JAILS / CORRECTIONS
7th Circuit: Strip Searches in Jails / Detention Centers
by Jack Ryan, J.D.
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One of the foundation cases routinely cited throughout the United States was a Chicago case which made its way to the United States Court of Appeals for the 7th Circuit in 1983.i
Mary Beth G. involved several female plaintiffs and alleged that the policies of the Chicago Police Department with respect to strip searches at lockup were unreasonable under the 4th Amendment and also violated the Equal Protection Clause since women were treated differently than men.
The strip searches were conducted in accordance with a policy of the City that existed from 1952 to 1980. That policy required a strip search and a visual inspection of the body cavities of all women arrested and detained in the City lockups, regardless of the charges against the women and without regard to whether the arresting officers or detention aides had reason to believe that the women were concealing weapons or contraband on their persons. The policy did not apply to men, who were subjected to a thorough hand search.
Although the circumstances surrounding the arrests and detentions of each of the plaintiffs-appellees in these consolidated cases are not identical, the situations involve the following common elements: each woman was arrested for a misdemeanor offense and each was subjected to the strip search policy of the City of Chicago. That policy, as described by the City, required each woman placed in the detention facilities of the Chicago Police Department and searched by female police personnel to:
1) lift her blouse or sweater and to unhook and lift her brassiere to allow a visual inspection of the breast area, to replace these articles of clothing and then
2) to pull up her skirt or dress or to lower her pants and pull down any undergarments, to squat two or three times facing the detention aide and to bend over at the waist to permit visual inspection of the vaginal and anal area.
In analyzing the need for these searches the court looked at the City’s argument for the necessity of these strip searches:
The evidence the City offered to demonstrate the need for requiring strip searches of women minor offenders to maintain jail security, however, belies its purported concerns. The affidavits of the lockup personnel, which lack specificity, suggest that only a few items have been recovered from the body cavities of women arrested on minor charges over the years. In the only analytical survey submitted by the City, conducted over a thirty-five day period in June and July of 1965, all of the items found in the body orifices of the 1,800 women searched during that period were taken from women charged with either prostitution (7 items), assault (1 item), or a narcotics violation (1 item) (Ex. 7). These are the kinds of crimes, unlike traffic or other minor offenses,that might give rise to a reasonable belief that the woman arrestee was concealing an item in a body cavity. Although a detention center may be a place "fraught with serious security dangers," Bell v. Wolfish, 441 U.S. at 559, the evidence does not support the view that those dangers are created by women minor offenders entering the lockups for short periods while awaiting bail. Here, the "need for the particular search," id., a strip search, is hardly substantial enough, in light of the evidence regarding the incidence of weapons and contraband found in the body cavities of women minor offenders, to justify the severity of the governmental intrusion.
Thus, in a case that is still one of the foundation cases on strip searches in jails, the United States Court of Appeals for the 7th Circuit, rejected a blanket strip search policy for institutional security back in 1983 and instead would require an articulable need for a strip search to be justified.
A recent case allowing a class action on strip searches to forward from the United States District Court of Indiana, Southern District provides a summary of the law as interpreted by the United States Court of Appeals for the 7th Circuit on strip searches:
The Fourth Amendment to the United States Constitution, made applicable to the states by way of the Fourteenth Amendment, provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. CONST. amend. IV. Because the Fourth Amendment only prohibits "unreasonable" searches, this court must determine under what circumstances a strip search conducted by Dearborn County is unreasonable. As a general rule, a search is unconstitutional unless it is supported by a warrant issued upon probable cause. New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981). However, "the exigencies [*514] of the situation may sometimes make exemption from the warrant requirement imperative." Id. (quoting McDonald v. U.S., 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948)).
