D.Colo.: Full body scan of ADX SHU inmates are reasonable

Submitting Florence ADX SHU inmates to repeated x-ray like body scans inside the prison is not unreasonable. Probable cause is not required since it’s not that invasive. Defendant promised proof they could be harmful, but it wasn’t produced. United States v. Shields, 2017 U.S. Dist. LEXIS 113132 (D. Colo. July 20, 2017):

Before an inmate enters the SHU, standard procedure requires he pass through a machine called the SecurPASS, similar to the full body x-ray scanners used to screen passengers at airports. Following an initial scan, for which Lieutenant Alvarez was not present, another officer approached Lieutenant Alvarez and told him it appeared from the scan that there was something in Mr. Shields’s lower abdominal region. Lieutenant Alvarez testified it appeared as if there was a 3.5-inch needle in Mr. Shields’s lower abdominal region. The image, however, was “blurry,” leaving the officers unsure what they were seeing. Lieutenant Alvarez therefore ordered a second scan. This image, too, was unclear, as was a subsequent scan.

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Nevertheless, inmates do retain privacy interests in the integrity of their own bodies. Dunn v. White, 880 F.2d 1188. 1192 (10th Cir. 1989), cert. denied, 493 U.S. 1059, 110 S. Ct. 871, 107 L. Ed. 2d 954 (1990). In determining whether a particular search of an inmate’s person is sufficiently intrusive to implicate the Fourth Amendment,14 the court must balance “the need for the particular search against the invasion of personal rights that the search entails,” considering “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell, 99 S.Ct. at 1884. “[T]he greater the intrusion, the greater must be the reason for conducting a search.” Levoy v. Mills, 788 F.2d 1437, 1439 (10th Cir. 1986). Ultimately, the determination whether the search is reasonable depends on the totality of the circumstances. United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985).

14. I reject Mr. Shields’s attempt to liken an x-ray scan to more highly intrusive bodily invasions which must be supported by a finding of probable cause. See, e.g., Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985) (surgical removal of bullet); Schmerber v. California, 384 U.S. 757, 768-770, 86 S.Ct. 1826, 1834-35, 16 L.Ed.2d 908 (1966) (blood test). See also Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 1979, 186 L.Ed.2d 1 (2013) (contrasting invasive surgery as considered in Winston with “minimal intrusions” which need not be supported by probable cause). A key consideration in determining the intrusiveness of a search is the indignity or embarrassment attendant thereon. See United States v. Vega-Barvo, 729 F.2d 1341, 1345 (11th Cir.), cert. denied, 469 U.S. 1088, 105 S. Ct. 597, 83 L. Ed. 2d 706 (1984) (“[P]recedents clearly indicate that to determine the level of intrusiveness of a search, we must focus on the indignity of the search, and that extensiveness alone does not control;” finding x-ray no more intrusive than strip search); United States v. Mejia, 720 F.2d 1378, 1382 (5th Cir. 1983) (rejecting suggestion that intrusiveness is “the equivalent of physical invasion” and noting that intrusiveness inquiry “is keyed to embarrassment, indignity, and invasion of privacy;” holding x-ray not excessively intrusive under all circumstances). Although context still matters, of course, in general, an x-ray scan is plainly less intrusive than other methods that might be employed to search for contraband. See, e.g., Spencer v. Roche, 659 F.3d 142, 147-48 (1st Cir. 2011), cert. denied, 566 U.S. 921, 132 S. Ct. 1861, 182 L. Ed. 2d 643 (2012).

There is no question here that ADX officials have a legitimate interest in ensuring inmates do not possess weapons. See Bell, 99 S.Ct. at 1878 (“[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.”) (citation and internal quotation marks omitted). It is also uncontested that submission to a SecurPASS scan is routine for all inmates entering the SHU; thus, Mr. Shields was not singled out in this regard. Mr. Shields, however, suggests the search was unreasonable because exposure to the x-rays the SecurPASS employs — especially multiple exposures as was done here — is unsafe.

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Given the evidence thus before me and totality of the circumstances in this case, I have little trouble in concluding that use of the SecurPASS scanner in this instance constituted a reasonable search. The search was conducted pursuant to a routine protocol applicable to all inmates entering the SHU, a procedure justified in itself by legitimate penalogical concerns for staff and inmate safety and institutional security. The repeated use of the scanner to determine whether Mr. Shields was secreting contraband was not unreasonable given the inability to obtain a clear image initially. The entire episode lasted no more than ten minutes. There is nothing to suggest that the scan, similar to that conducted at airport security checkpoints, is physically painful or embarrassing, certainly much less so than the strip search Mr. Shields testified he underwent before being scanned, much less the digital rectal exam he anticipated if he refused to surrender the contraband.

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