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Matkin v. Barrett, GA Jail Strip Search Suit, petittion for Cert, HRDC Amicus Brief, 2013

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NO. 13-108

In the Supreme Court of the United States
KRISTOPHER ALAN MATKIN, et al.,
v.

Petitioners,

JACQUELINE BARETT,
former Sheriff, Fulton County, Georgia,

Respondent.

On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
BRIEF OF AMICI CURIAE FLORIDA JUSTICE
INSTITUTE, INC., HUMAN RIGHTS DEFENSE CENTER,
NATIONAL POLICE ACCOUNTABILITY PROJECT, AND
SOUTHERN CENTER FOR HUMAN RIGHTS IN
SUPPORT OF PETITION FOR CERTIORARI

LANCE WEBER
HUMAN RIGHTS DEFENSE CENTER
3878 Connecticut Street
St. Louis, MO 63116
(603) 903-3410
HOWARD A. FRIEDMAN
LAW OFFICES OF HOWARD
FRIEDMAN, P.C.
90 Canal Street
5th Floor
Boston, MA 02114
(617) 742-4100

CHRISTOPHER A. WIMMER
Counsel of Record
EMERGENT LEGAL
25 Taylor Street
Suite 410
San Francisco, CA 94102
(415) 894-9284
cwimmer@emergentlegal.com
Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i
CORPORATE DISCLOSURE STATEMENT
Each of the Florida Justice Institute, Inc., Human
Rights Defense Center, National Police Accountability
Project, and Southern Center for Human Rights is a
nonprofit organization that has no parent company and
does not issue stock.

ii
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I.

The Court Should Intervene Now to
Prevent Suspicionless Strip Searches of
Individuals Who Have Not Yet Been
Arraigned or Who Have Been Ordered
Released . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II.

There Are Feasible Alternatives to
Blanket Strip Searches, But the Eleventh
Circuit Rule Makes Them Irrelevant . . . 13

III.

Limiting Strip Searches Before
Arraignment and After Release to
Instances of Individualized Reasonable
Suspicion Strikes the Appropriate
Balance Between Institutional Security
and Individual Privacy . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii
TABLE OF AUTHORITIES
CASES
Barnes v. District of Columbia,
793 F. Supp. 2d 260 (D.D.C. 2011) . . . . . . . . . . 11
Bell v. Wolfish,
441 U.S. 520 (1979) . . . . . . . . . . . . . . . . . . . . . . 14
Blackburn v. Snow,
771 F.2d 556 (1st Cir. 1985) . . . . . . . . . . . . . . . 18
Brass v. County of L.A.,
328 F.3d 1192 (9th Cir. 2003) . . . . . . . . . . . . . . 18
Bull v. City and County of San Francisco,
595 F.3d 964 (9th Cir. 2010) (en banc) . . . . . . . 10
Burgess v. Lowery,
201 F.3d 942 (7th Cir. 2000) . . . . . . . . . . . . . . . 17
Bynum v. District of Columbia,
384 F. Supp. 2d 342 (D.D.C. 2005) . . . . . . . . . . 15
Florence v. Bd. of Chosen Freeholders of Cnty. of
Burlington,
621 F.3d 296 (3d Cir. 2010), aff’d, 132 S. Ct.
1510 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Florence v. Board of Chosen Freeholders of County
of Burlington,
132 S.Ct. 1510 (2012) . . . . . . . . . . . . . . . . . passim

iv
Gerstein v. Pugh,
420 U.S. 103 (1975) . . . . . . . . . . . . . . . . . . . . . . 18
Haney v. Miami-Dade County,
2004 WL 2203481 (S.D. Fla. Aug. 24, 2004) . . . . 1
Hill v. Bogans,
735 F.2d 391 (10th Cir. 1984) . . . . . . . . . . . . . . 10
Hope v. Pelzer,
240 F.3d 975 (11th Cir. 2001) . . . . . . . . . . . . . . 12
Hope v. Pelzer,
536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . 12, 13
Hunter v. Auger,
672 F.2d 668 (8th Cir. 1982) . . . . . . . . . . . . . . . 17
Jones v. Edwards,
770 F.2d 739 (8th Cir. 1985) . . . . . . . . . . . . . . . 10
Lewis v. O’Grady,
853 F.2d 1366 (7th Cir. 1988) . . . . . . . . . . . . . . 18
Logan v. Shealy,
660 F.2d 1007 (4th Cir. 1981) . . . . . . . . . . . . . . 10
Mary Beth G. v. City of Chicago,
723 F.2d 1263(7th Cir. 1983) . . . . . . . . . . . . . . . 10
Masters v. Crouch,
872 F.2d 1248 (6th Cir. 1989) . . . . . . . . . . . . . . 10
New Jersey v. T.L.O.,
469 U.S. 325 (1985) . . . . . . . . . . . . . . . . . . . . . . 18

