part ii constitutional law of corrections. chapter 10 – fourth amendment – search and seizure,...
TRANSCRIPT
Part II
Constitutional Law of Corrections
Chapter 10 – Fourth Amendment – Search and Seizure, Privacy Introduction: Chapter looks at whether,
and to what extent, Fourth Amendment provision against unreasonable search and seizure applies within prisons and jails
Court looks at two areas Is search area protected under constitution If yes, was search done in a reasonable
manner
Chapter Outline Searches in Prisons Hudson v. Palmer Bell v. Wolfish Lanza v. New York United States v. Hearst
Chapter Outline: cont’d
Strip Searches Pat Searches and Other Inmate
Searches Visitor Searches Searches of Employees
Searches in Prisons Two main types of prison searches
Of cells or inmate living quarters Of the person – can include
Pat or frisk Visual or strip Digital or simple instrument Urine testing X-rays Blood tests
Searches in Prisons: cont’d
Other types of searches Of other physical areas within the
facility, such as work and recreation, and prison grounds
Of visitors and of employees
Searches in Prisons: cont’d
Searches needed because inmates may be: looking for ways to escape assaultive looking for ways to introduce contraband
Searches in Prisons: cont’d
Prison officials are looking for ways to stop these activities. Looking for: escape implements weapons that might be used in
assaults contraband, such as drugs and money
Hudson v. Palmer (1984) Two correctional officers in Virginia
prison did “shakedown” search of inmate’s cell and locker, looking for contraband Found a ripped pillowcase in a trash
can in the cell Charges filed against the inmate for
destroying state property Inmate found guilty
Hudson v. Palmer : cont’d Inmate filed § 1983 lawsuit claiming violation
of Fourth Amendment right not to be subject to unreasonable searches and seizures
Also alleged that, just to harass him, officer destroyed some of inmate’s personal property This was treated as a due process claim Court held that because the state had a remedy
for seeking compensation, no due process violation existed, even if done intentionally
Hudson v. Palmer : cont’d On main issue – right of privacy in his
prison cell, entitling him to Fourth Amendment protections, Court held Fourth Amendment provision against
unreasonable searches does not apply to a prison cell
Cell searches may be done to the extent thought necessary for maintaining security and order
Items thought to be contraband may be seized
Hudson v. Palmer : cont’d
Inmate has no protected right of privacy in prison Right of privacy in “traditional Fourth
Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institution security and internal order”
Bell v. Wolfish (1979) Case occurred at a federal
detention center; dealt with various constitutional claims, including two search issues Searches of inmate living quarters Visual strip searches
Most inmates at the detention center were unconvicted, confined while awaiting trial
Bell v. Wolfish : cont’d
Prison staff conducted random, “unannounced” searches of inmate living quarters Inmates usually would be removed
from the living area during the search
Bell v. Wolfish : cont’d
Inmates complained cell left in needless disarray, and on occasion items were damaged or destroyed Asked to be present during search
Bell v. Wolfish : cont’d
Prison officials opposed Said it would lead to friction between
inmates and staff Would allow inmates to attempt to
frustrate search by distracting staff and moving contraband from one room to another ahead of the search team
Bell v. Wolfish : cont’d
Supreme Court held an inmate has no right to be present during cell search Room searches represent an
appropriate security measure Room search rule facilitates safe and
effective performance of the search
Lanza v. New York (1962) Visiting room conversation of jail inmate
and his brother was electronically captured
Based on contents, inmate was called before state legislative committee investigating possible corruption in the state parole system
Inmate refused to testify and was convicted for that refusal
Lanza v. New York: cont’d
Inmate sued, claiming it was improper for prison officials to electronically intercept and record his visiting room conversation
Claimed his punishment for refusing to talk about the contents of the intercepted conversation violated his constitutional rights
Lanza v. New York: cont’d Court disagreed, upholding the conviction
“(A) jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room”
But, Court did note that relationships with special legal protections, such as attorney-client, would have at least as much protection in jail as in the outside world
