Florence v. Board of Chosen Freeholders: Police Power Takes a More Intrusive Turn

This symposium affords an opportunity to reflect upon the combined force of Florence and one of its foundational precedents, also decided by a 5-4 vote: Atwater v. City of Lago Vista. In Atwater, the Court afforded police explicit authority to arrest individuals for very minor offenses (there failure to wear a seatbelt) without a warrant, paving the way not only for arrests such as experienced by Albert Florence, but also a myriad of others, based on laws contained in state, local and federal codes. With Atwater, the Court refused to limit the governmental power to subject individuals to the trauma and inconvenience of arrest; with Florence, the Court significantly augmented the personal consequences of arrest, allowing visual inspections of individuals’ most intimate areas by jail personnel. This paper starts with an overview of Florence, discussing its facts and holding.

Part II examines the critically important way in which Florence builds upon the already expansive discretionary authority of police to arrest individuals for minor offenses. Part III and the Conclusion consider possible future developments.