SEARCHING IN CORRECTIONS

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4TH AMENDMENT (SEARCHES AND SEIZURES)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Considering the amount of searching a corrections officer conducts each day, there are some key factors to remember with the 4th Amendment:

  • The 4th Amendment t does not apply to cell searches, unless the search is done solely to harass. Hudson v. Palmer – 1984
  • When it comes to booking and intake, it is assumed by correctional staff that the arresting officer has lawfully detained (seized) the individual. Charging documents such as a warrant, court order or new charge must be present for any corrections officer to legally take an individual into custody.
  • For an arresting officer to confiscate an inmate’s property who has already been booked in to jail, he or she must obtain a warrant to do so.
  • Random urine tests for inmates are seen as reasonable by the courts.
  • You do not need “reasonable suspicion” to conduct a pat/clothed search. The courts have upheld that random pat down searches are reasonable within an institution. Again, the searches must be reasonable and not done solely to harass the inmate.

STRIP SEARCHES

  • Strip searches do require “reasonable suspicionRCW 10.79.130
  • The Supreme Court has approved strip searches with out a search warrant in the following circumstances:
    • Inmates opportunity to obtain contraband (contact visits, hospital trips, furloughs)
    • Persons being booked on charges defined in RCW 9.94A.030
    • Reasonable suspicion of contraband
    • Drug charges
    • Prior knowledge of incarceration
    • Inmates who are post-conviction status
  • Giles v Ackerman (1984) – This was a case that determined that strip searches are reasonable under the 4th Amendment where the security needs of the local jail outweigh the privacy interests of the arrestees subject to strip searches.
  • In this particular case, a woman (Giles) in Idaho was arrested on a minor traffic violation. She was never frisked by the arresting officer and was taken to Bonneville County Jail. After Giles was unable to post bail, she was booked into the jail; and within compliance of the Jails policy, she was ordered to conduct a strip search. Giles claimed that the officer who searched her violated her 4th Amendment rights. Initially, the held that for an official to strip search a subject, the officials must have a reasonable suspicion that the subject is concealing contraband. However, after a cross motion for summary judgment was considered, the District Court found that the particular strip search did not violate Giles constitutional right, as the official was simply staying in compliance with the jail policy at the time of the search.

A strip search falls under all of the following:

  • Witnessing clothing exchange
  • Clothing removal to photograph tattoos
  • Clothing removal for a medical inspection
  • Doesn’t matter what you call it!

RCW 9.94A.631 – PAT/CLOTHED SEARCHES IN JAILS

Violation of condition or requirement of sentence—Security searches authorized—Arrest by community corrections officer—Confinement in county jail.

(1) If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court or by the department. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

(2) For the safety and security of department staff, an offender may be required to submit to pat searches, or other limited security searches, by community corrections officers, correctional officers, and other agency approved staff, without reasonable cause, when in or on department premises, grounds, or facilities, or while preparing to enter department premises, grounds, facilities, or vehicles. Pat searches of offenders shall be conducted only by staff who are the same gender as the offender, except in emergency situations.

(3) A community corrections officer may also arrest an offender for any crime committed in his or her presence. The facts and circumstances of the conduct of the offender shall be reported by the community corrections officer, with recommendations, to the court, local law enforcement, or local prosecution for consideration of new charges. The community corrections officer’s report shall serve as the notice that the department will hold the offender for not more than three days from the time of such notice for the new crime, except if the offender’s underlying offense is a felony offense listed in RCW 9.94A.737(5), in which case the department will hold the offender for thirty days from the time of arrest or until a prosecuting attorney charges the offender with a crime, whichever occurs first. This does not affect the department’s authority under RCW 9.94A.737.

If a community corrections officer arrests or causes the arrest of an offender under this section, the offender shall be confined and detained in the county jail of the county in which the offender was taken into custody, and the sheriff of that county shall receive and keep in the county jail, where room is available, all prisoners delivered to the jail by the community corrections officer, and such offenders shall not be released from custody on bail or personal recognizance, except upon approval of the court or authorized department staff, pursuant to a written order.

  • You do not need reasonable suspicion to conduct a pat/clothed search.
  • Pat/clothed searches shall be conducted only by staff who are the same gender as the offender, except in EMERGENCY situations.

