9th Circuit Upholds Strip Searches of Arrestees

By Jeralyn, Section Civil Liberties
Posted on Tue Feb 09, 2010 at 07:08:55 PM EST
Tags: strip-searches (all tags)

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The 9th Circuit Court of Appeals today upheld San Francisco's policy of strip-searching arrestees without individualized suspicion they were concealing contraband. The opinion is here.

"The record reveals a pervasive and serious problem with contraband inside San Francisco's jails, as well as numerous instances in which contraband was found during a search, indicating that arrestees' use of body cavities as a method of smuggling drugs, weapons, and items used to escape custody is an immediate and troubling problem for San Francisco jail administrators," Ikuta wrote for the majority. She said the policy was reasonably adopted by the jail for "maintaining security for inmates and employees by preventing contraband smuggling."

..."[W]e conclude that San Francisco's policy requiring strip searches of all arrestees classified for custodial housing in the general population was facially reasonable under the Fourth Amendment, notwithstanding the lack of individualized reasonable suspicion as to the individuals searched."

Hopefully the case will now get to the Supreme Court as other federal districts disagree. In fact, even the Supreme Court this year put some limits on strip searches. [More...]

The Supreme Court, in a slightly different context, recently reaffirmed the idea that a strip search policy violates the Fourth Amendment when there is little evidence that the searches will result in the discovery of contraband.
In Safford Unified Sch. Dist. #1 v. Redding, 129 S. Ct. 2633 (2009), the Court held that a strip search of a schoolgirl was unconstitutional
in part because the school could not show any evidence that the search would bear fruit. See id. at 2642 (holding that “the content of the
suspicion” must match “the degree of intrusion” and that “the categorically extreme intrusiveness of a search” requires “some justification in suspected facts” beyond “general background possibilities”)...

The dissent begins at page 45 and has a much better perspective.

"A policy that so severely erodes human dignity and intrudes upon constitutional rights requires strong justification," Thomas wrote. "The conclusion is clear: the city's policy of routine, mandatory, suspicionless body cavity searches of those arrested for minor offenses who pose no credible risk of concealing contraband is unconstitutional."

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9th Circuit Upholds Strip Searches of Arrestees | 7 comments (7 topical)

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Credit where its due... (5.00 / 1) (#6)
by kdog on Wed Feb 10, 2010 at 10:21:14 AM EST

I couldn't have said it any better than Clarence Freakin' Thomas.

: Yep, this is the section that nails it (none / 0) (#7)
by sarcastic unnamed one on Wed Feb 10, 2010 at 12:23:44 PM EST

for me:
Under that nearly uniform interpretation of constitutional law, a body cavity strip search of a detainee is only justified by individualized reasonable suspicion that the search will bear fruit.
If jailors have no [individualized] reasonable suspicion, the search must be categorically reasonable based on empirical evidence that the policy is necessary. [snip]
[iow, if it is a demonstrable fact that a certain type/classification of arrestees do smuggle contraband in, then the arrestees who are of that type/classification can be searched for contraband.]
[The evidence the gvt relies on in defending it's strip/cavity searches is] that contraband has been found in the San Francisco jails.
Thus, the government reasons, individuals who are arrested must be smuggling contraband into the jail. Therefore, the government concludes it must body cavity search everyone who is arrested [snip]
This reasoning finds no support from the record in this case. [snip] there is not a single example of anyone from the class[ification] defined by the district court who was found to possess contraband upon being strip searched.
Not one.
My []'s and bolds.
iow, the actual empirical evidence is that the cavity strip search policy is not necessary.

slight difference in cases (none / 0) (#1)
by diogenes on Tue Feb 09, 2010 at 09:50:26 PM EST

Traditionally the courts defer greatly to jail administrators in allowing the maintenance of security in jails. This is a tad different from a case of school officials searching a 14 year old non-arrested schoolgirl based on a report that she was carrying motrins or some such thing.
If the ninth circuit isn't activist enough to fall for this case then I don't know what circuits will.

: several have (none / 0) (#2)
by Jeralyn on Tue Feb 09, 2010 at 11:10:38 PM EST

which is why the Supreme Court is likely to take it up.

