United States District Court, N.D. Illinois, Eastern Division
December 16, 2005.
JAVAR CALVIN, WILLIAM VIRBLE MOORE, and CHARLES DAVIS, Plaintiffs,
SHERIFF OF WILL COUNTY, Defendant.
The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Javar Calvin, William Moore and Charles Davis,
individually and on behalf of all others similarly situated,
filed a class action on May 8, 2003, pursuant to
42 U.S.C. § 1983, challenging certain provisions of the strip search policy
of defendant, the Sheriff of Will County ("Sheriff"). In its
Memorandum Opinion and Order dated May 17, 2004, this court
granted plaintiffs' motion to certify two subclasses of
plaintiffs, and denied plaintiffs' motion to certify a third
class. Calvin v. Sheriff of Will County, 2004 WL 1125922
(N.D.Ill. May 17, 2004).
Plaintiffs have moved for summary judgment on liability
regarding both subclasses pursuant to Fed.R.Civ.P 56, arguing
that defendant's strip search policy violates the
Fourth Amendment. Defendant has filed a motion to strike portions of
plaintiffs' Local Rule 56.1 statement, arguing that they contain
legal conclusions and immaterial facts. For the reasons stated
below, the court grants plaintiffs' motion for summary judgment
and denies defendant's motion to strike as moot. FACTS*fn1
The instant action concerns the strip search policies of the
Will County Adult Detention Facility ("WCADF"). This court
previously certified two subclasses in the instant action.
Subclass I,*fn2 the "Post-Arrest Strip Search" subclass, is
Any person who, from May 8, 2001, to the date of
entry of judgment has been, is, or will be:
Arrested on a warrant issued for failure to appear in
a misdemeanor or traffic case and, following arrival
at the Will County Adult Detention Facility, is or
was strip searched without any individualized finding
of reasonable suspicion or probable cause that he or
she was concealing contraband or weapons. Calvin,
2004 WL 1125922, at * 4.
Subclass II, the "Post-Release Strip Search" subclass, is defined
Any person who, from May 8, 2001, to the date of
entry of judgment has been, is, or will be:
In the custody of the Sheriff of Will County on a
traffic or misdemeanor charge (or on a warrant issued
for failure to appear on a traffic or misdemeanor
charge), taken to court from the Will County Adult
Detention Facility, ordered released by the court, or otherwise became entitled to immediate release, was
returned to the Will County Adult Detention Facility
to be processed out of the custody of the Sheriff of
Will County, and was strip searched without any
individualized finding of reasonable suspicion that
he or she was concealing contraband or weapons. Id.
Policy No. 5080 of the WCADF Policy and Procedures ("Policy
5080") contains search policies for the WCADF, including policies
for visual body cavity searches and strip searches. Policy 5080
states that a visual body cavity search is "the visual inspection
of the anal or vaginal area," and must be "conducted by trained
staff in private." Policy 5080 limits visual cavity searches to
instances when there is "a reasonable belief that the inmate is
carrying contraband or other prohibited material." Under Policy
5080, a strip search "requires the removal or arrangement of any
clothing so that the entire body or party of the body may be
viewed." Strip searches may not be performed on persons arrested
for traffic, ordinance/regulatory or misdemeanor offenses, except
in cases involving weapons or a controlled substance arrest. A
strip search may be performed "if there is reasonable belief that
the individual is concealing a weapon or concealed substance."
Policy 5080 also provides two instances when a strip search may
be conducted absent reasonable suspicion: (1) when an arrestee is
"remanded to the custody of the Sheriff on any warrant"; and (2)
after "transports outside [the facility]."*fn3
the instant action challenge these two exceptions. Sergeant Brain Fink ("Fink"), director of training and
accreditation for the WCADF, wrote the original draft of Policy
5080 in 1989. Fink testified that during a strip search an inmate
is first required to remove all of his clothing and shake it out
or hand it to the guards to search the pockets. The inmate is
instructed to show his hands, lift his arms, run his hands behind
his ears, and lean forward and shake his hair. The inmate in then
asked to show his hands again, turn around and show the bottom of
his feet, and bend over and spread the cheeks of his buttocks
with his hands. Next, the inmate is told to stand up, face the
officer, and lift his genitals. Finally, the inmate shows his
hands again and is allowed to redress.*fn4
All stip searches
at the WCADF are conducted in private areas and by an officer of
the same gender as the person being searched.
Subclass 1 challenges post-arrest strip searches. All persons
arrested pursuant to a warrant, including a failure to appear
("FTA") warrant, are stripped searched if they are unwilling or
unable to post bail. After being strip searched, these
individuals are housed in the "E"pod ("E-pod") at the WCADF,
which is a direct observation section of the facility consisting
of 120 cells. Individuals who are not strip searched when they
arrive at the WCADF, including those arrested on misdemeanor or
traffic offenses not based on warrants, are held in the booking
area. Defendant asserts that the need to hold arrestees in
booking area has resulted in an overcrowding problem in the booking area, an area that was not intended to
house inmates, and that even inmates in the E-pod are usually
placed in a cell with another inmate due to overcrowding.
