1. Part II Constitutional Law of Corrections

2. 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

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

4. Chapter Outline: cont’d
Strip Searches
Pat Searches and Other Inmate Searches
Visitor Searches
Searches of Employees

5. 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

6. 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

7. Searches in Prisons: cont’d
Searches needed because inmates may be:
looking for ways to escape
assaultive
looking for ways to introduce contraband

8. 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
--There are two leading cases on cell searches – Hudson v. Palmer and Bell v. Wolfish.

9. 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

10. 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
--Due process claims are discussed in Chapters 11 and 12.

11. 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
--Court said volatile and often violent nature of prisons means officials must be ever alert to attempts to introduce drugs or other contraband into the premises. Also of concern, prevent flow of weapons into prisons, look for escape plots or tools, and try to maintain sanitary environment. Unfettered cell access seen as “imperative” to fulfill such purposes.

12. 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”
--As this pertains to the Fourth Amendment claim of unreasonable seizure and destruction of inmate property, Court held such proscription did not apply to a prison cell – that officials must be able to take from cells any articles which they believe “disserve legitimate institutional interests.”

13. 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
--Visual strip searches are discussed later in this chapter.
--Facility also held convicted – for example, those awaiting sentence before transfer to a regular prison; those serving short sentences; and those brought back to the jail for post-trial hearings.
--The major focus of this case deals with the issue of double-bunking pretrial detainees. This is discussed in Chapter 15 and conditions of confinement.

14. 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

15. 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

16. 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
--Lower courts held for the inmates, in order to have “reasonable” searches and seizures.

17. 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
--Court found inmates, both convicted and unconvicted, had no privacy rights with respect to inmate’s room or cell.
--In Block v. Rutherford (1984), Court again held inmates have no constitutional right to be present or to observe search of their cells.

18. 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

19. 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
--Inmate claimed violation of his Fourth Amendment rights against unreasonable search and seizure. Court held for this to occur that the visiting room would have to be a constitutionally protected area.

20. 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
--Court pointed out that legislative committee also had other grounds to question the inmate, and thus his prosecution for refusing to testify was permissible even if there had been a constitutional problem with the intercepted conversation.

21. 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

22. 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
--The appeals court held that once the government established a justifiable purpose for its intrusions on individual rights, deference to the needs of prison administration, plus “traditional notions regarding surveillance of prisoners” result in a decision favorable to prison officials.

23. 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

24. 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
--Statutes involved are found in 18 U.S.C and following.
--In Amen, the appeals court held: “If security concerns can justify strip and body-cavity searches. . . and wholly random cell searches. . . then surely it is reasonable to monitor prisoners’ telephone conversations, particularly where they are told that the conversations are being monitored.”

25. 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

26. 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

27. 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
--The district court had found that female inmates were entitled to be protected from being viewed by male officers when they were partially or completely unclothed. The court upheld the nighttime ban on male officers in the housing quarters. The appeals court was concerned over the order of the district court, with the appeals court worrying that there was a direct conflict between the privacy rights of the inmates in their cells and the employment rights of the officers. The above plan tried to accommodate both concerns.
--The state had proposed providing one-piece pajamas as sleepwear. The district court had rejected this offer because the pajamas were not attractive and were uncomfortably warm. The appeals court held such concerns were not sufficient to outweigh equal employment rights.

28. 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
--Discussed earlier in this chapter was the Bell ruling with respect to cell searches.
--The lower courts had allowed the strip searches, but banned the body cavity searches (absent probable cause), with the appeals court finding that this “gross violation of personal privacy” was not justified by the government’s security interest in conducting the search.

29. 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”

30. 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

31. 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

32. 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

33. 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)

34. 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

35. 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
----In contrast to pat searches, strip searches are usually performed by officers of the same sex as the inmate, except perhaps in emergency situations.

36. 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

37. 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

38. 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

39. 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
--Courts are sensitive about these search situations and have awarded monetary damages against staff who do unreasonable searches, especially cross gender and those that are physically intrusive.

40. 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

41. 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

42. 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
--Allowing the departure of a person who refuses to undergo the security procedures recognizes that the main interest of correctional officials is to prevent the introduction of contraband into the institution.

43. 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)

44. 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

45. 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

46. 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

47. 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

48. 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