Jeralyn your own citation refutes your argument. (none / 0) (#3)
by Gerald USN Ret on Wed Feb 10, 2010 at 01:18:47 AM EST

You quote:

"strip search policy violates the Fourth Amendment when there is little evidence that the searches will result in the discovery of contraband."

Yet the results from of the Jail's experience and history indicate that there is plenty of evidence. This seems to contradict what you are citing.

A long time ago as a young officer in addition to my regular duties I was put in charge of the "so called Brig" on a ship for a few weeks since the Brig had become occupied and we were shorthanded for the appropriate officers. No I didn't arrest anyone, stand guard duty or carry a weapon. I was just in charge in case the Marines had a request about the prisoners or needed a signature and also to give them a direct report line. Also of course I was personally responsible for those 3 sailors in the Brig. Those 3 sailors were the main reason anyone was appointed for that brief time. (The young guys always get the piddling little nagging jobs, anywhere you go.)
You better believe that just like with the power plant, some of the weapons, other systems, etc., I personally went and checked that brig and those 3 sailors at least once each day. At times I varied the routine. I would always look at them ask how they were doing. (By the way that is how the now infamous prison in Iraq should have been handled by the officer/s in charge there, and we wouldn't have been so badly embarrased.)

Anyway, enough ranting.

The 3 sailors had been arrested for several violations, had been designated for the Ship's Brig until they could be gotten ashore or transferred to a larger ship. As per normal procedures they were stripped, their clothes searched, cleaned and stored and new clean (marked) clothes given to them. They had previously also been wanded with a hand held metal detector and nothing had been indicated. Then their body cavities were searched.

One of them had packets of hashish wrapped in something like Saran wrap, and another, who was a mechanic, who technically had worked for me had 4 or 5 wires of titanium and non-magnetic stainless steel in a small medicinal type rubber bulb. We figured the wires were used for picking locks which had been a long standing problem. We actually searched some areas he would have had access to, and nobody else would reasonably have been in and found a few missing items.

Anyway, I would concur with the Court's decision that the jail was correct in it's policies.

Since it appears (none / 0) (#4)
by JamesTX on Wed Feb 10, 2010 at 10:10:52 AM EST

the populist movement was another failed flash in the pan, and we will inevitably continue our march toward increased criminalization of everything and everybody, and the circumstances under which people will be considered to be in custody as well as the number of people in custody will continue to increase, allowing the watchers to strip the watched at whim seems a bit barbaric. But Barbarism hasn't stopped us so far!

The Supreme Court (none / 0) (#5)
by jbindc on Wed Feb 10, 2010 at 10:15:08 AM EST

may have a difficult time getting this case if past precedent is a good future indicator. Volokh explains it here:

O Brother, Where Art Thou?
Eugene Volokh * February 9, 2010 4:30 pm
Recused, it turns out, if the brother is Justice Stephen Breyer and the other brother is Judge Charles Breyer. As Tony Mauro (Legal Times) reports, "Breyer makes it a practice to recuse in cases that were handled by his brother Charles, a federal trial judge in the Northern District of California." My quick search for (charles +3 breyer) through the Westlaw SCT database supports this -- in all three cases found by the search (Olympic Airways v. Husain, Department of Housing and Urban Development v. Rucker, and U.S. v. Oakland Cannabis Buyers' Co-op.), Judge Breyer was the judge below and Justice Breyer recused himself.
This turns out to be important in the case involving the jail strip search / visual body cavity search policy, Bull v. City & County of San Francisco. Judge Breyer was the trial judge in that case, so presumably Justice Breyer will recuse himself. So if plaintiffs petition for certiorari, they need five votes without Justice Breyer's vote (since a 4-4 vote affirms the decision below).
To get to those five votes, plaintiffs would have to get at least two votes from the Court's conservative wing. I doubt they will get those two votes. They might not even get some of the liberal votes -- even Justice Breyer wouldn't be a sure vote for the plaintiffs. Still, without Justice Breyer, the plaintiffs would have to persuade not just the moderate conservative Justice Kennedy, but also one of the more solid conservatives (Chief Justice Roberts and Justices Scalia, Thomas, and Alito). Pretty unlikely, it seems to me.