Part II

Constitutional Law of Corrections

Chapter 10 – Fourth Amendment – Search and Seizure, Privacy Introduction: Chapter looks at whether,

and to what extent, Fourth Amendment provision against unreasonable search and seizure applies within prisons and jails

Court looks at two areas Is search area protected under constitution If yes, was search done in a reasonable

manner

Chapter Outline Searches in Prisons Hudson v. Palmer Bell v. Wolfish Lanza v. New York United States v. Hearst

Chapter Outline: cont’d

Strip Searches Pat Searches and Other Inmate

Searches Visitor Searches Searches of Employees

Searches in Prisons Two main types of prison searches

Of cells or inmate living quarters Of the person – can include

Pat or frisk Visual or strip Digital or simple instrument Urine testing X-rays Blood tests

Searches in Prisons: cont’d

Other types of searches Of other physical areas within the

facility, such as work and recreation, and prison grounds

Of visitors and of employees

Searches in Prisons: cont’d

Searches needed because inmates may be: looking for ways to escape assaultive looking for ways to introduce contraband

Searches in Prisons: cont’d

Prison officials are looking for ways to stop these activities. Looking for: escape implements weapons that might be used in

assaults contraband, such as drugs and money

Hudson v. Palmer (1984) Two correctional officers in Virginia

prison did “shakedown” search of inmate’s cell and locker, looking for contraband Found a ripped pillowcase in a trash

can in the cell Charges filed against the inmate for

destroying state property Inmate found guilty

Hudson v. Palmer : cont’d Inmate filed § 1983 lawsuit claiming violation

of Fourth Amendment right not to be subject to unreasonable searches and seizures

Also alleged that, just to harass him, officer destroyed some of inmate’s personal property This was treated as a due process claim Court held that because the state had a remedy

for seeking compensation, no due process violation existed, even if done intentionally

Hudson v. Palmer : cont’d On main issue – right of privacy in his

prison cell, entitling him to Fourth Amendment protections, Court held Fourth Amendment provision against

unreasonable searches does not apply to a prison cell

Cell searches may be done to the extent thought necessary for maintaining security and order

Items thought to be contraband may be seized

Hudson v. Palmer : cont’d

Inmate has no protected right of privacy in prison Right of privacy in “traditional Fourth

Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institution security and internal order”

Bell v. Wolfish (1979) Case occurred at a federal

detention center; dealt with various constitutional claims, including two search issues Searches of inmate living quarters Visual strip searches

Most inmates at the detention center were unconvicted, confined while awaiting trial

Bell v. Wolfish : cont’d

Prison staff conducted random, “unannounced” searches of inmate living quarters Inmates usually would be removed

from the living area during the search

Bell v. Wolfish : cont’d

Inmates complained cell left in needless disarray, and on occasion items were damaged or destroyed Asked to be present during search

Bell v. Wolfish : cont’d

Prison officials opposed Said it would lead to friction between

inmates and staff Would allow inmates to attempt to

frustrate search by distracting staff and moving contraband from one room to another ahead of the search team

Bell v. Wolfish : cont’d

Supreme Court held an inmate has no right to be present during cell search Room searches represent an

appropriate security measure Room search rule facilitates safe and

effective performance of the search

Lanza v. New York (1962) Visiting room conversation of jail inmate

and his brother was electronically captured

Based on contents, inmate was called before state legislative committee investigating possible corruption in the state parole system

Inmate refused to testify and was convicted for that refusal

Lanza v. New York: cont’d

Inmate sued, claiming it was improper for prison officials to electronically intercept and record his visiting room conversation

Claimed his punishment for refusing to talk about the contents of the intercepted conversation violated his constitutional rights

Lanza v. New York: cont’d Court disagreed, upholding the conviction

“(A) jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room”

But, Court did note that relationships with special legal protections, such as attorney-client, would have at least as much protection in jail as in the outside world

United States v. Hearst (1977)

Inmate and her friend spoke over a phone during a non-contact visit

Their conversation was monitored and recorded by jail staff, with the tape given to the FBI

It was later used against the inmate at her trial and she was convicted

United States v. Hearst : cont’d

On appeal, issue was whether making, and then using, the tape during the trial was a Fourth Amendment violation

Appeals court upheld process Jail officials had a justifiable security

purpose in monitoring and recording inmate-visitor jail conversations

United States v. Hearst : cont’d

Also held that once legitimately in government control, the tapes could be turned over to the FBI, and used as evidence in the prosecution of the inmate

United States v. Hearst : cont’d

United States v. Paul (1980); United States v. Amen (1987) – these appeals court decisions upheld monitoring of inmate telephone conversations as within scope of federal wiretapping statute Statute allows prison officials, within the

ordinary course of business, to monitor inmate telephone conversations without obtaining judicial approval

Statute also allows for monitoring with the prior consent of one party to the conversation

Strip Searches

In 1977, male officers in a New York women’s prison were assigned duties in the prison’s sleeping quarters Female inmates filed a Section 1983

lawsuit, claiming a violation of their constitutional right to privacy when male officers were allowed to view the women in various stages of undress

Strip Searches: cont’d Union representing the corrections

officers joined prison administrators in opposing the lawsuit

Officers’ arguments primarily based on their equal employment opportunity rights

To exclude them from certain jobs disadvantaged them

Strip Searches: cont’d Appeals court (Forts v. Ward, 1980)

endorsed plan allowing inmates to cover windows when changing clothes or using toilet

The court also directed parties to explore the type of sleepwear that could be provided to achieve the protection desired by the inmates

These actions achieved some accommodation of the competing rights of the parties

Strip Searches: cont’d The Supreme Court decision in Bell v.

