Strip Searches (Visual Body Cavity Search)

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As used in T.C.A. § 40-7-119, "strip search" means having an arrested person remove or arrange some or all of the person's clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts or undergarments of the person. No person arrested for a traffic, regulatory or misdemeanor offense, except in cases involving weapons or a controlled substance, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon, a controlled substance, a controlled substance analogue or other contraband. T.C.A. § 40-7-119(a) and (b). Public Chapter 848 (May 15, 2012) amends Tenn. Code Ann. §§ 40-7-119(b) and 40-7-121(a) by adding under Section 29 controlled substance analogue to list of items that may be searched for during a body cavity search.

In Timberlake by Timberlake v. Benton, 786 F.Supp. 676 (M.D. Tenn. 1992), the district court noted that, while T.C.A. § 40-7-119 explicitly sets guidelines for custodial searches of arrested persons, it does not set rules for the location of the search or the manner in which a search is to be conducted. The court stated that this “oversight is critical since the law governing the reasonableness of strip searches is founded upon such factors.” Id. at 695. Regarding municipal liability, the district court stated that the failure to set a policy governing such a highly intrusive police action can render a municipality’s actions as culpable as if they had a policy permitting unreasonable searches themselves. “A local governing body does not shield itself from liability by acting through omission. Thus, when a city provides no guidance to its officers regarding such intrusive actions as strip searches, it must face the consequences of its inaction by being subject to suit.” Id. at 696, citing Marchese v. Lucas, 758 F.2d 181, 189 (6th Cir. 1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987) (sheriff's failure to train and ratification of unconstitutional behavior subjects county to suit).

Pursuant to state regulations, each jail must have a written policy and procedure providing for searches of facilities and inmates to control contraband. Each newly admitted inmate must be thoroughly searched for weapons and other contraband immediately upon arrival in the jail, regardless of whether the arresting officer has previously conducted a search. A record must be maintained on a search administered to a newly admitted prisoner. The procedure must differentiate between the searches allowed (pat down, strip, or orifice) and identify when these may occur and by whom such searches may be made. Inmates must be searched by jail personnel of the same sex except in emergency situations. All orifice searches must be done under medical supervision. The jail's policy and procedures must require that all inmates, including trusties, be searched thoroughly by jail personnel whenever the inmates enter or leave the security area. Rules of the Tennessee Corrections Institute, Rule 1400-1-.07(2) - (6).

“Courts have repeatedly held that strip searches that include visual inspection of the anal and genital areas are inherently invasive.” Calvin v. Sheriff of Will County, --- F.Supp.2d ----, 2005 WL 3446194, *5 (N.D. Ill. 2005).

In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Court adopted a presumption that a “full search” incident to custodial arrest and aimed toward the discovery of weapons and contraband would be reasonable under the Fourth Amendment, but warned that “extreme or patently abusive” searches might not be.  414 U.S. at 227-236, 94 S.Ct. at 473-77. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), authorized warrantless searches of the clothing of arrestees who were confined overnight. As in Robinson, the court in Edwards reaffirmed that custodial searches incident to arrest must be reasonable.  Neither Robinson nor Edwards specifically addressed “the circumstances in which a strip search of an arrestee may or may not be appropriate.” Illinois v. Lafayette, 462 U.S. at 646 n.2, 103 S.Ct. at 2609 n.2.

Fann v. City of Cleveland, 616 F.Supp. 305, 310-311 (D.C. Ohio 1985).

The United States Supreme Court's opinion in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), is the seminal strip search case. In Bell, the Court held that strip and visual body cavity searches may, in certain instances, be conducted on inmates with less than probable cause.

The application of the Fourth Amendment to warrantless strip searches has been developed largely in cases involving such searches in prisons and in schools. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court held that visual body cavity inspections during strip searches of pre-trial detainees and convicted prisoners after they had contact with outsiders were not “unreasonable” searches under the Fourth Amendment. The searches were conducted at the “federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees.” Id. at 523, 99 S.Ct. 1861. The Court stated that applying “[t]he test of reasonableness under the Fourth Amendment... [i]n each case ...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.”  Id. at 559, 99 S.Ct. 1861. It pointed out that a “detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence.” Id.

Reynolds v. City of Anchorage, 379 F.3d 358, 362 (6th Cir. 2004).

Despite holding that particular policy constitutional, Bell did not validate a blanket policy of strip searching pretrial detainees. Rather, Bell held that pretrial detainees retain constitutional rights, including the Fourth Amendment's protection against unreasonable searches and seizures, which are subject to limitations based on the fact of confinement and the institution's need to maintain security and order.

Calvin v. Sheriff of Will County, --- F.Supp.2d ----, 2005 WL 3446194, *4 (N.D. Ill. 2005) (citations omitted).

Courts, beginning with Bell, have consistently held that institutional security is a legitimate law enforcement objective, and may provide a compelling reason for a strip search absent reasonable suspicion of individualized wrongdoing. Courts have given prisons latitude to premise searches on the type of crime for which an inmate is arrested. When the inmate has been charged with only a misdemeanor or traffic violation, crimes not generally associated with weapons or contraband, however, courts have required that officers have a reasonable suspicion that the individual inmate is concealing contraband.

Id. at *5 (citation omitted).