v
Parilla v. Eslinger,
2005 WL 3288760 (M.D. Fla. Dec. 5, 2005) . . . . 1
Powell v. Barrett,
541 F.3d 1298 (11th Cir. 2008) (en banc) . . . . . 10
Powell v. Sheriff, Fulton Cnty. Georgia,
511 F. App’x 957 (11th Cir. 2013) . . . . . . . . . . . 14
Roberts v. Rhode Island,
239 F.3d 107 (1st Cir. 2001) . . . . . . . . . . . . . 9, 10
Spear v. Sowders,
71 F.3d 626 (6th Cir. 1995) . . . . . . . . . . . . . . . . 17
Stewart v. Lubbock Cty. Tex.,
767 F.2d 153 (5th Cir. 1985) . . . . . . . . . . . . . . . 10
Thorne v. Jones,
765 F.2d 1270 (5th Cir. 1985) . . . . . . . . . . . . . . 17
Varrone v. Bilotti,
123 F.3d 75 (2d Cir. 1997) . . . . . . . . . . . . . . . . . 17
Weber v. Dell,
804 F.2d 796 (2d Cir. 1986) . . . . . . . . . . . . . . . . 10
Wood v. Clemons,
89 F.3d 922 (1st Cir. 1996) . . . . . . . . . . . . . . . . 17
CONSTITUTION
U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . passim
U.S. Const. amend. VIII . . . . . . . . . . . . . . . . . . . . . . 3

vi
STATUTES
725 Ill. Comp. Stat. Ann. 5/103-1(c) . . . . . . . . . . . . . 9
Cal. Penal Code § 4030(f) . . . . . . . . . . . . . . . . . . . . . 9
Colo. Rev. Stat. § 16-3-405(1) . . . . . . . . . . . . . . . . . . 9
Conn. Gen. Stat. 54-33l(a) . . . . . . . . . . . . . . . . . . . . 9
Fla. Stat. 901.211(2) . . . . . . . . . . . . . . . . . . . . . . . . . 9
Iowa Code Ann. § 804.30 . . . . . . . . . . . . . . . . . . . . . . 9
K.S.A. § 22-2521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Mich. Comp. Laws 764.25a . . . . . . . . . . . . . . . . . . . . 9
Mo. Stat. Ann.§ 544.193(2) . . . . . . . . . . . . . . . . . . . . 9
N.J.A.C. 10A:31-8.4 . . . . . . . . . . . . . . . . . . . . . . . . . . 9
New Jersey Stat. 2A:161A-8 . . . . . . . . . . . . . . . . . . . 9
Ohio Rev. Code § 2933.32(B)(2) . . . . . . . . . . . . . . . . 9
Tenn. Code. Ann. 40-7-119(b) . . . . . . . . . . . . . . . . . . 9
Va. Code Ann. § 19.2-59.1 . . . . . . . . . . . . . . . . . . . . . 9
Wash. Rev. Code. § 10.79.130 . . . . . . . . . . . . . . . . . . 9
RULE
Sup. Ct. R. 37.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

vii
OTHER
ACA Standard 4-ALDF-2C-03 . . . . . . . . . . . . . . . . . 8
ACA, Core Jail Standards § 1-CORE-2C-02 (1st ed.
2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Department of Justice’s Bureau of Justice
Statistics, Arrest in the United States, 1999-2010
(Oct. 2012) (Table 1) . . . . . . . . . . . . . . . . . . . . . . 6
Department of Justice’s Bureau of Justice
Statistics, Contacts between Police and the
Public, 2008 (Oct. 2011) (Table 12) . . . . . . . . . . . 6
http://www.nij.gov/topics/technology/detectionsurveillance/contraband-detection/person.htm 16
L.A. County Sheriff’s Dep’t, 17th Semiannual
Report 75-76 (Nov. 2003), http://
file.lacounty.gov/lac/mbobb17.pdf . . . . . . . . . . . 15
Elizabeth G. Patterson, Civil Contempt and the
Indigent Child Support Obligor: The Silent
Return of Debtor’s Prison, 18 Cornell J. of L. and
Pub. Policy 95 (2008) . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Customs and Border Protection, Performance
and Accountability Report, Fiscal Year 2012
(April 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Dep’t of Justice, BOP, Program Statement No.
7331.04, Pretrial Inmates § 9(b) (Jan. 31, 2003),
http://www.bop.gov/policy/progstat/
7331_004.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

