body orifices for contraband. An inmate must lift his genitals
and bend over to spread his buttocks for visual inspection. The
inmate is not touched, except for an occasional situation where
an inmate's hair style requires an officer to run his hands
through the hair of the inmate to insure that no contraband is
5. During non-contact visits, H-Unit inmates use "controlled
visiting booths" in which the inmate is separated by a plexiglass
partition from his visitor. The inmate and the visitor speak
through a telephone.
6. The same "controlled visiting booths" are used by open
population inmates, segregation inmates, and H-Unit inmates.
7. The ceiling of the controlled visiting booth in which the
inmate is seated during non-contact visits is made of wire mesh
which is not impenetrable and which could allow for limited
contact with the adjoining booth.
8. There is no constant or direct supervision by correctional
officers of inmates seated in the individual controlled visiting
booths. The guard on duty cannot see into all the booths at once.
9. On at least one occasion, the plexiglass partition has been
compromised by means of burning a hole in the partition.
10. Articles of contraband, including homemade weapons and
homemade handcuff keys, have been found in the cells of inmates
housed in H-Unit, as well as on the inmates of H-Unit themselves.
11. A cursory search of the controlled visiting booth is
conducted by a correctional officer before an inmate enters to
visit. Regular maintenance of these booths is performed during
non-visiting hours by inmate orderlies.
12. Prisoners testified at the hearing as to taunting and baiting
which occasionally accompanies the strip searches.
CONCLUSIONS OF LAW
The Court has no doubt that visual body searches may invade
personal privacy and may be a humiliating experience for the
inmate, but these practices must be viewed in connection with the
realities of prison life in general and Marion, in particular. The
Court must decide whether the strip searches, both before and
after non-contact visits, are reasonably related to the dictates
of institutional security.
Plaintiffs contend that there is no need for a strip search
before or after the non-contact visit in that the purpose of the
strip searches, especially the second search, is to harass,
humiliate and subjugate the inmates. Relying on the testimony of
H-Unit inmates, plaintiffs argue that the "demeaning remarks, the
sexually perverted taunting and baiting which frequently
accompany the searches, together with the frequent harassment of
the visitors, is only another aspect of the Control Unit regimen,
and the anti-human philosophy which informs its operation."
(Plaintiffs' Memorandum of Proposed Findings of Fact and
Conclusions of Law at 3.) Defendants, on the other hand, while
acknowledging that strip searches may invade personal privacy and
be humiliating to the inmate, argue that the security needs of
the United States Penitentiary at Marion outweigh the privacy of
the inmates, and that the strip searches, before and after
visitation, are rationally related to security needs. The Court
agrees with defendants.
Although body searches may violate the Fourth Amendment,
Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280,
283, 60 L.Ed. 543 (1925), the Supreme Court in Bell v.
Wolfish, 441 U.S. 521, 99 S.Ct. 1864 (1979), sanctioned visual
body searches in contact visit situations when the practice meets
the test of reasonableness. Other courts have condoned strip
searches. See, e.g., Daughtery v. Harris, 476 F.2d 292
(10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38
L.Ed.2d 91 (1973); Hodges v. Klein, 412 F. Supp. 986
(D.N.J. 1976). The test enunciated in Bell is clearly
applicable to the present case. Although Bell dealt with contact
visits and the instant matter concerns non-contact visits, the
"reasonableness" test encompasses that difference and only
requires a stronger showing of justification.
The test of reasonableness under the Fourth Amendment
is not capable of precise definition or mechanical
application. In each case it requires a balancing of
the need for the particular search against the
invasion of personal rights that the search entails.
Courts must consider the scope of the particular
invasion, the manner in which it is conducted, the
justification for initiating it and the place in
which it is conducted.
Bell v. Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884.*fn2
Applying this test, the strip searches, before and after
non-contact visits, emerge as constitutionally permissible.
The search itself is a visual search with no actual intrusion
into the body cavities by correctional officers. An inmate is not
touched except in special circumstances. The first search takes
place after the inmate leaves his cell and the second takes place
in a room adjacent to the visiting rooms. The first is designed to
prevent inmates from entering the visiting area with contraband
and the second is to insure that when the inmate returns to
H-Unit, he is without contraband. Thus, the place and manner of
the searches seem well calculated to achieve the desired end.
Probably the most crucial factor concerns justification. The
Court is of the opinion that both searches are justified by the
need to maintain security and prevent injury to guards and other
inmates. It is clear that the first strip search is justified.
