Prison Visitors’ Strip Searches

Strip searches of visitors to a prison facility must be based upon a reasonable suspicion to believe the visitor is in possession of contraband.  A visitor to a prison with a reasonable suspicion to believe that he or she possesses contraband may be subject to a strip search, but only after given the option of leaving the institution/facility grounds without being searched.

Plaintiff Tina Cates’ boyfriend, who she would visit once a week, was incarcerated in Nevada’s High Desert State Prison.  On February 19, 2017, she attempted to visit him again.  However, prior to this occasion, prison officials had received a tip from “two confidential credible sources” that plaintiff might try to bring drugs into the prison.  Based upon this information, Arthur Emling, Jr., a criminal investigator with the Nevada Office of the Inspector General, obtained a search warrant authorizing him to search plaintiff’s “person,” as well as “any vehicles used and registered by Cates to transport herself to High Desert State Prison,” and to seize “any and all illegal controlled substances/narcotics.” However, the warrant did not specifically authorize a visual body cavity strip search of plaintiff’s person, nor did it include authorization to search any cellphones she might have.  When plaintiff arrived at the prison on February 19th, she signed a consent-to-search form as she did preparatory to every other visit, agreeing to the “search of (her) person, vehicle and other property which I have brought onto prison grounds.”  The form did not mention “strip searches.” Plaintiff believed, as was the normal procedure, that she was agreeing to being patted down only.  After signing this form, however, Emling and a female criminal investigator for the Office of the Inspector General (Myra Laurian) approached plaintiff and, without explanation, had her follow them to the prison administration building.  Once there, Laurian took plaintiff into a bathroom where she was “told” her to remove her clothing, including her bra and underwear.  She was also instructed to remove a tampon she was using at the time.  She was then “ordered” (as opposed to “asked”) to “bend over and spread her cheeks.”  Believing that she did not have a choice, plaintiff complied with Laurian’s instructions.  No drugs were found.  Allowed to dress again, plaintiff was not provided with a new Tampon, but given instead some “toilet paper to shove down there.”  Plaintiff was never told she might have a choice in submitting to the above procedure or that she was free to leave.  Following this strip search, plaintiff was “detained” (or, at least, she felt like she was being detained) in the prison administration building while Emling took her car keys and searched her car.  Finding only a cellphone, but no drugs, Emling took plaintiff’s cellphone back to the admin building and asked her for permission to search it.  Plaintiff declined.  Based upon this refusal, plaintiff was not allowed to visit her boyfriend.  Also, her visiting privileges at the prison were terminated. The search warrant Emling had obtained was never executed.  Plaintiff subsequently sued Emling, Laurian, and others, in federal court, pursuant to 42 U.S.C. § 1983.  The federal district (trial) court granted the civil defendants’ motion for summary judgment.  Plaintiff appealed.