viii
U.S. Dep’t of Justice, BOP, Program Statement No.
5140.38, Civil Contempt of Court Commitments
§ 11 (July 1, 2004), http://www.bop.gov
/policy/progstat/ 5140_038.pdf . . . . . . . . . . . . . . . 8
U.S. Dep’t of Justice, National Institute of
Corrections, Jails and the Constitution: An
Overview (2d ed. Sept. 2007) . . . . . . . . . . . . 15, 16
U.S. Dep’t of Justice, Strategic Plan Fiscal Years
2000-2005 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Dep’t of Justice, Strategic Plan Fiscal Years
2007-2012 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ariel Whitworth, NIJ Update, Detecting
Contraband: Current and Emerging
Technologies and Limitations, Corrections Today
(Oct. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1
INTEREST OF AMICI CURIAE1
Amici curiae are nonprofit public interest
organizations dedicated to protecting the rights of
individuals held in all types of detention facilities in
the United States.
The Florida Justice Institute, Inc. (FJI) is a
private, not-for-profit public interest law firm founded
in 1978 by leaders of the private bar to, in part,
improve conditions of confinement in jails and prisons.
It is primarily funded by The Florida Bar Foundation.
FJI has participated as amicus curiae in a variety of
cases in both state and federal courts at the
intermediate appellate and Supreme Court levels, and
was class counsel in two strip search cases that
successfully challenged the same issue as in the case at
bar. See Parilla v. Eslinger, 2005 WL 3288760 (M.D.
Fla. Dec. 5, 2005) (strip searches of persons without
reasonable suspicion and before a judicial
determination); Haney v. Miami-Dade County, 2004
WL 2203481 (S.D. Fla. Aug. 24, 2004) (same).
The Human Rights Defense Center (“HRDC”) is
a nonprofit charitable corporation headquartered in

1

Counsel for the amici provided counsel of record for Respondents
timely written notice of the intent to file this brief under Supreme
Court Rule 37.2(a). Respondents consented. Petitioners have
given blanket consent to any amicus brief in support of or
opposition to the Petition. Record of that request and those
consents have been lodged with the Court. In addition, no counsel
for any party authored any part of this brief, and no party or
counsel to a party made a monetary contribution intended to fund
the preparation or submission of the brief.

2
Florida that advocates on behalf of the human rights of
people held in state and federal prisons, local jails,
immigration detention centers, civil commitment
facilities, Bureau of Indian Affairs jails, juvenile
facilities, and military prisons. HRDC’s advocacy
efforts include publishing Prison Legal News, a
monthly publication that covers criminal justice-related
news and litigation nationwide, publishing and
distributing self-help reference books for prisoners, and
engaging in litigation in state and federal courts on
issues concerning detainees.
The National Police Accountability Project
(“NPAP”) is a nonprofit organization founded by
members of the National Lawyers Guild. Members of
NPAP represent plaintiffs in police misconduct cases,
and NPAP often presents the views of victims of civil
rights violations through amicus filings in cases raising
issues that transcend the interests of the parties before
the Court. NPAP has more than five hundred attorney
members throughout the United States.
The Southern Center for Human Rights
(“SCHR”) is a nonprofit public interest organization
founded in 1976 to provide legal representation to
inmates challenging the conditions of their confinement
in prisons and jails in the Southern United States,
including those within the jurisdiction of the Court of
Appeals for the Eleventh Circuit. It is headquartered
in Fulton County, Georgia, the site of the detention
facility at issue in this case.

3
SUMMARY OF ARGUMENT
Each year, millions of basically law-abiding
individuals are arrested for offenses punishable by
little or no incarceration. For many, the experience of
detention will be primarily one of processing: They will
be booked into the facility pending arraignment, and
then, at their first court appearance, will be ordered
released pending trial or released unconditionally
because their charges have been dismissed. They will
then be processed back out of the facility. In the
decades leading up to this Court’s decision two terms
ago in Florence v. Board of Chosen Freeholders of
County of Burlington, 132 S.Ct. 1510 (2012), most
courts, state legislatures, and detention facilities had
reached the conclusion that subjecting these
individuals to the humiliation of a strip search violated
the Fourth Amendment unless there was at least
reasonable suspicion to believe they possessed
contraband, or a court had reviewed their charges and
ordered them held.
In Florence, this Court determined that the
Constitution did not forbid the suspicionless strip
search of minor offense detainees who need to be
housed in the general population. It did not, however,
determine that blanket strip searches were always
permissible. To the contrary, it reaffirmed the need to
conduct a balancing test taking into consideration the
justifications for the search and the interests of the
individual, and it expressly left open the possibility
that strip searches might offend the Constitution
where the individuals had not yet appeared before a
neutral magistrate and did not need to be held in the
facility’s general population.