First, both the former and the present Control Unit managers
offered unrebutted testimony that the possession of contraband,
including but not limited to homemade knives and homemade
handcuff keys, must be prevented in order to protect both the
staff and the inmates of H-Unit. Numerous items of contraband
have been found in H-Unit cells and on the persons of the inmates
housed there. Moreover, the types of inmates who testified were
characteristic of H-Unit inmates against whom the tight security
measure is aimed. One inmate witness had been found guilty by the
Institution Disciplinary Committee of shooting at other inmates
on two occasions. Another had been found guilty by the IDC of
three separate escape attempts. This Court takes judicial notice
of many criminal trials heard before it, in which H-Unit inmates
were accused of acts of violence involving weapons. See, e.g.,
United States v. Van Burkett, Crim.No. 80-40026 (S.D.Ill. Aug.
22, 1980); United States v. Greschner, Crim.No. 80-40021
(S.D.Ill. May 29, 1980); United States v. Garcia, Crim.No.
77-05071-01-E (E.D.Ill. Dec. 14, 1977).
It is not unreasonable that prison officials believe that
contraband may be used to compromise the security of the prison
before a visit.
Greater attention should be focused on the second strip search
which occurs after the non-contact visit. This Court actually
stood inside one of the controlled visiting booths and observed
the layout of the visiting room area, including the adjacent room
where the second strip search is carried out. After this personal
investigation and review of the testimony taken at the hearing,
the Court is satisfied that the second strip search is reasonably
related to the valid security goals of the prison. Testimony
indicated that maintenance of the booths during nonvisiting hours
is handled by inmate orderlies and that the same booths are used
by inmates in open population, segregation and H-Unit. It is
possible that inmate orderlies or prisoners from general
population could secrete contraband in a hidden part of the booth
or chair, which could be taken by an H-Unit inmate back to his
cell after a non-contact visit. As testimony indicated, the
prison guard supervising visitation cannot possibly observe all
inmates in the booths at the same time, and the search
made by the correctional officer after a visit is necessarily
short and non-thorough. Thus, there would be an opportunity for
an inmate to so obtain contraband. In addition, it is possible
that an H-Unit inmate could compromise the wire mesh ceiling of
the controlled visiting booth and pass this contraband to another
inmate. Indeed, when the Court inspected the booths, the wire
mesh of one of the booths was loose enough to permit limited
access to the other booth. Finally, the Court observed that in
one situation the plexiglass partition in the booth had been
compromised and a small hole burned in it.
While the result the Court has reached on the permissibility of
the second strip search is by no means clearly warranted, it is
clear that proper deference must be given to the informed
discretion of the prison officials who are best qualified to make
a determination whether certain conduct or conditions "possess
the likelihood of disruption to prison order or stability, or
otherwise interfere with legitimate penological objectives of the
prison environment." Jones v. North Carolina Prisoners' Union,
433 U.S. 119, 133, 97 S.Ct. 2532, 2541, 53 L.Ed.2d 629 (1976).
Certainly security is a paramount penological objective. The fact
that prison officials cannot point to numerous instances where
security has been compromised is not dispositive. A reasonable
belief that a breach of security can occur is proof enough. Pell
v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d
495 (1974). As was stated in Bell v. Wolfish, supra, the fact
that few such instances occur "may be more a testament to the
effectiveness of this search technique as a deterrent than to any
lack of interest on the part of the inmates to secrete and import
such items when the opportunity arises." Bell v. Wolfish, 441
U.S. at 559, 99 S.Ct. at 1884-85. This Court is satisfied that
the beliefs of prison officials are reasonable, and that the
strip searches are justified as valid security measures.
There was some testimony by prisoners that the strip searches
are accompanied by taunting and harassment by the prison guards.
The Court is not persuaded that the means to prevent this problem
is by compromising the security of the institution. Rather, the
Court expresses here its disapproval of such conduct and hereby
conditions the use of strip searches upon the cessation and
prevention of all such harassment by prison guards in the future.
Also, it was suggested by plaintiffs that the Court rule that
where a strip search is reasonably necessary, the correctional
officer should himself bend over to accomplish the body search,
rather than require the inmate to do so. Although the Supreme
Court in Bell v. Wolfish, supra, refused to impose a least
restrictive alternative requirement on officials performing the
searches, 441 U.S. 520, 559 n. 40, 99 S.Ct. at 1885 n. 40, the
Court is satisfied that current procedures are in fact the least
intrusive. The method suggested by plaintiffs could well lead to
unnecessary friction between inmate and correctional officer, and
could also increase the likelihood of physical contact during the
search. One redeeming quality of the search is its visual,
non-contact nature, which this Court is not willing to modify.
CONCLUSIONS OF LAW
The foregoing discussion leads to the following conclusions of
1. The first strip search, which takes place as inmates leave
the Control Unit before non-contact visitation in controlled
visiting booths, is reasonably related to the valid penological
goal of the maintenance of security and thus complies with due
process and the Fourth Amendment.
2. The second strip search, which takes place in an adjacent
room as inmates leave the visiting area after non-contact
visitation, is reasonably related to the valid penological goal
of the maintenance of security and thus complies with due process
and the Fourth Amendment.
IT IS SO ORDERED.