                                   In the

       United States Court of Appeals
                     For the Seventh Circuit
                         ____________________
No. 15-2905
DARNELL FONDER, THERESA DIETZ, and STEVEN MOORE, indi-
vidually and on behalf of a class,
                                    Plaintiffs-Appellants,

                                      v.

SHERIFF OF KANKAKEE COUNTY, ILLINOIS, and KANKAKEE
COUNTY, ILLINOIS,
                                 Defendants-Appellees.
                         ____________________

                Appeal from the United States District Court
                    for the Central District of Illinois.
                 No. 12-CV-2115 — Colin S. Bruce, Judge.
                         ____________________

         ARGUED APRIL 18, 2016 — DECIDED MAY 26, 2016
                   ____________________

  Before EASTERBROOK and SYKES, Circuit Judges, and
ADELMAN, District Judge. *
  EASTERBROOK, Circuit Judge. The Sheriff of Kankakee
County, Illinois, has a written policy requiring a careful vis-


   *   Of the Eastern District of Wisconsin, sitting by designation.
2                                                   No. 15-2905

ual inspection (a “strip search”) of every arrestee before that
person enters the general population at the Jerome Combs
Detention Center. The policy permits manual body-cavity
inspections of some arrestees. Three arrestees filed this suit
to contest the Sheriff’s policy to the extent it applies to per-
sons whose custody has not yet been approved by a judge.
(Police may take as long as two days before presenting an
arrested person to a judge for a probable-cause determina-
tion. See Riverside County v. McLaughlin, 500 U.S. 44 (1991).)
    The district judge certified this class: “All persons held in
the custody of the Sheriff of Kankakee County from April 20,
2010 to the date of entry of judgment who, following a war-
rantless arrest, were strip searched in advance of a judicial
determination of probable cause.” 2013 U.S. Dist. LEXIS
148026 at *11 (C.D. Ill. Oct. 15, 2013). The court later held
that the Sheriff’s policy is valid as applied to the class so de-
fined. 2015 U.S. Dist. LEXIS 177622 (C.D. Ill. Aug. 24, 2015).
    That decision relies principally on Florence v. Burlington
County, 132 S. Ct. 1510 (2012). The Court held in Florence that
the Constitution permits officials to conduct strip searches
and body-cavity inspections of arrested persons before they
enter a jail’s general population. The Justices observed that
arrestees may be concealing drugs, knives, money, or other
contraband (including sharp objects such as pens that may
be used as weapons); may have diseases (or just be carrying
lice); and may have gang tattoos that could lead to violence.
Custodians are entitled to take precautions before placing
new arrivals in the general population. Florence rejected a
contention that persons arrested for minor offenses must be
excluded from these searches. 132 S. Ct. at 1520–21.
No. 15-2905                                                   3

    The district court thought the approach of Florence sound
whether or not a new arrival has been taken before a judge.
That makes sense: the Court’s rationale depends on the ar-
rested person’s placement in the general population, not on
the way in which pretrial custody has been justified (by in-
dictment, arrest warrant, or post-arrest judicial ruling about
probable cause). The need to find weapons and contraband
is greatest on a person’s initial arrest; postponing inspection
until after a probable-cause hearing misses the opportunity
to keep contraband or disease out of the general population.
But there is a mismatch between the rationale of Florence and
the class definition in this suit—for the class includes all ar-
restees, whether or not they enter a jail’s general population.
    Chief Justice Roberts and Justice Alito both concurred
specially in Florence to warn against reading the Court’s
opinion to authorize automatic strip searches of people who
are not bound for the general population. As Justice Alito
observed, many arrestees are released without going into the
general population. 132 S. Ct. at 1524. Some are not detained
beyond the time needed to post a bond; others may be held
in areas devoted to arrestees whose custody has not received
judicial approval. And the record of this case demonstrates
the point. At least two members of the class—Zorica Petrovic
and Cyquim James—contend that they were arrested, strip
searched, and then immediately released. Perhaps others are
in that category. If they are telling the truth, they have good
claims that their rights have been violated. Yet they are
members of the class defined by the district court and so are
barred by principles of preclusion from filing their own
suits.
4                                                  No. 15-2905

    There is another problem with the district court’s disposi-
tion: the policy in practice may differ from the policy as writ-
ten. During discovery several guards testified that they per-
mit arrestees to undress behind a curtain, take a shower, and
don prison-issued clothing before emerging. Other guards
said that they require arrestees to undress and shower in
front of them, but the guards avert their eyes or give only
cursory attention. Still other guards stated that they conduct
strip searches or body-cavity inspections only for persons
charged with certain crimes, or when the arresting officers
suggest a strip search. The district court did not determine
whether these guards correctly described the jail’s practice.
Instead the judge found that the power to conduct a strip
search of every arrestee implies the lesser power to inspect a
subset of all arrestees.
    That approach is not sound. Florence deemed the strip-
search policy reasonable precisely because every arrestee go-
ing into the general population was examined for contra-
band, lice, disease, and gang tattoos. Searching half or two-
thirds or four-fifths of the new arrivals will not prevent the
introduction of lice or disease, or outbreaks of gang violence,
and it cuts down the ability of the policy to curtail contra-
band. Indeed, Florence observed that, if some new arrivals
are exempted from inspection, inmates may rely on them (or
perhaps compel them) to import drugs, cell phones, money,
knives, or other forbidden articles. 132 S. Ct. at 1521. If some
guards predictably fail to inspect new arrivals closely, that
creates a reliable way to smuggle contraband into a prison.
And searching on an arresting officer’s say-so poses a risk of
harassment, or letting the process be the punishment.
No. 15-2905                                                      5

    Kankakee County does not contend that it would be rea-
sonable to inspect a subset of all newly arriving inmates. In-
stead it denies that any guards deviate from the written poli-
cy. But we have read the guards’ declarations, and several of
them say that they are implementing their personal ideas
about how much visual inspection is needed. If these state-
ments reflect ongoing behavior, then it is hard to see how
Florence can supply the support that the Sheriff’s policy
needs. The record as it stands presents a disputed question
of material fact that may require a trial to resolve, unless the
parties can work out their differences by stipulation.
     The district judge implied that the class had waived or
forfeited its opportunity to contest how the policy works in
practice by proposing a definition that includes all newly ar-
rested persons. Yet when this suit began, and the definition
was proposed, class counsel had no reason to think that the
jail’s staff was doing something other than what the written
policy requires. Classes are certified early in a suit. Fed. R.
Civ. P. 23(c)(1)(A). All certifications are tentative. Fed. R. Civ.
P. 23(c)(1)(C). If the evidence calls into question the propriety
of defining a class in a particular way, then the definition
must be modified or subclasses certified. A class defined ear-
ly in a suit cannot justify adjudicating hypothetical issues
rather than determining the legality of what actually hap-
pens. The class definition must yield to the facts, rather than
the other way ’round.
     The judgment is vacated, and the case is remanded for
proceedings consistent with this opinion.