Subclass II challenges post-release strip searches performed on
detainees who are ordered released by a judge and then returned
to the WCADF to be processed and to retrieve their belongings.
Inmates who are taken out of the WCADF to court are not
supervised by Will County personnel the entire time that they are
at the courthouse. While at the courthouse they are placed in a
housing unit cell with other inmates and have contact with people
other than Will County Sheriffs. In particular, inmates may have
contact with their relatives and their lawyers.
Fink testified that all persons returned from court to the
WCADF are strip searched, even those who have been ordered
released by a judge. According to Fink, persons ordered released
must be searched because they are "going back in the inmate
population and having contact with inmates" while they are being
processed before being released and in order to collect their
personal possessions. Processing includes checking whether the
individual has any outstanding cases, and whether there are any
warrants or "holds" from other jurisdictions. Fink also testified
that there is a reasonable belief that every inmate who returns
from court is carrying contraband or other prohibited material.
Defendant changed its post-release procedures since the filing of
the instant action. David Van Dyke ("Van Dyke"), deputy chief
sheriff for the County of Will, submitted an affidavit attesting
that subsequent to September 15, 2004, persons returning from
court after being ordered released are not strip searched as a
matter of course. Instead, "they are given the option of
remaining in a holding area and having facility personnel
retrieve their personal belongings from their cell, or they are
allowed to return to their cell to obtain their belongings
themselves, but after consent, they are strip searched before
entering the cell area." SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment under Rule 56 when the
moving papers and affidavits show there is no genuine issue of
material fact and the movant is entitled to judgment as a matter
of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America,
Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party
has met its burden, the nonmoving party must go beyond the
pleadings and set forth specific facts showing there is a genuine
issue for trial. See Fed.R.Civ.P. 56(c); Becker v.
Tenenbaum-Hill Associates, Inc., 914 F.2d 107, 110 (7th Cir.
1990). The court considers the record as a whole and draws all
reasonable inferences in the light most favorable to the party
opposing the motion. See Fisher v. Transco Services-Milwaukee,
Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).
A genuine issue of material fact exists when "the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033
(7th Cir. 1993). However, the nonmoving party "must do more
than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a
scintilla of evidence in support of the [nonmoving party's]
position will be insufficient; there must be evidence on which
the jury could reasonably find for the [nonmoving party]."
Anderson, 477 U.S. at 252.
In the instant case, despite each party's attempt to create
them by inserting legal conclusions and argument into their L.R.
56.1 statements, there are no material facts in dispute. Indeed, there are very few facts at issue. Plaintiffs' motion for
summary judgment on the issue of liability is based almost
entirely on two pieces of evidence: (1) Policy 5080; and (2)
Fink's deposition testimony regarding the policies and practices
concerning strip searches at the WCADF. It is clearly established
that Policy 5080 required the searching of members of subclasses
I and II, and that these policies were effectuated by defendant's
personnel. Defendant concedes that it had no reasonable suspicion
that any of the class members had contraband or weapons. The
question then is whether the strip search policies violated the
class members' Fourth Amendment rights.
I. Subclass 1 Post-arrest search
In their subclass I claim, plaintiffs challenge defendant's
policy of strip searching every person arrested on an FTA warrant
for a misdemeanor or traffic violation who does not post bond.
Plaintiffs argue that this policy violates the Fourth Amendment
because it does not require an individual determination that
there is a reasonable suspicion that the particular arrestee is
concealing weapons or other contraband, and that defendant's
proffered justifications are not sufficient to justify a strip
search that includes a visual body cavity inspection.
Plaintiffs argue that an FTA warrant does not carry with it the
same probable cause finding as an arrest warrant issued for an
underlying charge, and that it is not reasonable to assume that a
person arrested on an FTA warrant in a traffic or misdemeanor
case "will have sought to hide contraband in a spot where it can
only be discovered by a strip search." According to plaintiffs,
this presumption is particularly inappropriate for individuals
issued FTA warrants in misdemeanor or traffic cases. Defendant
responds that an FTA warrant is equivalent to any warrant and
thus justifies the strip searches of all warrant arrestees.
Defendant also argues that every warrant requires it to detain arrestees who cannot post
bond, and that arrestees are detained in the E-pod with the
general jail population. The strip searches, assert defendant,
are thus justified by the jail's legitimate security concerns.
For the reasons discussed below, the court grants plaintiffs'
motion for summary judgment as to subclass I.
The Supreme Court's opinion in Bell v. Wolfish, 441 U.S. 520
(1979), is the seminal detainee strip search case. Balancing "the
significant and legitimate security interests of the institution
against the privacy interests of the inmates," the Bell court
upheld a prison policy requiring inmates to submit to routine
strip searches with visual cavity inspections after every contact
with a person from outside the institution. Id. at 560. Despite
holding that particular policy constitutional, Bell did not
validate a blanket policy of strip searching pretrial detainees.
