Aaron Tang .

Posted Tue, October 11th, 2011 8:02 am

Florence v. Board of Chosen Freeholders of the County of Burlington

Today’s discussion in the Community concerns a case set for oral argument tomorrow, Florence v. Board of Chosen Freeholders of the County of Burlington.  The case poses the question of whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses.  For a preview of the case, check out Lyle Denniston’s coverage here; additional coverage is available here  and here.

Please share your thoughts on what you believe the Court should do and what you think it actually will do below.  Also feel free to discuss other interesting issues that you think may be at stake in this case.

Disclaimer: Goldstein & Russell, P.C. serves as counsel to the petitioner this case.

  • Aaron Tang – 0 Promoted Comments

    In this thread, discuss what you think the Court should do in Florence and why.

    • Erwin Chemerinsky – 3 Promoted Comments

      The Supreme Court should hold that the Fourth Amendment requires a jail to articulate a reasonable suspicion to strip search a person arrested for a minor offense. The strip search to which Albert Florence was subjected was degrading and humiliating. It was done in front of officers and other inmates. It was done without the slightest suspicion that Florence had contraband or weapons. The government has an unquestionable interest in security in its prisons and jails, but there is no reason to believe that requiring reasonable suspicion for a strip search will be less effective in achieving this goal. Over the last decades, since Atwater v. City of Lago Vista, the Supreme Court has held that individuals may be arrested for even the most minor infractions. This makes it all the more important that an arrest not automatically be the basis for a strip search which is inherently a serious invasion of privacy.

    • Craig Bradley – 1 Promoted Comment

      The issue in this case is whether an arrestee may be subject to a routine strip search at the jail, even for a non-indictable offense. This is a close one. The arrestee has an obvious privacy/ dignity interest here and the state has an equally obvious security interest. Petitioner claims that for such minor offenses as this one, failure to pay a fine which had been levied in another case , a routine strip search is unreasonable. The state, which can employ metal detectors and body searching Xray machines, ought to show reasonable suspicion before strip searching. The petitioner cited a Justice Department study suggesting that prison officials’ concerns about smuggling under these circumstances were overblown. The United States cited numerous newspaper accounts of arrestees smuggling weapons and contraband into jails, but most of these examples involved smuggling in body cavities, which wouldn’t necessarily have been detected by the strip search in this case.

      On balance, I lean toward Petitioner, though I admit I would prefer to be incarcerated in a jail where I knew that everyone, including me, had been subjected to both a strip and a body cavity search, and was thus certified as unarmed. This is a substantial invasion of privacy and ought to be justified by reasonable suspicion, even in the jail setting. We can’t let our paranoia about terrorism, or our indifference to the rights of incarcerated people, to trump legitimate concerns about human dignity. I expect the Supreme Court to go the other way, however.

