Strip Searches and the Fourth Amendment Rights
of Prisoners

by Howard Friedman
Law Offices of Howard Friedman, P.C.
Boston, Massachusetts

The author thanks Mark Hentz, Esq. for his assistance on this paper.

TABLE OF CONTENTS
Page
I.

Introduction..........................................................................................................................1
A. Bell v. Wolfish - Individualized Reasonable Suspicion ....................1

II.

What is a Strip Search? ........................................................................................................3
A.
B.
C.

III.

Correctional Administrator=s Definition ..........................................4
Statutory Definition .........................................................................4
Fourth Amendment Definition.........................................................4
1.
Application of the Fourth Amendment Definition...............4
a.
Complete nudity is not required...............................4
b.
Observation while using bathroom ..........................6
c.
Observation during a changeover, dress-out
or clothing search.....................................................6
d.
Vermin inspection....................................................7
e.
Touching bare body parts.........................................8
f.
Intent Required.........................................................8

Fourth Amendment Standard...............................................................................................8
A.

B.

The Plaintiff=s Status as Pre-Arraignment, Pre-Trial, or
Post-Conviction Changes the Balance .............................................8
1.
Admission to the General Population ..................................9
2.
Before Arraignment or a First Court Appearance................9
a.
Default warrants.....................................................11
b.
Parole or probation violations................................11
2.
Post-Arraignment-Awaiting-Bail.......................................12
3.
Pre-Trial Inmates ...............................................................12
4.
Former Inmates, Released After Court
Proceedings ........................................................................13
5.
Convicted Prisoners ...........................................................14
6.
Juveniles.............................................................................14
Cause to Support a Strip Search.....................................................14
1.
Factors To Be Considered..................................................15
2.
The Nature of the Criminal Charge ...................................15

i

D.

E.

F.
G.
H.
I.
J.
K.
L.
M.

a.
The charge alone may be enough...........................15
b.
Traffic violations and minor offenses ....................15
c.
Drug charges ..........................................................16
d.
Crimes involving violence .....................................16
e.
Misdemeanor/felony distinction ............................18
3.
The Characteristics of the Arrestee ...................................18
a.
Criminal History as a Basis for Reasonable
Suspicion................................................................18
b.
Individual Characteristics of Arrestees..................19
4.
Circumstances of Arrest.....................................................19
5
Contact with Outsiders.......................................................20
6
Stripping Inmates Naked for Suicide Prevention or
Prevention of Rowdiness ...................................................20
Reasonable Manner........................................................................21
1.
No Touching by the Officer...............................................21
2.
Limits on Instructing the Person to Touch Himself...........21
3.
Derogatory Comments .......................................................22
4.
No More People than Necessary........................................22
5.
Strip Search By Opposite Sex Offender ............................23
6.
Videotaping a Strip Search ................................................23
Reasonable Place ...........................................................................24
1.
Outside ...............................................................................25
2.
In a Police Vehicle .............................................................25
3.
Rooms with a View............................................................25
4.
Group Strip Searches .........................................................26
Strip Searches of Convicted Prisoners...........................................26
Physical Body Cavity Searches .....................................................29
Equal Protection.............................................................................29
Effectiveness of Intake Strip Searches...........................................30
Qualified Immunity for Strip Searches ..........................................31
Class Action Challenges to Strip Search Policies..........................33
Damages for Unlawful Strip Searches...........................................34
The Effect of the PLRA on Strip Search Litigation.......................34

ii

FOURTH AMENDMENT RIGHTS OF PRE-TRIAL,
PRE-AND POST-ARRAIGNMENT DETAINEES
I.

INTRODUCTION
In 1984 the Supreme Court held that prisoners have no privacy interest protected by the
Fourth Amendment in their prison cell. Hudson v. Palmer, 468 U.S. 517 (1984). This is
still the law. As discussed below, convicted prisoners have very limited Fourth
Amendment rights. But without saying that a different standard applies, pre-arraignment
detainees, detainees waiting for their first court appearance, and pre-trial detainees have
been found to have a more significant fourth amendment expectation of privacy in their
bodies. The Constitution limits strip searches of these people. These materials discuss the
contours of this right.
A.

Bell v. Wolfish - Individualized Reasonable Suspicion
The Fourth Amendment guarantees that A[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.@ The question is when is a strip search
unreasonable?
The now heavily litigated area of the constitutionality of strip searches began with
Bell v. Wolfish, 441 U.S. 520 (1979). Bell was a challenge to conditions at the
federal detention center in New York City designed to hold pre-trial detainees.
The plaintiffs challenged the policy of strip searching prisoners after contact
visits. The Supreme Court=s majority opinion written by Justice Rehnquist said
the practice Ainstinctively gives up the most pause@ but went on to find these strip
searches to be reasonable under the Fourth Amendment. The Court held:

1

The test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application. In each
case, it requires a balancing of the need for the particular search
against the invasion of personal rights that the search entails.
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.
The justification for the search is the most frequently litigated issue, but even if a
strip search is justified, it may be unconstitutional if it is conducted in an
unreasonable manner or place.
Bell held that pre-trial detainees could be strip searched after a contact visit. After
Bell the lower courts began to applying its reasoning to intake strip searches of
people who had just been arrested and had yet to go to court for a determination
of bail l . The first cases after Bell held that blanket strip search policies of
arrestees at a police station or on admission to detention facilities were
unconstitutional. The courts reasoned that most people do not start their day
planning to be arrested. The courts quickly agreed that an admission strip search,
at least of a minor offender can take place if the police or corrections officers has
a reasonable suspicion to suspect the person has concealed contraband. The initial
cases were brought by people charged with minor offenses. Thus, the holdings
were limited to the rights of detainees held on such minor offenses. See Tinetti v.
Wittke, 479 F.Supp 486 (E.D. Wisc. 1979), aff=d, 620 F.2d 160 (7th Cir.
1980)(speeding); Logan v. Shealy, 590 F.2d 1224 (4th Cir. 1981)(operating under
the influence); Tikalsky v. City of Chicago, 687 F.2d 175 (7th Cir.
1982)(disorderly conduct); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th
Cir. 1983)(women charged with traffic, regulatory, or misdemeanor offenses);
Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984)(warrant for an outstanding speeding
ticket and violation of a restriction on driver=s license.); Giles v. Ackerman, 746
F.2d 614 (9th Cir. 1984)(warrant for outstanding parking tickets); Stewart v.
Lubbock County, 767 F.2d 153 (5th Cir. 1985)(arrest for misdemeanors
punishable only by fines, public intoxication and an outstanding warrant for
issuing a bad check, following a routine traffic stop); Jones v. Edwards, 770 F.2d
739 (8th Cir. 1985)(summons for a violation of the local leash law); Weber v.
Dell, 804 F.2d 796 (2nd Cir. 1986)(misdemeanors for false report and resisting
arrest) Watt v. City of Richardson Police Department, 849 F.2d 195 (5th Cir.
1988) (warrant for failing to register a dog violating a city ordinance).
1

This group is referred to as arrestees or pre-arraignment detainees, typically it includes
people arrested on default warrants and those held on non-criminal material witness warrants.
2

The first reported case after Bell to challenge an admission strip search conducted
without any evaluation for cause was Tinetti v.Wittke, 479 F.Supp 486 (E.D.
Wisc. 1979), aff=d, 620 F.2d 160 (7th Cir. 1980). The Tinetti court relied on an
unpublished case from New York, Sala v. County of Suffolk, (E.D.N.Y.
11/28/78), in which one of the plaintiffs had been arrested for failure to pay a
speeding fine and the other plaintiff for failing to respond to a summons which
had been sent to the wrong address. The district judge in Sala, stated:
Here on one side of the balance scale we have the intrusion into personal
dignity and privacy in a way that for some people at least might cause
serious emotional distress. A search of (this) . . . type . . . including the
visual inspection of the anal and genital areas, has been characterized by
various witnesses here, and by judges in some other cases, as demeaning,
dehumanizing, undignified, humiliating, terrifying, unpleasant,
embarrassing, repulsive, signifying degradation and submission . . ..
This language describing strip and visual body cavity searches was repeated in
Tinetti and has become the standard description adopted by most courts.
The decisions in these materials describe well-settled law but in September 2008 a
split developed in the circuit courts which could lead to a decision on this issue by
the Supreme Court. On September 4, 2008, the 11th Circuit sitting en banc broke
with its own precedent in Powell v. Barrett, F.3d , 2008 WL 4072800 (11th Cir
2008) and created a split in the Circuits based on their reinterpretation of the
Supreme Court=s 1979 decision in Bell v. Wolfish, 441 U.S. 520 (1979). The 11th
Circuit has some support from an unlikely place, the 9th Circuit. Bull v. City and
County of San Francisco. 539 F.3d 1193 (9th Cir. 2008). This panel decision
upheld district judge Breyer=s ruling that blanket strip searches are
unconstitutional but a dissent by Judge Tallman argued that the appellate courts
had lost sight of the meaning of Bell, and the concurring opinion by Judge Ikuta
agreed that precedent in the circuit required affirmation but made it clear that she
favored hearing en banc starting his opinion stating: AWhile compelled by Ninth
Circuit case law, the disposition is in tension with Supreme Court precedent.@ll

II.

WHAT IS A STRIP SEARCH?
The term Astrip search@ has different meanings to correctional administrators and officers
than it does to lawyers. It is essential to understand these differences so that lawyers,
clients and witnesses can meaningfully communicate with one another. A corrections
employee may honestly state that a person was not strip searched, although the person

ll

I understand that the defendants will be requesting a rehearing en banc which is likely to be granted in light of
Powell.

3

was required to remove all of his clothing and was viewed while naked, because this
procedure is not defined as a Astrip search@ in the institution=s policies. Further muddling
the definition, many states have statutes that purport to define strip searches. Lawyers can
confuse the issue as well by using the term strip search to refer to any procedure that
requires individualized reasonable suspicion, including, for example, searches of an
individual=s body cavities.
A.

