25-c-2 Fourth Amendment Protections

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

25-C-2. Fourth Amendment Protections

Prisoners usually use the Fourth Amendment, which forbids "unreasonable searches and seizures,"²⁸ to challenge body searches. Prisoners have some, but very limited, privacy rights to their bodies under the Fourth Amendment.²⁹

This Section first tells you when courts do allow body searches under the Fourth Amendment. Part C(2)(a) explains the Fourth Amendment's "reasonableness standard," which courts use to decide if a search was lawful. Part C(2)(b) discusses strip search cases, Part C(2)(c) discusses strip frisks, and Part C(2)(d) covers body cavity searches. Finally, Part C(2)(e) explains your limited right to not be searched by someone of the opposite sex (cross-gender body searches).

(a) Reasonableness Standard for Searches of Prisoners

The lawfulness of a body search depends on whether a prison guard performs the search reasonably. In Bell v. Wolfish, the Supreme Court said that body searches are constitutional, but only if performed in a "reasonable manner."³⁰ Guards must act reasonably when searching prisoners because searches invade prisoners' privacy and can easily become abusive.³¹ In other words, courts balance the state's need for the search against how much the prisoner's privacy is invaded.

The courts do not have one particular rule for what is reasonable in body searches. Instead, they have decided that some practices are unreasonable. To decide whether a search is unreasonable and unnecessarily invasive of prisoners' privacy, Bell v. Wolfish requires courts to look at:

(1) how the search is performed;

(2) the reason for the search; and

(3) the place of the search.³²

Different courts make different decisions using this test, depending on how reasonable a court finds the prison officials' explanation for the search and the conduct during the search. Note that courts will generally believe prison officials when they claim that they needed to search a prisoner for security reasons. Courts usually do not want to second-guess prison safety policies used to maintain prison control.³³ While courts will not allow prison officials to do anything they wish (courts can and have struck down unreasonable policies), a prison official can typically prove the need for a search policy easily. Some examples of "reasonable" searches are:

(1) a visual, public strip search and urine analysis drug test as part of a prison administration's efforts to stop prison drug use;³⁴

(2) drawing a prisoner's blood or saliva to add DNA to a criminal profiling database;³⁵ and

(3) a policy of visually strip searching all arrestees when they are admitted to the general population of a detention center, regardless of the reason for their arrest, in order to prevent dangerous or illegal materials from entering the prison.³⁶

In general, searches should not be performed abusively (in violation of the Eighth Amendment's ban on cruel and unusual punishment)³⁷ or conducted in an unnecessarily public manner.³⁸Who conducts the search can be important-for example, courts generally do not second guess body cavity searches performed by trained medical personnel.³⁹Where the search is performed is also a factor-for example, prison officials should not perform strip searches in public without a good reason.⁴⁰Which prisoners are being searched is considered critical-courts allow more intrusive searches of maximum security prisoners,⁴¹ though the Supreme Court has recently held that even people who are arrested for minor crimes can be visually strip searched when admitted into detention.⁴²

The New York State Department of Corrections and Community Supervision ("DOCCS") relies on this standard of what is or is not reasonable when trying to figure out what kind of pat frisks are okay. According to Directive 4910, a pat frisk is okay if an official has "an articulable basis to suspect that an inmate may be in possession of contraband."⁴³ This new standard replaces the old standard, which required "reasonable suspicion that an inmate is in possession of contraband."⁴⁴ The old reasonable suspicion standard required a "'particularized and objective basis."⁴⁵ This meant that from an objective point of view, the circumstances leading up to the search would have made a reasonable person believe that the inmate was in possession of contraband.⁴⁶ The wording in the new standard-"articulable basis"-gives prison officials even greater leeway when determining if a pat frisk is necessary. As long as a prison official can give a reason (and it may not be a good reason) to suspect that you may be carrying contraband, he can pat frisk you.⁴⁷ An official will also pat frisk you before you speak with Department officials or enter the visiting room.⁴⁸

(b) Strip Search

In a strip search, you take off your clothes and a prison official searches them and inspects your naked body. In a strip search, the official does not touch you or search your body cavities. At least one circuit court has held that a strip search does not have to be "deliberate," meaning that it does not matter if the officer intended to see your naked body, as long as the officer did see your naked body.⁴⁹ Courts generally allow strip searches if prison officials have a legitimate reason based on safety and security for conducting the search. For example, these are situations where there has been an increase in violence at the prison, or where prisoners have had contact with visitors from outside of the prison.⁵⁰ It is a violation of your Fourth or Eighth Amendment constitutional rights to strip search you only because the prison wants to harass or punish you, and not because the prison has other legitimate security reasons.⁵¹ In addition, courts are usually more skeptical of strip searches for people charged with minor offenses.⁵²

Courts around the country disagree on what the Fourth Amendment's reasonableness standard for strip searches actually means. In Arruda v. Fair, the First Circuit held that a policy requiring strip searches of maximum security prisoners when entering or leaving the unit to go to the library or infirmary and after meeting visitors was reasonable, even though a guard accompanied prisoners to the infirmary and there was a wire screen in the visiting area because particularly dangerous criminals were involved.⁵³ However, in Roberts v. State of Rhode Island, also decided by the First Circuit almost 18 years later, the court said that the policy of strip searching people charged with minor offenses at the intake facility for the same maximum security prison as Arruda violated the Fourth Amendment.⁵⁴

Courts also look at the place of the search and the conditions of the search to see if the prisoner's privacy rights were violated.⁵⁵ In Cornwell v. Dahlberg, the Sixth Circuit held that a male prisoner who was strip searched outdoors after a prison riot in front of several female correctional officers raised a valid Fourth Amendment claim because the search could have occurred in a more private place.⁵⁶ In Hodges v. Stanley, a prisoner complained that a prison official had physically attacked him and then stripped searched him. The prisoner claimed that these actions were unconstitutional.⁵⁷ The prisoner alleged that he had been searched twice in a row, and he questioned the need for a second search. The Second Circuit said that the first search, a mandatory procedure when prisoners were put in administrative detention, was proper. However, the court found that Hodges stated a constitutional claim because the second search was unnecessary.⁵⁸

(c) Strip Frisk

"Strip frisk" means a visual search of a prisoner's clothes and body, including body cavities.⁵⁹ For a male, this may involve one or more of the following procedures:

(1) Opening his mouth and moving his tongue up and down and from side to side,

(2) Removing any dentures,

(3) Running his hands through his hair,

(4) Allowing his ears to be visually examined,

(5) Lifting his arms to expose his armpits,

(6) Bending over and/or spreading his buttocks to expose his anus to the frisking officer, or

(7) Spreading his testicles to expose the area behind his testicles.

For females the procedures are the same, except females may also be required to squat to show the vagina.⁶⁰ It is important to remember courts sometimes use the terms "strip frisk search" and "visual body cavity search" to mean the same thing.

Because strip frisks invade prisoners' privacy more than strip searches, courts usually require prison officials to be suspicious of that particular prisoner before strip frisks or body cavity searches are justified.⁶¹ However, some courts now allow random strip frisk searches. For example, the Second Circuit in Covino v. Patrissi held that routine strip frisk searches were reasonable and should not be limited to searching prisoners after contact visits.⁶² Using the reasonableness standard, the court in Covino found that a regulation allowing random visual body cavity searches (which required the prisoner to remove his clothing, lift his genitals, and spread his buttocks for a visual examination) was not unreasonable, because the prisoners were very dangerous and the prison needed to prevent contraband. Therefore, the prison officials' need to conduct these searches was more important than the...