CA7: County jail’s body cavity searches of ptf were fact based on RS and reasonable

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.