Correctional Administrator=s Definition
When prison or jail administrators refer to a strip search, they are typically talking
about a search that involves the examination of an inmate=s body conducted in a
prescribed order and involving specific areas of the inmate=s body. These areas
usually include the mouth, hair, armpits, fingers, toes, soles of the feet, and groin
area. This is typically the definition contained in the institution=s policy manual.

B.

Statutory Definition
Many states statutorily define strip searches. The plaintiff in Stanley v. Henson,
337 F.3d 961 (7th Cir. 2003), pointed to 14 states= definitions, including Illinois
(725 ILL. COMP. STAT. 5/103-1(d)), Florida (F.S.A. ' 901.211), Ohio (R.C.
'2933.32) and Michigan (M.C.L.A. 764.25a). It is imperative to remember that
just because a department or state has a definition, the definition may not be
constitutionally appropriate.

C.

Fourth Amendment Definition
Under the fourth amendment, the term strip search typically refers to a search that
requires exposure of a portion of a person=s body that is ordinarily private. For
example, one court has stated that Ainclude[d] within the term strip search [is] any
exposure or observation of a portion of a person=s body where that person has a
>reasonable expectation of privacy.=@ Doe v. Calumet City, 754 F.Supp. 1211,
1216 n.9 (N.D. Ill. 1990). The Doe court went on to hold that A[t]here is simply no
question that plaintiffs had a reasonable expectation of privacy in those private
parts. Deeply imbedded in our culture Y is the belief that people have a reasonable
expectation not to be unclothed involuntarily, to be observed unclothed or to have
their >private= parts observed or touched by others.@ Id. at 1218. The parts of a
person=s body where there exists a reasonable expectation of privacy are not
universally agreed upon. Some courts include only the genitals, buttocks and, for
females, breasts, while others include bare skin when it is visible only if forcibly
shown.
1.

Application of the Fourth Amendment Definition
a.

Complete nudity is not required

4

Under the Fourth Amendment, a strip search may take place even
though the person is not required to remove all of his or her
clothing. For example, in Masters v. Crouch, 872 F.2d 1248 (6th
Cir. 1989), the plaintiff was initially required to unbutton her
blouse and expose her chest for inspection and later was required
to completely disrobe and submit to a visual body cavity
inspection. The Sixth Circuit noted that there were two incidents
and that Aeither would be treated as a strip search if it occurred
alone.@ Id. at 1253. See also, Mason v. Village of Babylon, 124
F.Supp.2d 807 (E.D.N.Y. 2001)(The plaintiff was ordered to raise
her shirt and expose her bra. She was then asked to pull out, but
not remove, her bra so as to dislodge anything that might be hidden
underneath. She was also asked to lower her pants to her thighs.
While she was not asked to remove her underwear, she was
required to reposition them. This was analyzed as a strip search.);
Gonzalez v. City of Schenectady. 141 F.Supp.2d 304 (N.D.N.Y.
2001); Huck v. City of Newburgh, 712 N.Y.S.2d 149 (N.Y. App.
2000)(The plaintiff was asked to remove all her outer garments
and, while in her underwear, she was asked to lift her bra exposing
her breasts. The court analyzed this as a strip search.). The First
Circuit noted that Aprecedent does not require that a search be
either prolonged or thorough to be termed a strip search.@ Wood v.
Hancock County, 354 F.3d 57, 63 (1st Cir. 2003). In a case
involving the search of student in a school the Ninth Circuit agreed
that requiring her to strip to her bra and underwear and to shake
her undergarments was a strip search. Redding v. Stafford Unified
School District 541 F.3d 1071, 1081 (9th Cir. 2008).
To make matters more confusing for non-lawyers, the term strip
search is at times used as legal shorthand to refer to any search that
is so intrusive that it requires individualized reasonable suspicion.
See, e.g., Justice v. City of Peachtree, 964 F.2d 188, 191 (11th Cir.
1992)(Requiring a 14 year-old girl to strip down to her underwear
because the officers suspected her of concealing drugs on her
person was found to be a strip search under this definition.). In
Pace v. City of Des Moines, 201 F.3d 1050 (8th Cir. 2000), the
court found that a person has a reasonable expectation of privacy
in the upper body and any tattoos on the upper body. Thus, an
order by a policeman that the plaintiff remove his shirt to permit
photographing of a tattoo on his chest violated his fourth
amendment rights. This was true even though the plaintiff had
been seen wearing a tank top that exposed most of the tattoo in
5

public on numerous occasions. Some courts have generally
referred to a person=s right not to be involuntarily required to
disrobe. See Justice v. City of Peachtree City, 964 F.2d 188 (11th
Cir. 1992). Stanley v. Henson, 337 F.3d 961(7th Cir. 2003) (held
that a policy requiring detainees to strip to their underwear is
analyzed as a strip search but found the policy to be reasonable).
b.

Observation while using the bathroom
Courts have required individualized reasonable suspicion when
police officers observe a detainee using the bathroom, even if the
officer did not ask the person to disrobe. See DiLoreto v. Borough
of Oaklyn, 744 F.Supp. 610, 620 (D.N.J. 1990). Note, however,
that observation may be considered reasonable while a person is
giving a urine sample for a drug test.

c.

Observation during a changeover, dress-out or clothing search
A changeover, or dress-out, is the process during admission, into a
detention facility where a detainee is required to remove his or her
street clothing and get dressed in a uniform. The process may be
accompanied by a strip search and/or delousing. Observation of
inmates during a changeover, or dress-out, may require
individualized reasonable suspicion. For example, in Doan v.
Watson, 168 F.Supp.2d 932 (S.D. Ind. 2001), the observation of
misdemeanor arrestees while showering and delousing prior to
being dressed in prison-issued uniforms by officers who were
specifically instructed to examine the prisoners= entire bodies for
contraband, was found to violate the prisoners= Fourth Amendment
rights. The specific instruction to prison officers to examine the
inmates= bodies was viewed as a blanket strip search policy.
Observation of a detainee while she changed into a jail-issued
uniform was characterized as a strip search in Burns v. Goodman,
2001 WL 498231 (N.D. Tex. May 8, 2001), aff=d, 2002 WL
243248 (5th Cir. Jan. 16, 2002), cert. denied, 537 U.S. 840 (2002).
In Burns, a male corrections officer observed the plaintiff, a female
detainee, change into a prison-issue dress. Such observation was in
violation of the facility=s policy, although there was evidence that
such observation was common practice. The court acknowledged
that if Athis was the customary practice, it would constitute a strip
search.@ Id. at *5.

6

A similar episode ended in a different result in Stanley v. Henson,
337 F.3d 961 (7th Cir. 2003). The plaintiff was arrested for
assaulting a police officer. Jail policy required that all detainees
who were not to be released on their own recognizance be changed
into jail-issue uniforms and for a same-sex officer to observe the
changeover. The policy allowed detainees to leave their
undergarments on. However, the plaintiff was not wearing a
brassiere at the time of her arrest, so the changeover resulted in the
exposure of her bare breasts. The court analyzed the changeover as
a strip search, but found it to be a relatively minimal intrusion,
pointing to the brief period of observation/exposure, the policy that
undergarments may remain on, and the fact that there was no
touching by the officer. The court found this minimal intrusion to
be justified because Stanley was arrested for assaulting a police
officer and her jailers knew nothing of the circumstances of her
arrest. The court focused on the reasonableness of the policy in
general rather than its effect on the plaintiff.
d.

Vermin inspection
Some facilities inspect the bodies of detainees for vermin and/or
delouse new detainees. In Skurstenis v. Jones, 236 F.3d 678 (11th
Cir. 2000), the court upheld as reasonable a physical examination
of the plaintiff by an opposite gender nurse=s assistant. The search
consisted of the male nurse=s assistant running his fingers through
plaintiff=s cranial and pubic hair. The Eleventh Circuit held that Ait
is not inappropriate for medical personnel to conduct a strip search
of an inmate of the opposite sex.@ Id. at 684. Unusual in this case
was the fact that Skurstenis was not searched until shortly before
she left the jail. The court dismissed this oddity as acceptable,
given that the medical personnel were previously unavailable to
perform the examination. Further, the court noted that the Sheriff=s
office was specifically charged by the Alabama legislature to
Aexercise every precaution to prevent the spread of disease among
the inmates.@ Alabama Code '14-6-95. The spread of lice, which
was apparently prevalent amongst inmates in Alabama, was of
particular concern.
One must wonder how effective a disease prevention program is if
detainees are not searched upon admission to the facility. While
physical or visual examinations of detainees= naked bodies for
vermin are generally upheld, the details of the procedure should be

7

carefully examined. Such a search represents a tempting subterfuge
to skirt the limitations on strip searches.

III.

e.

Touching bare body parts
Courts apply the individualized reasonable suspicion standard for
searches in which a detainee is subjected to touching of the
genitals, buttocks or, for women, bare breasts. Courts utilize the
body of law developed for strip searches to analyze such cases,
even though this physical touching is more than a strip search. See
Schmidt v. City of Lockport, 67 F.Supp.2d 938 (N.D. Ill. 1999).
While a pat search through clothing may be conducted as part of an
intake procedure, touching a person=s bare body requires at least
reasonable suspicion.

f.

Intent Required
The fact that a law enforcement officer views a person=s naked
body does not, by itself, mean that a strip search has taken place.
The viewing must be part of a search procedure, rather than
inadvertent or accidental viewing. Accidental viewing, sometimes
called incidental, occurs when an officer who is not involved in a
search unintentionally or unavoidably views a person=s naked
body. For example, an officer may walk past a shower while a
person is exiting. The First Circuit requires an Ainspection,@ which
is defined to include Aformal or official viewing or examination.@
Wood v. Hancock County, 354 F.3d 57 (1st Cir. 2003). Wood held
that the officer=s intent is not controlling. A district court recently
held that the only intent required is the intent to search. See
Blihovde v. St. Croix County, 2003 WL 23139401 (W.D. Wisc.
2003). The fourth amendment applies only to unreasonable
searches, so the viewing must be part of a process aimed at
detecting contraband. Of course, as discussed above, changing the
stated purpose in an attempt to evade the constitutional
requirements is unlikely to succeed.

