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Law Enforcement Task: Strip Searches

By Jack Ryan

In the course of an arrest, law enforcement personnel are often called upon to conduct a strip search of a person. These searches are viewed as intrusive and are subject to 4th Amendment restrictions. While these searches are an important tool for law enforcement, they remain a dramatic liability exposure for agencies and agency personnel. As such, this section outlines the legal parameters of a valid strip search for purposes of institutional security and encourages agencies and personnel to compare this material to their own practices, policies and training on strip searches.

In reviewing strip searches, one must recognize the issues involving strip searches. First, there are two distinct types of strip searches. The first is a strip search for evidence. This first type is not covered in this section. The second is a strip search for institutional security in the jail or lock-up setting. Secondly, in all cases of a justified strip search, the search itself must still be reasonable.

Institutional Security
Booking Searches

The greatest liability exposures created by strip searches are those searches that occur when persons are booked into a jail. There are numerous examples from around the country of class action suits relating to blanket policies of strip searching anyone and everyone who is going to be booked into the jail. These suits have resulted in multi-million dollar settlements and judgments against agencies of all sizes.

In Way v. Ventura County, i the United States Court of Appeal for the 9th Circuit reviewed the strip search of Noelle Way, which occurred as she was being booked into jail on a misdemeanor drug charge. Noelle Way was arrested after an officer noted that she had dilated pupils, a nervous attitude, a rapid pulse rate and rapid speech. The officer suspected that Way was under the influence of cocaine or methamphetamine, a violation of California law.

Way was taken to the Ventura County jail where she was strip searched pursuant to a policy that allows for a strip search/visual body cavity search “for arrestees charged with any controlled substance offense before placement in the general jail population.” “The booking policy of the Ventura County Sheriff's Department provided for a visual body cavity search of all persons arrested on fresh misdemeanor drug charges. The search must be performed by a deputy of the same sex as the detainee, and it involves no touching. The person arrested was to be searched immediately upon booking, without a waiting period for posting bail.”

“The search [in this case] involved a visual inspection of Way's unclothed body cavities, and it took place in a private room with only Hanson present. Hanson directed Way to remove all her clothing. She then directed Way to remove her tampon and to tear it and discard it in a wastebasket. Pursuant to the search policy, Way was required to "bend forward, spread the buttocks, and cough to allow for a visual inspection of the anal area" as well as to "spread her labia at the same time to allow a check of the vaginal area." The search yielded no contraband, weapons or drugs.” Following the search Way remained in a holding cell with other prisoners, where she was allowed to make phone calls for bail. She remained there for several hours until bail was secured. A blood test from the hospital revealed that Way did not have drugs in her system. Way filed a lawsuit against the agency and its personnel alleging that the strip search was unreasonable.

Notwithstanding the fact that Way was placed in a holding cell with several other prisoners and that she had been brought in a drug charge, the court concluded that the blanket policy of strip searching everyone that was brought in on a “fresh drug” charge was unconstitutional. Throughout the court’s analysis it was clear that no strip search at booking would be justified for institutional security purposes unless there was reasonable suspicion to believe that the person searched was concealing weapons or contraband. In this case, the court concluded that the misdemeanor charge of being under the influence of drugs was insufficient to support reasonable suspicion to believe that the suspect was concealing additional drugs.

The court asserted: “We therefore conclude that subjecting Way to a strip search with visual cavity inspection during the booking process on a misdemeanor charge of being under the influence of a drug was not justified by the jail's blanket policy of strip searching all those arrested on charges involving a controlled substance. Undocumented security needs of the jail facility do not outweigh the invasion of Way's personal rights. Nor is such an intrusive search warranted solely on account of the nature of the charge in this case, as being under the influence of a drug does not necessarily indicate that the person has concealed more drugs in a body cavity.” The court then granted qualified immunity to the individual defendants because the court indicated that the law was not clearly established prior to this decision that a misdemeanor offense of being under the influence of drugs would not support this search.