Wilson v. Jones, 251 F.3d 1340, 1342 (11th Cir. 2001)
(citing Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir.
1989)); see also Tikalsky v. City of Chicago, 687 F.2d 175,
182 (7th Cir. 1982) (Bell "did not validate strip searches
per se"). Rather, Bell held that pretrial detainees retain
constitutional rights, including the Fourth Amendment's
protection against unreasonable searches and scizures, which are
subject to limitations based on the fact of confinement and the
institution's need to maintain security and order. Id. at
545-46. In balancing the constitutional rights of the inmate with
the interests of the penal institution, a court must consider
four factors: (1) the scope of the particular intrusion; (2) the
manner in which it is conducted; (3) the place in which it is
conducted; and (4) the justification for initiating it. Id. at
In the instant case, neither the place nor manner of the
searches is problematic. Thankfully, the undisputed policy and
practice of the strip searches at issue here do not involve the
parade of terribles and abuses presented by other strip search
cases. See, e.g., Doc v. Calumet City, 754 F. Supp. 1211, 1214-15 (N.D.Ill. 1990) (female
arrestees subjected to "offensive touching," digital cavity
searches, visual observation by male officers while being strip
searched, and fondling by male officers while in plain sight of
male officers and others). Plaintiffs do not dispute that the
WCADF searches were conducted in private by officers of the same
gender, and with "tact." In addition, the WCADF personnel did not
touch the detainees and there have been no accusations of abuse.
Plaintiffs argue that the scope of searches which require
inmates to strip naked and permit a visual cavity inspection
was not justified. Courts have repeatedly held that strip
searches that include visual inspection of the anal and genital
areas are inherently invasive. The Supreme Court stated in Bell
that a strip search and visual inspection of inmates' body
cavities "instinctively gives us the most pause."
441 U.S. at 558-59. In Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272
(7th Cir. 1983), the Seventh Circuit described strip searches
as "demeaning, dehumanizing, undignified, humiliating,
terrifying, unpleasant, embarrassing, repulsive, signifying
degradation and submission." See also, Swain v. Spinney,
117 F.3d 1, 7 (1st Cir. 1997) (visual cavity searches "impinge
seriously" upon Fourth Amendment values); Chapman v. Nichols,
989 F.2d 393, 395 (10th Cir. 1993) ("There can be no doubt
that a strip search is an invasion of privacy of the first
magnitude."); Thompson v. County of Cook, 2005 WL 1950363, at
*7 (N.D.Ill. Aug. 8, 2005) ("It is beyond argument that the
search involved [a strip search including visual cavity
inspection] is extremely intrusive.").
Defendant must establish a sufficient "justification for
initiating" such an invasive search. Bell, 441 U.S. at 559.
Defendant argues that the blanket strip search policy for warrant
arrestees is necessary to ensure safety at the WCADF because
warrant arrestees who do not post bond must be detained in the E-pod with the general jail population.
Courts, beginning with Bell, have consistently held that
institutional security is a legitimate law enforcement objective,
and may provide a compelling reason for a strip search absent
reasonable suspicion of individualized wrongdoing. See, e.g.,
Overton v. Bazzetta, 539 U.S. 126, 133 (2003) (maintaining
institutional security is "perhaps the most legitimate of
penological goals"). Courts have given prisons latitude to
premise searches on the type of crime for which an inmate is
arrested. See, e.g., Dufrin v. Spreen, 712 F.2d 1084, 1087
(6th Cir. 1983). When the inmate has been charged with only a
misdemeanor or traffic violation, crimes not generally associated
with weapons or contraband, however, courts have required that
officers have a reasonable suspicion that the individual inmate
is concealing contraband.
In Tinetti v. Wittke, 620 F.2d 160 (7th Cir. 1980), the
Seventh Circuit affirmed the district court's holding,
479 F. Supp. 486 (E.D. Wis. 1979), that a blanket policy of strip
searching people charged with a non-misdemeanor traffic violation
"without probable cause to believe that she was concealing
weapons or contraband on her body was a violation of the
plaintiff's rights under the Fourth, Fifth, and
Fourteenth Amendments of the U.S. Constitution." 479 F. Supp. at 491. The
plaintiffs in Tinetti challenged a policy of the Racine County
jail that required the strip search of persons arrested for
non-misdemeanor traffic offenses "due to an unwillingness or
inability to post bond before their initial appearance in court."
