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Departments : Point of Law

Strip Searching Misdemeanor Arrestees

Does the Fourth Amendment permit the practice for intake searches?

June 01, 2012  |  by Devallis Rutledge - Also by this author

Photo: Mark W. Clark
Photo: Mark W. Clark

Jails and prisons are dangerous places, filled with people who are either suspected or convicted of being criminals. Officials who are charged with maintaining security in lock-ups face the challenge of balancing the constitutional rights of inmates with the need to control risks of violence and infectious contagions.

Special problems arise when someone from the outside mixes with the inmate population. This could be a visitor or a new prisoner, either of whom might bring in concealed weapons, contraband, or communicable diseases. When a new prisoner headed for the general population has been arrested for a relatively minor offense, what constitutional standard should officers follow when deciding the proper scope of an intake search?

After issuing a series of decisions over the years that have been mostly deferential to custodial officials in managing their secure facilities, the U.S. Supreme Court has issued a new ruling on the constitutionality of visual strip searches of minor-offense arrestees.

The Background Cases

Price v. Johnston (1948). In this case, the court made clear that inmate status is inconsistent with the normal constitutional rules relating to privacy and freedom from official searches, saying that "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system."

Lanza v. New York (1962). The court applied the Price rationale in upholding the right of jailers to surreptitiously record inmate conversations with visitors in the jail visiting room. Said the court, "It is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day."

Bell v. Wolfish (1979). Pre-trial detainees in a federal detention center sued to prevent strip searches and visual body cavity searches that were routinely performed after contact visits with outside visitors. The Supreme Court upheld the practice as a reasonable and necessary means of controlling institutional security. Rejecting the argument that these searches were incompatible with the presumption of innocence, the court said this:

"The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials. But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun. A detainee simply does not possess the full range of freedoms of an unincarcerated individual. Visual cavity searches are necessary not only to discover but to deter the smuggling of weapons, drugs, and other contraband into the institution."

Hudson v. Palmer (1984). A sentenced prisoner in Virginia filed suit over random shakedown searches, alleging they violated his "limited privacy rights." The Supreme Court disagreed, saying "A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. Random searches are essential to the effective security of penal institutions. The Fourth Amendment proscription against unreasonable searches and seizures does not apply within the confines of a prison cell."

Comments (3)

Displaying 1 - 3 of 3

Randy @ 6/5/2012 3:59 PM

This is a great article and another reason I keep coming back. Thank you.

Capt David-Ret LA County @ 6/6/2012 3:33 PM

Good info..

Mark @ 3/6/2013 9:30 AM

Under "Statutory Restrictions May Apply", Ohio should be added:

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