ALERT
A periodic law enforcement training document
SEARCHES
OF
ARRESTED PERSONS
Introduction
Can an officer
search a person at the time of arrest?
Can an
officer search a person without making an arrest?
Can an officer
search for and seize property to protect it ?
Can an officer search everyone?
What is a strip search?
What is a body cavity search?
What
are the legal reasons why people sue officers
and
their agencies over searches?
Are there
any general rules which apply to all
strip
and body cavity searches of arrested persons?
What factors
are used to determine when officers can do
a
strip or body cavity search of an arrested person?
When
can officers do a strip search of an arrested person?
What are
some examples of strip searches that the courts have said were improper?
Are greater
reasons needed to do a body cavity search than a strip search?
What should an agency policy
cover?
Conclusion
Introduction
To search or not to search is a question that continues to trouble law enforcement agencies. Over the past several years, there has been an explosion of lawsuits against agencies claiming that their searches of arrested persons were improper. The majority of these lawsuits involve strip searches and body cavity searches. This Alert bulletin discusses what kinds of searches are allowed, the permissible scope of such searches, and civil liability for improper searches. This Alert bulletin is limited to searches of arrested persons and hopefully will assist agencies in developing search policies. Different rules then those discussed in this bulletin apply to the daily operation of jails and prisons.
Can an officer search a person at the time of arrest?
The Fourth Amendment allows a number of exemptions from the general rule that a warrant is needed to search. One of these exemptions is a search incident to an arrest. If the arrest is lawful, the search of the person arrested is lawful. There are two reasons for a search incident to an arrest: (1) to find and remove any objects or property which may be used as a weapon against the officer or others and (2) to seize any contraband or evidence of a crime which could be destroyed, lost, stolen, etc. if not immediately seized. These searches are considered to be reasonable under the Fourth Amendment. The search may occur immediately at the scene of the arrest and/or upon arrival at the station.
Typically these kinds of searches involve: (1) "pat downs", (2) emptying of pockets and clothing, and (3) the area or possessions within the immediate reach of the person arrested. These kinds of searches do not depend on the nature or seriousness of the crime involved. It is the actual physical arrest of the person which justifies the search. A variation is the pat down of the outer clothing, pockets, etc. at the scene of the arrest followed by a more thorough search at the station. Searches such as these do not normally result in civil liability problems.
Can an officer search a person without making an arrest?
When an officer confronts a person, and the officer has reasonable grounds to believe that the person has a weapon, the officer may search that person. The search however must be limited to a "pat down" of the person's outer clothing. If the officer detects the possible presence of some kind of weapon or contraband during that "pat down," the officer may then search that area.
For example if an officer detects a "bulge" in a pocket, and the officer has reasonable grounds to believe the bulge may be some sort of weapon, the officer may then go into that pocket.
If during that outer clothing "pat down", the officer detects something that the officer reasonably believes to be contraband or evidence of a crime, the officer may then likewise search that area. For example, during the "pat down" the officer may detect a drug smoking device. The officer could then search that area. This is sometimes called the "plain feel" exception.
Can an officer search for and seize property to protect it ?
Another kind of search which does not need a warrant is an "inventory" search. You may remove property of an arrested person in order to protect it from damage, theft, etc. while the arrested person is in custody. These kinds of searches involve the emptying of pockets, purses, etc. and listing the property on some kind of property inventory form. The property is normally stored by the agency and returned to the person at the time of release.
The use of this kind of search is a matter left up to the agency. An agency is not required to do inventory searches or take an arrested person's property. If the property is not otherwise harmful, evidence of a crime, or contraband, the agency may decide to allow the person to keep it while in custody. It is extremely important for all agencies to have a written policy regarding inventory searches since the courts normally require one as a condition of upholding such searches.
If a person is arrested from a vehicle, the "inventory search" exception also applies to the vehicle if the vehicle is going to be stored. This exception is dependent on the department having a formal policy that requires officers to do such inventory searches. An inventory search of an arrested person's vehicle is not dependent on probable cause.