620 F.2d at 160. The Seventh Circuit adopted the district court's
holding that, "[t]he intrusion on one's personal dignity
occasioned by such searches requires that some justifiable basis
exists." 479 F. Supp. at 491. Although Tinctti involved a
search of people arrested for non-misdemeanor traffic violations
only, its reasoning clearly applies to all blanket search
policies, such as the one at issue here, that make no distinctions among the types of crimes charged and that
fail to require any level of belief that a particular arrestee is
in possession of a weapon or contraband. Doe v. Calumet,
754 F. Supp. at 1219 n. 18.
In Mary Beth G, which applied the reasoning of Tinetti, the
Seventh Circuit held that Chicago's policy of subjecting women,
but not men, who had been arrested and detained on misdemeanor
charges, to a strip search regardless of the charges against them
or whether detention officers had any reasonable suspicion that a
particular woman was concealing weapons or contraband, violated
the Fourth Amendment. 723 F.2d at 1273. The Mary Beth G. court
noted, "The more intrusive the search, the closer the government
authorities must come forward to demonstrating probable cause for
believing that the search will uncover the objects for which the
search is being conducted." Id. at 1273 (quoting Terry v.
Ohio, 392 U.S. 1, 18 n. 15 (1968)).
Other courts of appeals have also held strip searches of
misdemeanor arrestees unconstitutional. See, e.g., Shain v.
Ellison, 273 F.3d 56, 64-66 (2nd Cir. 2001) (policy of strip
searching misdemeanor arrestees unconstitutional); Logan v.
Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981) (strip search
unconstitutional because the officer had "no cause" to believe
that DUI detainee had a weapon or contraband); Giles v.
Ackerman, 746 F.2d 614, 617 (9th Cir. 1984) (per curium)
("arrestees charged with minor offenses may be subjected to a
strip search only if jail officials have a reasonable suspicion
that the individual arrestee is carrying or concealing
contraband"); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.
1984) (strip search of a traffic offender with "no circumstances
here indicating [arrestee] might possess either a weapon or
drugs" was unconstitutional); Wilson v. Jones, 251 F.3d 1340,
1342 (11th Cir. 2001) (strip search policy that did not
require reasonable suspicion violated Fourth Amendment). A. FTA warrant
Defendant does not respond to any of the court of appeals cases
cited by plaintiffs except Mary Beth G., which it attempts to
distinguish based on the plaintiff's ability to post bond, as
discussed below. Instead, defendant argues that its search policy
is distinguishable because it applies to detainees arrested
pursuant to a warrant, which defendant asserts negates the need
for individualized reasonable suspicion. In support of this
argument, defendant cites 725 ILCS 5/103-1(c), which provides
that persons arrested for a traffic, regulatory, or misdemeanor
offense, except in cases involving weapons or a controlled
substance, may not be strip searched. The statute also provides,
however, that this restriction "shall not apply when the person
is taken into custody or remanded to the sheriff or correctional
institution pursuant to court order." 725 ILCS 5/103-1(j).
Illinois state appellate courts have held that because FTA
warrants in misdemeanor or traffic cases are "pursuant to court
order," and the statutory restriction against strip searches does
not apply to persons arrested on such warrants. People v.
Mitchell, 353 Ill. App. 3d 838, 840-841 (2nd Dist. 2004);
People v. Johnson, 334 Ill. App. 3d 666, 672-3 (4th Dist.
2002). Illinois courts have also held that strip searches of
people arrested pursuant to FTA misdemeanor warrants do not
violate the Fourth Amendment. Mitchell,
353 Ill. App. 3d at 843; Johnson, 334 Ill. App. 3d at 673.
A federal district court is, of course, not bound by a state
court's rulings on matters of federal law, including whether a
state statute or county policy violates the Fourth Amendment.
See, e.g., Quinones v. City of Evanston, 58 F.3d 275, 277
(7th Cir. 1995) ("A discriminatory state law is not a defense
to liability under federal law; it is a source of liability under
federal law."). The question then, is whether the issuance of an
FTA warrant, often referred to as a "bench warrant," satisfies the constitutional requirement of reasonable
suspicion to conduct a strip search.
Plaintiffs argue that although defendant is authorized to
"book" a person who is arrested or surrenders pursuant to an FTA
warrant, such a warrant is distinguishable from an arrest warrant
issued on a new charge. Plaintiffs assert that an FTA warrant is
issued upon a finding that a criminal defendant failed to comply
with a condition of pretrial release, such as appearing in court,
and thus cannot constitute a finding that there is a reasonable
basis for a strip search. An Illinois appellate court has noted
that "a bench warrant does not amount to a judicial finding of
probable cause to arrest in the traditional sense, i.e., that a
crime had been committed and that defendant had committed it."
People v. Allibalogun, 312 Ill. App. 3d 515, 518 (2000) (citing
United States v. Spencer, 684 F.2d 220, 223 (2nd Cir.
The court agrees with plaintiffs that it is difficult to
reconcile prohibiting automatic strip searches of people arrested
on traffic and misdemeanor charges as the Illinois statute,
case law, and Policy 5080 all do with allowing the strip
searches of people arrested for a failure to appear regarding the
identical charges. Again, defendant fails to squarely address
plaintiffs' argument that defendant lacked reasonable suspicion
to conduct the strip searches. Instead, defendant argues that
like all warrants, "the FTA warrants are valid court orders that
lawfully authorize the Sheriff to arrest and detain someone,
those warrants justified the searches in this case." Defendant
fails, however, to provide any persuasive argument or case law in
support of its leap of logic that the searches at issue here were
constitutional because plaintiffs' detentions were lawful.