4
Less than a year later, the Court of Appeals for the
Eleventh Circuit rejected this Court’s cautious
approach in favor of a new blanket rule: All persons
that a detention facility decides to pass through the
general population may be subjected to a strip search.
This rule has no exceptions, and depends entirely on
executive discretion. Whenever jail staff elect to place
a detainee into the general population—even before
arraignment, and even after a release order—the
detainee may be made to disrobe, shower, lift his or her
genitals, squat and cough, and then turn around and
spread his or her buttocks for jail staff. Pet. at 4-6.
The decision below results in completely
unnecessary strip searches. Consider: A man is
arrested for an unpaid traffic ticket. He is booked into
the jail. Even though there are secure rooms where he
could be held until arraigned, the jail’s policy requires
that he be placed into the general population, and so he
is strip searched. He then makes his first court
appearance, where a judge determines that the charges
against him should be dismissed and that he should be
freed. He is returned to the jail where, again, simply
because it is the jail’s policy, he is strip searched and
placed back into the general population while the jail
staff check for outstanding warrants and gather the
detainee’s property for release.
This is not a
hypothetical scenario (Pet. at 6-8), and it could occur
hundreds of thousands of times a year (see pages 5-6
below).
The breadth and categorical nature of the Eleventh
Circuit’s rule demand this Court’s prompt intervention.
If the decision below is allowed to stand even for a
short while, hundreds of thousands of ordinary

5
individuals who have not yet been arraigned or who
have been ordered released may suffer needless
humiliation.
ARGUMENT
I.

The Court Should Intervene Now to
Prevent Suspicionless Strip Searches of
Individuals Who Have Not Yet Been
Arraigned or Who Have Been Ordered
Released

The Court should intervene now because the
Eleventh Circuit’s decision establishes that individuals
can be strip searched even before they have seen a
judge and even after they have been ordered released,
despite the absence of any reason to believe they
possess contraband. If that remarkable proposition is
left undisturbed, hundreds of thousands of individuals
every year could be subjected to unnecessary,
degrading examinations of their naked bodies.
As the Petition describes in detail, the Eleventh
Circuit held that the Fourth Amendment is never
violated when a detainee is strip searched before
entering the general population. No other factor
matters. The nature of the offense; the duration of the
detainee’s likely stay; the facility’s reason for placing
the detainee in the general population; potential
administrative or technological alternatives; and
whether the detainee has not yet been arraigned or has
been ordered released by a court are all irrelevant. Pet.
at 18-20. In essence, detainees can be strip searched
whenever the facility’s administrators decide to place

6
them in the general population—without ever having
to justify the search or the placement decision.
The effects of this new rule would fall most heavily
on the many individuals who are likely to be held for
only a short while, owing to the nature of the charges
against them. According to the federal Department of
Justice’s Bureau of Justice Statistics (“BJS”), 4.7
million arrests are made annually for gambling,
violations of the liquor laws, drunkenness, disorderly
conduct, vagrancy, curfew and loitering law violations,
vandalism, driving under the influence, and petty
larceny. BJS, Arrest in the United States, 1999-2010
(Oct. 2012), at 2 (Table 1). Another 450,000 arrests are
made for traffic violations. BJS, Contacts between
Police and the Public, 2008 (Oct. 2011), at 9 (Table 12).
In the Eleventh Circuit alone, this represents
approximately 560,000 annual arrests2 of individuals
who will likely be released following their first court
appearance.
The reach of the Eleventh Circuit’s decision goes
beyond the criminal law. In 2012 alone, U.S. Customs
and Border Patrol agents arrested 364,000 individuals

2

As of the most recent census, the population of the United States
was 308.7 million; the population of the states in the Eleventh
Circuit (Alabama, Florida, and Georgia) was 33.3 million. U. S.
Census Bureau, Population Distribution and Change: 2000 to
2010, at Table 1 (March 2011). Nationwide, approximately 1.7
percent of the population is arrested annually for the offenses
described in the text (5.2 million arrests out of a population of
308.7 million). Assuming that arrest rates are relatively constant
across states, this results in 560,000 arrests for these same
offenses within the Eleventh Circuit.

7
on immigration charges. U.S. Customs and Border
Protection, Performance and Accountability Report,
Fiscal Year 2012 (April 2013), at 6. While national
figures for imprisonment on civil contempt charges are
not available, it appears that tens of thousands of
individuals are incarcerated annually for nonpayment
of child support.
Elizabeth G. Patterson, Civil
Contempt and the Indigent Child Support Obligor: The
Silent Return of Debtor’s Prison, 18 Cornell J. of L. and
Pub. Policy 95, 116-18 (2008).
Under the Eleventh Circuit’s blanket strip search
rule, all of these individuals could be forced to squat,
cough, and expose their genitals and anus to jail staff,
even if they have not yet been arraigned and even if
they have already been ordered released, and even if
there is no indication they are attempting to smuggle
contraband.
This would represent a sea change in detention
practice. Before this Court’s decision in Florence, there
was a growing consensus among the states, federal
circuit courts, and detention facilities that a blanket
strip search of those accused of minor offenses was
unconstitutional. This necessarily meant that these
individuals also could not be strip searched before their
charges had been reviewed, or after they had been
ordered released.
For example, the American
Correctional Association’s standards, recognized as
“the national benchmark for the effective operation of
correctional systems throughout the United States,”
ACA,
Standards
and Accreditation,
https://www.aca.org/standards/faq.asp, reject the
practice of suspicionless strip searches of individuals
arrested for minor offenses. Instead, they direct that

