Prison Law Blog

Sara Mayeux

Posts Tagged ‘fourth amendment

San Francisco County Jail’s Blanket Strip Search Policy Is Reasonable, Ninth Circuit Says

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An en banc panel of the Ninth Circuit held today that San Francisco County Jail’s blanket strip search policy is reasonable under the Fourth Amendment — overruling earlier Ninth Circuit precedent that required individualized reasonable suspicion for jailhouse strip searches. The opinion is worth reading in full, for it comes complete with a provocative, though somewhat digressive concurrence by Chief Judge Alex Kozinski (sampler: “I’m convinced that airport searches would be far more intrusive if upper and middle-class Americans were exempt”) and a vigorous dissent by Judge Thomas, co-signed by Judges Wardlaw, Berzon, and Rawlinson, opening with a litany of the plaintiffs’ allegations. Litigators’ tip: When challenging an intrusive search policy under the Fourth Amendment, it’s always helpful if one of your plaintiffs is a Catholic nun:

Mary Bull was arrested at a political protest for pouring red dye mixed with corn syrup on the ground. At the police station, according to her testimony, she was pushed to the floor and her clothes forcibly removed. Her face was smashed against the concrete cell floor while jailors performed a body cavity search. She was left naked in the cell for eleven hours, then subjected to a second body cavity search. After another twelve hours in the jail, she was released on her own recognizance. She was never charged with a crime.

Charli Johnson was arrested for operating a motor vehicle with a suspended license. She alleges she was forcibly strip searched by male officers in a hallway, and that she was kept in a cold room, naked for twelve hours with male officers regularly viewing her. No contraband was found. She was released the next day. No charges were ever filed.

Sister Bernie Galvin, a Catholic nun and a member of the Sisters of Divine Providence, was arrested at an anti-war demonstration for trespassing. She was strip searched at the jail. No contraband was found.
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Written by sara

February 9, 2010 at 1:01 pm

Puerto Rico Prisoner Forced to Undergo Abdominal Surgery, or, the Case of the Apparently Nonexistent Contraband Cell Phone

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The First Circuit held last month that a Puerto Rico prisoner’s lawsuit claiming Fourth Amendment violations can proceed, where the inmate alleges that he was

forced to undergo dangerous, painful, and extremely intrusive abdominal surgery for the purpose of finding a contraband telephone allegedly concealed in his intestines, even though the basis for believing there was a telephone was slight, several tests had indicated the absence of any such object, and additional, far less intrusive testing could easily have obviated any need for such grievous intrusion.

(Sanchez v. Pereira-Castillo, et al., No. 08-1748, 1st Cir., Dec. 23, 2009, p. 21)

Although prisoners are not afforded full Fourth Amendment protections — for instance, their cells can be searched at any time — they do retain a limited right of bodily privacy while incarcerated (see pp. 15-16). Here, the court emphasized the dramatically invasive nature of the search — involving “total anesthesia, surgical invasion of the abdominal cavity, and two days of recovery in the hospital” (p. 23) — combined with the lack of justification for such an extreme procedure, given that a variety of less intrusive measures, such as an X-ray, could have been used. The court also rejected the government’s arguments that the surgery was not a search at all, or, if it was a search, was not unconstitutional, simply because it was a medical procedure: “When a medical procedure is performed at the instigation of law enforcement for the purpose of obtaining evidence, the fact that the search is executed by a medical professional does not insulate it from Fourth Amendment scrutiny” (p. 26). More details after the jump…

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Written by sara

January 27, 2010 at 5:49 pm

With Liberty and Strip Searches For All?

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Almost a year ago, Judge Joseph H. Rodriguez ruled unconstitutional the policy of two New Jersey county jails to strip search all detainees upon arrival, even if arrested for failing to pay a traffic ticket, or, in Judge Rodriguez’s hypothetical, even if a “priest or minister arrested for allegedly skimming the Sunday collection.” (The cite is Florence v. Board of Chosen Freeholders of County of Burlington, 595 F. Supp. 2d 492 [D.N.J. 2009]). The plaintiff was strip searched

follow[ing] his erroneous arrest during a 2005 traffic stop for a fine he had already paid. He was ordered during the searches to squat naked and, while standing in front of prison guards, to lift his genitals.

[Side note: At this point casual readers may be wondering, “Wait, I could get arrested for a traffic infraction?! Well, yes, if the Supreme Court has anything to say about it.]

According to a corrections official quoted by the Star-Ledger, the justification for a blanket strip search policy is that “streetwise” inmates might “pass contraband to those accused of lesser offenses, knowing they will be subjected to a less thorough search.” However, federal courts have tended to reject blanket strip search policies as a violation of the Fourth Amendment, holding that a jail officer should strip search a detainee only upon “reasonable suspicion” that he actually has contraband or a weapon.

Burlington and Essex counties have appealed Judge Rodriguez’s ruling to the Third Circuit, and the ACLU recently filed an amicus brief for the plaintiff, along with a coterie of former New Jersey attorneys general. The ACLU brief makes the following arguments in favor of the reasonable suspicion standard (I’m paraphrasing):

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Written by sara

January 26, 2010 at 11:53 am

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