If someone else is present at the scene to remove the vehicle, with the consent of or at the request of the person arrested, an inventory search is generally not permitted.
Any other search of the arrested person's vehicle would require the officer to have probable cause to believe that the vehicle may contain evidence of a crime or an actual arrest of the driver.
Can an officer search everyone?
Sometimes an officer will do some kind of search of a person, and that person is accompanied by other people. The fact that there were grounds to search one person does not automatically allow an officer to search all persons at the scene or who may have been with the person arrested. In order to search other people, the officer would need some individualized justification to search each person.
If an officer reasonably believes that there may be some threat to the officer's safety, the officer may briefly detain and do a "pat down" search of the other persons. This kind of search must likewise be limited to the outer clothing unless the officer finds something. The officer may not detain other persons any longer than needed to do the "pat down" always remember that an officer must be able to explain the reason for the search.
If an officer is executing a search warrant, the officer may search all persons covered by the terms of the warrant. If not converted by the warrant, persons at the scene may be subjected to an outer clothing "pat down" for the presence of weapons and officer safety. Persons not covered by the warrant may be temporarily detained so they do not interfere with the service of the warrant.
A strip search is a procedure where an arrested person is required to remove all clothing. The person is then searched by visual observation of the body usually along with a complete search of the clothing. Strip search procedures vary. Some require the person to strip only to underwear while others (the majority) require removal of all clothing.
A body cavity search is a procedure whereby an arrested person's body openings (anus, vagina, etc) are actually examined to look for contraband, weapons, drugs, etc. Normally it involves visual inspection and/or an actual manual probing of the body opening. It is considered by the courts to be the most offensive kind of search.
What are the legal reasons why people sue officers and their agencies over searches?
Most search cases seeking money damages are filed in Federal court. The basis for such suits is the Civil Rights Act of 1871, 42 U.S. Code §1983. Through this statute, a plaintiff claims that the search violated his Fourth Amendment right to be free from "unreasonable" searches and/or that the plaintiff was treated differently than other arrested persons. An example of this different treatment would be a situation where only females are strip searched. This kind of claim is called a denial of "equal protection". The Fourteenth Amendment forbids treating people differently based on their sex, race, or some other factor that is not evenly applied to all people.
Search lawsuits may also be based on state law civil tort claims such as invasion of privacy, assault, and battery. Since civil tort law varies from state to state, this bulletin's focus is primarily on Federal liability although many of the same issues discussed here will apply to state law cases.
Many strip search cases have gotten a lot of publicity through the news media, and this has in turn caused more people to question searches to which they were subjected. This in turn has lead to more lawsuits including a number of class actions. Class actions are brought by a few people on behalf of themselves and all other persons who were subjected to the same treatment. These cases have held that the mere fact that a person was arrested does not automatically permit the arresting officers to do strip and body cavity searches.
Finally, it must be understood that under the Fourth Amendment people have the right to some degree of privacy with regard to their bodies. In order to "invade" that privacy there must be some legitimate reason. The less embarrassing and sensitive the search, the easier it is to justify. In 1979 the Supreme Court said that strip searches "...represent one of the most grievous offenses against personal dignity and common decency."
Are there any general rules which apply to all strip and body cavity searches of arrested persons?