RCW 10.79.130 – STRIP SEARCHES

Strip, body cavity searches—Warrant required—Exceptions.

(1) No person to whom this section is made applicable by RCW 10.79.120 may be strip searched without a warrant unless:

(a) There is a reasonable suspicion to believe that a strip search is necessary to discover weapons, criminal evidence, contraband, or other thing concealed on the body of the person to be searched, that constitutes a threat to the security of a holding, detention, or local correctional facility;

(b) There is probable cause to believe that a strip search is necessary to discover other criminal evidence concealed on the body of the person to be searched, but not constituting a threat to facility security; or

(c) There is a reasonable suspicion to believe that a strip search is necessary to discover a health condition requiring immediate medical attention.

(2) For the purposes of subsection (1) of this section, a reasonable suspicion is deemed to be present when the person to be searched has been arrested for:

(a) A violent offense as defined in RCW 9.94A.030 or any successor statute;

(b) An offense involving escape, burglary, or the use of a deadly weapon; or

(c) An offense involving possession of a drug or controlled substance under chapter 69.41, 69.50, or 69.52 RCW or any successor statute.

Must have REASONABLE SUSPISION to believe that:

  • A strip search is necessary to discover weapons, criminal evidence, contraband, or other thing concealed on the body of the person to be searched, that constitutes a threat to the security of a holding, detention, or local correctional facility.
  • A strip search is necessary to discover other criminal evidence concealed on the body of the person to be searched, but not constituting a threat to facility security.
  • A strip search is necessary to discover a health condition requiring immediate medical attention.
  • A strip search is necessary when someone has been arrested for a violent offense, and offense involving escape, burglary or use of a deadly weapon.

PREA CONSIDERATIONS

  • According to PREA, inmates will be searched according to physiognomy (genitalia).
  • With transgender searching, PREA prohibits “duel” searching (2 people of opposite gender searching the transgender inmate).
  • There are three practices consistent with PREA for assigning staff to perform pat searches on transgender and intersex inmates and residents:
  1. Option 1: Searches are conducted only by medical staff;
  2. Option 2: Searches are conducted by female staff only, since there is no prohibition on the pat-searches female staff can perform (except in juvenile facilities).
  3. Option 3: Asking inmates to identify the gender of staff with whom they would feel most comfortable. This preference can be documented at intake.

CASE LAW:

Hudson v Palmer (1984) – The United States Supreme Court decided that officials within a correctional institution do not need probable cause or reasonable suspicion to conduct a cell search, as long as the search is not done solely to harass the inmate. Therefore, the 4th Amendment does not apply to cell searches.

In this case the plaintiff alleged that a guard had conducted a ‘‘shakedown’’ search of his cell to harass him, and ‘‘intentionally destroyed certain items of his non-contraband personal property.’’ The Court ultimately held that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell,’’ reasoning that affording prisoners a privacy right in their cells would defeat effective and safe prison operations.

Williams v Fitch (2001) – The United States Supreme Court upheld that “Random” pat down searches within an institution are reasonable.

There were 3 incidents alleged by Williams, which were undertaken in a reasonable manner, in a private location, with undue physical intrusion, humiliation or physical injury, and for the purpose of locating contraband. Williams claimed that the searches were physically invasive, but the searches did not rise to being objectively serious enough to raise a constitutional claim.

Bell v Wolfish (1979) – The United States Supreme Court found that it was not a violation of the 4th Amendment to conduct intrusive body searches on pre-trial detainees. It also held that the “double bunking” practice does not deprive pretrial detainees of their liberty without due process of the law. The courts held that the possible innocence of pre-trial detainees should not prevent corrections officials from taking necessary steps to maintain their facility.

This case started with the facility staff in New York double bunking inmates in single occupancy rooms, in which the inmates believed their privacy was being jeopardized. The respondents filed a lawsuit claiming that pre-trial detainees should not be housed and treated in the same manner as sentenced inmates, and challenged the conditions under which pretrial defendants are confined. The petitioners claimed that in the absence of a conviction, subjecting incarcerated defendants automatically to the same conditions as convicted felons was unconstitutional. The federal district court agreed with this view, holding that defendants could only be deprived of liberty as a matter of “compelling necessity”. However, it was also determined by the Supreme Court that the possible innocence of pre-trial detainees should not prevent corrections officials from taking necessary steps to maintain their facility.

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