The plaintiff’s daughter, a juvenile, was in a fight at school and was taken to juvenile detention. She was strip searched and subjected to a body cavity search yet was released fairly quickly. Partial summary judgment was granted the county for the search under Florence v. Board of Chosen Freeholders because it should apply to juvenile detention as well. Mabry v. Lee Cnty., 2017 U.S. App. LEXIS 3092 (5th Cir. Feb. 21, 2017):
As the district court noted, T.M.’s case “lies at the intersection” of Safford and Florence: both precedents share important similarities with the facts here, but neither is on all-fours. Mabry v. Lee Cty., 168 F. Supp. 3d 940, 945 (N.D. Miss. 2016). T.M.’s case is like Safford in that it involves the search of a minor student, and it is like Florence in that the search was conducted pursuant to routine intake procedures at a correctional facility. The first question we must address, then, is whether Florence or Safford—or neither—controls in cases when, as here, the inmate who is searched on intake into a correctional facility is a juvenile.
Only one of our sister circuits has addressed precisely this question since Florence was decided. In J.B. ex rel. Benjamin v. Fassnacht, 801 F.3d 336 (3d Cir. 2015), a minor was strip and cavity searched pursuant to routine intake procedures at a juvenile detention center. The Third Circuit held that Florence controlled for two reasons. First, focusing on the logic underlying Florence, the court asserted that “[t]here is no easy way to distinguish between juvenile and adult detainees in terms of the security risks cited by the Supreme Court in Florence.” Id. at 343. And, the court explained, because juveniles and adults pose the same security risks, it follows that the same constitutional test for reasonableness should apply in assessing searches meant to mitigate those risks. See id. at 344-45.
Second, the court in J.B. homed in on certain language in the Florence opinion that seems to indicate a broad scope of the holding, including Florence’s expansive definition of jail to include “other detention facilities.” Id. at 339 (quoting Florence, 132 S. Ct at 1513). The court noted that this “sweeping language … comports with the federal definition of prison: ‘[A]ny Federal, State, or local facility that incarcerates or detains juveniles or adults.'” Id. at 347 (quoting 18 U.S.C. § 3626(g)) (emphasis added). Thus, relying on its reading of Florence’s substantive logic and certain passages in the opinion’s language, the Third Circuit concluded that Florence controls in cases involving strip and cavity searches of minors.
The County urges us to follow the Third Circuit in holding that Florence controls in cases involving juveniles. Mabry and her amici argue that Florence does not control when minors are involved, and that we should instead apply Safford’s reasonable-suspicion test or some other alternative.
In explaining its motivation for shifting the burden of marshalling substantial evidence onto plaintiffs who challenge a search’s reasonableness, the Court in Florence stressed the deference owed to correctional officers. The reason for that deference is because courts do not have “sufficient expertise … to mandate, under the Constitution … specific restrictions and limitations.” Florence, 132 S. Ct. at 1513. “Maintaining safety and order” in correctional facilities “requires the expertise of correctional officials.” Id. at 1515. Consequently, “determining whether a policy is reasonably related to legitimate security interests is peculiarly within the province and professional expertise of corrections officials.” Id. at 1517 (internal quotation marks omitted). It is this expertise on the part of officials, and the lack thereof on the part of courts, that motivates the deferential test outlined in Florence.
Florence’s argument as to institutional competence applies with equal force to juvenile detention centers as it does to adult correctional institutions. That is, we can discern no reason why designing and implementing measures to maintain safety and order in juvenile detention centers requires any less expertise than in adult correctional facilities, nor do we see why courts are more competent to achieve the task in the juvenile context. Importantly, the persuasiveness of this point is not undermined by the fact that the actual security concerns and privacy interests implicated in the juvenile detention center context may be different in important ways from those faced in adult correctional facilities. See, e.g., Safford, 557 U.S. at 375 (noting that “adolescent vulnerability intensifies the patent intrusiveness” of a search); J.B., 801 F.3d at 343 (explaining that “juveniles pose risks unique from those of adults as the state acts as the minor’s de facto guardian … during a minor’s detention period”). Nevertheless, we read Florence to mean that, in the correctional context—whether juvenile or adult—courts, which are not experts, should still defer to officials who are. The logic underlying Florence’s deferential test thus compels the conclusion that the deference given to correctional officials in the adult context applies to correctional officials in the juvenile context as well.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)