8
“[a] strip search of an arrestee at intake shall only be
conducted when there is reasonable belief or suspicion
that he/she may be in possession of an item of
contraband.” ACA Standard 4-ALDF-2C-03. See also
ACA, Core Jail Standards § 1-CORE-2C-02 (1st ed.
2010) (smaller set of core standards developed with the
support of the American Jail Association, National
Sheriffs’ Association, National Institute of Corrections,
and the Federal Bureau of Prisons (“BOP”), providing
the same).
Facilities across the nation seek to comply with
these standards in order to be accredited by the ACA.
See, e.g., U.S. Dep’t of Justice, Strategic Plan Fiscal
Years 2000-2005 79 (2000) (the BOP “utilizes ACA to
obtain an external assessment of its ability to meet the
basics of corrections,” and “continue[s] to prepare all
activated facilities for accreditation with the American
Correctional Association”); see also U.S. Dep’t of
Justice, Strategic Plan Fiscal Years 2007-2012 83
(2007). And detention facility practice before Florence
reflected the ACA’s standards. The BOP, for one,
rejected strip searches of those arrested for
misdemeanors or civil contempt absent reasonable
suspicion or written consent of the detainee. U.S. Dep’t
of Justice, BOP, Program Statement No. 5140.38, Civil
Contempt of Court Commitments § 11, at 5 (July 1,
2004), http://www.bop.gov/policy/progstat/
5140_038.pdf; U.S. Dep’t of Justice, BOP, Program
Statement No. 7331.04, Pretrial Inmates § 9(b), at 6
(Jan. 31, 2003), http://www.bop.gov/policy/progstat/
7331_004.pdf.
Numerous state legislatures had also limited strip
searches of those arrested on misdemeanors or lesser

9
offenses to particular instances of reasonable suspicion
or probable cause, or when a judge had reviewed the
charges and ordered the individual held. See, e.g., New
Jersey Stat. 2A:161A-8 (conferring authority on
Commissioner of the Department of Corrections to
promulgate regulations regarding strip searches of
detainees) & N.J.A.C. 10A:31-8.4 (requiring a warrant;
probable cause; lawful confinement and reasonable
suspicion; or an emergency before a person detained for
a minor offense may be strip searched); Conn. Gen.
Stat. 54-33l(a) (requiring reasonable suspicion before
person arrested for misdemeanor or traffic violation
may be strip searched); Tenn. Code. Ann. 40-7-119(b)
(same); Mo. Stat. Ann.§ 544.193(2) (requiring probable
cause for anything less than a felony); Iowa Code Ann.
§ 804.30 (requiring probable cause for violations or
simple misdemeanors); 725 Ill. Comp. Stat. Ann. 5/1031(c) (reasonable suspicion for traffic offenses or
misdemeanors); Ohio Rev. Code § 2933.32(B)(2)
(probable cause); Va. Code Ann. § 19.2-59.1 (reasonable
suspicion for traffic offenses or misdemeanors, absent
detention pursuant to court order); Colo. Rev. Stat.
§ 16-3-405(1) (reasonable suspicion before arraignment
on traffic or petty offense); Cal. Penal Code § 4030(f)
(reasonable suspicion for misdemeanors or infraction
offenses); Fla. Stat. 901.211(2) (probable cause or courtordered detention for traffic, regulatory, or
misdemeanor offenses not involving drugs or violence);
Mich. Comp. Laws 764.25a (reasonable suspicion or
court-ordered detention); Wash. Rev. Code. § 10.79.130
(same); K.S.A. § 22-2521 (probable cause for nonviolent
misdemeanors or lesser offenses).
The weight of authority in the federal circuit courts
was to the same effect. See, e.g., Roberts v. Rhode

