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The United States Court of Appeals for the 2nd Circuit has also been clear that all arrestees may not be strip searched before being admitted into a jail.  The court regularly cites one of its initial cases on strip searches going back two decades as clearly establishing the law.i

In Shain v. Ellison,ii the United States Court of Appeals for the 2nd Circuit considered the strip search policies of the Nassau County Jail.  Shain was arrested after police responded to his home for a domestic dispute.  His wife, who had an expired court order prohibiting him from being in her bedroom complained that her husband had entered her bedroom.  On further questioning by officers, she reported that he threatened to rape her.  Shain was taken into custody, however all charges were subsequently dismissed.

Shain then filed a lawsuit challenging the strip search which he was subjected to at the Nassau County Jail.  He reported that when he was brought to the jail he was ordered to disrobe; ordered to bend over and spread his buttocks; and, order to lift his scrotum so that officers could visually inspect his private areas.

In the lawsuit, the County responded that it was not a practice to strip search misdemeanor arrestees unless there was individualized reasonable suspicion to believe that they were concealing contraband.

The court outlined the strip search policy as follows:

Although NCCC claims that it does not subject individuals charged with misdemeanors and minor offenses to a strip search unless it has reasonable suspicion that the arrestees are concealing contraband or they have been remanded to NCCC’s custody by a court, the written policies governing strip searches require corrections officers to strip search each newly admitted inmate. In addition, all of the corrections officials who testified conceded that all newly admitted inmates were strip searched regardless of whether they were judicially remanded. Thus, while arrestees held briefly in holding cells may not have been strip-searched, all arrestees admitted to the jail were.

After reviewing the policy the court noted that the jail had a blanket strip search policy which led to the strip search of all persons, including misdemeanor arrestees prior to placement in the general population.

Citing its previous cases the court concluded:

Although it appears likely that NCCC’s strip search policy applied to all persons actually admitted to the jail whether they had been arraigned or not,  we consider the legality of that policy as it applies to post-arraignment admittees to the jail because Shain himself was a post-arraignment admittee.

Before Officer Dantunono searched Shain in July 1995, we had decided three cases relevant to the issue before us. In Weber, we considered a Monroe County Jail policy “calling for strip/body cavity searches of all arrested persons other than those placed in ‘holding cells,’ which are the cells in which arrestees are sometimes placed when their release on bail is imminent.” Weber, 804 F.2d at 799. The police arrested plaintiff Ann Weber on misdemeanor charges of making a false complaint and resisting arrest. See id. After jail officials booked Weber, they required her to remove her clothing and “expose her body cavities for visual inspection.” Id.We held “that the Fourth Amendment precludes prison officials from performing strip/body cavity searches of arrestees charged with misdemeanors or other minor offenses unless the officials have a reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.” 804 F.2d at 802. Although the defendants argued that their policy applied only to arrestees who could not make bail and thus were to be admitted to the general prison population, we found it unnecessary to remand for factual findings because “even the more narrowly drawn policy would be unconstitutional.” Id. We also rejected defendants’ request for qualified immunity because all the circuits that had addressed similar policies had found them to be unconstitutional and because we long had stressed the intrusive nature of body cavity searches. See  804 F.2d at 803.

Walsh reaffirmed the Weber holding, see  Walsh, 849 F.2d at 68-69, and Wachtler assumed Weber’s applicability to the post-arraignment strip search of a person charged only with a misdemeanor. Wachtler, 35 F.3d at 81-82. We also found in Wachtler that the individual defendants were entitled to qualified immunity because the law did not clearly establish whether Wachtler’s conduct was sufficient to trigger a reasonable suspicion. 35 F.3d at 81-82. However, we reinstated Wachtler’s claims against the County of Herkimer  pending a fuller development of the record. See  35 F.3d at 82. We said with respect to the County:

If the standard procedure included routine strip-searches of misdemeanor arrestees, absent reasonable suspicion of weapons or contraband, and if no reasonable suspicion concerning Wachtler’s possession of such items existed, then Wachtler would prevail.

Thus, the court held that the strip search policy which caused all arrestees to be strip searched, including misdemeanor arrestees was unconstitutional.

The court did distinguish misdemeanor arrestees from those inmates who had contact visits in holding: “It is far less obvious that misdemeanor arrestees frequently or even occasionally hide contraband in their bodily orifices. Unlike persons already in jail who receive contact visits, arrestees do not ordinarily have notice that they are about to be arrested and thus an opportunity to hide something. For the exceptions – for example, a person who is allowed to visit the bathroom unescorted before an arrest – reasonable suspicion may well exist.”


i See, Weber v. Dell, 804 F.2d 796 (2nd Cir. 1986).

ii Shain v. Ellison, 273 F.3d 56 (2nd Cir. 2001).

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