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Bright Lines, Black Bodies: the Florence Strip Search Case and Its Dire Repercussions, The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals June 2015 Bright Lines, Black Bodies: The lorF ence Strip Search Case and its Dire Repercussions Teresa A. Miller Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Criminal Law Commons, Criminal Procedure Commons, Fourth Amendment Commons, and the Supreme Court of the United States Commons Recommended Citation Miller, Teresa A. (2013) "Bright Lines, Black Bodies: The Florence Strip Search Case and its Dire Repercussions," Akron Law Review: Vol. 46 : Iss. 2 , Article 4. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol46/iss2/4 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The nivU ersity of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. Miller: Bright Lines, Black Bodies ARTICLE 4 - MILLER (DO NOT DELETE) 4/8/2013 10:13 AM BRIGHT LINES, BLACK BODIES: THE FLORENCE STRIP SEARCH CASE AND ITS DIRE REPERCUSSIONS Teresa A. Miller* I. A Short History of Search and Seizure Law ...................... 438 A. Fourth Amendment Search Doctrine and Its Origins . 438 B. Fourth Amendment Application to Arrestees and Detainees ..................................................................... 441 II. The Decision in Florence v. the Board of Chosen Freeholders ........................................................................ 444 III. The Important Cases in Florence ...................................... 451 A. Bell v. Wolfish ............................................................. 451 B. Hudson v. Palmer........................................................ 454 C. Turner v. Safley ........................................................... 455 D. Atwater v. Lago Vista .................................................. 456 IV. Analysis ............................................................................. 458 A. Problem of the Information Age ................................. 458 B. Strip Searches: The “Auction Block” of the New Jim Crow ..................................................................... 462 C. Taking a Dim View of Bright Lines ........................... 465 D. Fear-Mongering and the Danger Orgy ........................ 467 V. Conclusion ......................................................................... 471 * Professor of Law, State University of New York at Buffalo (SUNY-Buffalo) School of Law. The author extends her sincerest thanks to Joshua R. Coerne, a rare kindred spirit in the study of prisons, and an exceptional colleague, for his research assistance and editorial input; to Rebecca French Redwood, Professor of Law, for her insightful comments on earlier drafts; and to Devonya N. Havis, Assistant Professor of Philosophy, for her support and encouragement. This paper was also presented and critiqued at the Class Crits V Conference at the University of Wisconsin School of Law. Thanks to the organizers and participants in that conference for their comments and suggestions. 433 Published by IdeaExchange@UAkron, 2013 1 Akron Law Review, Vol. 46 [2013], Iss. 2, Art. 4 ARTICLE 4 - MILLER (DO NOT DELETE) 4/8/2013 10:13 AM 434 AKRON LAW REVIEW [46:433 Albert Florence is a tall, African American man with dark brown skin. In March 2005, Florence experienced a police encounter that would change his life—and that of his wife and children—forever. Florence was the finance director for a car dealership in New York, married, and the father of three children—William, Shamar, and Elijah—with a fourth child on the way.1 A New Jersey State Trooper arrested Florence in Burlington County, New Jersey after his pregnant wife, April, was stopped for a traffic infraction.2 She was driving Florence’s BMW X5 sport utility, with their four year-old son in the backseat.3 When Florence identified himself as the owner of the vehicle, the officer ran his name through a records search using a computer database, New Jersey’s Criminal Justice Information System.4 The database reported that Florence was the subject of an outstanding arrest warrant in Essex County, New Jersey for failing to pay a fine, a civil violation in New Jersey.5 The officer proceeded to take Florence into custody, despite being shown an official document confirming that Florence had indeed paid the fine upon which the warrant was based.6 The trooper handcuffed and transported Florence to the State Police Barracks, then on to the Burlington County Jail, where Florence was strip-searched, contrary to New Jersey law and the policy of the jail.7 At the time, New Jersey law imposed strict limitations on strip searches of individuals such as Florence who had been detained or arrested for non-criminal offenses.8 The express policy of the Burlington County Jail prohibited strip searches of a non-criminal detainee in the absence of a search warrant, consent, or reasonable suspicion that he or she possessed contraband.9 1. Petition for Writ of Certiorari at 3 Florence v. Bd. of Chosen Freeholders, 132 S.Ct. 1510 (2012) (No. 10-945), 2011 WL 220710. 