    • Andrew Taslitz – 1 Promoted Comment

      Florence involves the strip search of a person mistakenly arrested on a no-longer-valid bench warrant for the non-indictable offense of civil contempt for failing to pay a fine. Florence and similarly-situated persons brought a class action against the Burlington County Jail where he was first admitted, the Essex County Correctional Facility to which he was then transferred, and other individuals and municipal entities under 42 U.S.C. § 1983. The District Court granted the plaintiffs’ motion for summary judgment on a claim of an unlawful search pursuant to the Fourth Amendment to the United States Constitution.
      But the United States Court of Appeals for the Third Circuit reversed. The Third Circuit relied on a broad reading of Bell v. Wolfish, 441 U.S. 520 (1979), which upheld a correctional center policy of strip-searching inmates after contact visits. The Third Circuit stressed the importance of deferring to corrections professionals on matters of safety and health. The Third Circuit saw dangers of gang violence, gang coercion of even otherwise non-dangerous arrestees, drug-distribution risks, dangers of spreading disease, and the difficulties of distinguishing between minor and major offenses of arrest as amply justifying the policy in Florence. Nor did the court deem it appropriate to require authorities to follow less-restrictive alternatives or prove a danger or history of harm from minor-offense arrestees. The court also rejected the plaintiffs’-proffered alternative standard permitting strip searches only upon reasonable suspicion that a minor-offense arrestee poses one of the listed dangers. Such case-specific judgments, concluded the Court, vested the officers with too much discretion, raising risks of abuse. Moreover, though these brief strip searches were significant intrusions, the court suggested that they were not so invasive here as to warrant much weight in the Fourth Amendment process of balancing state against individual interests.
      In my view, the Third Circuit erred. As a brief filed by psychiatrists on the cert petition explained, strip searches have particularly harmful and often long-lasting psychological effects, even when brief. They are humiliating and dehumanizing. Deference to correctional authorities’ judgments makes little sense when cheap, effective alternatives to protect safety are available. Those alternatives include pat-down searches of minor-offense arrestees, metal detectors, and random searches of pretrial detainees’ cells. More-invasive techniques can be allowed upon reasonable suspicion, and reasonable suspicion can be readily, even categorically, established in the detention context for misdemeanors involving weapons, drugs, or violence. Nor does a blanket police of corrections officers strip-searching all arrestees protect health; only medical professionals are qualified to identify diseases and the risk of their spread. ABA and American Correctional Association Standards, legislation in many states, and common practice recognize the wisdom of this approach and its easy administrability. Indeed, decades of experience have revealed no problem with administering a reasonable suspicion rule for arrestees for minor offenses not involving drugs or violence. Bell does not control because it involved contact visits, a circumstance posing far greater dangers of contraband exchange than does arrests. Indeed, former Attorneys General of New Jersey filed a brief agreeing with this approach and finding no evidence of its raising problems anywhere, much less in their experience in New Jersey. A report of the Department of Justice likewise concluded that those correctional officials supporting strip searches under these circumstances simply exaggerated the legitimate security interests. Deference to correctional authorities may make sense in some settings but not here. The Court should reverse the Third Circuit’s decision.

    • David Steinberg – 1 Promoted Comment

      What does the Fourth Amendment tell us about strip searches at prisons and police stations? In my opinion – nothing. As I have argued in the past, the framers intended that the Fourth Amendment only would prohibit unlawful physical trespasses into homes, pursuant to a general warrant, or no warrant at all. See, e.g., David E. Steinberg, Restoring the Fourth Amendment: The Original Understanding Revisited, 33 Hastings Const. L. Q. 47, 81 (2005). The Fourth Amendment never was intended to apply to other problems – such as the strip search policy in Florence.

      Of course, strip searches at prisons raise important privacy interests, and important state interests in protecting safety and security. But these competing interests should be weighed by local elected legislators as a matter of policy, and not by appointed federal judges purporting to make constitutional law.

      Think about it. Do the current Supreme Court Justices have any experience running a prison?

    • Paul Castiglione – 1 Promoted Comment

      A blanket strip search policy (i.e., a mandatory policy of body cavity searches for all detainees after contact visits with outsiders) protects all persons in the jail community: detainees charged with lesser or greater offenses, jail guards and staff. In Bell v. Wolfish, the Court held that the imposition of such a policy in a correctional facility does not violate the Fourth Amendment. In the years after Bell, circuit after circuit failed to follow Bell opting instead to apply a “reasonable suspicion” standard when determing whether a strip search policy in a correction facility violates the Fourth Amendment. This consistently inconsistent application of Bell has left jailers throughout the nation with: (1) no clear guidance on how to search detainees entering or re-entering their facilites and (2) potential catastrophic liability from lawsuits, such as Young v. County of Cook, challenging strip search policies that the Court approved in Bell. In recent years, however, decisions from three circuits (the Third, Ninth and Eleventh) have been faithful to Bell.

      The Court should resolve this circuit split and give jailers clear guidance on the constitutionality of strip searches as a valid security measure. Jails and prisons in this nation have different sizes, jail populations and available resources. As a result, the Court should adopt an approach that considers these variables when balancing the individual rights of persons entering a jail and the security concerns of jailers. The correct approach, in my view, is the application of the first, third and fourth factors from Turner v. Safley to any Fourth Amendment challenge to a strip search policy at a jail. The applicable Turner factros provide an ad hoc approach to this sometimes difficult Fourth Amendment issue. After all, security risks will be different from facility to facility, as will the available resources. The reasonable suspicion standard does not take into account the differences in security concerns at large county jails such as Cook County Jail and Rikers Island on the one hand and small county jails on the other. Moreover, in focuisng exclusively on the interests of persons charged with misdemeanors or lessor offenses — something that Bell does not command — the reasonable suspicion standard fails to recognize that a blanket strip search policy protects the safety of all detainees in a jail, regardless of the severity of the charge against them.

