
unreasonableness of a policy implemented to prevent smuggling.
A detention facility need not suffer a pattern of security
breaches before it takes steps to prevent them where those steps
are neither “irrational [n]or unreasonable.” See Bell, 441 U.S.
at 559 n.40; E.E.O.C., - - - F.3d at - - - - , 2010 WL 2991380, at
*8.

31
 Plaintiffs assert that the Jails’ interest in preventing
smuggling could be achieved through means less intrusive than
strip searches. Specifically, Plaintiffs point to the Body Orifice
Scanning System (BOSS Chair), “[a] non-intrusive scanning
system designed to detect small weapons or contraband metal
objects concealed in oral, anal, or vaginal cavities,” a security
method already used by ECCF. In Bell, the Supreme Court
rejected the district court’s reliance on the less-intrusive means
of metal detection in evaluating searches at MCC. Id. The
Court found metal detection to be less effective than the visual
search procedure and deferred to the prison administrator’s
decision to use the visual search method. Florence’s argument
regarding the BOSS Chair fails for the same reasons. Aside
from the fact that there is no evidence regarding the efficacy of
the BOSS Chair in detecting metallic objects, it would not detect
drugs and other non-metallic contraband. Accordingly, the
decision not to rely exclusively on the BOSS Chair is not
unreasonable.

As asserted by the Jails, a blanket policy will help to
avoid potential equal protection concerns in the strip search
process as it removes officer discretion in selecting which
arrestees to search. The potential for abuse in a “reasonable
suspicion” scheme is high, particularly where reasonable
suspicion may be based on such subjective characteristics as the
arrestee’s appearance and conduct at the time of arrest. See,
e.g., Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir. 2008)
(reasonable suspicion to strip search a misdemeanor arrestee
may be “based on the crime charged, the particular
characteristics of the arrestee, and/or the circumstances of the
arrest” (internal quotations and citation omitted)); see also

32
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663 (1995)
(expressing preference for policy of drug-testing all student
athletes as opposed to testing based on suspicion of drug use
because suspicion-based testing “brings the risk that teachers
will impose testing arbitrarily upon troublesome but not
drug-likely students”). Subjecting all arrestees to the same
policy promotes equal treatment. See Bull, 595 F.3d at 983
(Kozinski, J., concurring) (observing that blanket searches of all
individuals participating in the same activity “trade the
protection afforded by individualized suspicion for the
protection derived from the fact that the government treats all
similarly situated people in precisely the same way”).

In sum, balancing the Jails’ security interests at the time
of intake before arrestees enter the general population against
the privacy interests of the inmates, we hold that the strip search
procedures described by the District Court at BCJ and ECCF are
reasonable. Accordingly, we will reverse the District Court’s
grant of summary judgment on Plaintiffs’ Fourth Amendment
strip search claim and remand for further proceedings consistent
with this opinion.9

9
Having found that the Jails’ valid interest in preventing
smuggling justifies the strip searches, we need not determine
whether the interests in identifying gang members and detecting
MRSA infection are sufficient to justify the searches.

33
Florence v. Board of Chosen Freeholders of the County of
Burlington, et al.

Nos. 09-3603 & 09-3661

POLLAK, District Judge, dissenting.

I.

I respectfully disagree with the court’s opinion. I think
Judge Rodriguez’s decision should be affirmed, and I would
expressly predicate the order of affirmance on his
comprehensive, finely crafted, and characteristically thoughtful
opinion.

II.

In upholding as constitutional strip searches of persons
detained on non-indictable offenses and with respect to whom
there is no individualized ground for suspicion that they may be
bringing contraband into a detention facility, the court finds the
en banc opinions of the Eleventh Circuit, Powell v. Barrett, 541
F.3d 1298 (11th Cir. 2008), and of the Ninth Circuit, Bull v. City
and County of San Francisco, 595 F.3d 964 (9th Cir. 2010),
persuasive. For my part, I find greater wisdom in Judge
Barkett’s dissent in Powell and Judge Thomas’s dissent in Bull.

Judge Thomas’s Bull dissent frames the issues this way:

The majority sweeps away twenty-five years of
jurisprudence, giving jailors the unfettered right to
conduct mandatory, routine, suspicionless body
cavity searches on any citizen who may be
arrested for minor offenses, such as violating a
leash law or a traffic code, and who pose no
credible risk for smuggling contraband into the
jail. Under its reconfigured regime, the majority
discards Bell’s requirement of balance the need
for a search against individual privacy and instead
blesses a uniform policy of performing body
cavity searches on everyone arrested and
designated for the general jail population,
regardless of the triviality of the charge or the
likelihood that the arrestee is hiding contraband.

The rationale for this abrupt precedential
departure is founded on quicksand. Indeed, the
government’s entire argument is based on the
logical fallacy cum hoc ergo propter hoc–
happenstance implies causation. The government
argues that contraband has been found in the San
Francisco jails. Thus, the government reasons,
individuals who are arrested must be smuggling
contraband into the jail. Therefore the
government concludes it must body cavity search
everyone who is arrested, even those who pose no
risk of concealing contraband, much less of trying
to smuggle contraband into the jail.

This reasoning finds no support from the record in
this case. Although there is evidence of some
arrestees attempting to conceal contraband during
their arrest, there is not a single document
example of anyone doing so with the intent of

2
 smuggling contraband into the jail. More
importantly, for our purposes, there is not a single
example of anyone from the class defined by the
district court who was found to possess
contraband upon being strip search. Not one.

Bull, 595 F.3d at 990.

In his District Court opinion, Judge Rodriguez makes a
point which gives special cogency to Judge Thomas’s “Not
one”:

. . .[I]t is worth noting that neither county submits
supporting affidavits that detail evidence of a
smuggling problem specific to their respective
facilities.

Florence v. Bd. of Chosen Freeholders, 595 F. Supp. 2d 492,
513 (D.N.J. 2009).1

1
The court says that “[i]t is plausible that incarcerated
persons will induce or recruit others to subject themselves to
arrest on non-indictable offenses to smuggle weapons or other
contraband into the facility.” One might doubt that individuals
would deliberately commit minor offenses such as civil
contempt—the offense for which Florence was arrested—and
then secrete contraband on their person, all in the hope that they
will, at some future moment, be arrested and taken to jail to
make their illicit deliveries. Nonetheless, the point made by
Judge Rodriguez establishes that what might in some imagined
circumstances be “plausible” is without support in the record

3
 Judge Barkett’s Powell dissent sums up the issues with
special force:

Like the majority, I recognize and appreciate the
deference due to jail administrators as they fulfill
their charge of ensuring security in jails, not only
for the jail officials but also for the inmates. See
Bell v. Wolfish, 441 U.S. 520, 547-48 (1979). At
the same time, “convicted prisoners do not forfeit
all constitutional protections by reason of their
conviction and confinement in prison.” Id. at 545.
This principle applies with at least as much force
to individuals detained prior to their trial on petty
misdemeanor charges such as failing to pay child
support, driving without a license, or trespassing.
See id. These protections, such as the right to be
free from degrading, humiliating, and
dehumanizing treatment and the right to bodily
integrity, include protection against forced
nakedness during strip searches in front of others.

Powell, 541 F.3d at 1315.

before Judge Rodriguez–the record binding on Judge Rodriguez
and on this court.

4