The Ninth Circuit Court of Appeal affirmed, finding that although plaintiff’s rights had in fact been violated, the civil defendants were entitled to qualified immunity.  Among the issues raised by plaintiff on appeal (and her only “viable” issue, per the Ninth Circuit) was her claim that the “unconsented strip search” of her person violated the Fourth Amendment.  The Fourth Amendment does not prohibit all searches; only “unreasonable” searches.  To determine whether a particular search is unreasonable, the intrusion on the individual’s privacy interests must be balanced against “its promotion of legitimate governmental interests.”  Prisons, being “fraught with serious security dangers,” present a unique situation requiring a court to balance the prison’s “significant and legitimate security interests” against the privacy interests of those who enter, or seek to enter, the prison.  While prison visitors don’t shed all their rights, what rights they do have are diminished to the extent necessary so that they don’t compromise the prison officials’ need to prevent the smuggling of money, drugs, weapons, and other contraband into the prison. “Prison officials . . . have a strong interest in preventing visitors from smuggling drugs (and other contraband) into the prison.”  The issue here is to what extent, if at all, strip searches are allowed in order to accomplish this goal.  In evaluating this issue, it has been recognized by the U.S. Supreme Court that “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 (1979) 441 U.S. 520, 559.)  Patdown searches and metal detector screenings of visitors to airports, court houses, and prisons—given their relative minimal intrusiveness—are allowable without any suspicion to believe the visitor is carrying contraband.  Strip searches, however, involving the visual exploration of body cavities and given the fact that they are “dehumanizing and humiliating,” are at the other end of the spectrum.  The Fourth Amendment has been held to permit strip searches, whether of prison inmates or mere visitors, only in limited circumstances.  (Bell v. Wolfish, supra, at pp. 558-560.) The Ninth Circuit has previously held that prison inmates (as opposed to mere visitors), with limited exceptions (see Note, below), may be subjected to strip searches only upon a determination that there is sufficient “reasonable suspicion” to believe that the prisoner searched might be in possession of “smuggled weapons, drugs or other contraband which pose a threat to the safety and security of penal institutions.”  (Fuller v. M.G. Jewelry (9th Cir. 1991) 950 F.2nd 1437, 1447; Kennedy v. Los Angeles Police Dep't (9th Cir 1990) 901 F.2nd 702, 715; Edgerly v. City and County of San Francisco (9th Cir 2010) 599 F.3rd 946, 957.)  Other federal circuits have extended this rule to prison visitors. (E.g., see Burgess v. Lowery (7th Cir. 2000) 201 F.3d 942, 945; recognizing “a long and unbroken series of decisions by our sister circuits” finding “strip searches of prison visitors . . . unconstitutional in the absence of reasonable suspicion that the visitor was carrying contraband.”)  The Ninth Circuit adopted this rule by its decision in this case.  But that’s not the end of the issue.  Because a strip search is permissible only if it can be justified by a legitimate security concern, the person to be searched (at least when based upon no more than a reasonable suspicion) must first be afforded the opportunity to leave the premises instead of being searched.  If the visitor chooses the option of foregoing an intended visit, then the possibility that contraband or weapons can be brought into the prison no longer exists.  Therefore, the only time a strip search is lawful is when (1) “probable cause” exists that the visitor has contraband on his person, or (2) with a “reasonable suspicion” to believe that the visitor possesses contraband and, having been offered the opportunity to leave, decides he or she would rather be searched.  Per the Court: “If the visitor would prefer to leave the prison without such access, the prison's security needs can be satisfied by simply letting the visitor depart.”  In this case, Investigator Emling had obtained a search warrant for plaintiff’s person, but never executed it.  So the warrant’s validity was not litigated. Either way, however, the warrant did not authorize a strip search.  But having gotten a magistrate’s approval in the warrant to search plaintiff’s person (short of a full strip searh), it can be assumed (without deciding) that there was at least a reasonable suspicion to believe she would have contraband on her.  However, plaintiff was never offered the opportunity to forego her visit and just leave.  A strip search, therefore, under these circumstances was indeed in violation of the Fourth Amendment.  However, given the lack of any prior case authority on this issue from the Ninth Circuit, the Court held that Investigators Emling and Laurian cannot be held to have known this rule, thus providing them with qualified immunity.

The Court’s discussions wandered into several related issues albeit irrelevant to this case.  For instance, it was noted that strip searches of prisoners (as opposed to mere visitors) are allowed only when (1) the inmate searched has just had a contact visit (Bell v. Wolfish (1979) 441 U.S. 520, 558-560.), (2) upon being introduced into the general population (Florence v. Board. of Chosen Freeholders of the County of Burlington (2012) 566 U.S. 318; Bull v. City and County of San Francisco  (9th Cir. 2010) 595 F.3rd 964.), or (3) any other time where there exists a reasonable suspicion that the inmate possesses contraband.  A prisoner, obviously, isn’t given the opportunity to avoid the search by choosing to leave.  Visitors, on the other hand, can eliminate the problem by just deciding to forego their intended visit and leave, even when there is a reasonable suspicion that they are carrying contraband.  But they must be given that opportunity.  The Court also delved a bit into prison parking lot searches of vehicles.  California has held that a prison visitor’s vehicle is not subject to search absent a prior warning and then given the opportunity to just leave.  (Estes v. Rowland (1993) 14 Cal.App.4th 508.) To the contrary, federal courts have allowed a warrantless search of a visitor’s vehicle based upon no more than a reasonable suspicion and without offering the driver the opportunity to leave.  (See United States v. Prevo (11th Cir. 2006) 435 F.3rd 1343; Neumeyer v. Beard (3rd Cir. 2005) 421 F.3rd 210, 211, McDonell v. Hunter (8th Cir. 1987) 809 F.2nd 1302, 1309, and Spear v. Sowders (6th Cir. 1995) 71 F.3rd 626.).  In the parking lot search cases, the federal courts have noted that there is a substantial difference between a strip search (“humiliating and intrusive”) and a vehicle search, and that at least in some of the cases, prisoners had access to the parking lots at the facilities in issue. Without specifically so ruling, the Ninth Circuit didn’t disagree with this reasoning.