10
Island, 239 F.3d 107, 112-113 (1st Cir. 2001) (blanket
strip search of minor offenders committed to state
prisons held unconstitutional); Weber v. Dell, 804 F.2d
796, 802 (2d Cir. 1986) (strip search of misdemeanor
arrestee was unconstitutional absent reasonable
suspicion that person was concealing contraband);
Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981)
(strip search of woman arrested on DWI charge who
would not be introduced into general population was
unconstitutional); Stewart v. Lubbock Cty. Tex., 767
F.2d 153, 156-157 (5th Cir. 1985) (strip search of minor
offenders awaiting bond held unconstitutional absent
reasonable suspicion); Masters v. Crouch, 872 F.2d
1248, 1255 (6th Cir. 1989) (strip search of person
arrested for nonviolent minor offense or traffic violation
held unreasonable absent individualized reasonable
suspicion); Mary Beth G. v. City of Chicago, 723 F.2d
1263, 1273 (7th Cir. 1983) (same, misdemeanor
arrests); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.
1985) (same); Hill v. Bogans, 735 F.2d 391, 394 (10th
Cir. 1984) (strip search of man arrested for traffic
violations, despite introduction into general population,
was unconstitutional where there were no
circumstances suggesting contraband).
But see
Florence v. Bd. of Chosen Freeholders of Cnty. of
Burlington, 621 F.3d 296, 311 (3d Cir. 2010), aff’d, 132
S. Ct. 1510 (2012); Bull v. City and County of San
Francisco, 595 F.3d 964, 975 (9th Cir. 2010) (en banc);
Powell v. Barrett, 541 F.3d 1298, 1307 (11th Cir. 2008)
(en banc) (case below).
These statutes, policies, and judicial decisions were
well-founded. Those who are arrested on minor
charges do not generally remain within a detention
facility for long. Constitutional standards and state

11
statutes require that they be promptly seen by a judge
following arrest, and a very likely result of their
arraignment is release, whether on bail, on their own
recognizance, or without condition because their
charges have been dismissed. There is, accordingly,
little need to house such individuals in the general
population along with those being held pending trial or
while serving sentence. Unless something about such
temporary detainees’ behavior suggests that they are
attempting to introduce drugs, weapons, or other
contraband into the facility, there can be little
justification for strip searching them.
Florence eliminated the constitutional grounding of
those strip search bans and limitations for individuals
who need to be housed in the general population. See
Florence at 1520-21. However, as the Petition explains
(Pet. at 14-18), this Court expressly qualified the limits
of its ruling by leaving open the possibility that strip
searches might be unconstitutional if performed before
arraignment or where the detainee could be held
outside the general population. See Florence at 152223. Strip searches of those who have been ordered
released ought to give this Court even greater pause, as
these individuals “are no longer prisoners in the eyes of
the law.” Barnes v. District of Columbia, 793 F. Supp.
2d 260, 289-90 (D.D.C. 2011).
The Eleventh Circuit decision ignores the Court’s
careful demarcation of its ruling, and answers the
questions this Court left open in favor of blanket strip
searches of all detainees entering the general
population in all circumstances, leaving nothing but
executive discretion between individuals arrested for
minor offenses, immigration offenses, or civil contempt

12
and the humiliation of a strip search—even if they
have not yet been arraigned, and even if they have
been ordered released. That executive discretion is not
to be trusted as a bulwark against arbitrary and
unreasonable searches. As the Petition describes,
individuals have been strip searched following arrests
for such trivialities as honking a car horn when it was
not an emergency, trespassing at an antiwar
demonstration, driving while a license was
inaccessible, making an illegal left turn, attending an
outdoor party without a permit, failing to disperse from
a political protest, driving with a suspended license,
falsely reporting an incident, refusing to sign a
summons for a leash law violation, failing to license a
dog, failing to appear in court for five-dollar parking
violations, driving with a noisy muffler, failing to use
a turn signal, and riding a bicycle without an audible
bell. Pet at 32-33 n.6.
The Eleventh Circuit’s extreme deference to prison
staff and misreading of this Court’s precedents to the
detriment of detainees are reminiscent of that Circuit’s
earlier decision in Hope v. Pelzer, 240 F.3d 975 (11th
Cir. 2001). There, the Circuit granted qualified
immunity to prison guards who cuffed a shirtless
inmate to a hitching post for seven hours, offered him
water once or twice, and never permitted him to use
the bathroom. Id. at 976. The Circuit concluded that,
because the facts of Hope were not “materially similar”
to those of its own prior cases finding use of the
hitching post unconstitutional, the defendants were
immune from suit. Id. at 981. This Court granted
certiorari and reversed. Hope v. Pelzer, 536 U.S. 730
(2002). The Eleventh Circuit had applied the wrong
standard for qualified immunity, despite “clear”

13
precedent from this Court rejecting the Circuit’s
approach. See id. at 741 (“Our opinion in [United
States v.] Lanier thus makes clear that officials can
still be on notice that their conduct violates established
law even in novel factual circumstances. Indeed, in
Lanier, we expressly rejected a requirement that
previous cases be ‘fundamentally similar.’”). The
Circuit had also ignored “clearly established” authority
from this Court, its own prior cases, a state regulation,
and a federal Department of Justice report indicating
that use of the hitching post was “a clear violation of
the Eighth Amendment.” Id. at 741-42.
The decision below merits review for analogous
reasons. In purported reliance on Florence, the
Eleventh Circuit conferred unlimited authority on
prison staff to conduct strip searches of anyone
introduced into the general population, even if there is
no reason to believe the person possesses contraband,
and even if there is no reason for introduction into the
general population because the detainee has not yet
been arraigned or has been ordered released. The
Circuit thus ignored this Court’s careful limitation of
its prior decision, with drastic consequences for the
hundreds of thousands of individuals detained
annually in that Circuit.
II.

