Unconstitutional Strip Search

Strip Search Illegal or Legal

Darren Chaker admits that it is commonly known jail is the end result for most who are arrested. The officer arresting the suspect provides an initial search, while the jail conducts a far more intrusive search in a controlled setting.
Most often a “partial strip search” (i.e., with the prisoner clothed in his boxer shorts only) of a male prisoner by a female detentions cadet (or any such “cross gender” strip search), is a Fourth Amendment violation absent an emergency situation. (Byrd v. Maricopa County Sheriff’s Department (9th Cir. 2011) 629 F.3rd 1135, 1140-1147; but see the dissent, pgs. 1147-1154.)
A full body cavity search of a group of 40 to 44 inmates returning to an honor farm from a day’s work furlough was upheld when based upon information that marijuana was being brought into the honor farm. The body cavity searches were conducted by a doctor using an acceptable medical procedure. (People v. West (1985) 170 Cal.App.3rd 326.) X-raying all incoming prisoners being moved from one high-risk prison to a second high-risk prison is lawful. (People v. Pifer (1989) 216 Cal.App.3rd 956.)
The District of New Jersey’s strip search jurisprudence, under which the constitutionality of a strip search turns on the existence of reasonable suspicion that an arrestee is concealing weapons or contraband. See, e.g., Davis v. City of Camden, 657 F. Supp. 396, 399 (D.N.J. 1987). This requisite suspicion can be supplied in either of two ways: (1) “the specific circumstances relating to the arrestee or the arrest,” or (2) “the nature of the charged offense.” Id. at 400. Thus, Davis did not prohibit blanket strip search policies; it simply requires them to be predicated on some application of the reasonable suspicion standard. See id. (stating that a blanket strip search policy would likely be constitutionally acceptable if it applied only to individuals who were charged with felonies or with misdemeanors involving weapons or contraband).
The Supreme Court dealt with strip searches where Justice Stevens pointed out in his opinion, concurring and dissenting in part, that the T.L.O. case was not about strip searches:
One thing is clear under any standard — the shocking strip searches that are described in some cases have no place in the schoolhouse. See Doe v. Renfrow, 631 F.2d 91, 92-93 (CA7 1980) (“It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude”), cert. denied, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981); Bellnier v. Lund, 438 F.Supp. 47 (NDNY 1977); People v. D., 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466 (1974); M.J. v. State, 399 So.2d 996 (Fla.App. 1981). To the extent that deeply intrusive searches are ever reasonable outside the custodial context, it surely must only be to prevent imminent, and serious harm.
New Jersey v. T.L.O., 469 U.S. at 382 ftnt. 25 (1985).
Last, since T.L.O. was decided, the two prong standard has been applied by several courts in cases filed under Section 1983 by students who have been subjected to strip searches. See, e.g., Phaneuf v. Fraikin, 448 F.3d 591, 597-600 (2d Cir. 2006); Cornfield v. Consolidated High Sch. Dist., 991 F.2d 1316, 1321 (7th Cir. 1993); Williams v. Ellington, 936 F.2d 881, 888 (6th Cir. 1991); Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir. 1993); Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005); cf., Thomas v. Clayton County Bd. of Educ., 94 F.Supp.2d 1290, 1301 (N.D. Ga. 1999) (“As the Supreme Court in T.L.O. did not determine the propriety of strip searches in schools, this Court must look to circuit court case law for help in answering the questions presented in this litigation.”); on remand from the Supreme Court, Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 954 (11th Cir. 2003) (“Plaintiffs appear to argue that T.L.O.’s balancing test should have put Defendants on notice that a ‘strip search’ would be unlawful. If the salient question is whether T.L.O. gave the defendants ‘fair warning’ that a ‘strip search’ of [22] an elementary school class for missing money would be unconstitutional, then the answer must be ‘no.’ T.L.O.’s balancing test will, in most instances, call for school officials to speculate as to whether a court applying the balancing test to specific facts would find a search unreasonable.”)

© 2011 Darren Chaker. All Rights Reserved.

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Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010) I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz www.orrick.com/lawyers/Bio.asp?ID=225990 assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on. The case has been cited over 196 times as authority, and written about extensively. * Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009) * Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010) * Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010) * CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007) My case is active, living and breathing—forever helping people who once felt oppressed.

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