JAILS / CORRECTIONS
5th Circuit: Strip Searches in Jails / Detention Centers
by Jack Ryan, J.D.
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The law with respect to strip searches has been clearly established for many years. Kelly v. Foti,i provides an example of the United States Court of Appeals for the 5th Circuit’s position on strip searches.
Kelly, the plaintiff was visiting New Orleans for a convention when she was stopped for making an illegal turn. Upon being stopped she realized that she had inadvertently left her driver’s license in her hotel room. As a result she was arrested and had to post bond. She telephoned her sister in Baton Rouge and her husband in Connecticut to post bond. Unfortunately, the bond did not immediately arrive and Kelly was taken to a detention facility. The court described Kelly’s search as follows:
The police ordered Kelly to strip, turn around, bend over, spread her buttocks, and cough.
After Kelly dressed, police escorted her to another room, where they told her to strip again and sprayed disinfectant on her crotch, breasts, and head. They then took Kelly to a shower area, where she showered in view of other inmates, before locking her in a cell. Kelly's family bonded her out approximately eleven hours after the arrest.
In its analysis of the strip search of Kelly, the court cited numerous cases involving strip searches and cited factors that may or may not contribute to reasonable suspicion in these cases. The court asserted:
Kelly first claims that the strip search violated the Fourth Amendment. Jail officials may strip search a person arrested for a minor offense and detained pending the posting of bond only if they possess a reasonable suspicion that he is hiding weapons or contraband. Watt v. City of Richardson Police Dep't, 849 F.2d 195, 197 (5th Cir. 1988). A reasonable suspicion may arise from factors such as "the nature of the offense, the arrestee's appearance and conduct, and the prior arrest record." Id. (quoting Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984), cert. denied, 471 U.S. 1053, 85 L. Ed. 2d 479, 105 S. Ct. 2114 (1985)).
Foti concedes that neither Kelly's traffic violations nor her appearance and conduct created a reasonable suspicion that she was attempting to smuggle contraband into the detention facility. He contends, however, that Kelly's arrest on a minor offense, lack of photo identification, and failure to post a $ 200 bond within four or five hours created such a suspicion. Alternatively, Foti argues that a reasonable officer could have believed that the search was lawful because (1) Kelly's lack [**5] of photo identification prevented jail officials from investigating her criminal background, and (2) no reported case involves a situation in which jail officials were unable to investigate one of the three primary factors bearing on reasonable suspicion.
The district court rejected Foti's contentions. The court observed that his arguments amount to an assertion that a strip search is warranted whenever police arrest a person for driving without a license who fails to post bond promptly; the court concluded that in light of the undisputed evidence of Kelly's demeanor, the search was not objectively reasonable.
We have jurisdiction to consider Kelly's strip search claim, because the district court ruled against Foti "in light of the strong precedent . . . and the uncontroverted evidence." Denial of summary judgment on the ground of qualified immunity is immediately appealable to the extent that the question on appeal is whether the undisputed facts amount to a violation of clearly established law. Johnson v. Jones, 132 L. Ed. 2d 238, 115 S. Ct. 2151, 2155 (1995).
Though Foti concedes that Kelly's conduct did not create a reasonable suspicion, his argument actually rests on her conduct: making an illegal turn, driving without photo identification, and failing to post bond promptly. We agree with the district court that this conduct did not create a reasonable suspicion.
First, while an individual's refusal to identify himself may give rise to a reasonable suspicion, see Wachtler v. County of Herkimer, 35 F.3d 77, 81-82 (2d Cir. 1994), Kelly readily identified herself and told the arresting officer that her driver's license was in her hotel room. Second, Kelly can hardly be said to have impeded the police's efforts to investigate her background, as it is undisputed that she cooperated with police, answered all of their questions, and presented a purse full of non-photo identification.
Third, Kelly's inability to post bond promptly does not, by itself, count against her. Finally, while a reasonable suspicion may be based upon a combination of factors, we have found no evidence in the record that jail authorities had any reason to suspect that Kelly was anything other than a polite, well-behaved tourist who had committed two minor traffic infractions.
that before a strip search of an arrestee at a detention facility can take place, the officer must articulate individualized reasonable suspicion that the arrestee is concealing contraband or weapons that would be recovered during the strip search. The court further concluded that the lack of identification was insufficient to establish reasonable suspicion.
The United States Court of Appeals for the 5th Circuit has re-iterated this individualized reasonable suspicion Turning to the second prong of qualified immunity analysis, we conclude that an officer's inability to confirm an arrestee's identity did not make a strip search objectively reasonable in 1992. A strip search is permissible only if the official has an individualized suspicion that the arrestee is hiding weapons or contraband. This suspicion must relate to the "individual arrestee," not a "category of offenders," Watt, 849 F.2d at 197, and does not arise merely because an arrestee fails to post bond immediately and police move him to general population. Weber v. Dell, 804 F.2d 796, 801-02 (2d Cir. 1986), cert. denied, 483 U.S. 1020 (1987). In short, pure speculation does not create a reasonable suspicion; nor does a generalized fear of a category of arrestees.
Thus, the United States Court of Appeals for the 5th Circuit held that the strip search of Kelly was unconstitutional and that in 1996 the law was clearly established requirement in a number of cases.ii A recent case from the United States District Court case from the Northern District of Mississippi provides a recent application of the 5th Circuit position.iii
The case involved a couple who had stopped on the side of the road and were subsequently observed by a deputy who indicated that his original purpose in stopping behind the couple was to determine if they were in need of assistance. During the encounter, the deputy determined that the driver’s license was suspended. The deputy arrested the driver and called for another officer to help search the vehicle. The second officer arrived with a drug detecting canine and recognized the driver from an earlier marijuana arrest in which 50 pounds of marijuana had been seized. The canine alerted on the vehicle however a search of the vehicle was negative as to the presents of any illegal substances.
Kimble, the passenger was transported to the jail where she alleged that she was strip searched. When the strip search was negative, Kimble was transported back to the truck and released. While the arrest of Kimble raises significant issues, the court’s analysis of the strip search is discussed here. In discussing the strip search the trial court set for the 5th Circuit law on strip searches as follows:
In Stewart v. Lubbock County, Texas, 767 F.2d 153 (1985), the Circuit invalidated a sheriff's policy of strip searching in the county jail minor-offense arrestees for whom the officers had no reasonable suspicion of possessing weapons or contraband. Stewart, 767 F.2d at 156-57. In Watt v. City of Richardson Police Department, 849 F.2d 195 (5th Cir. 1988), the court held that a strip search of an inmate was unconstitutional when the inmate's charge was minor, his criminal record paltry, and his personal characteristics "at odds with reasonable fears about prison security." Watt, 849 F.2d at 198-99.
Finally, in Williams v. Kaufman County, 352 F.3d 994 (5th Cir. 2003), the Circuit concluded that police officers unconstitutionally strip-searched individuals when the officers had no reasonable suspicion or probable cause to believe the people were doing anything but simply being in the club when police executed a narcotics search warrant. 352 F.3d at 1004-05. The Williams court also held that, as of 1995, it was clearly established that strip searching without probable cause is illegal. See Williams, 352 F.3d at 1007.
i Kelly v. Foti, 77 F.3d 819 (5th Cir. 1996); citing Watt v. City of Richardson Police Department, 849 F.2d 195 (5th Cir. 1988).
ii See e.g. Williams v. Kaufman County, 352 F.3d 994 (5th Cir. 2003).
iii Kimble v. Grenada County, 2008 U.S. Dist. LEXIS 31082 (Northern Dist. Mississippi 2008).