The rules requiring that a law enforcement employee must have reasonable suspicion to believe that the suspect is concealing weapons or contraband prior to conducting a strip search at booking have been clearly established in most jurisdictions for many years.ii "Reasonable suspicion, in turn, may be based on 'such factors as the nature of the offense, the arrestee's appearance and conduct, and the prior arrest record.' Furthermore, ‘a determination of reasonable suspicion . . . requires an inquiry as to the facts and circumstances within an officer's knowledge.’” iii

In the Act Up/Portland case, the United States Court of Appeal for the 9th Circuit addressed heightened security concerns when prisoners are intermingled in asserting: This Court and other courts have on several occasions addressed the question whether "security concerns" inherent in placing prisoners together in the same facilities justify strip searches. See, e.g., Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir.) ("Although [the arrestee] was placed into contact with the general jail population, such a factor by itself cannot justify a strip search."); Masters v. Crouch, 872 F.2d 1248, 1254 (6th Cir.) ("The fact of intermingling alone has never been found to justify [a strip search] without consideration of the nature of the offense and the question of whether there is any reasonable basis for concern that the particular detainee will attempt to introduce weapons or other contraband into the institution."), cert. denied sub nom. Frey v. Masters, 493 U.S. 977, 107 L. Ed. 2d 506, 110 S. Ct. 503 (1989); Giles, 746 F.2d at 618-19.

In summary, strip searches may not be done during the booking process unless there is reasonable suspicion to believe that the particular suspect is concealing weapons or contraband. Institutional security concerns, standing alone, even when the suspect is to be placed with other prisoners in a holding area or general population is insufficient to support reasonable suspicion. In light of recent case law from the 9th Circuit, agencies within the 9th Circuit must also be aware that a misdemeanor charge of being under the influence of drugs is insufficient to support reasonable suspicion.

In Bull v. City and County of San Fancisco,iv the United States District Court for the Northern District of California examined the policy and practices of the County of San Francisco Jail with respect to strip searches in light of 9th Circuit precedent.

In Bull the court began by reviewing what was referred to as a strip search based upon classification. Essentially, these searches were conducted whenever a suspect was classified in a manner that would place the prisoner in general population. The court concluded that strip searches could not be justified by the fact that a prisoner was going to be placed in general population. The court stated: “Although defendants are correct that the government's penological interests are heightened when temporary detainees are introduced into the general jail population, such intermingling on its own does not create reasonable suspicion to perform a strip search. As stated by the Ninth Circuit, although the fact an arrestee is to be "placed into contact with the general jail population" is one important factor among many that may be considered in gauging the reasonableness of a search, such a factor by itself cannot justify a strip search.” Thus, a policy or practice that allows a subject to be strip searched on grounds that they will be placed in general population, will not be constitutional.

The court also rejected a blanket strip search policy based upon the jail’s documented history of recovering contraband and weapons. The court noted that such a policy or practice would fly in the face of clear precedent that requires that before a strip search may be done prior to placement in the jail; personnel must establish individualized reasonable suspicion to believe that the particular arrestee is concealing contraband or weapons. Thus, individualized reasonable suspicion is a pre-requisite to a strip search at booking.

The San Francisco policy also had a provision that allowed strip-searching of any prisoner that came into the jail that was under probation for a prior offense. It should be noted that some probationers agree to a search provision as a condition of probation, the court expressly excluded this type of search from the discussion based on the consensual nature of such searches. The focus was on persons on probation who came to the jail but who had not consented to search as a condition of probation. In this circumstance, the court asserted that personnel would not be justified in an automatic strip search based on the suspect’s status as a probationer and therefore the policy was unconstitutional. The court stated that in order to strip search probationers, who had not consented to being searched as a condition of probation, personnel would have to articulate reasonable suspicion to believe that the suspect was concealing weapons or contraband. Thus, a policy or practice of strip searching all probationers would violate the constitution.

The court also found that a provision allowing strip searches for anyone that was to be placed in a safety-cell for their own protection to be a violation of the 4th Amendment. The court concluded that just because a person poses a danger to themselves does not necessarily mean that there would be reasonable suspicion to believe they were in possession of contraband or weapons. Thus, policy and practice must require individualized reasonable suspicion for strip searches of those persons who will be placed in a safety-cell.

One area distinguished by the courts is when a person has left the jail for some purpose but knows they will be returning to jail. These prisoners are distinguished on the grounds that they know they will be in jail, they have had contact outside the sterile environment of the jail and thus they have both an opportunity and a motive for smuggling contraband into the jail. Due to this motive and opportunity, these detainees are treated differently than the person who was spontaneously arrested and brought to the jail. The person who is spontaneously arrested is unprepared for the fact that they will be locked up and thus do not have the opportunity to prepare for this loss of freedom.

