JAILS / CORRECTIONS
9th Circuit: Strip Search and Self Surrender
by Jack Ryan, J.D.
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Self-surrenders are those persons who have been previously sentenced and are turning themselves in for incarceration. A number of courts have held that these persons may be strip searched since they are aware that they will be incarcerated and therefore have a reason to smuggle.
In Doe v. Balaam,i the United States District Court of Nevada ruled that “self-surrender” status was insufficient to establish a reasonable suspicion to believe that a person was concealing contraband or weapons and therefore would not justify a strip search.
The policy of the jail was outlined as follows:
That policy, embodied in the Washoe County Sheriff Department's Standard Operating Procedure 710.050 et. seq. and is entitled "Contraband Control." (Doc. # 58, Exh. A). Part of that written policy states that "Unclothed searches will be performed by a Deputy of the same sex, only under the following circumstances: ... When an inmate turns themselves into custody for an outstanding warrant (self surrender), court ordered commitment, weekender agreement or any inmate brought into the Facility, coming from any other jail, prison or correctional Facility (in-transits)." (Id.).
In discussing the security concerns of the jail, the court wrote:
In general, the law gives wide-ranging deference to prison officials' decisions concerning the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain security. Bell v. Wolfish, 441 U.S. 520, 555-557, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). However, the security needs of local jail facilities must be balanced against the privacy interest of arrestees charged with minor offenses. Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984). Even giving due consideration to "the difficulty of operating a detention facility safely, the seriousness of the risk of smuggled weapons and contraband, and the deference we owe jail officials' exercise of judgment in adopting and executing policies necessary to maintain institutional security[,]" jail officials may not simply invoke security concerns as justification for a blanket strip search policy. Way v. County of Ventura, 445 F.3d 1157, 1158 (9th Cir. 2006).
Citing the case law of the United States Court of Appeals for the 9th Circuit the court found the Washoe Policies unconstitutional holding:
The Ninth Circuit has explicitly adopted "reasonable suspicion" as the standard by which strip/body cavity searches should be evaluated. Weber v. Dell, 804 F.2d 796, 800 (9th Cir. 1986). The test of reasonableness requires balancing "the need for the particular search against the invasion of personal rights that the search entails." Bell, 441 U.S. at 559. "[A]rrestees for minor offenses may be subjected to a strip search only if jail officials have a reasonable suspicion that the particular arrestee is carrying or concealing contraband or suffering from a communicable disease." Giles v. Ackerman, 746 F.2d 614, 615 (where plaintiff was subjected to a strip search after being arrested for several outstanding parking tickets). Indeed, the Ninth Circuit has commented that "[t]he intrusiveness of a body-cavity search cannot be overstated. Strip searches involving the visual exploration of body cavities is dehumanizing and humiliating." Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir. 1990).
In Kennedy the Ninth Circuit held that the city's blanket policy of subjecting all felony arrestees, regardless of reasonable suspicion, to a visual body-cavity search was unconstitutional. 901 F.2d at 716. In that case, the plaintiff was arrested for a felony grand theft after a disagreement with a roommate. Id. The circumstances of her arrest did not include weapons, drugs, contraband, violent acts, or other circumstances that provided reasonable suspicion to believe she was concealing contraband. Id. She was taken to a police station and subjected to a visual body cavity search pursuant to a policy that required such searches be made for all felony arrestees. Id. at 711-12. Likewise, in Ward v. County of San Diego the Ninth Circuit considered a policy under which the plaintiff and other minor offense arrestees were subjected to a strip searches even before an own recognizance (O.R.) release determination was made, commenting "[i]n most instances the unreasonableness of a strip search conducted prior to an O.R. release determination is plain. 791 F.2d 1329, 1333 (9th Cir. 1986)(where plaintiff was arrested for the misdemeanor offense of refusing to sign a promise to appear).
Thus, the clear weight of authority dictates that jail officials may not strip search an arrestee absent a reasonable suspicion that the arrestee is smuggling drugs, weapons, or other contraband. No contrary authority has been brought to the court's attention. Further, the Ninth Circuit has previously held that a blanket policy of searching all persons arrested on fresh misdemeanor drug charges could not serve as a proxy for reasonable suspicion. Way v. County of Ventura, 445 F.3d 1157, 1163. We think the policy here similarly offensive: Defendants used Plaintiffs' status as self-surrender arrestees as a proxy to justify the strip search. Such a practice does not comport with the requirements of the Fourth Amendment.
"Reasonable suspicion can be based on such factors as the nature of the offense, the arrestee's appearance and conduct, and the prior arrest record," Giles, 746 F.2d at 617; accord Way, 445 F.3d at 1162 (concluding that an arrest for being under the influence of a drug does not supply reasonable suspicion that drugs are concealed in a bodily cavity); cf. People v. Wade, 208 Cal. App. 3d 304, 306-07, 256 Cal. Rptr. 189 (Cal. Ct. App. 1989)(holding that a body cavity search was justified by the arresting officer's observation of the suspect apparently trying to put something beneath his waistband).
Nothing in the circumstances here presented suggests that Defendants had a reasonable suspicion that any of the Plaintiff were secreting contraband of any type. Further, we agree with the Ward court; the unreasonableness of a strip search prior to an O.R. release is plain. All of the Plaintiffs were booked and then released on their own recognizance without ever being housed with the general jail population, thus vitiating Defendants' argument that the policy was justified due to concerns about "cross-contamination." (Doc. # 58, Exh. D, p. 22). Defendants have not set forth any facts that would support a determination that reasonable suspicion existed for a search of Plaintiffs. As stated above, a policy of strip searching all arrestees who self-surrender and are then released on their own recognizance cannot be used as a proxy for reasonable suspicion.
The current status of the law with respect to strip searches of arrestees entering into a jail must be viewed circuit by circuit. It is also noted that many states have also passed localized standards on point. The two extremes on strip searches are the United States Court of Appeals for the 9th Circuit’s restrictive stance on these searches as opposed to the United States Court of Appeals for the 11th Circuit’s recent authorization of blanket strip searches of all arrestees who will be placed in the general population. In every case brought to the federal courts, the policy of the particular jail is an issue. It is essential that agencies provide proper policy and training with respect to strip searches as well as documentation of strip searches conducted and contraband/weapons recovered.
i Doe v. Balaam, 494 F.Supp. 2d 1173 (Dist. Of Nevada 2007).