Plaintiff was subjected to two body cavity searches of her rectum and vagina for drugs she was reasonably believed to have smuggled into the jail through booking. It was invasive, but it was reasonable on balance with the jail’s security needs. It wasn’t a blanket strip search—it was fact based and reasonably conducted. Brown v. Polk County, Wisconsin, 2020 U.S. App. LEXIS 21622 (7th Cir. July 13, 2020):
The search in this case does not similarly belong in the “closely guarded category of constitutionally permissible suspicionless searches.” Chandler v. Miller, 520 U.S. 305, 309 (1997). In no way do Bell and Florence declare detainees’ bodies open for search at any time and under any circumstance. Nor do the defendants urge the adoption of any new broad rule authorizing searches of pretrial detainees. Put another way, the “touchstone” of the controlling Fourth Amendment inquiry remains reasonableness. King, 569 U.S. at 448. And in the circumstances before us here, reasonableness requires a finding of particularized suspicion.
A core purpose of the Fourth Amendment’s reasonableness standard is to constrain government officials’ discretion and thus “safeguard the privacy and security of individuals against arbitrary invasions.” See Delaware v. Prouse, 440 U.S. 648, 654 (1979) (citations omitted). The searches at issue in Bell and Florence concerned policies that applied broadly to all detainees following contact visits and upon their entry into a facility. See 441 U.S. at 558 (evaluating a policy subjecting inmates to strip search “after every contact visit with a person from outside the institution”); 566 U.S. 318 at 324 (considering a policy making “all arriving detainees” subject to search). That general applicability both advanced important institutional interests (of preventing contraband) and protected the inmates from being singled out for a search at the whim of a guard, even without the safeguard of an individualized suspicion requirement. See King, 569 U.S. at 447–48 (explaining that there is no need for individualized suspicion where “all arrestees” were subject to the search).
Brown was not searched as part of a practice that applied to everyone housed in the Polk County Jail. She alone was selected for a search, and a quite invasive one at that. In these circumstances, the search must be supported by reasonable suspicion. See New Jersey v. T.L.O., 469 U.S. 325, 342 n.8 (1985) (“Exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal and where other safeguards are available to assure that the individual’s reasonable expectation of privacy is not subject to the discretion of the official in the field.” (internal quotation marks omitted)). That conclusion finds corroboration in some of our prior cases that have required reasonable suspicion for individualized visual strip searches conducted after an arrest or during the booking process. See United States v. Freeman, 691 F.3d 893, 901 (7th Cir. 2012); Kraushaar v. Flanigan, 45 F.3d 1040, 1045 (7th Cir. 1995).
Brown would have us adopt a higher standard of suspicion and require a warrant based on probable cause. For support, she points to Schmerber v. California, 384 U.S. 757 (1966) and Winston v. Lee, 470 U.S. 753 (1985), cases addressing physical—as opposed to visual—searches of people’s bodies undertaken to obtain evidence. Schmerber involved a warrantless blood draw performed on a hospitalized man who had just been arrested for driving while intoxicated, see 384 U.S. at 758–59, and Winston concerned a surgery to retrieve a bullet from a detainee’s body to be used as evidence in a prosecution for robbery, see 470 U.S. at 755. Neither implicated jail security, the interest that weighs so heavily in the balance of the search here.
Bell and Florence underscore the necessity of a jail’s ability to search those under its care for contraband, for the protection of all within its walls. Our conclusion that the precise searches at issue in those cases differ from the one here in the scope of discretion does not in any way undermine the importance of these interests. They apply with equal force and distinguish Brown’s search from the ones in Schmerber and Winston. A search conducted for the safety of the jail is one that furthers special needs beyond the normal need for law enforcement, and “the public interest is such that neither a warrant nor probable cause is required.” King, 569 U.S. at 447 (quoting Maryland v. Buie, 494 U.S. 325, 331 (1990)).
Brown correctly observes that the search she underwent was more invasive because it was not just visual but also involved a physical intrusion into the most private parts of her body. No doubt she is right on that score. But given the heft of the security interest at stake, the invasion to her privacy was not so much greater that it pushes the threshold suspicion requirement into probable cause. The Fourth Amendment required Polk County jail officials to have only reasonable suspicion that she had concealed contraband inside her body before moving forward with the search.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)