There Are Feasible Alternatives to Blanket
Strip Searches, But the Eleventh Circuit
Rule Makes Them Irrelevant

The Court should also intervene now and reverse
the Eleventh Circuit’s decision because it discourages
the development and use of simple administrative and

14
technological alternatives to strip searches by making
their availability irrelevant.
Under this Court’s precedents in Bell v. Wolfish and
Florence, the reasonableness of strip searches “requires
a balancing of the need for the particular search
against the invasion of personal rights that the search
entails.” Bell, 441 U.S. 520, 559 (1979). See also
Florence, 132 S. Ct. at 1516 (“[t]he need for a particular
search must be balanced against the resulting invasion
of personal rights”). As both the Chief Justice and
Justice Alito identified in Florence, the need for a
search may depend on the existence of alternatives.
See 132 S. Ct. at 1523 (in upholding strip search of
detainee, finding it “important” that “there was
apparently no alternative . . . to holding him in the
general jail population”) (Roberts, C.J.); id. at 1524 (for
pre-arraignment detainees “who could be held in
available facilities apart from the general population[,]”
a strip search “may not be reasonable, particularly if an
alternative procedure is feasible”) (Alito, J.). The
Eleventh Circuit’s blanket strip search rule eliminates
the role of alternatives in the Fourth Amendment
analysis, and so removes the incentive to use existing
alternatives or develop additional ones.
This elimination of incentives to use effective, less
intrusive alternatives to strip searches is even more
troubling since feasible administrative and
technological alternatives already exist. The lynchpin
of the Eleventh Circuit rule is admission to the general
population. See Powell v. Sheriff, Fulton Cnty. Georgia,
511 F. App’x 957, 964 (11th Cir. 2013) (“At the end of
the day, each Plaintiff here—whether after a first
appearance hearing at the Jail or after court

15
returns—was actually placed in the general Jail
population and the challenged strip searches occurred
due to their entering for the first time or reentering the
general Jail population; thus, we conclude Plaintiffs
have not shown a violation of their constitutional rights
under the Fourth Amendment.”). Yet there are
numerous administrative alternatives to ensure that
those who do not need to enter the general population
are kept out of it, and so are not subjected to
unnecessary strip searches. For example, where
individuals have been ordered released by a court,
there is no reason that jail administrators could not
complete the release paperwork and check for any
outstanding warrants at the courthouse, rather than
returning detainees to the jail and placing them into
the general population solely in order to process them.
Both Los Angeles and the District of Columbia have
adopted this approach. See L.A. County Sheriff’s Dep’t,
17th Semiannual Report 75-76 (Nov. 2003),
http://file.lacounty.gov/lac/mbobb17.pdf.; Bynum v.
District of Columbia, 384 F. Supp. 2d 342, 344 (D.D.C.
2005). As another example, for those minor offense
detainees not yet arraigned by a neutral
magistrate—who thus may be ordered released on bond
or on their own recognizance—there is no reason why
administrators could not keep them outside of the
general population until they have made their first
court appearance. The facility at issue in the Petition
has sometimes done just that. Pet. at 7.
There are also alternative search techniques that
would permit the discovery of contraband without strip
searches. Pat-downs and passes will find anything
hidden under the clothing, but not in a body cavity.
See U.S. Dep’t of Justice, National Institute of

16
Corrections, Jails and the Constitution: An Overview,
at 35 (2d ed. Sept. 2007) (reviewing litigation over strip
searches, and concluding that “jail officials could not
show that any significant amount of contraband,
undetectable in a pat search, entered the jail via
persons arrested for minor offenses such as unpaid
parking tickets”). Body orifice scanner (“BOSS”) chairs
can be used to identify metal objects hidden in body
cavities. And more effective technologies are on the
near horizon. The National Institute of Justice has
funded the development of devices that use electric
field tomography (akin to an MRI) to detect not only
metallic objects, but also drugs, money, chemicals, or
any other foreign object inside a body cavity—without
forcing an individual to disrobe, take submissive
postures, and endure close visual inspection, and
without the apparent health risks of backscatter
machines. See, e.g., Ariel Whitworth, NIJ Update,
Detecting Contraband: Current and Emerging
Technologies and Limitations, Corrections Today, at
105 (Oct. 2010); see also http://www.nij.gov/topics/
technology/detection-surveillance/contrabanddetection/person.htm.
The Eleventh Circuit rule makes the availability of
these and any other administrative and technological
alternatives constitutionally irrelevant, eliminating
any legal incentive to take advantage of the
alternatives that already exist or to develop additional
ones, and entrenching the continued use of degrading,
traumatic, and unnecessary strip searches. This
Court’s intervention is warranted to reestablish the
importance of these alternatives in the Fourth
Amendment balancing analysis.