      It is my hope that in Florence, the Court, like the Ninth Circuit sitting en banc in Bull v. City and County of San Francisco, adopts the flexibleTurner approach, as this standard provides guidance to both lower courts and jailers who attempt to balance serious security concerns with the right of detainees under the Fourth Amendment.

    • James Mets – 1 Promoted Comment

      The United States Supreme Court’s decision in Florence v. County of Burlington will have a profound effect on the safety and security of correctional facilities and the correctional officers who work in them. As the Court held in Bell v. Wolfish, “[a] detention facility is a unique place fraught with serious security dangers.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). Affirming the Third Circuit’s decision will make these facilities safer. Visual inspection of an inmate prior to their incarceration in the general population can uncover secreted contraband, reveal gang affiliations and aid in the identification of inmate’s with certain diseases. Preventing contraband from entering the general population is essential to the safety of the prison environment. In addition, identifying ill individuals will allow for appropriate treatment, while at the same time keeping corrections officers, staff, and other inmates from being exposed to deadly diseases like MRSA. Keeping prisoners in rival gangs separated further bolsters the safety of a correctional facility.

      The Court has historically focused on the security of the correctional facility. “Central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.” Bell, 441 U.S. at 546-47, (citing Pell v. Procunier, 417 U.S. 817, 823 (1974)). Affirming the Third Circuit’s decision in this matter will foster that goal. Accordingly, the Court must affirm the Circuit Court’s decision.

  • Aaron Tang – 0 Promoted Comments

    In this thread, discuss what you think the Court will do in the case and why.

    • David Moran – 1 Promoted Comment

      The Fourth Amendment protects us from “unreasonable” searches and seizures. Ten years ago, in Atwater v. City of Lago Vista, the Court held, 5-4, that it’s not unreasonable for the police to custodially arrest, that is, handcuff, stuff into the back of a police car, and take to jail, people for the most petty crimes, even traffic offenses that carry no possibility of jail, such as the seat belt violation in Atwater. If Mr. Florence loses his case, it means that the police can, without violating the Fourth Amendment, take any of us into custody for the completely trivial offenses that most of us commit every day (speeding, jaywalking, etc.) and then subject us to a strip search.

      For some 30 years, the federal circuits had unanimously held that people cannot be subjected to strip searches when briefly jailed for minor offenses, absent some indication that they’re carrying contraband or weapons. But three circuits in recent years broke with that precedent and authorized blanket strip searches. In his intriguing concurring opinion in the 9th Circuit case overruling its prior precedent limiting such searches, Alex Kozinski argued that the prior decisions amounted to judges drawing lines designed to prevent the authorities from strip searching people who look like those judges, i.e., soccer moms like Gail Atwater. Judge Kozinski’s point is a good one, as far as it goes; the test for an unreasonable search shouldn’t turn on whether intrusive governmental action could happen to people like us. But it still begs the question: isn’t it unreasonable to strip anyone naked and closely inspect that person’s anus and genitals when that person has been taken into custody for a petty offense with no indication of violence or contraband? It’s hard for me to see how any reasonable person can answer that question in the negative. The fact that this Court may well do so illustrates just how far our Fourth Amendment jurisprudence has strayed from the common understanding of “unreasonable.”

    • John Wesley Hall – 1 Promoted Comment

      At issue in Florence is “reasonableness” of a jail strip search of a man brought in because of a computer error on whether he had paid a past traffic fine. In Bell v. Wolfish the Court held that pretrial detainees in the Manhattan MCC could be strip searched during their confinement because it was reasonable on a balancing of interests.

      Those detainees, however, were either held on a criminal complaint or indicted. How does that relate to an accidental arrestee, a person brought to jail because of an erroneous traffic warrant that arose after the person was stopped on the street by chance, and a warrant comes up when his driver’s license number is run?

      Reasonableness has always been stated by the Court to be the “fundamental inquiry” (see, e.g., United States v. Chadwick) or “touchstone” in Fourth Amendment cases. (see, e.g., Robinette v. Ohio; Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls). Was it reasonable to strip search Mr. Florence when there was virtually no chance he would be introducing a weapon or contraband into the jail? Does the Fourth Amendment “reasonableness” and balancing inquiry permit the Court to find this strip search invalid in light of what some members of the Court will undoubtedly see as the weighty interest in jail security automatically tipping the balance for the government?

