JAILS / CORRECTIONS
11th Circuit: Strip Searches in Jails / Detention Centers
by Jack Ryan, J.D.
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Contrary to the holdings of the other United States Courts of Appeals, the United States Court of Appeals for the 11th Circuit has held that blanket strip searches of arrestees who will be placed in the general population of the jail are justified even without reasonable suspicion to believe that the arrestee is in possession of a weapon or contraband.i
At the outset the court noted the issue:
We granted rehearing en banc to decide whether a policy or practice of strip searching all arrestees as part of the process of booking them into the general population of a detention facility, even without reasonable suspicion to believe that they may be concealing contraband, is constitutionally permissible. We answer that question in the affirmative, at least where the strip search is no more intrusive than the one the Supreme Court upheld in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979).
The court went on to outline the process by which each of the plaintiffs in the case was strip searched at the Fulton County Jail:
The allegations are that four of these five plaintiffs were taken to the Fulton County Jail for detention after being arrested on relatively minor charges: a bail revocation on a disorderly conduct charge, a traffic ticket warrant, a DUI charge, and a contempt charge for failure to pay child support. Powell, 496 F.3d at 1312; (R6:78:P89.) The fifth plaintiff in this group was arrested on a burglary charge, which we (like the panel) assume did not involve an element of violence. Powell, 496 F.3d at 1312 & n.32.
"Every person booked into the Fulton County Jail general population is subjected to a strip search conducted without an individual determination of reasonable suspicion to justify the search, and regardless of the crime with which the person is charged." (R6:78:P180.) The booking process includes "having the arrested person go into a large room with a group of up to thirty to forty other inmates, remove all of his clothing, and place the clothing in boxes." (Id. P 181.) The entire group of arrestees then takes a shower in a single large room. (Id. PP182, 238.) After the group shower each arrestee "either singly, or standing in a line with others, is visually inspected front and back by deputies." (Id. P183.) "Then each man [takes] his clothes to a counter and exchange[s] his own clothes for a jail jumpsuit." (Id. P 239.) Identifying an illustrative case, the complaint alleges that one of these five plaintiffs "along with every other inmate in the process, had to stand before a guard front and center, and show his front and back sides while naked." (Id. P240.) There is no allegation that any members of the opposite sex either conducted the visual searches or were present while they were being conducted. Nor is there any allegation that the searches were conducted in an abusive manner. See Powell, 496 F.3d at 1310 n.28 ("We note that, in the instant case, Plaintiffs do not challenge the manner of the strip searches.").
The five plaintiffs contend that the strip searches violated the Fourth Amendment because there was no reasonable suspicion to believe that any of them had hidden contraband.
In validating the search policy, the court reasoned:
The reasoning that leads us to uphold the searches of these five plaintiffs is simple. After balancing the privacy interests of detention facility inmates against the important security interests involved, the Supreme Court upheld the visual body cavity strip searches at issue in the Bell case against a Fourth Amendment attack. The security needs that the Court in Bell found to justify strip searching an inmate re-entering the jail population after a contact visit are no greater than those that justify searching an arrestee when he is being booked into the general population for the first time. And the searches conducted in the Bell case were more intrusive, and thereby impinged more on privacy interests, than those conducted in this case. It follows from the Bell decision that the less intrusive searches in this case do not violate the Fourth Amendment. That is the gist of our reasoning, the details of which follow.
While recognizing that the other circuits, as well as previous cases decided in the 11th Circuit had reached the conclusion that reasonable suspicion was a pre-requisite for the strip searches of arrestees entering a jail, the court went on to conclude that these requirement were inconsistent with the United States Supreme Court decision in Bell v. Wolfish.
The court wrote:
We are aware that some courts have interpreted the Bell decision as requiring, or at least permitting lower courts to require, reasonable suspicion as a condition for detention facility strip searches, especially those that involve visual body cavity inspections. See, e.g., Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997) ("Balancing these interests, courts have concluded that, to be reasonable under Wolfish, strip and visual body cavity searches must be justified by at least a reasonable suspicion that the arrestee is concealing contraband or weapons. . . . Accordingly, it is clear that at least the reasonable suspicion standard governs strip and visual body cavity searches in the arrestee context as well." (citation omitted)); Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993) ("In this case, it is undisputed that plaintiffs were arrested for minor traffic violations and were awaiting bail, that jail officials had no reasonable suspicion that these particular arrestees were likely to be carrying or concealing weapons or drugs, and that plaintiffs were searched solely because the blanket policy required all detainees to be subjected to a strip search. Every circuit court, including our own, which has considered the above circumstances under the Wolfish balancing test has concluded that a search under these circumstances is unconstitutional."). We ourselves have done that. Wilson, 251 F.3d at 1343 ("Because Wilson was strip searched absent reasonable suspicion, we hold that the search of Wilson, as well as the jail's policy authorizing her search, violated the Fourth Amendment prohibition against unreasonable searches and seizures."). Those decisions misread Bell as requiring reasonable suspicion.
The Bell decision, correctly read, is inconsistent with the conclusion that the Fourth Amendment requires reasonable suspicion before an inmate entering or re-entering a detention facility may be subjected to a strip search that includes a body cavity inspection. And the decision certainly is inconsistent with the conclusion that reasonable suspicion is required for detention facility strip searches that do not involve body cavity inspections.
First, and most fundamentally, the Court in Bell addressed a strip search policy, not any individual searches conducted under it. The Court spoke categorically about the policy, not specifically about a particular search or an individual inmate. See Bell, 441 U.S. at 560, 99 S. Ct. at 1885; see also Hudson v. Palmer, 468 U.S. 517, 538, 104 S. Ct. 3194, 3206, 82 L. Ed. 2d 393 (1984) (O'Connor, J., concurring) (citing Bell for the proposition that "[i]n some contexts, . . . the Court has rejected the case-by-case approach to the 'reasonableness' inquiry in favor of an approach that determines the reasonableness of contested practices in a categorical fashion"). The policy that the Court categorically upheld in Bell applied to all inmates, including those charged with lesser offenses and even those charged with no wrongdoing at all who were being held as witnesses in protective custody. See Bell, 441 U.S. at 524, 99 S.Ct. at 1866. The policy did not require individualized suspicion. Just the opposite. It called for a search of every inmate returning from a contact visit regardless of whether there was any reasonable suspicion to believe that the inmate was concealing contraband. See id. at 558, 99 S.Ct. at 1884.
The Supreme Court said: "[A]ssuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, we nonetheless conclude that these searches do not violate that Amendment." Id. (citations omitted, emphasis added). When the Court stated that "these searches" do not violate the Fourth Amendment, it obviously meant the searches that were before it, and those searches were conducted under a blanket policy without reasonable suspicion. It really is that simple.
The court distinguished a visual strip search from a visual body cavity search in which the arrestee is required to manipulate their body in some way to provide officers with a view of the body cavity. The court indicated that the searches conducted upon the plaintiffs in this case were less intrusive since they were of the former type and did not include the body cavity inspection.
It should be noted that the case left open the issue of strip searching those persons who returned from court for release processing and who were strip searched prior to release.
i Powell v. Barrett, 2008 U.S. App. LEXIS 18907 (11th Cir. 2008).