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An issue that has begun to surface is when agencies develop and implement a policy that meets the legal standards requiring individualized reasonable suspicion before a strip search is authorized, but then as a matter of policy or practice have personnel view the change-over (changing from the subject’s clothing to jail attire) process or have personnel viewing the required showering upon entry into the facility.
Persons who sue law enforcement over strip searches have begun to argue and courts have begun to accept that these practices do constitute an strip search and as such run afoul of the constitutional standards that have been discussed. Specifically, that viewing persons during the change-over or showering process without having individualize reasonable suspicion to believe that the person is concealing weapons or contraband, would violated the 4th Amendment limitations on strip searches.
Wood v. Hancock County Sheriffs’ Department,i involved a subject, Woods, who was viewed naked on separate occasions in accordance with agency policy, but who was not strip searched under the policy. Wood was viewed when undergoing a clothing search procedure which involved the removal of all clothes prior to entry into the jail and was viewed while showering as required by this process. In reviewing the case, the United States Court of Appeal cited precedent in defining strip search as “an inspection of a naked individual without any scrutiny of the subject’s body cavities.” The court concluded that although the sheriff’s department employees indicated that the viewing of the naked body of Woods was merely incidental to these other processes; a reasonable jury could conclude that Woods had been strip searched. Thus, agencies should consider their intake process and determine if customs and practices with respect to the change-over process or the hygienic shower allow viewing of the naked body. If so, agencies should examine this practice in light of decisions such as Woods.
Note: Some agencies have taken pro-active steps to avoid this type of viewing while maintaining a level of security. An example is Carson City (NV) Sheriffs’ Department, which has installed a partial door which provides a limited view for security purposes but does not allow a viewing that would constitute a strip search.