FOURTH AMENDMENT STANDARD
A.

The Plaintiff’s Status as Pre-Arraignment, Pre-Trial, or Post-Conviction
Changes the Balance

8

The standard for evaluating reasonableness does not change as a detainee=s status
changes, but the balance of interests articulated in Bell does. As the level of
judicial process an inmate receives increases, the balance shifts further in favor of
institutional security concerns. The interaction between the status of the
individual detainee and the nature of the institution where the inmate is being held
must also be kept in mind and will be discussed later in these materials.
At the pre-arraignment and post-arraignment-awaiting-bail stages, the nature of
the crime with which an individual is charged plays a role in establishing the
standard for justifying a strip search, as will be discussed shortly. By the time an
inmate is being held pending trial or serving a sentence, the specifics of the crime
are not a factor and the standard depends more on the detainee=s status and the
nature of the facility holding the detainee.
1.

Admission to the General Population
Typically detainees awaiting a first court appearance are held in a police
lock-up or a county jail separate from other prisoners. Our smallest state,
Rhode Island, established a Aunified@ system in which such detainees were
held in an intake facility, which was classified as a maximum security
prison, and where the detainees were mixed with the general prison
population. The First Circuit rejected the claim that this intermingling
provided a basis for strip searching the detainees because it was
Ainherently limited and avoidable@ and the security interests of a facility do
not always outweigh the privacy interests of detainees. Roberts v. Rhode
Island, 239 F.3d 107 (1st Cir. 2001). Other courts agree. Calvin v. Sheriff
of Will County, 405 F.Supp. 2d 933 (N.D. Ill. 2005); Cruz v. Finney
County, 656 F. Supp 1001 (D.Kan. 1987) However, other courts have
held that pre-arraignment detainees can be strip searched without
evaluating for reasonable suspicion before the detainee is to be placed in
the general population of a jail. Evans. Stephens, 407 F.3d 1272 (11th Cir.
2005) (en banc); Gustafson v. Polk County Wis., 226 F.R.D. 601 (W.D.
Wis. 2005).

2.

Before Arraignment or a First Court Appearance
Policies involving routine strip searches upon admission of people who
have just been arrested and are waiting for bail to be set or for a first court
appearance have been held unconstitutional, in part because such
individuals do not typically plan to be arrested. In Roberts, the First
Circuit noted that Athe deterrent rationale for the Bell search is simply less
relevant given the essentially unplanned nature of an arrest and subsequent
incarceration.@ Id. at 111. The Ninth Circuit expressed a similar view in
9

Giles v. Ackerman, stating Athere is no indication whatsoever that the
county=s strip search policy could or did have any deterrent effect. Visitors
to the detention facility in Bell could plan their visits and organize their
smuggling activities. In contrast, arrest and confinement in the Bonneville
County Jail are unplanned events, so the policy could not possibly deter
arrestees from carrying contraband.@ Id. at 617.
Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983),
challenged Chicago=s practice of strip searching women arrested on
misdemeanor offenses before admitting them to city lock-ups to await
bail. The Seventh Circuit acknowledged that strip searches are invasive
stating, Awe can think of few exercises of authority by the state that intrude
on the citizen=s privacy and dignity as severely as the visual anal and
genital searches practiced here.@ Id. at 1272. This extreme invasion of
privacy weighed heavily on one side of the balancing test established in
Bell, requiring the City to demonstrate a strong need for the searches. The
court recognized that Athe more intrusive the search, the closer
governmental authorities must come to demonstrating probable cause for
believing that the search will uncover the objects for which the search is
being conducted.@ Id. at 1273. Authorities must have a specific reasonable
suspicion that an arrestee is concealing contraband to outweigh the
extreme intrusion involved in strip searching an arrestee. See id.
The nature of the reasonable suspicion necessary to constitutionally strip
search a pre-arraignment detainee was discussed in Kelly v. Foti, 77 F.3d
819 (5th Cir. 1996). AA strip search is permissible only if the official has
an individualized suspicion that the arrestee is hiding weapons or
contraband. This suspicion must relate to the individual arrestee, not a
category of offenders and does not arise merely because an arrestee fails to
post bond immediately and police move him to general population. In
short, pure speculation does not create a reasonable suspicion; nor does a
generalized fear of a category of arrestees.@ Id. at 822 (citations omitted).
This general standard has been widely embraced. See, e.g., Wilson v.
Jones, 251 F.3d 1340 (11th Cir. 2001)(holding unconstitutional the strip
search of DUI arrestee detained until blood alcohol level diminished);
Weber v. Dell, 804 F.2d 796, 804 (2nd Cir. 1986) (AWe conclude that a
reasonable suspicion that an accused misdemeanant or other minor
offender is concealing weapons or other contraband B suspicion based on
the particular traits of the offender, the arrest and/or the crime charged B is
necessary before subjecting the arrestee to the indignities of a strip/body
cavity search.@); Chapman v. Nichols, 989 F.2d 393 (10th Cir.

10

1993)(holding unconstitutional the strip searches of women arrested for
traffic offenses and not suspected of having concealed weapons or drugs).
a.

Default warrants
Many cases challenging strip search policies have been brought by
people arrested on default warrants. While some people may have
defaulted after their first court appearance, these individuals are
treated the same as pre-arraignment detainees. See Masters v.
Crouch, 872 F.2d 1248 (6th Cir. 1989)(default warrant for failing
to appear for a traffic hearing); Hill v Bogans, 735 F.2d 391 (10th
Cir. 1984)(arrest on a bench warrant for failing to appear at a
hearing for traffic offenses).

b.

Parole or probation violations
Since many courts have held that, in some instances, a criminal
charge itself can provide reasonable suspicion to support a strip
search, it is necessary to determine how to treat an arrest for parole
or probation violations. An arrest for violating probation or parole
is distinct from the underlying offense that resulted in the
imposition of probation or parole in the first place. A violation can
include a wide range of conduct, including acts that are not crimes,
such as missing an appointment with a parole officer, as well as
acts that could indicate criminal conduct, such as a positive drug
test. The nature of the probation violation itself and not just the
fact that there has been a violation, must play a role in determining
whether reasonable suspicion exists to justify a strip search.
The issue of strip searches of probation violators is discussed in
Silvia v. Clackamas County, 2001 WL34039482 (D. Or. Nov. 14,
2001). Clackamas County argued that strip searches of probation
violators should be evaluated using the standard for convicted
prisoners. The County reasoned that the violation resulted in the
reimposition of the original sentence, rendering the plaintiff a
prisoner. The court rejected this contention, holding instead that
Aprobation violations relate to conduct which is separate and apart
from the conduct underlying the original conviction.@ The court
applied the standard for pretrial detainees in evaluating the strip
search of the plaintiff. The notion that a probation violation alone
is not an automatic justification for a strip search was embraced in
Dodge v. County of Orange, 209 F.R.D. 65 (S.D.N.Y. 2002). The
Dodge court granted a preliminary injunction prohibiting the
Orange County Correctional Facility from maintaining its current
11

strip search policy, holding that, based on the information before it,
A[b]eing admitted for a violation of probation or parole does not in
and of itself provide individualized reasonable suspicion.@ Id. at
77. A probation violation is a factor that may be considered in
forming the reasonable suspicion necessary to justify a strip search,
but is not itself automatic justification for a strip search.
2.

Post-Arraignment-Awaiting-Bail
Once bail has been set, individuals may be detained while waiting to post
bail. In Wachtler v. County of Herkimer, 35 F.3d 77 (2nd Cir. 1994), the
plaintiff was arrested for obstructing governmental administration, a
misdemeanor, when he refused to answer an officer=s questions during a
routine traffic stop. Wachtler was taken before the nearest available judge,
bail was set and he was taken to the county jail. As part of processing
Wachtler into the jail, he was strip searched and placed in solitary
confinement. Overturning the district court=s dismissal of Wachtler=s
claim, the Second Circuit applied the basic misdemeanant standard
holding that, Aif 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.@ Id. at
82.In Shain v. Ellison, 273 F.3d 56, 64 (2nd Cir. 2001) the court affirmed
that, even after an arraignment, a misdemeanor arrestee cannot be strip
searched without reasonable suspicion.

3.

Pre-Trial Inmates
The balance between a detainee=s privacy rights and a detention facility=s
need to strip search detainees shifts when detainees are held pending trial,
as demonstrated by the decision in Bell. Bell addressed challenges to a
variety of prison procedures brought by pre-trial detainees at a short-term
federal detention facility, including strip searches of detainees after
contact visits. The Court emphasized the status of pretrial detainees,
noting that Aa person in the federal system is committed to a detention
facility only because no other less drastic means can reasonably ensure his
presence at trial.@ Bell, 441 U.S. at 1866. The Court further cautioned that
A[a] detention facility is a unique place fraught with serious security
dangers.@ Id. at 1884. Given the deference that must be provided to jail
administrators, it is not surprising that the Court upheld the strip search
policy which was reasonably limited to searching inmates after they had
an opportunity to obtain contraband during contact visits.

