Ninth Circuit Upholds Jail’s Routine Strip Search / Visual Body Cavity Search Policy

A very interesting and important decision, in Bull v. City & County of San Francisco (en banc). Because it’s 6-5 on the merits (Judge Graber joined the majority as to qualified immunity, but agreed with the dissent’s underlying constitutional argument), and because it appears to deepen a circuit split, there’s a good chance that the case will go up to the Supreme Court, assuming the plaintiffs petition for certiorari. (Note that the policy “requir[ed] the strip search of all arrestees who were to be introduced into San Francisco’s general jail population for custodial housing.” The majority does not opine on strip searches of arrestees who are being booked and released.)

I think the majority is correct on the merits, and I also agree with Chief Judge Alex Kozinski’s very interesting and thoughtful concurrence (joined by Judge Ronald Gould, the one Democratic appointee in the majority); the concurrence begins on PDF p. 32. I particularly think that the majority’s result is all but dictated by Supreme Court’s 1979 Bell v. Wolfish decision, which in relevant part reads:

Inmates at all Bureau of Prisons facilities, including the MCC, are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution. Corrections officials testified that visual cavity searches were necessary not only to discover but also to deter the smuggling of weapons, drugs, and other contraband into the institution. The District Court upheld the strip-search procedure but prohibited the body-cavity searches, absent probable cause to believe that the inmate is concealing contraband. Because petitioners proved only one instance in the MCC’s short history where contraband was found during a body-cavity search, the Court of Appeals affirmed. In its view, the “gross violation of personal privacy inherent in such a search cannot be outweighed by the government’s security interest in maintaining a practice of so little actual utility.”.

Admittedly, this practice instinctively gives us the most pause. However, assuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, we nonetheless conclude that these searches do not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches, and under the circumstances, we do not believe that these searches are unreasonable.

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record, and in other cases. That there has been only one instance where an MCC inmate was discovered attempting to smuggle contraband into the institution on his person may be more a testament to the effectiveness of this search technique as a deterrent than to any lack of interest on the part of the inmates to secrete and import such items when the opportunity arises.

We do not underestimate the degree to which these searches may invade the personal privacy of inmates. Nor do we doubt, as the District Court noted, that on occasion a security guard may conduct the search in an abusive fashion. Such abuse cannot be condoned. The searches must be conducted in a reasonable manner. But we deal here with the question whether visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.

(I realize that the dissent argues, focusing on the last two sentences of this excerpt, that Bell “set the justification for strip searches at something less than probable cause, but declined to explicitly specify the level of suspicion.” But I don’t think that’s right, given the entire passage, which expressly upheld a blanket policy with no requirement of individualized suspicion and no categorical exemption of certain supposedly safer classes of inmates.)

Thanks to the invaluable How Appealing for the pointer.