      And what about “lesser-intrusive means”? An accidental detainee like Mr. Florence should not be subjected to the indignity of his strip search. Even so, how does one apply such a rule (a “bright-line rule”?) so jailers will understand it? That didn’t stop the Court in holding that a detainee couldn’t be detained more than 48 hours without seeing a judicial officer for a probable cause finding in County of Riverside v. McLaughlin, but that case did not involve jail security. But, Earls refused to even going in the “lesser-intrusive measures” for drug testing students. Indeed, such a standard has always been scrupulously avoided by the Court. (See, e.g., United States v. Martinez-Fuerte and Colorado v. Bertine).

      An irony lost on the parties [only one respondent mentions it in passing for something else] is Herring v. United States holding that the exclusionary rule would not be applied to persons arrested and then searched on accidental warrants because there was only mere negligence in not purging the warrant. Now, that mere negligence leads to the gross indignity of a strip search of a man with papers in his car showing that the warrant for him is bogus.

      If Mr. Florence loses, then we have a fait accompli. “Reasonableness” has been forever subordinated to “jail security,” and mere incantation of the words makes the Fourth Amendment evaporate in any jail setting. No exclusionary rule under Herring; no civil action under Florence; the government can’t lose; perfect. Is that where we are headed? Gail Atwater’s driving without a seat belt would then have caused her to risk being strip searched because her arrest was valid under the Fourth Amendment even though the offense was “fine only.” And what about retaliatory arrests for “contempt of cop”? Can officers then arrest people to purposely add to their indignity knowing that a strip search will occur, too? That already happens with automobile searches, so why not for any arrest?

    • Laurie Levenson – 2 Promoted Comments

      The question of whether strip searches should be permitted for all arrestees is essentially a question of whose ox is being gored. If one identifies with the arrestees, then the answer will plainly be no. Strip searches are undignified and frequently unnecessary. However, if one identifies with prison guards who face the challenge of managing overcrowded jails at which contraband and weapons are smuggled in regularly, including by low-ranking gang members deployed to be arrested for just such purposes, the answer is likely to be yes.

      What is likely to be on the Justices’ mind when they hear this case? Certainly, they will look to reconcile any decision with Bell v. Wolfish, 441 U.S. 520 (1979). However, the real challenge of counsel on both sides is to get the Justices to “feel their pain.” In Safford Unified Sch. Dist. #1 v. Redding, 129 S.Ct. 2633 (2009), Justices were able to identify with what it was like for a teenage girl to be subject to a strip search. Once the Justices appreciated the indignity of Savana Redding’s position, they refused to give carte blanche to the school officials. Florence needs to get the Justices to stand in his bare feet and then ask whether jail security really depends upon the routine strip search of all arrestees, including those who pose no danger to correctional officers or institutional security.

    • Bradley Smith – 3 Promoted Comments

      CORRECTION: It has been brought to my attention that the deadly weapon charge was dropped (and was rather pointless to begin with). I missed that clarification in my reading. I apologize. I do not think this in any ways hinders the overall point I was trying to make, as I think Florence’s personal circumstances will have little to no impact on the overall holding make by the Court. However, for the sake of accuracy, a corrected version is provided below.

      It seems likely that the Court will side with Burlington County. While it may be unfortunate that strip searches are necessary, such a degrading practice is helpful to maintain security.

      Finding weapons and contraband before they are introduced into the prison environment is necessary for the security of prisoners, prison workers, and the community. The discovery of said items is predicated on being able to search a person for them, and search them thoroughly. If a person knows they can smuggle something into a jail by hiding it in their anal cavity, the only way to prevent that is to search that area.

      That is not to say that a blanket policy on searching everyone is warranted, nor do I think the Court would go so far as to require or recommend such a policy be enacted. I think that this case will be used as a vessel to clarify Bell V. Wolfish and bring it in line with modern views on security.

      To clarify, some degree of judgment on the part of prison staff is necessary. Some circumstances, such as the those present in this case, are definitely a legal gray area. However, it seems best that that be preserved, as a bright line could have the unfavorable effect of harming prison security, or needlessly requiring every random person who is arrested to be subject to what could reasonably be seen as a traumatizing experience.