The issue of strip searching persons who have opportunity and motive based on the fact that they leave lock-up for a period of time and then return was addressed in Johannes v. Alameda County Sheriffs Department.v Johannes was being held as a witness and was transported back and forth to court several days in a row. Upon returning he underwent a strip search.

In analyzing the policy of strip searching persons such as Johannes the court looked at the fact that a subject who leaves, with knowledge they will be returning to the jail has opportunity and motive to smuggle contraband with them upon return. Additionally, the court noted the jail’s experience with such individuals actually smuggling items into the jail. In dismissing Johannes’ claim the court concluded: “On the evidence in the record, no reasonable jury could find that the application to Johannes of the policy of strip searching any inmate or detainee who had been outside the jail was not reasonably related to the legitimate institutional concerns of prevention, deterrence and detection of the introduction of weapons and other contraband into the county jail. The evidence shows a contraband problem exists at the county jail, that contraband adversely affects county jail security, that opportunities existed for Johannes to obtain contraband when he was outside the county jail, and that strip searches with body cavity searches had actually yielded contraband that wouldn't have been discovered otherwise. Defendants' blanket policy of visual strip searches after inmate/detainee contact with the outside world was not a "ham-handed" approach to solving the problem, and instead was a reasonable approach to the institutional interest in maintaining security by trying to stop the flow of contraband into the county jail.”

Manner of the Strip Search

In all cases where a strip search is justified, the manner in which the search takes place must also be reasonable in order to meet 4th Amendment standards. Thus, these searches should be done in a professional manner, using a searcher of the same sex (unless exigent circumstances exist), under sanitary conditions, without physical contact (unless exigent circumstances exist), and finally, done with a degree of

Strip Search Substitute/Subterfuge

An issue that has begun to surface is when agencies develop and implement a policy that meets the legal standards requiring individualized reasonable suspicion before a strip search is authorized, but then as a matter of policy or practice have personnel view the change-over (changing from the subject’s clothing to jail attire) process or have personnel viewing the required showering upon entry into the facility.

Persons who sue law enforcement over strip searches have begun to argue and courts have begun to accept that these practices do constitute a strip search and as such run afoul of the constitutional standards that have been discussed. Specifically, that viewing persons during the change-over or showering process without having individualize reasonable suspicion to believe that the person is concealing weapons or contraband, would violated the 4th Amendment limitations on strip searches.

Wood v. Hancock County Sheriffs Department,vii involved a subject, Woods, who was viewed naked on separate occasions in accordance with agency policy, but who was not strip searched under the policy. Wood was viewed when undergoing a clothing search procedure which involved the removal of all clothes prior to entry into the jail and was viewed while showering as required by this process. In reviewing the case, the United States Court of Appeal cited precedent in defining strip search as “an inspection of a naked individual without any scrutiny of the subject’s body cavities.” The court concluded that although the sheriff’s department employees indicated that the viewing of the naked body of Woods was merely incidental to these other processes; a reasonable jury could conclude that Woods had been strip searched. Thus, agencies should consider their intake process and determine if customs and practices with respect to the change-over process or the hygienic shower allow viewing of the naked body. If so, agencies should examine this practice in light of decisions such as Woods.

Note: Some agencies have taken pro-active steps to avoid this type of viewing while maintaining a level of security. An example is Carson City (NV) Sheriffs’ Department, which has installed a partial door which provides a limited view for security purposes but does not allow a viewing that would constitute a strip search.


  1. Way v. Ventura County, 445 F.3d 1157 (9th Cir. 2006)
  2. See, e.g. ACT UP/Portland v. Bagley et al., 59 F.3d 174 (9th Cir. 1995). (“Clear legal rules in 1989 prescribed both the circumstances in which officers can conduct strip searches, and, assuming a strip search is actually warranted, the manner in which officers should conduct those searches. ‘Arrestees for minor offenses may be subjected to a strip search only if jail officials have a reasonable suspicion that the particular arrestee is carrying or concealing contraband or suffering from a communicable disease.’ ”)
  3. Id.
  4. Bull v. City and County of San Francisco, 2006 U.S. Dist. LEXIS 9120 (Cal. N.Dist. 2006).
  5. Johannes v. Alameda County Sheriffs Department, 2006 U.S. Dist. LEXIS 63378 (Cal. N. Dist. 2006).
  6. See, Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005).
  7. Woods v. Hancock County Sheriffs Dept., 354 F.3d 57 (1st Cir. 2003).

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