2. Id. 3. Id. 4. Florence, 132 S.Ct. at 1515. 5. Petition for Writ of Certiorari, supra note 1, at 3-4. 6. According to Florence’s original complaint, he produced for the officer a certified letter dated October 2004, with a raised seal from the State of New Jersey stating that all judgments against Plaintiff were satisfied and that no warrant existed against him. Complaint at ¶ 20 Florence v. Bd. of Chosen Freeholders, 595 F.Supp.2d 492 (N.J. Dist. Ct., 2009) (No. 05CV3619(JHR)), 2005 WL 2099622. 7. Petition for Writ of Certiorari, supra note 1, at 3-5. 8. N.J. STAT. ANN. §2A:161A-1 (West 2012). 9. During the various court proceedings, there were a number of terms used to describe the searches conducted at the Burlington and Essex County Jails. A number of officers from the Burlington County Jail testified to the fact that non-indictable arrestees are subject to a “visual inspection” but not a “strip search,” which was reserved for arrestees being held on indictable offenses. The difference appears to be that the former involved inspecting the naked bodies of http://ideaexchange.uakron.edu/akronlawreview/vol46/iss2/4 2 Miller: Bright Lines, Black Bodies ARTICLE 4 - MILLER (DO NOT DELETE) 4/8/2013 10:13 AM 2013] BRIGHT LINES, BLACK BODIES 435 In a stall with a partially opened curtain, Florence was ordered to remove all of his clothing, open his mouth, lift his tongue, lift his arms, turn fully around and turn back around and lift his genitals, all in front of an officer who stood an arm’s length away.10 For Albert Florence, the stakes in being arrested and detained were high. Pending financial transactions at the dealership would be at risk if he simply failed to show up for work. His pregnant wife would have to care for their three young children without his assistance. His children would be worried if their father suddenly did not come home. And his oldest child, the four year-old son who witnessed him being handcuffed and taken away, would be understandably distraught and anxious about his father’s fate. Florence pleaded with law enforcement officials at the State Police Barracks, and again at the Burlington Country Jail, to verify the validity of the warrant—a request that was refused.11 At the Police Barracks, he was told that the responsibility for clearing up any error was that of police in Essex County.12 At the Burlington County Jail, not only were no attempts made to determine the validity of the warrant, but no bail was set for Florence within twelve hours as required by New Jersey law,13 nor was Florence brought before a judicial officer within the required seventy-two hour period, despite the ready availability of a judge.14 Instead, Florence was held in the Burlington County Jail for arrestees for tattoos, other body marks, injuries, and vermin as they undressed and showered while the latter was “a little more thorough,” according to one officer, because it required inmates to do such things as open their mouth, bend over, squat and cough, and lift their genitals. Florence, 595 F.Supp.2d at 498-499. Essex County Jail policy subjected all arrestees, regardless of offense category, to a “strip search” resembling that reserved for indictable arrestees at the Burlington County Jail. Id. at 499. Albert Florence claimed that he was subjected to a “full strip and body cavity search” at both facilities. Id. at 496-97. 10. Petition for Writ of Certiorari, supra note 1, at 5. At the time New Jersey law defined a “strip search” as “the removal or rearrangement of clothing for the purpose of visual inspection of the person’s undergarments, buttocks, anus, genitals or breasts.” N.J. STAT. ANN. §2A:161A-3 (West 2012). 11. Petition for Writ of Certiorari, supra note 1, at 4. 12. Id. 13. N.J.R.Ct. 3:4-1(b) (West 2012) (“If bail was not set when an arrest warrant was issued, the person who is arrested on that warrant shall have bail set without unnecessary delay, and no later than 12 hours after arrest.”). 14. N.J. R.Ct. 3:4-2(a) (West 2012) (“Without unnecessary delay, following the filing of a complaint the defendant shall be brought before a judge for a first appearance as provided in this Rule. If the defendant remains in custody, the first appearance shall occur within 72 hours after arrest, excluding holidays, and shall be before a judge with authority to set bail for the offenses charged.”); N.J. R.Ct. 9-5(II)(A) (West 2012) (“Criminal Presiding Judges and Municipal Presiding Judges must ensure that all defendants held on bail receive their first appearance within 72 hours pursuant to R. 3:4-2 and R.
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