By Marty Drapkin
Strip searches are an important procedure in jails and prisons. They are an invaluable means of preventing introduction of contraband items, particularly weapons and drugs, into a facility. In recent years, strip searches in jails have been a focus of civil litigation and there have been several cases involving significant money damage awards or settlements.
As with other critical elements of a jail operation, it is important to have a comprehensive written policy and accompanying procedures governing strip searches. Such a policy is important for two key reasons:
• It serves to guide staff members in the performance of their duties. That is, the written policy is management’s formal means for communicating to staff members what strip searches are and how they are to be done, in regard to this reasonably foreseeable circumstance.
• It serves as a tool in liability risk management. That is, if there is a lawsuit in which strip searches are at issue, the written policy may be used to show that staff members acted properly.
Of course, in order to be useful in both of the above ways, a strip search policy must have certain characteristics: it must be comprehensive, it must be well written, it must reflect prevailing legal standards and requirements, and there should be maximum congruence between what the policy says and what is actually practiced in the facility.
Additionally, it is important that staff members receive proper training on the policy and on any skills necessary to carry out the policy. And finally, there must be ongoing supervision to ensure that the policy is being carried out properly.
Strip searches: A legal perspective
The Fourth Amendment protects the expectation of privacy that citizens have against “unreasonable searches and seizures” by government officials. Over the years, there have been many lawsuits and court rulings defining what an “unreasonable search” conducted by law enforcement or corrections personnel is. In general, the reasonableness of a search is determined by trying to balance the need by government officials to conduct a particular type of search against such factors as how intrusive the search is and the way in which the search is conducted.
The key purpose of all searches in jails and prisons is, of course, to discover contraband. That is the governmental interest in conducting searches. A patdown search is not considered particularly intrusive and thus is not considered unreasonable in most circumstances. Strip searches and body cavity searches are considered much more intrusive and potentially embarrassing, and thus are more potentially unreasonable than patdowns.
While it is reasonable to have a policy that everyone entering a jail is subject to a patdown search, it is not reasonable to have a policy that everyone is subject to a strip search. Federal court rulings have made clear that such a policy is unconstitutional.
The main protection in regard to strip searches extends to people who have been arrested for less serious offenses. Many courts have said that there must be articulable “reasonable suspicion” that a person is concealing weapons or other contraband in order to conduct a strip search of him or her. This can be based on such factors as the offense for which the person was arrested, the traits or history of the person, the circumstances of the arrest, and so on.
However, different federal circuit courts of appeals have, in rulings on cases, adopted somewhat different standards regarding strip searches in jails. For example, a recent ruling in the Ninth Circuit (California and eight other western states) indicated that reasonable suspicion is not required when inmates are placed in a jail’s general population (Bull v. City and County of San Francisco, 595 F.3d 964 [9th Circuit, 2010]). The Eleventh Circuit Court of Appeals (Alabama, Florida and Georgia) adopted a similar standard. However, in other circuits, that standard may not apply.
When writing your strip search policy it is important to know the legal standards that apply in the particular federal circuit in which your state resides.
Suggested Components of a Jail Strip Search Policy
In order to be comprehensive, a jail’s written policy on strip searches should include information on the following:
• Who may be strip-searched: The policy should be clear as to which categories of prisoners entering the jail are subject to being strip-searched. Remember that a blanket policy that all people who are processed or booked will be strip searched is unconstitutional. Thus, the policy should indicate the criteria for determining if there is reasonable suspicion—or whatever terminology applies—that a newly-arrested detainee may be strip-searched.
• Authorization for strip searches: The policy should indicate who is authorized to determine that a strip search may be conducted. In some cases, a line officer—such as a booking officer—may be so authorized. Or, the policy may specify that a supervisor has to authorize such searches in most or all circumstances. This is a good idea because it provides another level of decision-making on a critical issue involving protection of legal rights.
• Conditions for conducting strip searches: The policy should specify the conditions under which strip searches of detainees will be conducted. The policy might, for example, indicate that searches will be done in private, by a staff member of the same gender as the subject of the search, and will not be recorded by video or sound recordings. Only people directly involved in a search should be present while the search is being conducted.
The policy should also specifically indicate that staff members conducting strip searches are to do so professionally, with respect and with consideration for the dignity and feelings of subjects. Staff members are not to make degrading, insulting or harassing remarks while conducting strip searches.
• Body cavity searches: The policy should indicate who may be authorized to perform visual body cavity searches, in addition to strip searches. This involves looking into a subject’s body cavities (anus or vagina) but not touching or intruding with a finger or an instrument.
Additionally, the policy should indicate who is authorized to perform digital or instrument intrusions into the body cavities of detainees, in situations in which it is known or strongly suspected that the prisoner is concealing a weapon or other contraband in a body cavity. As a general rule, such intrusive searches should be done only by health care professionals.
• Documentation of strip searches: The policy should include information on documentation of strip searches—what information is to be documented, forms for documentation, routing of documentation, and so on. At a minimum, the documentation on strip searches of unsentenced prisoners or inmates should include the following: reason for the search (details on the “reasonable suspicion” of presence of weapons or other contraband that was the basis for the search), names of staff member(s) involved in the search, indication of when and where the search was conducted, whether or not a body cavity search of any type was done, and results of the search—that is, whether or not any contraband was discovered, and—if so—a description of the contraband items.
Documentation of strip searches should be well-maintained and easily-accessible, and some policies require that the subject of a strip search receive a copy of the strip search report.
Accurate and thorough documentation of strip searches is very important. Such documentation will likely be used as a way to defend practices in any lawsuits alleging improper strip searches. Good documentation is the accepted way of showing that contraband items were indeed found during such searches.
As with policies on any issue, a strip search policy should have certain characteristics. It should be thorough and accurate, and written as clearly as possible. The policy should, of course, also be in accordance with applicable legal standards governing strip searches, including any applicable state statutes or administrative rules, as well as the legal standards of the federal circuit appellate court, as discussed above.
If the U.S. Supreme Court rules on jail strip searches, the standard(s) established in that ruling would, of course, apply in all states.
Training on Strip Searches
It is not enough just to have a strip search policy, even if it is a wonderful policy. It is also necessary for management to be sure that staff members have been trained on the policy contents and on any psychomotor skills necessary to carry out the policy. Such training need not be complicated, but it has to happen. This should include initial training when someone is first hired—such as via FTO training—as well as continued refresher or update training.
Training should also occur any time there has been a substantial revision to policy contents.
All training must be well documented and the documentation maintained. Such documentation could also be important in the event of a civil lawsuit, so as to defend against an allegation of failure to train.
Supervision of Staff Members
Good, ongoing supervision of staff members is crucial to ensuring that a facility’s strip search policy is being carried out properly. Supervisors must be thoroughly familiar with the policy and must observe staff members to be sure that they are acting properly, as dictated by policy. One issue in this regard is to be sure that strip searches of detainees are only conducted when deemed necessary for security reasons—that is, to discover contraband—and that staff members are applying the “reasonable suspicion” standard or whatever other standards apply. Another issue for supervision is to be sure that strip searches are conducted properly—in private, by staff members of the same gender, and respectfully and considerately.
Supervisors and/or managers should routinely review all strip search reports to be sure that such documentation is adequate.
If there are any deficiencies in regard to conducting or documenting strip searches, supervisors must take timely and appropriate corrective actions. This may involve counseling, further or remedial training, or even discipline of employees.
