The U.S. Supreme Court held in Safford Unified School District v. Redding (June 25, 2009) that school officials violated the Fourth Amendment by strip searching a 13-year-old girl in an effort to find prescription-strength ibuprofen. The ruling affirms the en banc decision of the Ninth Circuit.
The Redding decision does not address the issue pending before an en banc panel of the Ninth Circuit: May prison and jail officials use a suspicionless blanket strip search to keep drugs and weapons out of detention facilities? That case — Bull v. City and County of San Francisco — was heard en banc in March 2009. The Supreme Court has not addressed the issue of jail strip searches since its 1979 decision in Bell v. Wolfish, 441 U. S. 520, which held that a blanket strip search of prisoners after returning from contact visits was constitutional. There is a split among the circuit courts since the 11th Circuit held that such blanket searches were reasonable when a prisoner is going to be placed in the general jail population.
Safford v. Redding – because of its school setting and facts — continues a disconnect between Bell v. Wolflish and the approach of most of the circuit courts to strip searches. Redding involved a student who school officials had reason to believe was bringing contraband (a relatively harmless prescription-grade ibuprofen) to school.
Redding follows the well-established 4th Amendment construct of individualized suspicion. While recognizing that school searches require a lower level of suspicion than law enforcement searches, the majority held that a strip search in the Redding case required individualized suspicion that contraband was hidden in the student’s underwear.
“In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.” Safford Unified School Dist. v. Redding (June 25, 2009)
Justice Souter wrote the 8-1 majority opinion on the constitutional issue. Justice Thomas dissented, stating that the search was reasonable and not in violation of the 4th Amendment. On the issue of qualified immunity, the Court ruled 7-2 that school officials were entitled to immunity because the law was not clearly established.
The majority opinion does not purport to set rules for law-enforcement settings (including jails) or any setting outside of schools. It builds on the earlier school search case, New Jersey v. T. L. O., 469 U. S. 325 (1985).
Justice Souter wrote: “The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that ‘the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.’ 469 U. S., at 341 (internal quotation marks omitted). The scope will be permissible, that is, when it is ‘not excessively intrusive in light of the age and sex of the student and the nature of the infraction.’ Id., at 342.”
Thus, the Redding majority concluded that the age and gender of the plaintiff were relevant factors in finding the strip search of an adolescent girl unlawful under the circumstances.
Read the full decision in Safford Unified School District v Redding here.
Strip search law has gotten interesting recently. After more than 20 years of federal circuit courts finding that jail strip searches violated the Fourth Amendment, the 11th Circuit has become the first federal appellate court to reverse the tide.
In Powell v. Barrett, the Atlanta-based court ruled en banc that — contrary to its earlier decisions — the Fulton County Jails could enforce a blanket strip search policy for arrestees who were going to be placed in the general jail population. [___ F.3d ___ (11th Cir. Sept. 4, 2008, No. 05-16734.)] This decision follows closely on (but does not mention) the Ninth Circuit Court of Appeals decision in Bull v. City and County of San Francisco. The San Francisco-based court ruled 2-1 in Bull that under Ninth Circuit precedents, the Sheriff could not enforce a blanket strip search policy, even though the jail had experienced a substantial problem with inmates smuggling drugs and weapons into the jail. But in Bull, both the dissenting and concurring opinions stated that this ruling conflicts with the U.S. Supreme Courts decision nearly 30 years ago in Bell v. Wolfish, 441 U.S. 520 (1979).
The five plaintiffs in the Powell case were strip searched pursuant to a policy requiring all inmates booked into the Fulton County Jail general population to be searched unclothed before donning a jail jumpsuit. Writing for the 11-1 majority in Powell, Judge Carnes stated:
After balancing the privacy interests of detention facility inmates against the important security interests involved, the Supreme Court upheld the visual body cavity strip searches at issue in the Bell case against a Fourth Amendment attack. The security needs that the Court in Bell found to justify strip searching an inmate re-entering the jail population after a contact visit are no greater than those that justify searching an arrestee when he is being booked into the general population for the first time.
The Powell case reached the court of appeals after the trial court had ruled on a motion to dismiss. Thus, the factual record regarding smuggling at the Fulton County Jail was bare. The court was required to take the allegations of plaintiffs’ complaint as true. But the 11th Circuit relied on Bell as well as the facts developed in other cases to find that jail security concerns justified a blanket strip search policy applied to prisoners placed in the general jail population.
The court stated:
The need for strip searches at all detention facilities, including county jails, is not exaggerated. Employees, visitors, and (not least of all) the detained inmates themselves face a real threat of violence, and administrators must be concerned on a daily basis with the smuggling of contraband by inmates accused of misdemeanors as well as those accused of felonies. See Clements v. Logan, 454 U.S. 1304, 1305, 102 S.Ct. 284, 286 (Rehnquist, Circuit Justice) (noting that the jail’s strip search policy had been “adopted after the shooting of a deputy by a misdemeanant who had not been strip-searched”), vacated,454 U.S. 1117, 102 S.Ct. 961 (1981); Johannes v. Alameda County Sheriff’s Dep’t, No. C 04-458MHP, 2006 WL 2504400, at *4-6 (N.D.Cal. Aug. 29, 2006) (discussing in statistical detail as well as practical terms the contraband problem at a large county jail and the usefulness of strip searches in combating it); Dodge v. County of Orange, 282 F.Supp.2d 41, 46-49 (S.D.N.Y.2003) (discussing testimony that strip searches were essential to prevent gangs from smuggling in contraband to the county jail), appeal dismissed,103 F. App’x 688 (2d Cir.2004). Even some of the circuits that have required reasonable suspicion for searches of those arrested for misdemeanors concede that there have been instances where contraband was smuggled into a jail by detainees facing only misdemeanor or other lesser charges. See, e.g., Mary Beth G., 723 F.2d at 1272-73.
