Florence, Atwater, and the Erosion of Fourth Amendment Protections for Arrestees

Article excerpt

INTRODUCTION
     A. Analytical Template and Existing Literature
     B. A Tale of Two Arrests
I.   THE STATE OF EXISTING FOURTH AMENDMENT LAW
     A. Terminology
     B. Historical Doctrine
     C. Bell v. Wolfish
     D. Florence v. Board of Chosen Freeholders
II.  RESURRECTING BELL: WHY A FAITHFUL APPLICATION OF EXISTING LAW
     MILITATES AGAINST BLANKET STRIP-SEARCH POLICIES
     A. The Missing Deterrence-Based Rationale in Florence
        1. Invoking deterrence-based precedent
        2. Grappling with hypotheticals
     B. An Exception, Rather than a New Norm
III. RISKS OF ABUSE--WHY THE INTERSECTION OF FLORENCE AND ATWATER
     PRESENTS NEW PRACTICAL CONCERNS THAT MILITATE AGAINST
     BLANKET STRIP-SEARCH POLICIES
     A. Introducing Atwater v. City of Lago Vista
     B. The Florence Concurrences
     C. The Risk of Abuse by Police Officials
         1. Instances of abuse
         2. Application in contemporary context
     D. The Rising Spectre of Justice Stevens's Dissent in Bell
CONCLUSION

INTRODUCTION

If there is an animating imperative behind the Supreme Court's decision in Bell v. Wolfish, it is this: when confronted with a question regarding strip-searching arrestees, courts must seek a careful balance. (1) The Fourth Amendment, the Court held, cannot be confined to a "mechanical application." (2) Instead, it "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails." (3) In essence, while authorities may be justifiably concerned about the presence of contraband in prisons, there are limits to the policies they may pursue. These limits are especially important in the context of strip searches, which, given the degree of invasion involved, the Supreme Court has placed within a "category of [their] own demanding [their] own specific suspicions." (4)

Decades later, the Court appears to have deviated from Bell's moorings. Last Term, in Florence v. Board of Chosen Freeholders, the Court examined the constitutionality of blanket search policies that require that all arrestees be strip-searched regardless of individualized suspicion or the nature of the offense. (5) In a five-to-four ruling, the Court upheld such searches as constitutional. (6) The opinion is more fragmented than the initial vote count suggests--Justice Thomas refused to join one section of the majority opinion, and Chief Justice Roberts and Justice Alito wrote separate concurrences to explain limitations to the ruling. (7)

Nevertheless, a new line had been drawn. For the first time, the Court held that prisons seeking to implement blanket strip-search policies were free to dispense with any level of reasonable suspicion or tailored justification. (8) I argue in the following analysis that Florence constitutes an unnecessary erosion of Fourth Amendment protections for arrestees. The Court's opinion entails a departure from Bell and also from the Court's broader jurisprudence on the Fourth Amendment. In addition, some of the most unsettling issues posed by Florence--those which hint at the potential for future abuse--remain unresolved.

A. Analytical Template and Existing Literature

Among both judges and academics, the topic of arrestee strip searches is contentious. One group of scholars says that the degree of invasiveness is the crucial factor determining whether or not a strip search is permissible. (9) Another argues that the arrestee's status in the adjudicatory process should be more closely considered, (10) while a third asserts that courts should look only at when (or if) the arrestee is introduced to the general prison population. (11) A final group of scholars maintains that the decision should be contingent upon the type of offense with which the arrestee has been charged. (12)

Although many of these arguments represent important contributions to the field, this Note is premised on the idea that the debate cannot be quite so easily siloed. …