United States v. Hearst (1977)
Inmate and her friend spoke over a phone during a non-contact visit
Their conversation was monitored and recorded by jail staff, with the tape given to the FBI
It was later used against the inmate at her trial and she was convicted
United States v. Hearst : cont’d
On appeal, issue was whether making, and then using, the tape during the trial was a Fourth Amendment violation
Appeals court upheld process Jail officials had a justifiable security
purpose in monitoring and recording inmate-visitor jail conversations
United States v. Hearst : cont’d
Also held that once legitimately in government control, the tapes could be turned over to the FBI, and used as evidence in the prosecution of the inmate
United States v. Hearst : cont’d
United States v. Paul (1980); United States v. Amen (1987) – these appeals court decisions upheld monitoring of inmate telephone conversations as within scope of federal wiretapping statute Statute allows prison officials, within the
ordinary course of business, to monitor inmate telephone conversations without obtaining judicial approval
Statute also allows for monitoring with the prior consent of one party to the conversation
Strip Searches
In 1977, male officers in a New York women’s prison were assigned duties in the prison’s sleeping quarters Female inmates filed a Section 1983
lawsuit, claiming a violation of their constitutional right to privacy when male officers were allowed to view the women in various stages of undress
Strip Searches: cont’d Union representing the corrections
officers joined prison administrators in opposing the lawsuit
Officers’ arguments primarily based on their equal employment opportunity rights
To exclude them from certain jobs disadvantaged them
Strip Searches: cont’d Appeals court (Forts v. Ward, 1980)
endorsed plan allowing inmates to cover windows when changing clothes or using toilet
The court also directed parties to explore the type of sleepwear that could be provided to achieve the protection desired by the inmates
These actions achieved some accommodation of the competing rights of the parties
Strip Searches: cont’d The Supreme Court decision in Bell v.
Wolfish (1979) dealt with body cavity searches during strip searches In federal prisons, inmates required to
undergo a same-sex strip search after every contact visit with a person from outside the prison
Part of the search required visual inspection of body cavities
Prison officials said these were necessary to find and deter the introduction of contraband
Strip Searches: cont’d
In Wolfish, the Supreme Court upheld this practice “A detention facility is a unique place
fraught with serious security dangers . . . . (I)nmate attempts to secrete (contraband) items . . . by concealing them in body cavities are documented in this record, and in other cases”
Strip Searches: cont’d The Court allowed such searches at
conclusion of visits, without a necessary finding of probable cause or reasonable suspicion
Searches had to be done in a reasonable manner and not abusively
Strip Searches: cont’d
In general, the courts have shown much reluctance to approve strip searches of persons immediately after their arrest or on being taken into jail Reasonable suspicion (of having
secreted improper materials, such as drugs or weapons) is generally required to justify a strip search upon arrest
Strip Searches: cont’d Across the board, courts
disapprove of strip searches of persons arrested for minor offenses
Nor may arrest for a felony alone always justify such a search
Law enforcement must be carefully instructed on the law in their jurisdiction
Strip Searches: cont’d Searches must be done professionally
Conduct in as private a place as possible Conduct out of view of other inmates or of
staff who do not need to be present Conduct out of view of outsiders (such as
visitors) Conduct should be without verbal
misconduct (such as rude and offensive comments)
Pat Searches and Other Inmate Searches Pat searches (“frisks”) are commonly
done as inmates move about the prison
Such searches also done as inmate moves out of, or into, a prison Search involves running the hands over
all parts of the inmate’s body on top of the clothes
Contents of pockets or anything being carried are examined
Pat Searches and Other Inmate Searches: cont’d
Cross-gender pat searches are generally allowed Individual courts may place some
restrictions, such as not touching genital areas or breasts
Pat Searches and Other Inmate Searches: cont’d
Most extreme case – Jordan v. Gardner (1993) where court held cross-gender pat searches of women could not occur in prison
Decided on basis of Eighth, not Fourth, