Eleventh Circuit Decision In Powell v. Barrett Creates A Circuit Split On Jail Strip Searches

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.