12

The importance of taking into account the dangers inherent in a pre-trial
detention facility and inmates held pending trial is highlighted in Shain v.
Ellison, 273 F.3d 56 (2nd Cir. 2001). In Shain, a family court judge
ordered the plaintiff held without bail following his arrest for a
misdemeanor offense, harassment. Upon admission to the Nassau County
Correctional Center (NCCC), Shain was strip searched in accordance with
institutional policy. The court applied the standard for misdemeanor
arrestees in evaluating the strip search. Using this standard, the court
found that Ait was clearly established in 1995 that persons charged with a
misdemeanor and remanded to a local correctional facility like NCCC
have a right to be free of a strip search absent reasonable suspicion that
they are carrying contraband or weapons.@ Id. at 66.
While the strip searches in Bell were upheld by the Supreme Court, it is
not a per se validation of strip searches in a detention setting, or even of
strip searches of pretrial detainees. See Masters v. Crouch, 872 F.2d 1248,
1252 (6th Cir. 1989)(ABell v. Wolfish did not give carte blanche approval
to a practice of strip searching all pretrial detainees.@); Roberts v. Rhode
Island, 239 F.3d 107 (1st Cir. 2001); Dobrowolskyj v. Jefferson County,
823 F.2d 955 (6th Cir. 1987). The plaintiff in Covino v. Patrissi, 967 F.2d
73 (2nd Cir. 1992), was also a pretrial detainee challenging a policy under
which he was subjected to random strip searches. Unlike the plaintiffs in
Bell, Covino was held in a state prison pending trial and intermingled with
convicted inmates. The search policy was upheld under the deferential
Turner standard for evaluating prison regulations. (This standard is
discussed later in these materials, in the sections addressing the
reasonableness standard applied in a prison setting.)
Thus, the constitutionality of strip searches of pretrial detainees is
determined by a balancing of interests. The status of the pretrial detainee
shifts the balance of interests, and the decisions of prison/jail
administrators to strip search detainees is shown greater deference.
4.

Former Inmates, Released After Court Proceedings
Once a person held pre-trial is freed from any pending criminal charges,
he regains his full rights under the Fourth Amendment. As a result, if a
prisoner who was held pending trial goes to court and is found not guilty,
he may not be strip searched on his return to the jail to pick up his
belongings. While this seems obvious, plaintiffs have brought suit to
establish this right in several jurisdictions. See Bynum v. District of
Columbia, 217 F.R.D. 43 (D.D.C. 2003)(class action challenging practice

13

of strip searching court returns after they have been ordered released);
Gary v. Sheahan, 1998 WL 547116 (N.D. Ill. 1998).
5.

Convicted Prisoners
Once a detainee has been convicted and sentenced, the required balancing
of interests is weighted even more heavily in favor of the detention
facility=s security concerns. In Arruda v. Fair, 710 F.2d 886 (1st Cir.
1983), the court upheld a policy of strip searching inmates in the
segregation unit of a state prison every time they left, or entered, the unit.
The court compared the challenged search policy to that in Bell, and found
even greater reasons to justify a search in the prison setting. If the Bell
strip searches were constitutional, the court reasoned, the prison policy
must also be constitutional given the additional justifications for the
searches. Both search policies dealt with searches after inmates had an
opportunity to acquire contraband in settings fraught with serious dangers.
Additional factors justifying the searches in the prison setting included
that the facility was a maximum security prison with the segregation unit
holding only the most dangerous inmates and that there was a long history
of contraband problems in the facility, including a documented history of
guards smuggling in contraband. All of these factors made the prison=s
strip search policy reasonable and outweighed any invasion of the
prisoners= privacy rights.
This result has been reached consistently by courts evaluating strip
searches in the prison setting. See Hay v. Waldron, 834 F.2d 481 (5th Cir.
1988); Goff v. Nix, 803 F.2d 358 (8th Cir. 1986); Michenfelder v. Sumner,
860 F.2d 328, 332 (9th Cir. 1988), Thompson v. Souza, 11 F.3d 694 (9th
Cir. 1997). Strip searches of convicted prisoners should still meet the Bell
requirements. Thus, strip searches designed to humiliate or intimidate
prisoners can be unconstitutional.

6.

Juveniles
Two circuit courts held that juveniles can be strip searched on arrest based
on the doctrine of in loco parentis. N.G. v. Connecticut, 382 F.3d 225 (2nd
Cir.2004). This was followed by the 8th Circuit in a case where the
juvenile was only required to strip to her underwear. Smook v. Minnehaha
County F.3d (8th Cir. 2006) reversing, 353 F.Supp.2d 1059, (D.S.D.
2005.) At least one district court disagreed with this analysis applying Bell
to find such routine strip search unconstitutional. Moyle v. County of Contra
Costa, 2007 WL 4287315 (N.D. Cal. 2007).

B.

Cause to Support a Strip Search

14

1.

Factors To Be Considered
The three broad categories typically considered when evaluating the
reasonableness of a strip search are:
ƒ
ƒ
ƒ

the nature of the criminal charge
the characteristics of the arrestee; and
the circumstances of the arrest.

See Weber v. Dell, 804 F.2d 796 (2nd Cir. 1986); Giles v. Ackerman, 746
F.2d 614 (9th Cir. 1984); Dobrowolskyj v. Jefferson County, 823 F.2d 955,
957 (6th Cir. 1987); Kelly v. Foti, 77 F.3d 819 (5th Cir. 1996).

2.

The Nature of the Criminal Charge
The nature of the crime charged is a factor in making a decision whether a
detainee may be strip searched. Some courts have held that the charge
alone provides reasonable suspicion to conduct a strip search.
a.

The charge alone may be enough
The offense with which a detainee is charged plays a role in
justifying a strip search of the detainee upon arrest or while
awaiting bail. Decisions holding that the criminal charge alone
supports a strip search are based on the view that the charge itself
supplies the needed reasonable suspicion. See Weber v. Dell, 804
F.2d 796 (2nd Cir. 1986); Dufrin v. Spreen, 712 F.2d 1084, 1087
(6th Cir. 1983). Interestingly, the concept that those charged with
more serious crimes or crimes of violence are more likely to be
carrying concealed contraband that could only be detected through
a strip search is not supported by any scientific studies.

b.

Traffic violations and minor offenses
Traffic violations and minor offenses normally preclude a strip
search in the absence of individualized reasonable suspicion that
the detainee is concealing contraband. The prevalence of this
standard is reflected by the court=s remarks in Masters v. Crouch,
872 F.2d 1248, 1255 (6th Cir. 1989), that A[t]he decisions of all the
federal courts of appeals that have considered the issue reached the
same conclusions: a strip search of a person arrested for a traffic
violation or other minor offense not normally associated with
violence and concerning whom there is no individualized
reasonable suspicion that the arrestee is carrying or concealing a
weapon or other contraband is unreasonable.@
15

c.

Drug charges
Because illegal drugs are often in small, easy-to-hide packages,
strip searches are frequently conducted to search for drugs. The
Tenth Circuit held that the fact that a person was arrested for a
drug charge and is going to be placed in the general population
provides reasonable suspicion to support a strip search. See Lusby
v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1434 (10th Cir. 1984),
vacated for reconsideration on other grounds, 474 U.S. 805
(1985), aff=d, 796 F.2d 1307 (10th Cir.), cert. denied, 479 U.S. 884
(1986). In contrast, in the First Circuit, the fact that a detainee is
charged with a drug offense is not, by itself, enough to justify a
strip search. In Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997), the
fact that Swain was alleged to have dropped a baggie of marijuana
at the scene of the arrest was not enough to justify a strip search.
Swain holds that the justification for the search must be legitimate,
rather than pretextual. Swain had been at the police station for
some time before the decision was made to strip search her. During
that time, she had been permitted to use the bathroom unsupervised
and had been left unsupervised in a cell. According to the plaintiff,
it was not until she refused to provide the police with information
regarding her boyfriend that the officer strip searched her. The
court held that there was a possibility that the strip search was
conducted in retaliation for her non-cooperation. Id. at 8. A pretextual justification does not provide the reasonable suspicion
necessary to justify a strip search and, thus, any search based on
such a premise is unconstitutional. See also, Sarnicola v. County of
Westchester, 229 F.Supp.2d. 259 (S.D.N.Y. 2002)(holding that a
drug-related arrest does not automatically justify a strip search).
Similarly in Doe v. Burnham, 6 F.3d 476 (7th Cir. 1993) the court
remanded for trial a claim of an unconstitutional strip search even
though the officers claimed they thought the plaintiff had
marijuana.

d.

Crimes involving violence
A number of courts have found that crimes involving violence
create a presumption that the detainee is concealing weapons or
other contraband and create the reasonable suspicion necessary to
justify a strip search. See Dufrin v. Spreen, 712 F.2d 1084, 1087
(6th Cir. 1983). The court upheld a strip search of Ms. Dufrin
because she was charged with a violent felony, assaulting her
stepdaughter with a broom handle, and because she would
16

potentially be introduced into the general jail population. The court
also found that the search had been conducted in a reasonable
manner. The Sixth Circuit stated that it was not establishing a
bright-line rule, but the opinion has been interpreted to permit strip
searches of people charged with violent felonies.
Two oddities about Dufrin are worth mentioning. First, the assault
at issue occurred two months before Dufrin was arrested, so the
presumption arose from the nature of the charge itself. It had
nothing to do with a close proximity between the crime and the
arrest, which could suggest that the arrestee still possesses the
weapon used in committing the crime. Secondly, although the
court relied on the fact that the potential existed for Dufrin to
mingle with the general jail population, she actually spent her time
in a holding cell by herself. See also, Dobrowolskyj v. Jefferson
County, 823 F.2d 955, 958B59 (6th Cir. 1987)(holding that
A[m]enacing [a violent misdemeanor] is an offense that is
associated with weapons, and may well raise reasonable suspicion
on the part of jail officials that a person detained on that charge
may be concealing weapons or other contraband@).
A similar position is advocated in dicta in Masters v. Crouch, 872
F.2d 1248 (6th Cir. 1989). AIt is objectively reasonable to conduct
a strip search of one charged with a crime of violence before that
person comes into contact with other inmates. There is an obvious
threat to institutional security.@ Id. at 1255.
In an effort to establish a bright-line rule, many courts have
permitted strip searches based on the title given a crime by the
legislature. The theory is that people charged with Aviolent@
offenses are more likely to have hidden weapons or contraband.
However, the title of a criminal offense does not always tell
whether a weapon was actually used, much less whether the person
is likely to have anything hidden on or in his body. AAssault and
battery with a dangerous weapon,@ for example, sounds like a
violent crime involving a weapon that could justify a strip search.
But, if the police report or criminal complaint describes the
weapon as a Ashod foot,@ the claim makes no sense, since a person
who kicks someone while wearing a shoe is hardly more likely
than anyone else to have hidden weapons. In Durfin, the plaintiff
had threatened her stepdaughter with a broom handle. It is
reasonable to assume that the case more likely involved a weapon
17

chosen based on its availability at the time, rather than a weapon
used by a calculating person, who is likely to have hidden other
weapons in her body cavities.
e.

