Monday, August 27, 2012
Julian Simcock has posted Florence, Atwater & The Erosion of Fourth Amendment Protections for Arrestees (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
If there is an animating imperative behind the Supreme Court’s 1979 decision in Bell v. Wolfish, it is this: when confronted with a question regarding strip searching arrestees, courts must seek a careful balance. The Fourth Amendment, the Court held, “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Decades later, the Supreme Court appears to have deviated from Bell’s moorings. In Florence v. Chosen Board of Freeholders, the Court examined the constitutionality of blanket search policies, which require that all arrestees be strip searched regardless of individualized suspicion or the nature of the offense. In a 5-4 ruling, the Court upheld such searches as constitutional. For the first time, the Court ruled that prisons seeking to implement strip search policies were free to dispense with any level of reasonable suspicion or tailored justification. I argue in the following analysis that Florence constitutes an unnecessary erosion of Fourth Amendment protections for arrestees. In addition, the most unsettling issues posed by Florence — those which hint at the potential for future abuse — remain unresolved.