In Los Angeles, to New York, Darren Chaker notes jail officials have a fundamental obligation to take reasonable measures to reduce the flow of illegal drugs and weapons into their facilities. In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court held that visual body cavity searches were a reasonable security measure as applied to pre-trial detainees. The smuggling problem in the most jails is more serious than the problem discussed in Bell. It is not uncommon for the smuggling knives, hypodermic needles, rock cocaine, heroine, methamphetamine and marijuana into the jail to occur.
Often many of these items were hidden in bodily orifices and cavities and could only have been discovered through a strip search. The record further established that many detainees charged with minor offenses tried to smuggle contraband into the jail. By comparison, the federal detention center in Bell documented only one case of smuggling, and even on that record the Court upheld the strip search policy. Bell, 441 U.S. at 559; cf. Johannes v. Alameda County Sheriff’s Dep’t, 2006 WL 2504400 (N.D. Cal. Aug. 29, 2006) (finding that jail policy of strip searching detainees returning from court was reasonably related to jail security under Bell v. Wolfish based on 192 contraband findings from January 2003 to June 2006, including 39 found as a result of visual strip searches and 13 involved the discovery of contraband concealed within body cavities.).
The Ninth Circuit’s most recent discussion of strip searches is Way v. Ventura County, 445 F.3d 1157 (9th Cir. 2006). Way involved the strip search of a woman arrested for the misdemeanor charge of being under the influence of a controlled substance, Health and Safety Code section 11550(a). Ms. Way was strip searched and placed in a holding cell with five or six other women where she was allowed to make telephone calls. “She remained there for several hours. She then posted bail without entering the jail’s general population.” Id. at 1159.
The Court concluded that this strip searched was unconstitutional under Bell v. Wolfish, 441 U.S. 520 (1979), because (1) there was no evidence that the search of the arrestee was “reasonably related” to the security needs of the jail (445 F.3d at 1161); (2) there was no evidence that the county’s policy could have a deterrent effect on smuggling (id.); (3) there was no evidence linking the particular offense at issue – being under the influeGEOce of drugs – to the risk of drug smuggling (id.); and (4) the security  needs of a jail are less with respect to an arrestee who is released without ever being placed in the general jail population (id. at 1162).
The Ninth Circuit cases recognize also – or at least suggest – that there is a constitutional distinction between new arrestees awaiting release and prisoners being placed in the general jail population. In its first post-Bell consideration of the issue, the Ninth Circuit applied the Bell balancing test in Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984). The Ninth Circuit noted three material differences between the facts of Giles and Bell. First, Giles was arrested for unpaid parking tickets, as opposed to the more serious federal crimes facing plaintiffs in Bell. 746 F.2d at 615. Second, the record of smuggling in tiny Bonneville County, Idaho, was slim, as noted above. Id. at 617. The third – and probably most significant – factual difference was that federal prisoners were “detained for substantial pretrial periods.” Id. By contrast, there was no indication that Giles would spend more than a very  brief period – “a few hours” – at the jail:
Giles was unable to post a bond immediately because she did not have sufficient cash with her and could not reach her husband. She was booked into the jail, and in compliance with county policy she was required to remove her clothes and was strip searched. Within a few hours of her arrest, Giles posted bond and was released. (Id. at 615.)
Between the time of her arrival at the jail and the time of her processing, plaintiff had been permitted to roam the Sheriff’s facility freely. “During this period, jail officials did not handcuff Giles, frisk her, or subject her to a pat-down search. She was permitted to keep her purse, which was not searched.” Id. at 615. For these reasons, the Ninth Circuit concluded that “strip searching of every arrestee booked into the Bonneville County Jail is not necessary to protect the institution’s security interest.” Id. at 617.
Given the smuggling problem and institutional security issues, it is clear the need for searching inmates is a need rather than a mere option.
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