Defendant cites Doe v. Sheriff of DuPage County, 128 F.3d 586,
588 (7th Cir. 1997) and Corbett v. White, 2001 WL 1098054,
at *7 (N.D. Ill. Sep. 17, 2001). Both of these cases, however, address a jail's authority to detain a warrant arrestee,
and do not discuss searches of detainees. Doe v. Sheriff of
DuPage County and Corbertt are thus not responsive to the
gravamen of plaintiff's challenge, which is not directed at the
constitutionality of their detention but their treatment while
Accordingly, defendant has failed to create a triable issue of
fact that arrest pursuant to an FTA warrant justifies the blanket
strip search policy.
B. Opportunity to post bond
Defendant also argues that the searches are authorized because
they are not conducted until the arrestees are given the
opportunity to post bond. According to defendant, this is in
contrast to the searches at issue in Mary Beth G., Tinetti,
and Gary v. Sheahan, 1998 WL 547116 (N.D.Ill. Aug. 20, 1998).
Defendant's argument that these cases are distinguishable because
the "key" in the courts' analysis "is that the detention is for a
brief period awaiting bound" misconstrues the facts and the
holdings in those cases. For example, the plaintiff in Tinetti
was given an opportunity to post bond at the time of her arrest
for speeding. 479 F. Supp. at 488. She was unable to pay bond,
and was taken into custody and strip searched. Id. She was
released two hours later when her uncle posted bail. Id.
Defendant asserts, without support in the Tinetti opinion, that
the plaintiff in that case could have avoided the strip search if
she had been permitted to call her uncle earlier. The Seventh
Circuit affirmed the district court's opinion that the blanket
policy of strip searching detainees who did not post bond was
unconstitutional, and did not limit its holding to instances in
which the detainee could or would have posted bond if given
another opportunity or any opportunity at all. Tinetti,
620 F.2d at 160. Defendant's attempt to distinguish Mary Beth G. and Gary,
on the grounds that the plaintiffs in those cases were awaiting
bond is similarly unconvincing because neither holding is based
on how long the arrestees were held or whether they were waiting
for their bail to be paid. The plaintiffs in Gary were strip
searched after being released, and thus, as the Gary court made
clear, the case did not concern people awaiting bail at
all.*fn5 1998 WL 547116, at * 12. The Seventh Circuit
describes the plaintiffs in Mary Beth G. as held "in lockups"
while "awaiting arrival of bail money." 723 F.2d at 1266.
Defendant does not explain what would distinguish the lockups in
Mary Beth G. from the E-pod in which plaintiffs here were
placed. Moreover, there is nothing in the record of the instant
case to suggest that plaintiffs were not expecting to be bailed
Defendant fails to cite any case in which a court upheld a
strip search policy against a constitutional challenge based on
an opportunity to post bond. To the contrary, other courts have
recognized that an arrestee's failure to post bond, which is
often the result of limited financial resources, cannot save a
constitutionally infirm search. For example, the Shain court
held that neither the inability nor the refusal to post bail
"creates a reasonable suspicion that the alleged offender has
secreted contraband or a weapon." 273 F.3d at 65. Defendant's
argument that the opportunity to post bond negates a
Fourth Amendment challenge to the strip searches is not supported by the
case law it cites, and is not persuasive. C. Institutional security
The most legally substantial justification offered by defendant
in support of its strip search policy is institutional security,
although defendant devotes scant attention to security in its
brief opposing summary judgment. Maintaining institutional
security as well as the safety of jail officers and inmates has
been recognized as a significant interest and valid justification
for strip searches. Stanley v. Henson, 337 F.3d 961, 966
(7th Cir. 2003). The Supreme Court has observed that a
"detention facility is a unique place fraught with serious
security dangers." Bell, 441 U.S. at 559. The Seventh Circuit
agreed in Mary Beth G., concluding that "the need to assure
jail security is a legitimate and substantial concern."
723 F.2d at 1273. An institutional practice claimed to infringe a
constitutional guarantee must be evaluated in light of the
institution's essential interest in security. Id. at 546. The
Supreme Court has instructed courts to make this evaluation
deferentially, giving due regard to the professional expertise of
correctional officials. Id. at 548.
Although the determinations of correctional officials regarding
security procedures are entitled to deference, jail officials'
decisions are not immunized from scrutiny. Stanley, F.3d at
966. As a court in this district noted recently, "Officials do
not have carte blanche to institute any policy they please
under the justification of institutional security." Thompson,
2005 WL 1950363, at *7 (denying defendant's summary judgment
motion arguing that visual cavity search of all detainees at jail
did not violate Fourth Amendment). Several courts of appeals have
made similar observations. See, e.g., Roberts v. Rhode
Island, 239 F.3d 107, 113 (1st Cir. 2001) ("An
indiscriminate strip search policy routinely applied . . .