Misdemeanor/felony distinction
Some courts have held that the classification of a crime as a
misdemeanor or a felony charge is not a significant factor in
evaluating the reasonable suspicion necessary to justify a strip
search. Kennedy v. LAPD, 901 F.2d 702 (9th Cir. 1990), is the first
circuit court case to hold that a blanket policy of strip searching all
felony arrestees is unreasonable. Kennedy was charged with grand
theft for stealing her roommate=s television. The court recognized
that the classification of an offense as a felony offered little insight
into the likelihood that the arrestee was concealing weapons or
contraband. In assessing the constitutionality of the strip search,
the court held, A[t]hat this case involves a felony arrest does not
alter the level of cause required to justify a visual body cavity
search.@ Id. at 716.
A number of district courts have likewise found that the
classification of an offense does not provide reasonable suspicion.
See Murcia v. County of Orange, 226 F.Supp.2d 489 (S.D.N.Y.
2002); Mack v. Suffolk County, 154 F.Supp.2d 131, 143 (D. Mass.
2001); Elliott v. Strafford County, 2001 U.S. Dist. LEXIS
1246(D.N.H. 2001); Tardiff v. Knox County, F. Supp. 2d.
(D.Me. 2005) For a scholarly discussion of using the felony/
misdemeanor distinction to justify strip searches, see Gabriel M.
Helmer, Note, Strip-Search and the Felony Detainee: A Case for
Reasonable Suspicion, 81 B.U. L.Rev. 239 (2001).

3.

The Characteristics of the Arrestee
a.

Criminal History as a Basis for Reasonable Suspicion
The Fifth Circuit held that an eleven-year-old minor drug offense
does not provide reasonable suspicion to support a strip search in
Watt v. City of Richardson Police Department, 849 F.2d 195 (5th
Cir. 1988). Ms. Watt was arrested on an outstanding warrant for
failing to register her dog. She volunteered that she had been
convicted of a minor drug offense eleven years earlier. The
conviction had been expunged from her record. The city=s policy
required that any arrestee charged with drug, weapons or
shoplifting offenses, or with a history of such charges, was to be
18

strip searched. Ms. Watt challenged the constitutionality of the
strip search. The court recognized that strip searches of pre-trial
detainees and convicted prisoners have been upheld as
constitutional, but noted that searches of Aminor offense arrestees,
who would be detained pending the posting of bond, often for short
periods of time, have been scrutinized much more closely.@ Id. at
197. The court ruled that justifying strip searches of arrestees
based on prior criminal history can be reasonable. However, based
on the facts presented by Ms. Watt=s case, her strip search was
unconstitutional. See also, Burns v. Goodman, 2001 WL 498231
(N.D.Tex.,2001) (an arrest for marijuana four months earlier could
not justify a strip search since the defendants did not rely on the
arrest at the time of the search). Since a balancing test is applied,
the older the criminal charge, the less likely it could serve as a
basis for a strip search. A better practice, as discussed below, is to
rely on numerous characteristics of the arrestee, with criminal
history being only one of those characteristics. See, Nieves v. State,
2003 WL 23004983 (Md.App.,2003) (Court refuses to allow strip
searches on arrest for a minor offense when person had a prior
drug offense two years earlier.
b.

4.

Individual Characteristics of Arrestees
Any individual characteristic of an arrestee may be considered and
may help create reasonable suspicion. Factors that are considered
include furtive gestures, gang affiliations, signs of recent
intravenous drug use and, most importantly, previous attempts to
bring contraband into a facility. No matter what the charge,
individualized suspicion based on characteristics of the arrestee
may support a strip search.

Circumstances of Arrest
Officials may have reasonable suspicion to strip search a detainee based
on behavior observed during an arrest or processing. An example of this is
seen in Skurstenis v. Jones, 236 F.3d 678 (11th Cir. 2000), where the strip
search of a DUI arrestee was upheld based on the presence of a handgun in
her car at time of arrest. The Eleventh Circuit ruled that Athis court holds
that possession of a weapon by a detainee provides the reasonable
suspicion necessary to authorize a strip search.@ Id. at 682. In other
situations, a combination of circumstances have created reasonable
suspicion. For example, in Justice v. City of Peachtree City, 961 F.2d 188
(11th Cir. 1992), officers formed reasonable suspicion based on a variety
19

of circumstances, including: that the arrest took place in a parking lot,
where it was suspected that drinking and drug activity regularly occurred;
observation by an officer of one suspect handing something to the suspect
strip searched; and the nervousness of the suspect strip searched.
If the circumstances existing at the time of the arrest are considered,
should the fact that the arresting officers conducted a strip search at the
police station be considered when the prisoner is brought to the holding
facility while waiting for court? In other words, if the arresting officers
have already conducted a constitutional strip search, can the holding
facility officials conduct a subsequent strip search on the same basis? This
question has yet to be decided.
5.

Contact with Outsiders
Bell held that a strip search of pre-trial detainees in federal detention after
a contact visit was reasonable because of the danger that contraband could
be introduced into the facility. Since Bell, courts have generally held that
strip searches after contact visits or other contact with outsiders is
reasonable. See, Wood v. Hancock County Sheriff=s Department, 354 F.3d
57,68-69 (1st. Cir. 2003) (AThe widely acknowledged risk posed by contact
visits furnishes sufficient suspicion to justify a blanket policy.@ Under
Bell, @except in atypical circumstances, a blanket policy of strip searching
inmates after contact visits is constitutional.@) Elliott v. Strafford County,
2001 WL 274827 (N.H. 20001)(dismissing claims for strip searches after
contact visits and court appearances.). If the strip search policy after
contact visits is not applied uniformly or if the strip search is used for the
purpose of harassment, it would be unconstitutional.

6.

Stripping Inmates Naked for Suicide Prevention or Prevention of
Rowdiness
It is unconstitutional under Bell to strip detainees naked and leave them
naked in a cell for refusing to answer intake questions asking whether or
not they feel suicidal. Wilson v. City of Kalamazoo, 127 F.Supp.2d 855
(W.D. Mich. 2000). However, the same court held that placing inmates
who refused to answer if they were suicidal in a cell clad only in their
underwear is constitutional. Johnson v. City of Kalamazoo, 124 F.Supp.2d
1099, 1106 (W.D. Mich. 2000). Similarly, placing detainees naked in
administrative segregation as punishment for rowdy and disruptive
behavior during booking is unconstitutional. Rose v. Saginaw County, 353
F.Supp.2d 900 (E.D. Mich. 2005).

20

Complete nudity has been found acceptable by some courts in certain
situations. See McMahon v. Beard, 583 F.2d 172, 175 (5th Cir. 1978)
(finding permissible the confinement of prisoner completely naked in a
cell where prisoner had previously attempted to commit suicide by
hanging but was cut down by jailers, and had threatened future self harm).
D.

Reasonable Manner
1.

No Touching by the Officer
Many courts upholding challenged strip searches of all classes of prisoners
have mentioned favorably the fact that the search was visual only, with the
searching official never touching the detainee. See Michenfelder v.
Sumner, 860 F.2d 328, 332 (9th Cir. 1988)(AThe searches are conducted
on convicted prisoners in [the] most restrictive unit, and are visual only,
involving no touching.@); Stanley v. Henson, 337 F.3d 961, 965 (7th Cir.
2003)(A[She] was not touched during the search.@); Dufrin v. Spreen, 712
F.2d 1084, 1089 (6th Cir. 1983)(A[T]he search actually conducted was
visual only.@); Fernandez v. Rapone, 926 F.Supp. 255, 262 (D. Mass.
1996)(A[N]or were the prisoners touched during the searches, which lasted
only minutes.@).
Inappropriate touching of the detainee resulted in a search being held
unconstitutional in Amaechi v. West, 237 F.3d 356 (4th Cir. 2001).
Amaechi was searched incident to arrest on the street in front of her house
before she was placed in the patrol car. She was wearing a light house
dress that had no buttons below the chest, leaving her exposed from the
chest down. She alleged that the officer touched her skin with his hand,
penetrated her genitalia and kneaded her buttocks during a pat search. The
officer claimed the Aright to conduct a full search of the person under
Robinson includes the right to briefly >swipe= the arrestee=s outer genitalia
and slightly penetrate the genitalia.@ The court allowed the plaintiff=s claim
to go to trial.
Touching by medical personnel is treated differently. For example, in
Skurstenis v Jones, 236 F.3d 678 (11th Cir. 2000), the court held that it
was appropriate for an opposite gender nurse=s assistant to touch
Skurstenis, by running his fingers through her head and pubic hair, as he
examined her for lice.

2.

Limits on Instructing the Person to Touch Himself
Basic touching to help facilitate the search has not gone unchallenged. In
this category of instructions are orders to open the mouth, move the
21

tongue, run the hands through hair, splay fingers, bend over and spread the
buttocks, lift arms and/or legs, lift and/or move genitals or breasts, and
squat and cough.
As with all features of strip searches, such instructions are subject to the
test for reasonableness. Instructions that are reasonable in the context of
facilitating the search by allowing the officer to conduct the search
without having to touch the inmate, are permissible. These would include
instructions to open the mouth, move the tongue, raise the arms, and so
forth. Instructions that are intended purely to humiliate or embarrass or
those which serve no legitimate penological purpose are likely
unreasonable. So, for example, ordering an inmate to probe her own body
cavities, is likely to be held to be unreasonable. Such an instruction would
serve no purpose, since an arrestee who had drugs hidden in a body cavity
would be unlikely to report this finding to the authorities.
3.