      It seems best that the ability to conduct a search of this magnitude be preserved, although hopefully it would not be used on someone detained for one night due to being drunk in public, or in other circumstances that on the whole would be viewed as having no tangible, useful impact on security.

      This largely comes down to the individual facts of a case. I cannot see the Justices taking a firm stance either for or against the searches, although I could see them further clarifying the circumstances under which they ought to be performed.

  • Aaron Tang – 0 Promoted Comments

    In this thread, discuss whether there are particular aspects of the case that you think warrant the attention of the legal community or press, but haven’t yet received it.

    • Garrett Epps – 2 Promoted Comments

      I think the most interesting aspect of Florence is one that will probably encounter little or no discussion at oral argument. That is: what does the interaction of this case with United States v. Jones say about the present state of democracy and civic life in the United States, post 9/11? Remarkably enough, we live in a nation in which the federal government asserts the power to maintain 24-hour electronic surveillance on any citizen without any grounds for suspicion, and a state government now asserts the power to strip search any citizen detained for any reason–even a non-criminal one–without any suspicion. The security needs of the state are being asserted with increasing urgency in both prison and national security cases, and the question is whether the countervailing tradition–that Americans not convicted of any crime retain a basic core of dignity and privacy rights–will be asserted as well. Of course general propositions, as we all know, do not decided concrete cases. But the questions the Justices ask at oral argument will tell us what specific questions shape the story in their minds–innocent citizen, reduced to a naked object despite every effort to demonstrate compliance with the law, or beleaguered system of crime control surrounded by dangerous forces seeking to subvert it. Albert Florence’s case illustrates the thin line between law-abiding citizen and inmate; it can be crossed by reason or a void warrant, or because a driver seeks to leave a parking garage when she finds no empty spaces. The Court may make it more dangerous to blunder across that line, or signal caution to jail authorities.

    • Brooks Holland – 1 Promoted Comment

      Albert Florence’s claim that he should not have been strip-searched at two county jails absent reasonable suspicion presents the kind of security-privacy debate we expect from a Fourth Amendment case. Yet, I was struck with how many times Florence’s briefs assert not only privacy, but “dignity,” as a personal interest that must be weighed against the State’s interests. Florence’s opening brief refers to dignity approximately a dozen times, and his reply brief a half-dozen times. In one example, Florence argues that a strip search constitutes “an extraordinary, almost unparalleled, intrusion into personal privacy and dignity.” Florence Reply Brief, 2011 WL 4500813 at *1.
      The Supreme Court has invoked “dignity” in various constitutional decisions, including Fourth Amendment decisions, but the Court has not confirmed dignity as a doctrinal measure of the Fourth Amendment. In Schmerber v. California, the Court held that “[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” But the Court failed to analyze how dignity may differ from privacy, and was consistent with the blood sample extraction upheld in Schmerber. Similar dignity references, and lack of dignity analysis, can be found in a handful of other Fourth Amendment cases, such as Skinner v. Railway Labor Executives, Ass’n (1989), Wyoming v. Houghton (1999), and City of Ontario v. Quon (2010).
      Perhaps Florence emphasizes a dignity interest against strip searches because he worries the Supreme Court will recognize only minimal traditional privacy interests in jails. The Supreme Court did observe in a recent Eighth Amendment case that “[p]risoners retain the essence of human dignity inherent in all persons.” Brown v. Plata (2011). Some scholars have called for more robust dignity doctrine under the Fourth Amendment. See e.g., John Castiglione, Human Dignity under the Fourth Amendment, 2008 Wis. L. Rev. 655. Strip searches could fit this bill, and Florence and some of his amici describe what harm to dignity may resemble—humiliation, degradation, and psychological trauma. I wonder whether Florence will clarify the role, if any, of dignity interests under the Fourth Amendment?

    • Eve Brensike Primus – 1 Promoted Comment

      The expected focus of Florence is on how the Court will perform the reasonableness balancing test that is now at the heart of administrative search doctrine. How strong is the government’s interest in preventing contraband and weapons from entering a detention facility? How much does a general strip-search policy serve that government interest? How invasive are these strip searches? And how does this balancing of interests differ from the balancing of interests that the Court addressed in Bell v. Wolfish when it upheld as constitutionally reasonable strip searches of pre-trial detainees after contact visits?