[cannot] be justified simply on the basis of administrative ease
in attending to security considerations.") (ellipsis in original;
quoting Logan, 660 F.2d at 1013); Hill, 735 F.2d at 394-95 (Under Bell,
"jail's desire to maintain security, to avoid charges of
discriminatory treatment, and to promote administrative
convenience simply does not justify routine strip searches in a
public area of persons detained for minor traffic offenses.").
In the instant case, defendant argues that the WCADF strip
searches are required "because the inmate will be placed in a
portion of the facility with hundreds of other inmates in close
proximity, and it is necessary to protect the safety not only of
guards and other inmates, but also the safety of the person being
searched." That is, because the warrant arrestees are
"intermingled" with the general jail population at the WCADF, the
arrestees must submit to a strip search.
Courts have frequently noted that the intermingling of inmates
is a serious concern that weighs in favor of the reasonableness,
and constitutionality, of the search. See Dufrin,
712 F.2d at 1087 (inmate would come into contact with general population);
Logan, 660 F.2d at 1013 (noting lack of intermingling).
Defendant cites to Roscom v. City of Chicago, 570 F. Supp. 259
(N.D. Ill. 1983), in which the court upheld the strip search of
an arrestee who was placed in jail after being unable to post
bond. Several courts, including many courts of appeals, however,
have since held that intermingling alone is insufficient to
justify a search without reasonable suspicion. Chapman v.
Nichols, 989 F.2d 393, 396 (10th Cir. 1993); Masters,
872 F.2d at 1254; see also Wilson v. Jones,*fn6
251 F.3d 1340, 1341-42 (11th Cir. 2001) (blanket policy of strip
searching all arrestees placed in general population violated the
Fourth Amendment). The Ninth Circuit has stated that intermingling is a
dubious reason for a strip search because it is inherently
"limited and avoidable." Giles, 746 F.2d at 619.
Courts have repeatedly invalidated strip searches of arrestees
that were placed in the general jail population based on the
reasoning that less invasive searches or other detention
practices could obviate the need for a strip search. For example,
in Roberts v. State of R.I., the First Circuit struck down a
policy requiring the strip search of all arrestees held in the
general population at an intake facility considered to be maximum
security. 239 F.3d 107 (1st Cir. 2001). The Roberts court
held that the intermingling of arrestees with the general prison
population, which was a product of the structure of Rhode Island
prison system, "is not, in itself, dispositive of the
reasonableness of the search." The First Circuit found that to
"place so much weight on one (potentially alterable)
characteristic of the state prison system would gut the balancing
approach endorsed by the Supreme Court in Bell." Id. at 113.
In the instant case, defendant fails to cite any authority in
support of its presumption that, contrary to the case law cited
above, placing a detainee in the general jail population per se
justifies a strip search. Instead, defendant states conclusorily
that there is a "reasonable belief" that the person is carrying
contraband whenever the person has been arrested on a warrant,
but does not explain the basis of this presumption. Courts
invalidating searches of misdemeanor arrestees have noted that
arrestees are unlikely to have contraband hidden in their body
orifices at the time of arrest. See, e.g., Shain v. Ellison,
273 F.3d 56, 64 (2nd Cir. 2001) ("arrestees do not ordinarily
have notice that they are about to be arrested and thus an
opportunity to hide something"); Thompson, 2005 WL 1950363 at *
8 ("[I]t is a relatively safe assumption at least in absence of
evidence to the contrary that only a negligible portion of
arrestees have concealed contraband in body cavities prior to
their encounter with law enforcement.") (emphasis in original).
The Shain court distinguished its holding regarding
misdemeanor arrestees from Bell's holding that it was
reasonable to assume that prisoners might have hidden contraband
after contact visits, noting that "[i]t is far less obvious that
misdemeanor arrestees frequently or even occasionally hide
contraband in their bodily orifices." Shain, 273 F.3d at 64.
Because of the nature of unanticipated arrests, blanket strip
search policies are also unlikely to have the deterrent effect
relied on in part by the Supreme Court in Bell. As the Giles
court noted, unlike visits to the detention center in Bell,
which are planned and permit visitors an opportunity to organize
their smuggling activities, "arrests and confinement . . . are
unplanned events, so the policy could not possibly deter
arrestees from carrying contraband." Giles, 746 F.2d at 617.
The logic of Shain and Giles concerning unsuspecting
arrestees is particularly applicable to subclass I which,
pursuant to the class definition, does not include arrestees whom
defendant had reasonable suspicion or probable cause to believe
were concealing contraband or weapons. Defendant might have
reasonable suspicion to search a person arrested on an FTA
warrant in a case involving contraband or weapons, or whose
record otherwise indicated a reason to believe he might be secreting items in his body cavities. Such arrestees,
however, are not included in subclass I and plaintiffs do not
challenge such searches. Nothing in this opinion limits the
WCADF's ability to conduct strip searches based on reasonable
individualized suspicion, but such individualized justifications
are the antithesis of the blanket policy under attack.