Derogatory Comments
Officers conducting strip searches, regardless of the type of facility or
status of the detainee, should conduct themselves professionally. This
includes refraining from the use of derogatory or abusive language. This
tenet appears in almost all written policies governing how a strip search is
to be conducted. In practice, these policies are not always adhered to.
Verbal abuse alone will not give rise to a constitutional claim. In
examining a claim of qualified immunity involving the use of abusive
language during a strip search, the Eleventh Circuit reviewed cases
dealing with verbal abuse, including cases from the First, Fifth, Eighth and
Eleventh Circuits, and concluded that, A[i]n light of this case law treating
verbal abuse, even vile language and racial epithets, as insufficient to
constitute a constitutional violation, we cannot conclude that it was clearly
established that [the searching officer=s] taunts and threats of prison rape
might so exacerbate the intrusiveness of the strip search as to violate the
appellees= constitutional rights.@ See Evans v. City of Zebulon, 351 F.3d
485, 495 (11th Cir. 2003), vacated for reh'g en banc, 2003 WL 23351898
(11th Cir. March 31, 2004).

4.

No More People than Necessary
To insure that a strip search is no more humiliating and demeaning than
necessary, only those officers required to safely and effectively carry out
the search should be present. The presence of additional officers or others
may violate the Fourth Amendment. A number of cases comment on the
presence, or absence, of unnecessary personnel during a strip search. For
22

example, one of the factors mentioned by the Tenth Circuit in Hill in
finding the search at issue unconstitutional, was the fact that it took place
in a public area where 10 to 12 people were milling about. See Hill v.
Bogans, 735 F.2d 391 (10th Cir. 1984). Similarly, in Abshire v. Wells, 830
F.2d 1277, 1280 (4th Cir. 1987), the court pointed to the presence of Asix
to eight police officers B five who were in the room with [the detainee]
and several others, including a female officer, who witnessed the search
while standing in the adjacent hallway,@ as one of the factors that properly
made the reasonableness of the search at issue a jury question.
The absence of excess personnel is often cited as demonstrating the
reasonableness of a particular strip search. See Dufrin v. Spreen, 712 F.2d
1084 (6th Cir. 1983); Stanley v. Henson, 337 F.3d 961 (7th Cir. 2003)(the
presence of a single same-sex officer listed as a factor in finding the
search was minimally intrusive). See also, Justice v. City of Peachtree
City, 961 F.2d 188 (11th Cir. 1992)(holding that, even though two officers
were present for a strip search of the juvenile, the search was conducted in
the least intrusive manner possible).
5.

Strip Search By Opposite Sex Officer
The fact that a detainee is searched by a same sex officer is often cited as
one factor rendering a search reasonable. See Justice v. City of Peachtree
City, 961 F.2d 188 (11th Cir. 1992)(noting approvingly that the search was
conducted by two officers of the same sex); Stanley v. Henson, 337 F.3d
961 (7th Cir. 2003); Dufrin v. Spreen, 712 F.2d 1084 (6th Cir. 1983). A
strip search by an opposite sex officer is unreasonable, unless it was
unavoidable due to emergency conditions.
In Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994), a convicted prisoner
sued seeking damages and injunctive relief, alleging that female guards
strip searched him during a shakedown of his housing unit and regularly
observed male inmates while they slept, showered and dressed. The
Seventh Circuit reversed dismissal of the complaint, ruling that it was
possible for the plaintiff to state a claim for relief on these facts. In Somers
v. Thurman, 109 F.3d 614 (9th Cir. 1997), the Ninth Circuit evaluated a
claim of qualified immunity for female prison guards who regularly
conducted non-emergency strip searches on a male inmate in violation of
prison policy. The court held that, as of October 1993, when the searches
occurred, there was no clearly established right of a male inmate to be free
of opposite gender strip searches.

23

In an emergency situation, presence of an opposite sex officer is likely to
be reasonable under the Fourth Amendment. For example, it is reasonable
to have male officers assist in transferring a naked and unruly female
detainee, who is a danger to herself. Once that inmate has been transferred
and restrained, however, it would be unreasonable to continue to allow
male officers to view her naked body. See Hill v. McKinley, 311 F.3d 899
(8th Cir. 2002).
6.

E.

Videotaping a Strip Search
Videotaping of strip searches is occasionally mentioned, although no
reported cases directly address the constitutionality of the practice.
Cameras at jails are usually said to be either switched off or covered when
a strip search is occurring in the room. See Swain v. Spinney, 117 F.3d 1, 4
(1st Cir. 1997). The majority of taped searches occur in the prison setting,
either for training purposes or when the search takes place as part of a
confrontation with the inmate, e.g., when a response team is sent in to
compel a prisoner to comply with instructions or to remove him from his
cell. In this circumstance, the entire process is taped, not just the search. If
taping the strip search of a prisoner serves a legitimate security interest,
courts allow the taping. For example, in Hayes v. Marriot, 70 F.3d 1144,
1148 (10th Cir. 1996), the court concluded that A[w]e certainly agree with
the prison officials that legitimate security interests, as well as other
interests, may support the videotaping of prisoner searches.@ Searches that
are taped for illegitimate reasons, such as humiliating or punishing a
prisoner, would be unconstitutional. Videotaping presents a danger for
administrators because liability may arise if the tapes are misused.
Because this is a severe invasion of privacy, such tapes must be properly
secured.

Reasonable Place
A detainee should only be strip searched in a location that allows the detainee the
maximum amount of privacy, thus minimizing embarrassment, while still
allowing the search to be conducted safely and efficiently. This principle was
reflected nearly twenty years ago in Jones v. Edwards, 770 F.2d 739 (8th Cir.
1985). Jones was strip searched at the jail in a sheltered alcove off of a hallway,
without a screen. The court advised that, Aalthough the location of the search did
not expose Jones to the scrutiny of other jailers or passersby, this degree of
privacy seems to have been entirely fortuitous; we suggest that where legitimate
security concerns justify this kind of search, jail officials should take precautions
to insure that the detainee=s privacy is protected from exposure to others
unconnected to the search.@ Id. at 742. One way to protect a prisoner=s privacy

24

during a strip search is a privacy screen. This is used in Cook County. Bullock v.
Sheahan, --- F.Supp.2d ----, 2008 WL 2931606 (N.D.Ill.).
Requiring that a strip search be conducted in a reasonable place helps to protect
the privacy concerns previously addressed.
1.

Outside
An obvious example of an unreasonable place to conduct a strip search is
on the side of a road. In Starks v. City of Minneapolis, 6 F.Supp.2d 1084
(D. Minn. 1998), police officers searched a drug suspect by the side of the
road, only three to five minutes away from the police station. This was
held to be an unreasonable place. In ruling on the issue of qualified
immunity for the searching officer, the court held that Aa reasonable police
officer would not be justified in assuming an on-street strip search was
within the constitutional boundaries defined by the Fourth and Fourteenth
Amendments of the United States Constitution.@ Id. at 1088. The court
remarked that it was difficult to find case law explaining that a public strip
search is inappropriate because the principle is so self-evident, such
searches simply do not take place.
In Amaechi v. West, 237 F.3d 356 (4th Cir. 2001), an officer searched the
plaintiff on the street in front of her house. The court found this to be
unreasonable because she could be viewed by her Afamily, the public, and
the officers.@ Id. at 361. Even if an officer has reasonable suspicion to
conduct a strip search, the search will be unconstitutional if it takes place
outside, where the person could be viewed by others.

2.

In a Police Vehicle
Strip searching a suspect in a drug bust in a police van was upheld in
United States v. Dorlouis, 107 F.3d 248 (4th Cir. 1997). Police were
searching for marked currency used to purchase drugs from the suspect
earlier in the day. The court concluded that Athe search in question was not
an unconstitutional strip search. The search did not occur on the street
subject to public viewing but took place in the privacy of the police van.@
Id. at 256. Obviously it is important that the vehicle was private. A police
car would be inappropriate because the person being searched could be
viewed through the windows.

3.

Rooms with a View
Strip searches should not be conducted in rooms that allow the naked
detainee to be seen by those outside the room. The door to a strip search
room should be closed and any windows should be covered. Logan v.
25

Shealy, 660 F.2d 1007 (4th Cir. 1981), demonstrates this premise. Logan
was searched in a holding cell off of the booking area, in which she
claimed the blinds were either broken or not closed. In discussing the
officer=s claim of qualified immunity at this early date, the Fourth Circuit
stated, Awe think that, as a matter of law, no police officer in this day and
time could reasonably believe that conducting a strip search in an area
exposed to the general view of persons known to be in the vicinity
whether or not any actually viewed the search is a constitutionally valid
governmental >invasion of (the) personal rights that (such a) search
entails.=@ Id. at 1014 (citation omitted). See also, Iskander v. Village of
Forest Park, 690 F.2d 126, 129 (7th Cir. 1982). The Massachusetts
Appeals Court held that even for convicted prisoners Aa strip search
conducted in nonprivate areas viewed by nonessential persons
(particularly of the opposite sex), violate the Fourth Amendment to the
United States Constitution unless justified by legitimate penological
interests.@ Sabree v. Conley, 62 Mass. App. Ct. 901 (2004).
4.

F.

Group Strip Searches
Since strip searches should be conducted in a manner that minimizes the
embarrassment and humiliation of the detainee being searched, detainees
should not be strip searched in groups. See Gary v. Sheahan, 1998 WL
547116 (N.D. Ill. Aug. 20, 1998)(female inmates returning from court
ordered to spread out in a line for strip searches without any privacy).

