CA7: Prison inmates have 4A reasonableness protection against abusive strip and body cavity searches

Importantly, the Fourth and Eighth Amendments have different roles to play with respect to bodily searches and protect different categories of constitutional rights. The Eighth Amendment safeguards prisoners against the use of searches that correctional officers subjectively intend as a form of punishment. See Whitley, 475 U.S. at 319-20. Because reasonableness is an objective test, a defendant’s subjective state of mind is irrelevant to a court’s Fourth Amendment analysis. See Graham, 490 U.S. at 398 (“[T]he terms ‘cruel’ and ‘punishments’ clearly suggest some inquiry into subjective state of mind, whereas the term ‘unreasonable’ does not.”). The Fourth Amendment thus protects prisoners from searches that may be related to or serve some institutional objective, but where guards nevertheless perform the searches in an unreasonable manner, in an unreasonable place, or for an unreasonable purpose. See Bell, 441 U.S. at 559. This last consideration is particularly salient in the case before us: certainly, a court need not give as much deference to a prison administrator’s assessment of the necessity of a training exercise as it does to measures taken in response to the actual presence of weapons, contraband, or other immediate security concerns.

1. Right to Bodily Privacy in Visual Inspections

Although today we announce that convicted prisoners maintain a right to bodily privacy during visual inspections of their bodies, we have not always been so clear. In the wake of Hudson, we have taken different, sometimes conflicting, approaches to addressing the scope of that right. In several cases, we concluded that the Fourth Amendment protects some degree of privacy as pertains to bodily searches. See, e.g., Peckham v. Wis. Dep’t of Corr., 141 F.3d 694, 697 (7th Cir. 1998) (“So, does a prison inmate enjoy any protection at all under the Fourth Amendment against unreasonable searches and seizures? … [W]e think the answer is ‘yes[.]'”); Sparks, 71 F.3d at 260 (concluding that the Fourth Amendment applies to the involuntary catheterization of an inmate); Del Raine, 32 F.3d at 1039 (noting that the execution of a digital rectal probe of an inmate for contraband falls “under both the constitutional protections of the Fourth Amendment and the Eighth Amendment”); Canedy, 16 F.3d at 185-86 (applying the Fourth Amendment reasonableness test announced in Bell to strip searches); Forbes, 976 F.2d at 312-13 (concluding that urine tests are searches for Fourth Amendment purposes, and that these searches must be reasonable pursuant to Bell). Indeed, in Canedy, we explained that Hudson foreclosed some but not all of an inmate’s Fourth Amendment rights: as a result of the command.”). This is consistent with the overarching focus of the Fourth Amendment reasonableness analysis, which evaluates an individual’s expectation of privacy “in what was searched,” not who did the searching. United States v. Scott, 731 F.3d 659, 663 (7th Cir. 2013) (emphasis added). To conclude otherwise promotes a distinction without a difference: whereas a manual body cavity search conducted by a prison official would fall within the domain of the Fourth Amendment, a search in which an officer orders a prisoner to manipulate her own body and merely looks on would avoid review. In light of these considerations, we thus overrule the section of King addressing the plaintiff’s Fourth Amendment claim and the bright-line rule it announced.

Some diminution of privacy is of course to be expected in prison. See Hudson v. Palmer, 468 U.S. 517 (1984) (prisoners are entitled to no reasonable expectation of privacy in their prison cells insuring them of Fourth Amendment protection against unreasonable searches and seizures). Inmates surely do not enjoy the full sweep of constitutional rights afforded other members of society. But even so, those who are convicted of criminal offenses do not surrender all of their constitutional rights.

16 F.3d at 185. We then concluded that body cavity “searches must be conducted in a reasonable manner.” Id. at 186 (quot-ing Bell, 441 U.S. at 560). And in Sparks, we recognized, “Certainly Hudson does not establish that the interior of one’s body is as open to invasion as the interior of one’s cell.” 71 F.3d at 261.