The court does not diminish or doubt defendant's argument that
all detainees must be searched in order to ensure the safety of
everyone at the WCADF. Defendant does not argue, however, that
people arrested on FTA warrants in misdemeanor or traffic cases
are likely to have secreted contraband that can be uncovered only
by a strip search, as opposed to a less invasive search such as a
pat down. Defendant fails to present any evidence that contraband
is often, or ever, recovered from FTA warrant arrestees, and does
not point to any particular security risk that would be posed in
the absence of strip searches.
Defendant also fails to explain why all arrestees who are
detained at the WCADF must be held with the general jail
population. If there were a compelling reason to place FTA
warrant arrestees who do not post bond in the general jail
population, the resulting intermingling of detainees might
provide a constitutionally sound reason for the strip search.
Instead of offering such a reason, defendant repeatedly points to
overcrowding in the booking area and asserts that strip searches
are required prior to intermingling with the general population
jail in E-pod. As the cases discussed above make clear,
administrative concerns such as "space constraints" are not
sufficient to justify blanket strip search policies. See, e.g.,
Roberts, 239 F.3d at 113; Hill, 735 F.2d at 394-95. Defendant
fails to explain why a third option that would protect arrestees'
Fourth Amendment rights while furthering defendant's legitimate
law enforcement objectives, such as separate holding cells for
certain arrestees, is not possible. Absent the proffer of any evidence to support its generalized
claim of a security risk posed by members of subclass I or its
claim that all detainees must be held with the general jail
population, defendant has failed to create any triable issue of
material fact that automatic post-arrest strip searches are
justified for all warrant arrestees. See Thompson, 2005 WL
1950363, at *7 (defendant sheriff not entitled to summary
judgment on reasonableness of strip search where it fails to
present evidence of items found on newly arriving detainees);
see also, Roberts, 239 F.3d at 112 (indicating that searching
all inmates is more reasonable in cases in which the record
reflects a history of problems with prisoners smuggling items
into the institution).
"Bell has not been read as holding that the security
interests of a detention facility will always outweigh the
privacy interests of the detainees." Dobrowolskyj v. Jefferson
County, 823 F.2d 955, 959 (6th Cir. 1987). As the First
Circuit has noted, "the Fourth Amendment balance cannot be
shifted so quickly." Roberts, 239 F.3d at 113. In the instant
case, defendant suggests the placement of arrestees among the
general jail population as the sole basis for security concerns.
Defendant does not explain what other individuals are in the
general population at the WCADF or what security risks they might
pose, and defendant does not argue that individuals arrested on
FTA warrants could be not held elsewhere. As the Roberts court
noted, a prison system cannot rely on the realities of its own
detention structure alone to justify an invasion of privacy as
significant as a strip search. Id.
Because the court finds that defendant's blanket policy of
searching all arrestees arrested on FTA warrants for misdemeanor
or traffic violations violates the Fourth Amendment, the court
grants plaintiffs' motion for summary judgment of liability as to
subclass I. II. Subclass II Post-release search
In their subclass II claim, plaintiffs challenge defendant's
policy of strip searching individuals returned to the WCADF from
court after being ordered released. Plaintiffs argue that the
automatic post-release searches are unconstitutional because they
are not justified under Bell. Defendant argues that after
released arrestees return from court, processing the paperwork
for final release "could take three to four to six hours," and
that due to overcrowding issues they must be returned to the
general jail population while they wait. According to defendant,
once a return to a cell is necessary, a strip search is required
because the returnees were not under the constant supervision of
defendant while at court and they had contact with relatives and
attorneys. For the reasons discussed below, the court grants
plaintiffs' motion for summary judgment as to subclass II.
Beginning with Bell, courts "have given prisons far more
leeway in conducting searches of inmates with outside contact
then in searching everyone, simply because such visits often
allow smuggling of contraband." Roberts, 239 F.3d at 111; see
also, Shain, 273 F.3d at 63 ("Unlike persons already in jail
who receive contact visits, arrestees do not ordinarily have
notice that they are about to be arrested and thus an opportunity
to hide something."); Masters, 872 F.2d at 1253 (6th Cir.
1989) (citing the "obvious risk" that visits may be used to
introduce contraband); Thompson, 2005 WL 1950363, at *8
(distinguishing intake detainees from individuals searched
following contact with outsiders).
In Bell, as discussed above, the Supreme Court upheld the
policy of searching pretrial inmates after every contact visit.
441 U.S. at 560. The Supreme Court noted, however, that some of
the pretrial detainees in that case were facing serious charges
and that the defendant proved that in at least one instance during the institution's
short history contraband was found during a body cavity search.