Strip Searches of Convicted Prisoners
The balancing of interests required by Bell is heavily weighted in favor of prison
administrators when evaluating strip searches in a prison setting. Remember that
the typical prison inmate is a convicted, sentenced offender.
Most courts reason that since the strip searching of pretrial detainees was upheld
by the Bell Court, then the strip searching of convicted inmates serving sentences
in prison should likewise be upheld. The rationale for deferring to administrators=
expertise in Bell is more compelling when dealing with convicted prisoners; a
prison is at least as dangerous a setting as a short-term detention center and the
dangers of contraband being smuggled into the facility are likewise at least as
serious. As the Seventh Circuit said, Agiven the considerable deference prison
officials enjoy to run their institutions it is difficult to conjure up too many reallife scenarios where prison strip searches of inmates could be said to be
unreasonable under the Fourth Amendment.@ Peckham v. Wisconsin Department
of Corrections, 141 F.3d 694 (7th Cir. 1998).

26

In Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983), cert. denied, 464 U.S. 999
(1983), the plaintiff was an inmate in the segregation unit of a maximum security
facility with a history of contraband problems. He challenged the legality of a
prison regulation requiring inmates in the segregation unit to be strip searched
every time they left the unit. The court upheld the policy, reasoning that if
contraband concerns in Bell justified strip searching pretrial detainees after
contact visits, the justification in Arruda was even more compelling. Given the
dangerousness of the inmates held in the segregation unit and the history of
contraband problems experienced by the facility, Athese searches [were] more, not
less, reasonable than those in Wolfish.@ Id. at 887. The court reasoned that,
leaving the tier presented an opportunity for inmates in the segregation unit to
acquire contraband and, thus, strip searches were justified to prevent the
introduction of weapons or other contraband into the segregation unit.
Courts have affirmed strip searches of convicted prisoners in groups in some
circumstances. Fernandez v. Rapone, 926 F.Supp.255 (D.Mass. 1996), involved a
challenge by state prisoners to a policy of strip searching inmates in groups of up
to ten prisoners following contact visits. A provision in the policy provided that
an inmate could opt out of the group strip search and insist on being searched
individually. The court upheld the searches, ruling that Athe fact that plaintiffs
were often searched in the presence of other inmates being searched does not
render the searches unreasonable.@ Id. at 262.
There have been situations where a strip search policy has been struck down due
to abuse during the search. In Hurley v. Ward, 584 F.2d 609 (2nd Cir. 1978), an
inmate housed in the special housing unit of the state prison refused to comply
with portions of the facility=s strip search policy and was forcibly searched on
several occasions as a result. These forcible searches included verbal abuse. The
court upheld a preliminary injunction barring searching Hurley in this manner,
stating Ait is clear to us that here also the gross violation of personal privacy
involved in the anal/genital searches of Hurley especially in view of the physical
and verbal abuse incident to the procedure far outweighed the evidence adduced
by the State at the preliminary hearing to justify the searches as a prison security
measure.@ Id. at 611. The specific physical and verbal abuse referred to by the
court is not contained in the record, so it is impossible to know what the threshold
is, or if verbal abuse alone could rise to a level at which the court would find a
search unreasonable.
A similar case challenging strip searches of state prisoners in a location exposing
them to viewing by other inmates is Franklin v. Lockhart, 883 F.2d 654 (8th Cir.
1989). Franklin addressed the reasonableness of searches of groups of inmates as
they returned to the barracks. Inmates were returned four at-a-time and were
27

brought just inside the barracks to be strip searched. The location of the searches
exposed the nude inmates to observation by other inmates already inside the
barracks. The search policy was upheld based on security concerns of the prison,
which had insisted that conducting the searches in this way was necessary to
insure safety.
A different standard applies in emergency situations, for example, following a riot
or other disturbance. See Elliot v. Lynn, 38 F.3d 188 (5th Cir. 1994)(upholding the
strip searching of inmates in the most efficient way possible when the prison was
in a state of emergency).
Turner v. Safley, 482 U.S. 78 (1987), established a deferential standard of review
for prison regulations. A[W]hen a prison regulation impinges on inmates=
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.@ Id. at 89.
The Court provided four factors to guide lower courts in the application of this
rule:
1)
Is there a rational relationship between the regulation and alleged
governmental interest?
2)
Is there an alternative means of exercising the right? (Note that this
factor is not applicable in the strip search context.)
3)
What impact would the accommodation of the asserted right have
on prison guards, inmates and other prison resources?
4)
Does the absence of alternatives provide evidence of the
reasonableness of the policy?
In the prison setting, a strip search policy that serves a legitimate penological
purpose outweighs the invasion of a prisoner=s privacy rights.
However, Anot all strip search procedures will be reasonable; some
could be excessive, vindictive, harassing or unrelated to any legitimate
penological interest.@ Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.
1988). A search carried out for any of the reasons mentioned above would
lack a valid penological interest and thus, would fail the test set forth in
Turner v. Safley, 482 U.S. 78 (1987). The Massachusetts Appeals Court
held that Aa strip search conducted in nonprivate areas viewed by
nonessential persons (particularly of the opposite sex), violate the Fourth
Amendment to the United States Constitution unless justified by
legitimate penological interests.@ Sabree v. Conley, 62 Mass. App. Ct. 901
(2004).

28

Despite this limitation, most strip searches in a prison setting are upheld as
serving a legitimate penological interest. Examples include rulings that:
ƒ

Strip searching inmates in the administrative segregation unit of a
maximum security prison every time they leave their cells is
rationally related to the penological interest of maintaining internal
security. See Rickman v. Avaniti, 854 F.2d 327 (9th Cir. 1988).

ƒ

Strip searching inmates in maximum security every time they leave
their tier, even when the search is conducted in view of other
inmates and extraneous opposite gender correctional officers, is
reasonably related to a legitimate penological interest.
Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988).

ƒ

Williams v. Price, 25 F.Supp.2d 605 (W.D.Pa.,1997). The strip
search of convicted prisoners after a non-contact visit was upheld
under Turner.

ƒ

The strip search of an inmate during a search for drugs in the
institution based on the fact that the inmate shared a cell with an
inmate who had a history of drug use while in prison was upheld.
See Thompson v. Souza, 111 F.3d 694 (9th Cir. 1997).

ƒ

The strip search of a pretrial detainee being held at the prison and
commingled with sentenced inmates, pursuant to a policy where
each night two cells were randomly selected for search, including
strip searches of the inmates in the cells in order to help control
contraband at the facility was upheld. See Covino v. Patrissi, 967
F.2d 73 (2nd Cir. 1992).

G.

Physical Body Cavity Searches
Physical body cavity inspections of non-convicted prisoners should be conducted
when there is probable cause. They should be conducted by medical personnel.
For a physical examination of the body cavity of a prisoner, the facility needs
reasonable suspicion and a valid penological need for the search. Vaughan v.
Ricketts, 950 F.2d 1464, 1469 (9th Cir. 1991); Tribble v. Gardner, 860 F.2d
321,325 (9th Cir. 1988). Such a search must be conducted in a reasonable manner.
Bonitz v. Fair, 804 F.2d 164 (1st Cir. 1986).

H.

Equal Protection

29

The equal protection clause has been held to require that strip search policies be
applied equally to men and women. There have been a number of cases where
blanket strip searches were conducted on women, but not to men in similar
circumstances. Courts have consistently found such practices unconstitutional.
The leading case is Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.
1983). Starting in 1952, Chicago had a policy of conducting strip and visual body
cavity searches of every woman who was arrested, but not of men. Four women
arrested for minor offenses challenged Chicago=s policy of subjecting all female
detainees to a strip and visual body cavity search, while similarly situated male
detainees were only thoroughly hand searched. In analyzing the city=s policy, the
court stated, Athe party seeking to uphold a policy that expressly discriminates on
the basis of gender must carry the burden of showing an exceedingly persuasive
justification for the differing treatment. The burden is met only by showing at
least that the classification serves important governmental objectives and that the
discriminatory means employed are substantially related to the achievement of
those objectives.@ Id. at 1273B74 (citations omitted). Attempting to justify the
disparate treatment, the city claimed that the strip searches were necessary due to
women=s ability to conceal weapons in the vaginal cavities. The court rejected this
justification, pointing to the fact that men were also able to conceal contraband in
their anal cavities, and that the city produced no evidence to show that women
were more likely to conceal contraband in their body cavities than men.
In another case from Illinois, Gary v. Sheahan, 1998 WL 547116 (N.D. Ill. Aug.
20, 1998), female court returns were strip searched while male court returns were
not. The defendant=s policies required a strip search of men and women, but men
were not strip searched because there were too many of them. This practice was
held unconstitutional. Ironically the same county was sued again when it stopped
strip searching women but sent male court returns to their housing units while
waiting to be released and thus strip searched all of the male court returns.
Bullock v. Sheahan, --- F.Supp.2d ----, 2008 WL 2931606 (N.D.Ill.). Similarly, in
Ford v. City of Boston, 154 F.Supp.2d 131 (D. Mass. 2001), the city was found to
be violating the equal protection clause by sending female arrestees to jail, where
they were routinely strip searched, while male arrestees were held in city lockups, where they were not strip searched. The city did not have an important
governmental objective that this policy was substantially related to achieving. See
also, Wilson v. Shelby County Alabama, 95 F.Supp.2d 1258, 1264, n.3 (N.D. Ala.
2000).
I.