Like many situations that officers must deal with, there is no one Supreme Court case or other appellate court case or cases which set forth all the rules for you in one place. As a result of the many lawsuits over these kinds of searches, there are some general rules which apply to all such searches:
1) A strip or body cavity search should be done by officers of the same sex as the person being searched;
2) Officers of the opposite sex should not be allowed in the room where the search is done except in the case of some overriding need such as security, etc.;
3) The room where the search takes place should provide privacy from outside observation. A department may wish to consider the use of "modesty" panels or similar privacy screens or devices to insure dignity and a degree of privacy during the process. Such devices are not expensive and their use certainly demonstrate the good faith of a department in conducting searches in a constitutional manner;
4) A body cavity search which involves actual manual probing of body cavities should normally be done by qualified medical personnel except in the most urgent circumstances;
5) The searching officers or personnel should ask the person being searched if there are any medical conditions or other factors which may affect the search, and, if any, must carefully not interfere with any such condition (Imagine the humiliation of such a search of a female who is menstruating, a person affected by hemorrhoids, prostate difficulties, etc.);
6) Strip searches should never be done randomly or at the whim of an officer;
7) The mere fact of an arrest does not allow a strip search or body cavity search just because the person was arrested;
8) When a strip or body cavity search is done, some written record of
it and the reasons it was done should be kept. Departments may also wish
to consider videotaping the search. A videotape could be the best evidence
to show the search was conducted properly. Care must be taken to make sure
that the entire procedure is taped (no selective editing), and that the
tapes are carefully and securely stored and access to them is controlled
and limited. Do not, as one midwestern city did, allow the tapes to be
available for routine viewing by other officers or employees who are looking
for some entertainment!
What factors are used to determine when officers can do a strip or body cavity search of an arrested person?
While there is no single Supreme Court or other appellate court case or cases which set forth all the rules, we do know what factors the courts will consider. In determining the reasonableness of any search, there are four basic legal factors to consider:
1) The reasons for the search;
2) The manner in which it is done;
3) The place where it is done;
4) The scope of the search (how far did it go?)
Courts must then balance the privacy rights of the arrested person against the lawful needs of the agency in doing the search to determine if it is reasonable. These factors have been applied in every strip and body cavity search case. In addition to these general factors, the following are specific factors courts have used to decide if strip or body cavity searches were reasonable and necessary:
1) The nature and seriousness of the offense;
2) The criminal record if any of the arrested person, especially any open warrants or charges;
3) Whether or not there is reasonable suspicion to believe that the person arrested is carrying or may have contraband, weapons, drugs, etc.;
4) The amount of time the arrested person might reasonably spend in custody prior to release (such as waiting for bond to be posted) or transfer to a jail or other detention facility;
5) Whether or not the arrested person will be held with other;
6) Whether the arrested person physically resisted arrest or otherwise used violence or force towards the arresting officers or others;
7) Whether or not the arrested person has any known history of violence, contraband, drugs, etc.
When can officers do a strip search of an arrested person?
The following are the reasons most often approved by courts as legally acceptable reasons for doing a strip search. However, all might not apply in every jurisdiction. You should consult your agency attorney or legal advisor to determine which ones might not apply in your state.
1) When an officer has reasonable suspicion based on facts, circumstances, and the officers' experience, that the arrested person has contraband, weapons, drugs, or some other prohibited substance or property;
2) When the person was arrested for a crime that involved weapons, violence or force or where the offense involves contraband;
3) Where the arrested person has a record of convictions or arrests for felonies or misdemeanors involving weapons or contraband;
4) If and when the arrested person is going to be moved into a place where the person will mingle freely with other prisoners;
5) Where the person arrested is not going to be released fairly soon after the arrest and is likely to remain in police custody for some time;
6) Where the officers have reason to believe that the arrested person is a danger to himself or others (such as a possible suicide risk);
7) Where there is a search warrant for the person.
The above circumstances have been approved by various Federal courts as sufficient reasons to perform strip searches of arrested persons. In each of these circumstances, it is easy to see the need for the search. Since the agencies and officers had good sound reasons, the courts ruled these searches were reasonable.
What are some examples of strip searches that the courts have said were improper?
1) An arrest for filing a false police report;
2) An arrest on a warrant for failure to pay a parking ticket;
3) An arrest for a traffic offense where the person had an eleven year old conviction for simple marijuana possession;
4) An arrest for public intoxication;
5) An arrest for passing a bad check;
6) An arrest for a dog leash violation;
7) Strip searching females while only hand searching males;
8) Failure to produce a driver's license after making an illegal left turn;
9) Doing a strip search of a female in the presence or view of male officers and vice versa;
10) Watching a female while she used the bathroom in the station to change a sanitary napkin (considered by the court to be the same as a strip search);
11) Strip searching all persons arrested no matter what the offense or the circumstances.
