CA8: Facility wide strip searches for a smuggled cell phone were unreasonable as to pretrial detainees

Involuntarily civilly committed persons retain rights as pretrial detainees. The test of reasonableness is stated in Bell v. Wolfish: “The test of reasonableness … 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.” Facility-wide visual body cavity searches for a smuggled cell phone was unreasonable. Serna v. Goodno, 567 F.3d 944 (8th Cir. 2009):

The scope of the overall response to the discovery of a cell-phone case, namely, the apparent rush to conduct facility-wide, visual body-cavity searches suggests a disproportionate reaction. Without belaboring the point, we note that a body cavity is not necessarily the first place reasonable persons normally would look for a cell phone. Serna does not argue, however, that a cell phone cannot be secreted in this fashion or that cell phones are substantially different than other objects smuggled by this means.

Also, the failure to apply any one of several apparent and less invasive search methods militates against a finding of reasonableness. The justifications the defendants offer are general in nature, not specific to Serna, and the administrators possessed information that would have allowed them to partition the population into groups viewed as more or less likely to be in possession of the cell phone (e.g., persons on the surveillance tapes or persons with a history of possessing contraband). In other words, although administrators had information in their possession that clearly directed individualized suspicion at certain patients rather than others, the administrators chose not to rely upon this information.

Further, there is no suggestion that staff conducted pat-down searches of any inmates prior to subjecting all inmates to visual body-cavity searches. Similarly, there is no suggestion that staff conducted room searches prior to conducting the visual body-cavity searches. By all accounts, it appears that they jumped straight to facility-wide, visual body-cavity searches after a review of the surveillance video failed to show which patient had dropped the cell-phone case.

Officers had reasonable suspicion that defendant was armed and dangerous when he came out of a house that the police followed armed robbers to and who had not come out. Defendant went in and came out carrying a laundry basket while the officers on the scene were awaiting the SWAT team. The situation was “highly charged” and defendant’s conduct was suspicious. United States v. Rouse, 2009 U.S. Dist. LEXIS 45774 (S.D. Ga. June 1, 2009).*

Defendant was shown to have consented to entry by buzzing the police into the building and to have consented to search of the apartment in writing. United States v. Awoussi, 2009 U.S. Dist. LEXIS 45680 (D.Neb. April 3, 2009).*