The Powell court also rejected the argument often made to distinguish Bell – which involved searches after contact visits with outsiders — from searches at the time of initial arrest and booking. The anti-strip search argument posits that arrests are unplanned events which do not allow time to secrete contraband in bodily orifices. (Experienced jail officials know this to be untrue, as shown by the detailed record in Bull v. City and County of San Francisco.) Contact visits, by contrast, are planned in advance, allowing inmates to prepare for smuggling contraband.
As the 11th Circuit stated:
The factual premise of this argument is unsupportable. Not everyone who is arrested is surprised, seized, and slapped into handcuffs without a moment’s notice. Some people surrender when they are notified that a warrant for them is outstanding. Those who do not turn themselves in often have notice that officers are coming to arrest them. Even those in a vehicle who are pulled over and arrested may have time to hide items on their person before the officer reaches the car door. Then there are those who deliberately get themselves arrested. Demonstrators or protestors engaged in civil disobedience are one example. Another example, as we mentioned earlier, is gang members who get themselves arrested just so they can smuggle in contraband. They have all the time they need to plan their arrests and conceal items on their persons.
Logically, if a prisoner poses a smuggling risk when he has a contact visit with outsiders, then he poses the same or greater risk when he is first brought into jail from the outside world:
Of course, an inmate’s initial entry into a detention facility might be viewed as coming after one big and prolonged contact visit with the outside world. There is no denying that arrestees entering a detention facility usually have had plenty of contact with outsiders, most having been outsiders themselves until they were arrested.
Given the Ninth Circuit’s decision in Bull (which established the most detailed factual record of jail smuggling to date) and the circuit split created by Powell, the U.S. Supreme Court may decide to take another look at jail strip searches. Stay tuned for further developments.
On the surface, the 2-1 Ninth Circuit opinion last week (August 22, 2008) holding that San Francisco’s former jail strip search policy was unconstitutional appears in line with twenty-plus years of Ninth Circuit precedents. This line of cases started with Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) and held that jailors could not strip search “minor” offenders (such as Ms. Giles, briefly detained for unpaid parking tickets) who were destined for release after a few hours in jail.
On closer inspection, however, the three opinions in Bull v. City and County of San Francisco – majority opinion, concurrence, and dissent — show cracks beginning to form in Ninth Circuit strip search law. In Bull, San Francisco argued that earlier Ninth Circuit strip search cases were distinguishable on two grounds: (1) San Francisco had shown through documentary evidence that it had a major problem with smuggled drugs and weapons in the County Jails; and (2) earlier cases were different from San Francisco’s policy because earlier cases had all involved individuals who were strip searched while awaiting bail or who were destined for early release.
On the first point, the judges agreed that San Francisco had shown a serious problem with contraband in the jail. Writing for the majority, Judge Thomas stated that the City’s evidence showed “that contraband smuggling was a significant problem in San Francisco jails.”
Judge Ikuda voted with Judge Thomas, but warned:
[B] y disregarding the jail administrators’ urgent concerns about a serious contraband smuggling problem, I agree with the dissent that we are potentially putting lives in the San Francisco detention system at risk.
In dissent, Judge Tallman wrote:
We have never before been presented with such a compelling record of dangerous smuggling activity.
Nonetheless, the majority found that these facts did not distinguish San Francisco’s policy from those found infirm in earlier cases. The Ninth Circuit held that notwithstanding the evidentiary record, jailors could not strip search prisoners before transferring them into the general jail population for an indeterminate period of time. (Under San Francisco’s former policy, arrestees who were not brought in on drugs, weapons or violence charges were only strip searched after they had been allowed a reasonable time to post bail.)
Judge Ikuda’s concurrence is particularly noteworthy. She concludes that two decades of Ninth Circuit case law is at odds with the Supreme Court’s balancing test as applied to uphold a blanket strip search policy in Bell v. Wolfish, 441 U.S. 520 (1979).
Judge Ikuda wrote:
By effectively eliminating . . . [jail officials’] security concerns from our calculus, we contradict Supreme Court precedent and common sense and take upon ourselves a role unsuited for the courts. . . . Because we have dangerously substituted our judgment for the judgment of jail administrators, a reconsideration of our case law is urgently needed.
The Bull case appears ripe for en banc review in the Ninth Circuit to resolve the tension noted between the Supreme Court’s most recent pronouncement on strip searches and 20 years of intervening Ninth Circuit case law in that – in Judge Tallman’s words – has strayed “far from the course charted” in Bell v. Wolfish.”