One such exception has been applied to strip searches; the Supreme Court has instructed us that, in order to determine if a particular search is reasonable, we must balance the needs "for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). Balancing these interests, the Seventh Circuit has acknowledged that "strip searches involving the visual inspection of the anal and genital areas [are] demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission." Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). While such searches do, in fact, constitute perhaps the greatest intrusion any search could pose, "a detention facility is a unique place fraught with serious security dangers, and officials have a legitimate and substantial need to prevent arrestees from bringing weapons or contraband into such a facility." Kraushaar v. Flanigan, 45 F.3d 1040, 1045 (7th Cir. 1995) (internal quotations and citations omitted). In light of these concerns, the strip search of a pretrial detainee may not be conducted unless there is reasonable suspicion that a weapon or contraband is being concealed. Id.; Mary Beth G., 723 F.2d at 1273. For suspicion to be "reasonable," there must be specific individualized suspicion attributable to each individual defendant. Thompson v. County of Cook, 428 F. Supp.2d 807, 814 (N.D. Ill. 2006); Calvin v. Sheriff of Will County, 405 F. Supp.2d 933, 944 (N.D. Ill. 2005) (explaining that "individualized justifications are the antithesis of [a] blanket [strip search] policy . . . ."). "Whether a suspicion is reasonable depends upon such factors as the nature of the offense, the arrestee's appearance and conduct, and the prior arrest record." Kraushaar, 45 F.3d at 1045 (internal quotations and citations omitted).ii
The initial strip search at issue in the Smith case was described by the court as follows:
Smith was charged with misuse of a credit card and theft in Hamilton County, Ohio. (Affidavit of Deborah Smith "Smith Aff." P 3; see also Finding After Court Trial). At a court appearance in Hamilton County on January 18, 2005, Smith was told that she was subject to a warrant issued in Dearborn County, Indiana, for felony fraud charges stemming from the alleged misuse of the same credit card. (Smith Aff. P 4). Smith was held in the Hamilton County Justice Center ("HCJC") in Cincinnati, Ohio, on the Indiana warrant. (Id. P 5). When booked into the HCJC, she was subjected to a pat down search. Smith's pat down search revealed neither weapons nor contraband. (Id. P 6). She was in the HCJC from January 18, 2005, to January 21, 2005. (Id. P 7).
On January 21, 2005, Smith was transferred from the HCJC to the Dearborn County Jail ("DCJ") by Dearborn County Deputy Sheriffs. She was subjected to a pat down search, was transported directly from one facility to another in restraints, and at no time was she out of sight of corrections officers, either in Hamilton County or Dearborn County. (Id. P 8). Upon arrival at the DCJ, Smith was immediately booked in; as part of the booking procedure, she was subjected to a strip search, including a visual body cavity search. (Id. PP 9-10). 2 Smith was required to take off all of her clothes in the presence of a female Deputy Sheriff who made her lift her breasts, spread her legs, bend over and cough. The Deputy Sheriff visually inspected Smith's anal and genital areas. Because she was menstruating at the time of the search, the Deputy Sheriff made Smith remove her sanitary napkin and place it in a plastic bag. (Id. P 11). No weapons or drugs were found during the search. (Id. P 12).
Thus, the strip search at issue was a search which followed the movement between one detention facility to another, however the court noted that at no time was Smith outside the presence and vision of the transporting deputies.
The policy at the Dearborn Jail restricted the strip searches of misdemeanor and traffic offenders and required specific finding in order to justify a strip search. The policy allowed for the strip search of all felony offenders. The jail also had a form that assisted personnel in deciding when a person would be strip searched upon entry. The form was described as follows:
To help officers implement the strip search policy, the DCJ utilized a Strip Search Policy and Documentation Form. (Answer to Interrog. No. 7; Hall Dep. at Ex. 4). The form instructed officers how to select inmates for strip searching by imposing the following rule: "Before conducting a strip search of a new intake that has not been sentenced, the following questions will be asked and will determine the necessity of conducting a strip search at intake." Id. In order to conclude that an individual should be strip searched, an officer had to determine if the current or former charges involved: (1) any felony offense; (2) any crime/offense involving drugs (except alcohol); (3) any crime/offense involving drug paraphernalia; (4) any crime/offense involving the use of a weapon; or (5) if there was a warrant or body attachment for any of the above. The officer also had to consider (6) current behavior and (7) whether there was a history of inappropriate institutional behavior (such as possessing or manufacturing of dangerous contraband, or refusal (either verbal or physical) to submit to a clothed search). The officer also had to note if (8) a clothed search uncovered dangerous contraband or reasonable suspicion of the possession of dangerous contraband. Finally, the officer could take note of (9) other information that constituted individual reasonable suspicion. A "yes" to any of the above nine factors resulted in a strip search. Id.
Following its review of the precedent of the United States Court of Appeals for the 7th Circuit, the Federal District Court of Indiana allowed the case against the Dearborn County Jail to proceed as a class action lawsuit challenging the strip search policy of strip searching all person entering the jail on a felony charge where there is no indication of individualized reasonable suspicion to believe the person is concealing contraband or a weapon.
i Mary Beth G. v. Chicago, 723 F.2d 1263 (7th 1983).
ii Smith v. Dearborn County , 244 F.R.D. 512 (Southern Dist., New Albany, Indiana 2007).