Wolfish (1979) dealt with body cavity searches during strip searches In federal prisons, inmates required to

undergo a same-sex strip search after every contact visit with a person from outside the prison

Part of the search required visual inspection of body cavities

Prison officials said these were necessary to find and deter the introduction of contraband

Strip Searches: cont’d

In Wolfish, the Supreme Court upheld this practice “A detention facility is a unique place

fraught with serious security dangers . . . . (I)nmate attempts to secrete (contraband) items . . . by concealing them in body cavities are documented in this record, and in other cases”

Strip Searches: cont’d The Court allowed such searches at

conclusion of visits, without a necessary finding of probable cause or reasonable suspicion

Searches had to be done in a reasonable manner and not abusively

Strip Searches: cont’d

In general, the courts have shown much reluctance to approve strip searches of persons immediately after their arrest or on being taken into jail Reasonable suspicion (of having

secreted improper materials, such as drugs or weapons) is generally required to justify a strip search upon arrest

Strip Searches: cont’d Across the board, courts

disapprove of strip searches of persons arrested for minor offenses

Nor may arrest for a felony alone always justify such a search

Law enforcement must be carefully instructed on the law in their jurisdiction

Strip Searches: cont’d Searches must be done professionally

Conduct in as private a place as possible Conduct out of view of other inmates or of

staff who do not need to be present Conduct out of view of outsiders (such as

visitors) Conduct should be without verbal

misconduct (such as rude and offensive comments)

Pat Searches and Other Inmate Searches Pat searches (“frisks”) are commonly

done as inmates move about the prison

Such searches also done as inmate moves out of, or into, a prison Search involves running the hands over

all parts of the inmate’s body on top of the clothes

Contents of pockets or anything being carried are examined

Pat Searches and Other Inmate Searches: cont’d

Cross-gender pat searches are generally allowed Individual courts may place some

restrictions, such as not touching genital areas or breasts

Pat Searches and Other Inmate Searches: cont’d

Most extreme case – Jordan v. Gardner (1993) where court held cross-gender pat searches of women could not occur in prison

Decided on basis of Eighth, not Fourth, Amendment

There was a finding that many women had been physically and sexually abused prior to prison, and a pat search by a male officer would traumatize them

Held to constitute cruel and unusual punishment of the female inmates

Pat Searches and Other Inmate Searches: cont’d

Simple instrument or X-ray searches Occur when staff has reasonable belief

inmate is concealing contraband inside or upon his person, and

A visual search is not possible, or Would not be sufficient to reveal the

hidden contraband

Pat Searches and Other Inmate Searches: cont’d

Medically trained staff would do search

X-ray searches handled by medical staff to be certain that proper procedures are followed, and to avoid excessive exposure to radiation

Pat Searches and Other Inmate Searches: cont’d

Blood or urine tests may also be used to detect drug use

Breathalyzer or other on-the-spot tests may be used to detect alcohol use

Important that staff check with, and receive, legal advice on the position of local courts regarding such searches

Visitor Searches

Most prisons have warning posters, advising visitors that they are not to bring any contraband into the facility and that they may be subject to searches of their person or property

Visitor Searches: cont’d Visitors to prisons or jails have

greater expectation of privacy than inmates

Once enter prison, however, security concerns are pervasive May be constant monitoring, including

camera surveillance May be asked to check their

possessions, such as bags and purses, in lockers at the entrance

Visitor Searches: cont’d May be asked to walk through a metal

detector Could be subject to routine pat

searches, by staff of the same sex, prior to entry

Could be subject to searches of bags and briefcases prior to entry

Visitor who refuses to cooperate can leave

Visitor Searches: cont’d Other searches, such as strip searches, and

detaining a person to conduct a thorough search of personal property, require reasonable suspicion

When time allows Best to contact local law enforcement officials, or Go into court and obtain a search warrant for a

strip search of a visitor, or even a pat search or a search of a visitor’s possessions (including a car)

Searches of Employees

These are sensitive, ordinarily done only on finding of reasonable suspicion Experience has shown that a small

number of staff can be corrupted, and can be used to bring contraband into the prison

Searches of Employees: cont’d

Search determination could be founded upon confidential information, at times provided by an inmate Requires assessing reliability of the

informant, and Whether there is corroborating

information or circumstance

Searches of Employees: cont’d Staff should be advised throughout

training, that they, and anything they bring into the prison, are subject to search

Some systems limit the amount of personal property staff may bring into the prison

Others may subject staff to a routine metal detector and pat search

Searches of Employees: cont’d

To collect evidence and to be certain that allegations or suspicions are well-founded, it may be necessary to do searches of employees, their lockers, cars, clothes, and other areas

Searches of Employees: cont’d

Law enforcement officials and counsel should be consulted, and local court rulings on searches carefully followed As a rule of thumb, reasonable suspicion

the person is carrying contraband is the minimum standard for doing the search

A search warrant is always the safest way to go