CA8: Photographing tattoo on bare breast at book-in was reasonable

Court declines to dismiss warrantless search issue for lack of an affidavit of personal knowledge from the defendant. Wiretaps of informants were credited with showing probable cause for warrantless entry. Her consent was valid, despite several officers in her hotel room. United States v. Moreno, 2009 U.S. Dist. LEXIS 14405 (E.D. N.Y. February 24, 2009).*

Defendant’s consent was shown by “written consent to search his residence. Indeed, as the government correctly points out, Cook accompanied the DEA agents to his home and, without handcuffs on, led agents around, and specifically indicated where specific contraband was located. The court is simply not persuaded that Cook’s cooperation in this regard, including signing the DEA Form 88, was anything other than consensual. Accordingly, the court must deny this aspect of Cook’s motion.” United States v. Cook, 2009 U.S. Dist. LEXIS 14285 (D. Del. February 24, 2009).*

Prison strip and body cavity searches in traveling from more secure areas of the prison to less secure areas are reasonable. Quinones-Ruiz v. Pereira-Castillo, 2009 U.S. Dist. LEXIS 14368 (D. P.R. February 23, 2009).*

Photographing a tattoo as an identifying mark which required a woman to bear her breasts in private in jail was reasonable. Schmidt v. Magyari, 557 F.3d 564 (8th Cir. 2009):

Rather than triggering a per se rule, the search in this case requires balancing the factors set out in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). See Richmond v. City of Brooklyn Ctr., 490 F.3d 1002, 1006 (8th Cir. 2007) (applying Bell factors in absence of per se rule); Smook, 457 F.3d at 810 (same); see also Stanley v. Henson, 337 F.3d 961, 964 (7th Cir. 2003) (applying Bell factors to uphold a clothing exchange practice that required a woman remove her outer clothing and expose her bare breasts since she was not wearing a bra). Under Bell, courts must consider (1) the justification for initiating the search, (2) the scope of the particular intrusion, (3) the place in which the search is conducted, and (4) the manner in which it is conducted. 441 U.S. at 559. These factors are used to balance the need for a particular search with the rights of the individual being searched. Id.

. . .

While the photographing in this case was arguably more intrusive, as it required Schmidt to unzip her pants, we do not believe that this distinction is sufficient to render the search a violation of the Fourth Amendment. In this case, Schmidt admits that Locke told her that the photograph of her tattoo was needed for identification purposes. Schmidt had provided false identification information, including a false name, date of birth, and social security number. Under the circumstances, Locke was justified in photographing Schmidt’s tattoo as an identifying mark.

We must also consider the scope of the intrusion. Given the location of the tattoo, Locke required Schmidt to be no more exposed than necessary to permit photographing the tattoo, which minimized the invasion of Schmidt’s privacy. The location of the search is also relevant. As Schmidt acknowledges in her brief, the photograph was taken in private, which limited the seriousness of the intrusion. ….