      What is missing from this analysis is critical discussion of whether such a balancing test is appropriate for analyzing the kind of administrative search that is at issue in Florence. The Florence search is a general dragnet: every person arrested is strip-searched on entry into the detention facility, without exception. Once upon a time, dragnet administrative searches could only be justified on general reasonableness balancing grounds if it were clear that the relevant governmental interest could not be satisfied with a regime of searches based on individualized suspicion: only where individualized suspicion regimes were unworkable could the government impose dragnets at all. There is no good reason why administrative search doctrine has abandoned that requirement; it should be restored. And given that eighteen states use individualized suspicion regimes to decide whom to strip-search on entry to detention facilities, it is hard to argue that individualized suspicion is an unworkable way to satisfy the government’s admittedly important interest in promoting a safe corrections environment.

  • Kenneth Flaxman – 1 Promoted Comment

    A sleeper issue in Florence is whether the case fairly presents the broad question presented, either as framed by the petitioner (“a suspicionless strip of every individual arrested for any minor offense?”) or as reformulated by respondents (and amicus United States) (limiting the case to “conducting strip searches of all incoming detainees who will be placed in the general prison or jail population”)

    Florence was detained because a computer check, ran during a traffic stop, showed that he was sought in a civil contempt warrant. New Jersey procedure required that the officer bring Florence “before the nearest available committing judge authorized to admit to bail.” Instead, the officer brought Florence to the local jail, which held him for six days awaiting a 70 mile trip to the jail in the county where the warrant had been issued. Florence was held at the second jail overnight and then released when he finally saw a judge.

    Some members of the Court might well focus their questions on the unique facts about Mr. Florence, and question whether he is really the right person to mount a class challenge to the strip search policies at two jails, especially after Walmart.

  • Rory Little – 2 Promoted Comments

    Sorry, did not initially see this separate posting option.
    I would like to raise the question why there is not an Equal Protection claim here. I understand that “rational basis” is often no limit at all, although one can argue that the right to personal bodily privacy is a fundamental right requiring stricter scrutiny. But putting aside the “test,” the case to me presents an actually powerful question. Not everyone is strip searched upon entry to a jail. Most particularly not staff, that is, guards. Yet empirically it is indisputable, is it not, that guards are as large or larger a source of problem materials (weapons, cellphones and drugs) than arrestees. Particular arrestees for “minor” offenses. Honestly, given the empirical reality, where is the rationality of strip searching one class and not the other?
    And it seems to me that if guards were subject to the same strip search policy — not to mention wardens — then a more discriminating system would be put in place.

  • David LeRoy – 4 Promoted Comments

    What the petitioner is arguing for here is that prison officials use commonsense when conducting strip searches. Respondents are arguing for the right to conduct strip searches on a blanket basis given the possibility of bringing contraband into the prison upon intake. Personally, I will always fall on the side of commonsense versus blanket treatment when it comes to something as personal as searching one’s body cavities whether they “squat and cough” or Nurse Ratched puts on the rubber glove. The fact that Mr. Florence in this case, and many others similarly situated, is treated in this demeaning manner- the same as actual convicted felons- is a disgrace, especially in light of the actual facts of this case (he was arrested due to a clerical error in removing a warrant from the system).
    Granted, upon intake, it may be administratively more convenient to just strip search and perform body cavity searches despite the number of feet between the prisoner and the prison official or whether they “squat and cough,” but is administrative convenience a justification for violating a constitutional right? I will also grant that prison officials really do not know the facts regarding who they are processing, but certain inferences can be made from the nature of the alleged crime. Should the drug dealer or user or the person arrested for a more serious offense other than an alleged outstanding warrant for a traffic violation be searched more closely? Absolutely. All petitioners ask here is that commonsense be exercised and not rely on those rare anecdotal cases that fly in the face of the scant empirical evidence. As Sotomayor noted, at some point empirical evidence has to play a role in determining “reasonableness.”
    Unfortunately, however, in the end I believe the Court will decide in favor of Respondents in this case given their deference to law enforcement officials in many contexts. Surprisingly, I think Alito will be in the minority.

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