Forum Right, 4/10/12

For the General Population: The Law Left a Solution

By AJ Wagner

In January I did a piece for my Law and Disorder column in which I described a case involving the search of a man’s penis. I set forth the standards for a strip search which come from a United States Supreme Court Case decided in 1979. Because the Fourth Amendment bans “unreasonable” searches, and because “unreasonable” is such a broad term, the Court sought a standard for police to follow. In the case of Bell v. Wolfish the Justices held, “[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of retained constitutional rights of both convicted prisoners and pretrial detainees.” The Court went further to say that prison security is “peculiarly within the province and professional expertise of corrections officials,” concluding that, “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these consid­erations courts should ordinarily defer to their expert judgment in such matters.”

For the ten years I was a judge in Montgomery County Common Pleas Court, I spent every week with dozens of prisoners sitting together in the jury box while I handled their cases. For the twelve or so prisoners in the seats there may have been four deputies in the courtroom. I rarely had any problems because the prisoners respected the deputies and seemed to respect the need the deputies had for doing their job. So did I.

The few times there was trouble I left the courtroom, as I was trained to do, and allowed the deputies to do their job, as they were trained to do. And they did. In the case of Florence V. Board of Chosen Freeholders of County of Burlington et al. the five justices of the majority followed this same course by using the test in Bell as a tip of the hat to professionally trained police who know much more about operating a jail than the Justices possibly could.

The Justices found no exaggeration in the possible danger of someone coming into the general population of a jail with hidden contraband, and approved strip searches for everyone to a assure everyone’s safety. Drugs coming into the general population of a jail, where serious criminals are being held, could cause an explosive problem. Weapons coming into the jail would be even more explosive.

Much has been made about the reach of this decision, but Justices Roberts and Alito were careful to limit the results of this decision only to those being admitted to the general population of a jail. Both justices were careful to note that any other kind of situation would need another look/see by the court thereby putting jailers on notice that the practice of strip searches should still be limited.

Specifically, Justice Alito said, “It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been re­viewed by a judicial officer and who could be held in avail­able facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible. For example, the Federal Bureau of Prisons (BOP) and possibly even some local jails appear to segre­gate temporary detainees who are minor offenders from the general population.”

So, the court left a solution – don’t lock up minor offenders with serious offenders. Keep them separate and stop the strip searches.

A.J. Wagner is a retired judge who is trying to decide what to be when he grows up. Reach DCP freelance writer A.J. Wagner at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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