17
III.

Limiting
Strip
Searches
Before
Arraignment and After Release to
Instances of Individualized Reasonable
Suspicion Strikes the Appropriate Balance
Between Institutional Security and
Individual Privacy

Finally, this Court should grant certiorari in order
to establish that, before arraignment and after release,
the Fourth Amendment requires that strip searches be
supported by individualized reasonable suspicion. This
standard, which is the same applied to strip searches
of prison visitors, strikes the appropriate balance
between institutional security and individual privacy.
By the mid-1990s, “[i]n a long and unbroken series
of decisions by our sister circuits stretching back to the
early 1980s, it had become well established . . . that
strip searches of prison visitors were unconstitutional
in the absence of reasonable suspicion that the visitor
was carrying contraband.” Burgess v. Lowery, 201 F.3d
942, 945 (7th Cir. 2000). See also Wood v. Clemons, 89
F.3d 922, 928 (1st Cir. 1996) (“In determining the level
of individualized suspicion against which to test the
constitutionality of prison-visitor strip searches with a
view to striking the proper balance between respecting
the legitimate privacy expectations of prison visitors
and the need to maintain prison security, courts have
converged upon one common benchmark: the standard
of ‘reasonable suspicion.’”); Spear v. Sowders, 71 F.3d
626, 630 (6th Cir. 1995) (need for reasonable suspicion
was “clearly established” by 1990); Varrone v. Bilotti,
123 F.3d 75, 79 (2d Cir. 1997) (same); Hunter v. Auger,
672 F.2d 668, 674 (8th Cir. 1982); Thorne v. Jones, 765
F.2d 1270, 1277 (5th Cir. 1985).

18
The rationale for requiring individualized
reasonable suspicion for strip searches of visitors is
that, while their expectations of privacy are
“diminished” when they enter a prison owing to the
“exigencies of prison security,” visitors remain “free
citizens” who are separated from inmates by the
“‘harsh facts of criminal conviction and incarceration.’”
Blackburn v. Snow, 771 F.2d 556, 563 (1st Cir.
1985)(quoting New Jersey v. T.L.O., 469 U.S. 325, 338
(1985)). The same rationale applies to those who have
not yet been arraigned, or who have been ordered
released, and so need not be introduced into the
general population. Before arraignment, detention is
only for the purpose of ensuring that “the suspect will
[not] escape or commit further crimes while the police
submit their evidence to a magistrate.” Gerstein v.
Pugh, 420 U.S. 103, 114 (1975). After a release order,
detention is only for the purpose of conducting
administrative procedures incident to that release,
such as checking for warrants and confirming the
detainee’s identity. See, e.g., Brass v. County of L.A.,
328 F.3d 1192, 1199-1200 (9th Cir. 2003); Lewis v.
O’Grady, 853 F.2d 1366, 1370 (7th Cir. 1988). In both
situations, the “harsh facts of criminal conviction and
incarceration,” T.L.O., 469 U.S. at 338, separate the
individual who has not yet been arraigned or who has
been ordered released from the inmate held pending
trial on order of a neutral magistrate or following
conviction by a jury. The results of the Fourth
Amendment balancing test should reflect the different
purposes of detention, and the heightened liberty
interests of detainees, during these periods.

19
CONCLUSION
For the foregoing reasons, the Court should grant
the petition for writ of certiorari and reverse the
judgment of the Court of Appeals for the Eleventh
Circuit.
Respectfully submitted,
CHRISTOPHER A. WIMMER
Counsel of Record
EMERGENT LEGAL
25 Taylor Street, Suite 410
San Francisco, CA 94102
(415) 894-9284
cwimmer@emergentlegal.com
HOWARD A. FRIEDMAN
LAW OFFICES OF HOWARD FRIEDMAN, P.C.
90 Canal Street, 5th Floor
Boston, MA 02114
(617) 742-4100
LANCE WEBER
HUMAN RIGHTS DEFENSE CENTER
3878 Connecticut Street
St. Louis, MO 63116
(603) 903-3410
Counsel for Amici Curiae
Florida Justice Institute, Inc.,
Human Rights Defense Center,
National Police Accountability Project,
and Southern Center for Human Rights