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Abstract

Part I is a brief history of Search and Seizure law, focusing on seismic doctrinal shifts that occurred from the 1950s to the present. As a framework for the important cases, the Founders’ concerns about abuse of governmental authority are discussed, as well as the rights protected by the Fourth Amendment. Various governmental programs will also be presented, such as the War on Drugs and its call for a large-scale federal anti-drug policy, first initiated by President Richard Nixon in 1969. Part II is a description of the central reasoning presented in Florence v. Board of Chosen Freeholders, including the majority opinion written by Justice Kennedy and also the concurring and dissenting opinions. Part III will be a discussion of the four major cases that the Supreme Court relied upon in Florence: Bell v. Wolfish, Hudson v. Palmer, Turner v. Safley, and Atwater v. Lago Vista. Part IV presents four major points that emerge from Albert Florence’s predicament and the Florence decision. First, Florence’s arrest and detention was predicated on law enforcement’s overreliance on information databases, which in this case contained inaccurate information. Second, strip searches degrade those subjected to them and, in the vast majority of cases, are simply unnecessary. Indeed, the bodily submission, surveillance, and inspection entailed in strip searches eerily resembles previous rituals of coercive, discriminatory race-making, especially those associated with slave markets. Third, Justice Kennedy’s endorsement of categorical rules and “bright line” tests as constitutional guides for law enforcement practice puts far too much discretionary power in the hands of law enforcement and invites abuse of authority. Ironically, in recent Fourth Amendment decisions involving searches of automobile occupants, the Court has criticized and limited the application of bright line rules due to similar concerns about abuse of police authority. Fourth, the Florence decision and categorical strip searches both exemplify policies informed by fear, which oscillate between depictions of inflammatory dangerousness and super villains, like Timothy McVeigh, and hyper-vigilant, risk management. The paper concludes with a discussion of the possible repercussions and legacy of Florence on future Fourth Amendment litigation involving jails and prisons.

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