Id. at 558. In the instant case, by contrast, plaintiffs were
charged with misdemeanor or traffic violations only. The
plaintiffs had been ordered released prior to being brought back
to the WCADF and strip searched. Plaintiffs, as individuals for
whom there is no longer any basis for detention, clearly have a
privacy interest in their body parts which is as great, if not
greater, than that of pretrial detainees. See Tinctti, Mary
Beth G., supra. Moreover, as with subclass I, defendant
presents no evidence that a post-release strip search has ever
discovered any contraband.
Plaintiffs argue that the instant case is analogous to Gary,
which held that the defendant's "blanket policy of strip
searching all court returns including those who may proceed for
release was constitutionally suspect." 1998 WL 547116, at
*12-13. In Gary, as in the instant case, there was no longer
any basis for the detention of the plaintiffs at the time they
were searched, and the only reason they returned to the jail
and strip searched was to collect their property and to await
processing. Id. at *14. The Gary court noted, "A simple
change in the processing of the individuals in the plaintiff
class would eliminate the problem." Id. at *14. Here, defendant
admits that subsequent to September 15, 2004, returnees were
given the option of remaining in the holding area and having
facility personnel retrieve their personal belongings from the
cell, or being allowed to return to their cell after consenting
to a strip search.*fn7 The inmates who are not returned to
their cells remain in the booking area while their release
paperwork is completed. Defendant has therefore followed the
Gary court's suggestion by instituting a simple change in procedure, and has failed to provide any evidence that the change
has compromised security at the WCADF or created unmanageable
Defendant argues that Gary is factually distinguishable
because the strip searches in that case were performed only on
women, and were conducted in public areas. Id. at *2. It is
true that there were troubling aspects concerning the place and
manner of the strip searches in Gary that are not present in
the instant case. Neither factor, however, was decisive in the
Gary holding. Defendant also argues that Gary can be
distinguished because the defendant there attempted to justify
the searches almost exclusively by claiming administrative
inconvenience because it had to process six to eight inmates on a
daily basis. In addition, the defendant in Gary conceded that
it could have processed the court returnees quickly, and that it
was possible to discharge the women from the receiving room if
they agreed to waive collecting their personal belongings from
the cells and allowing the belongings to be brought to them.
Id. at *14. The Gary court recognized that unsupervised
contact by inmates presents a security concern upon return to the
facility, but found this justification "substantially diminished"
in that case because the defendant searched female inmates only,
even though male inmates had the same degree of outside contact.
Although the court agrees with defendant that Gary is
factually distinguishable in some aspects, and that the holding
in Gary "does not automatically invalidate the searches here,"
much of the Gary holding is analogous to the instant case and
weighs in plaintiff's favor. In the instant case, although
defendant does not concede quite as much as the defendant in
Gary, it also fails to offer any evidence of a genuine security
concern posed by post-release detainees. Defendant asserts that
it receives twenty to thirty returnees at a time, that there was
already an overcrowding problem in the booking area which increased the time for
processing the releases of these individuals, and that this makes
it less practicable for all of them to remain in the booking
area. Essentially, defendant argues that it has no choice but to
place the released returnees back in the general jail population.
This claim, however, is belied by its own change in procedure in
September 2004, which gives post-release detainees the option of
remaining in the booking area.
As with its claims of security dangers pose by FTA warrant
arrestees, defendant does not assert that the September 2004
change regarding released returnees has caused any
administrative, security, or other problems, and fails to present
any evidence to that effect. See, e.g., Arruda v. Fair,
710 F.2d 886, 887 (1st Cir. 1983) (a policy of searching all
inmates is more reasonable when the record indicates a "lengthy
history of contraband problems."). Defendant again attempts to
use its own internal administrative procedures and practices to
justify an alleged constitutional violation. This argument in
equally unpersuasive regarding subclass II for the reasons
discussed above regarding subclass I.
As discussed above, to survive constitutional scrutiny a
blanket policy of performing strip searches, which are inherently
invasive, must be balanced by a justification such as a genuine
need to preserve institutional security. In the instant case,
defendant has failed to create a triable issue of fact that the
strip searches of post-release detainees are required to ensure
the safety of the WCADF or that other procedures that impinged
less on individuals' Fourth Amendment rights could not be
instituted. Because the court finds that defendant's blanket
policy of searching all post-release detainees who had been
arrested on misdemeanor or traffic charges or on FTA warrants in
misdemeanor or traffic charges violates the Fourth Amendment, the
court grants plaintiffs' motion for summary judgment as to
liability for subclass II. III. Motion to strike
Because the court did not consider any of the four paragraphs
of plaintiffs' L.R. 56.1 statement that were challenged by
defendant in granting summary judgment for plaintiffs, the court
denies defendant's motion to strike as moot.
For the reasons stated above, the court grants plaintiffs'
motion for summary judgment as to liability as to subclass I and
subclass II. The court denies as moot defendant Sheriff's motion
to strike portions of plaintiffs' L.R. 56.1 statement.
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