The money damages awarded to the plaintiffs in these cases ranged from $3,300 to $140,000. It seems that the more outrageous the facts the higher will be the amount of damages awarded.
Under no circumstances should a law enforcement agency follow a policy of strip and/or body cavity searches for everyone arrested.
Are greater reasons needed to do a body cavity search than a strip search?
A body cavity search is a form of strip search. It certainly is much more embarrassing than other kinds of strip searches. One court described body cavity searches as "demeaning, dehumanizing, undignified, terrifying, unpleasant, embarrassing, and repulsive."
Despite their intrusive nature, Federal courts usually require the same kind of justification for body cavity searches as for strip searches. The use of body cavity searches should be focused primarily on contraband (including drugs) and weapons. Normally if an officer has reasonable suspicion for a strip search related to contraband, weapons, etc., that same suspicion would justify a body cavity search.
An important aspect of body cavity searches is how they are done. If a body cavity search is necessary, care must be taken to do the search in a private place, by qualified personnel, and in a dignified manner. Good records should be kept which can document why the search was done, who did it, where it was done, how long it took, and what was found. You may also wish to consider videotaping as previously discussed.
What should an agency policy cover?
Many of the strip search lawsuits have been based partially or totally on an agency policy which required strip searches to be done, or was silent on the issue. Others were based on the lack of any agency policy with regard to searches or how to do them. Today, an agency policy which is unconstitutional or which permits or requires unconstitutional acts can be the basis for a suit for money damages against the agency and the government. In one strip search case, at least one hundred fifty women have or will receive amounts varying between $3,300 and $30,000 as a result of strip searches of females for minor misdemeanors by Chicago police officers. The searches were done under the department's policy which was ultimately held unconstitutional.
Every agency therefore should have a written policy and procedure for strip and body cavity searches. The reasons for such searches and some things that all such policies should contain are set out in earlier parts of this bulletin. The policy and procedures should be based on what circumstances legally permit such searches in the particular state and Federal Circuit where the agency is located. It is also the better practice to set forth procedures for officers as to how such searches are to be conducted.
It is important to understand that the failure of an agency to have such policies and procedures may be considered the kind of deliberate indifference on the part of an agency which would justify the award of money damages against the government. Given the frequency with which officers must conduct searches, it is both legally required and good common sense to require an agency to have such policies and procedures to provide guidance to its officers in this important area involving citizen's constitutional rights.
It is a good idea to include in the policy language which explains why such searches are necessary. A problem in some of the strip search cases has been the fact that the agency could not explain why such searches were done. Simply telling a judge or jury that "we've always done it this way" or "we are required to strip search all arrested persons" will not be good defenses. On the other hand, a policy which talks about contraband, weapons, evidence of crime, personal safety of officers, protection of arrested persons and others from harm, security of police facilities, and other legitimate reasons tells the court, officers, and the public why you have a policy to do searches. It will also take some of the pressure off individual officer defendants in a lawsuit over a search.
A procedure which explains the concept of reasonable suspicion to the officers and lets them know, for example, that a strip search of an arrested person is always justified if there is reasonable suspicion to believe that the person has contraband, weapons, drugs, evidence, etc. helps defend the officer as well as the policy and provides an explanation for why the search was done.
The policy should address the types of offenses and circumstances which permit searches and finally should caution officers as to the limits. For example, the policy should make clear that the mere fact of an arrest does not itself justify a strip or body cavity search.
While this bulletin has focused primarily on Federal civil liability, challenges brought in state courts usually involve the same concepts discussed here. Hopefully this bulletin is of some help in knowing what the legal rules are in this area and some things that can be done to reduce the exposure of officers and their agencies to money damages over arrest related searches of citizens.
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This bulletin was researched, written (and recently updated) by Emory A. Plitt, Jr, Associate Judge of the Circuit Court in Bel Air, Maryland. Judge Plitt also served for many years as Principal Counsel to the Maryland State Police and Dept. of Correctional Services. He is the Course Director and a speaker at AELE's Workshop on Police Civil Liability.
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