Effectiveness of Intake Strip Searches
The statistics cited in the case law indicate that strip searches of newly admitted
detainees only rarely discover contraband. In Dodge v. County of Orange, 209
30

F.R.D. 65 (S.D.N.Y. 2002), jail records submitted to the court covering a fiftymonth period encompassing the admission of approximately 23,000 inmates,
showed only five incidences where contraband was discovered in the body cavity
or undergarments of a detainee. Of those five incidents, the judge determined that
Athere may have been reasonable suspicion to strip search four of these five
detainees, based upon either the nature of the offense or the characteristics of the
detainee.@ Id. at 70. Thus, in the absence of the blanket strip search policy, if the
correct reasonable suspicion standard had instead been employed, there was one
instance in the processing of 23,000 detainees where contraband would have
entered the facility. These numbers are consistent with what other courts have
reported. See, Bull v. City and County of San Francisco, 2006 WL 449148
(N.D.Cal.) affirmed in part, 539 F.3d 1193 (9th Cir. 2008).
Statistics examined in Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.
1983), showed nine incidences of contraband discovered in 1800 searches over a
two-month period. Other cases support a very low incidence of Ahits.@ See Giles v.
Ackerman, 746 F.2d 614 (9th Cir. 1984)(only 11 persons out of 3,500 searched
had concealed anything warranting a report); John Does 1-100 v. Boyd, 613 F.
Supp. 1514 (D. Minn. 1985)(13 incident reports of contraband over an 11-year
period and all of the items were found in clothing, not through a strip search);
Shain v. Ellision, 1999 U.S. Dist. Lexis 8401 (June 1, 1999)(over a two-year
period, with approximately 14,000 inmates admitted per year, there were six
instances in which a weapon was discovered during the intake strip search and
eight instances where drugs were discovered).
J.

Qualified Immunity for Strip Searches
When considering qualified immunity, courts are challenged to strike a balance
between protecting the public=s constitutional rights and affording governmental
officials the protection to reasonably react in confrontational situations without
fear of subsequent individual liability. The fundamental justification for the
defense of qualified immunity is that public officials performing discretionary
functions should be free to act without fear of punitive litigation except when they
can fairly anticipate that their conduct will expose them to liability. See Davis v.
Scherer, 468 U.S. 183 (1984).
The Supreme Court established the standards for qualified immunity over two
decades ago in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) stating,:
Government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or

31

constitutional rights of which a reasonable person would have
known . . . .
The standard of inquiry is an objective one and the inquiry into the reasonableness
of a governmental official=s conduct should focus on the discernable case law at
the time of the alleged occurrence. See Savard v. Rhode Island, 338 F. 3d 23, 27
(1st Cir. 2003). The law governing strip-searches has changed significantly over
the last thirty years. For example, the First Circuit case of Swain v. Spinney, 117 F
3d 1 (1st Cir. 1997), stands for the proposition that strip and visual body cavity
searches cannot be conducted without individualized reason to suspect that a
person is harboring weapons or contraband. Prior to Swain, a review of relevant
case law in the First Circuit could have allowed a reasonable person in a position
of authority over persons in custody to believe that a routine strip search policy
was within constitutional boundaries.
Qualified immunity is generally granted and the defendant shielded from liability
if the defendant did not violate plaintiff=s constitutional rights or if there is no
Supreme Court or relevant circuit court case law clearly establishing the plaintiff=s
right at the time of the event in controversy. Harlow, 457 U.S. at 818. However, a
public official=s hands-off approach to his job does not absolve him of the
responsibility for unconstitutional policies developed and promulgated by his
underlings. See Ford, 154 F.Supp.2d at 146. The threshold inquiry a court must
undertake in a qualified immunity analysis is whether the plaintiff=s allegations, if
true, establish a constitutional violation. See Saucier v. Katz, 533 U.S. 194, 201
(2001). In the absence of a constitutional violation, the need for further analysis is
over. Generally, courts will decline to consider whether the right was clearly
established before granting qualified immunity and releasing the defendant from
liability on this issue.
Even if a plaintiff=s rights are violated, defendants will be entitled to qualified
immunity if an objectively reasonable officer in the defendant=s position could
argue that the action taken was within the boundaries of permissible behavior
under existing law. Harlow, 457 U.S. at 818. For a constitutional right to be
clearly established, its contours must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right. See Hope v.
Pelzer, 536 U.S. 730, 739 (2002). This is a purely objective standard; the
defendant=s subjective intent is irrelevant.
The theory of qualified immunity is that if a public official is to be punished by
the imposition of damages against him personally, the punishment must be for
violating some clear, legal duty he plainly already had at the time of the event.
See Hope, 536 U.S. at 737. He should not be punished for violating what is, in
32

effect, some new legal duty recognized or announced by the judge and jury in the
official=s trial. Preexisting case law that is materially similar to the circumstances
facing an official, when the specific current circumstances are enough like the
facts in the prior precedent, might make a difference to the conclusion about
whether the official=s conduct was lawful or unlawful, in light of the precedent.
See id., at 744.
Officers are protected by qualified immunity from 42 U.S.C.A. '1983 claims
unless a constitutional violation occurred; a reasonable officer similarly situated
would have known the right was clearly established; and, the officer acted
objectively unreasonable in light of the clearly established constitutional right.
One area where an officer might successfully claim a qualified immunity defense
in the area of strip searches is routine strip searches of felony arrestees. Most of
the case law on strip searches of arrestees has involved individuals charged with
minor offenses. The Ninth Circuit in Kennedy v. LAPD, 901 F.2d 702 (9th Cir.
1990) and district courts in Murcia v. County of Orange, 226 F.Supp.2d 489
(S.D.N.Y. 2002); Mack v. Suffolk County, 154 F.Supp.2d 131, 143 (D. Mass.
2001); Elliott v. Strafford County, 2001 U.S. Dist. LEXIS 1246 (D.N.H. 2001)
have held that a blanket policy of strip searching all felony arrestees is
unreasonable, an officer, in a different jurisdiction could argue that law was not so
clearly established at the time that his actions could be found to be objectively
unreasonable. If successful, he would be entitled to qualified immunity for his
actions.
K.

Class Action Challenges to Strip Search Policies
Most courts that have considered whether a class action is appropriate in strip
search cases have certified the class where plaintiffs are challenging a policy or
custom of conducting strip searches of pre-arraignment detainees without
evaluating for reasonable suspicion. See, Tardiff v. Knox County, 365 F.3d 1
(1st Cir. 2004) (April 9, 2004); Eddleman v. Jefferson County, 96 F.3d 1448
(Table), 1996 WL 495013 (6th Cir. 1996); Johnson v. District of Columbia, 248
F.R.D. 46, (D.D.C. 2008); Blihovde v. St. Croix County, 219 F.R.D. 607 (W.D.
Wisc. 2003); Bynum v. District of Columbia, 217 F.R.D. 27 (D.D.C. 2003);
Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y. 2002); Dodge v. County
of Orange, 209 F.R.D. 65 (S.D.N.Y. 2002); Mack v. Suffolk County, 191 F.R.D.
16 (D. Mass. 2000); Doe v. Calumet City, 754 F.Supp. 1211 (N.D. Ill. 1990);
Smith v. Montgomery County, 573 F.Supp. 604 (D. Md. 1983). However, a few
courts have disagreed. See Klein v. DuPage County, 119 F.R.D. 29 (N.D. Ill.
1988); Bledsoe v. Combs, 2000 WL 681094 (S.D. Ind. 2000); Augustin v.
Jablonsky, 2001 WL 770839 (E.D.N.Y. March 8, 2001); Rattray v. Woodbury
County, Iowa, --- F.Supp.2d ----, 2008 WL 4099880 (N.D.Iowa 2008). Most of
33

the cases in which a class was certified, involved damages class actions under
Federal Rule of Civil Procedure 23(b)(3). Some were certified for injunctive relief
under (b)(2) only, or for both damages and injunctive relief.
L.

Damages for Unlawful Strip Searches
Most strip search cases involve visual searches without any touching by the
correctional officer. Some cases have resulted in large verdicts, particularly when
the plaintiff was arrested on a minor charge or a warrant for a minor offense that
had been recalled, and was subjected to a search that was not private. Some of
these plaintiffs have had significant psychological trauma as a result of the search.
See Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985)(plaintiff who suffered
depression, sexual dysfunction and post traumatic stress disorder, awarded
$177,040 for three manual body cavity searches). In Martinez v. Tully,1994 U.S.
Dist. LEXIS 20935 (E.D. Ca. 1994), four women arrested for disturbance of a
public assembly and other offenses, including one woman who was charged with
assault with a deadly weapon, an egg, which could be a misdemeanor or a felony,
received verdicts of $175,000 in compensatory damages for three of the women,
and $225,000 for the remaining woman, who was menstruating at the time of the
search.
Levka v. City of Chicago, 748 F 2d 421 (7th Cir. 1984), reviewed strip search
cases with judgments ranging from $112,000 to $3,300 (the $112,000 judgment
was reduced by the district court to $75,000). In Young v. City of Little Rock, 249
F.3d 730 (8th Cir. 2001), a jury awarded $65,000 for an unlawful 2 2 hour
detention and strip search. The plaintiff in Watt v. Richardson, 849 F.2d 195 (5th
Cir. 1988) was awarded $20,000 in compensatory damages. She had been strip
searched following her arrest on a warrant for failing to register her dog and was
searched based on an 11 year-old drug conviction. In Abshire v. Wallis, 830 F.2d
1277 (4th Cir. 1987), the plaintiff received a total award of $7000 based on his
unconstitutional strip search following his arrest for disorderly conduct. In
contrast, the plaintiff in Foote v. Spiegel, 2001 U.S. App. LEXIS 2405 (10th Cir.
2001), was awarded only $1.00 and, in Stewart v. Lubbock County, 767 F.2d 153
(5th Cir. 1985), one plaintiff received only $1.00, while the other received
$15,000.

M.

The Effect of the PLRA on strip search litigation
The Prison Litigation Reform Act (PLRA) prevents damage suits for
unconstitutional visual strip searches from being filed by current inmates because
the act requires a physical injury to file suit. 42 U.S.C. Sec. 1997e(e). However,
the PLRA does not apply to cases brought by people who are not incarcerated
when the suit is filed. See Doan v. Watson, 168 F.Supp.2d 932 (S.D. Ind. 2001),
and Kerr v. Puckett, 138 F.3d 321 (7th Cir.1998), Cf, Milledge v. McCall, 2002
34

WL 1608449 (10th Cir. July 22, 2002) (prisoner cannot bring a strip search claim
while confined under the PLRA). One reason strip search cases are filed for
people who were temporary detainees is because they were only in custody for a
short time so they can file after release.

35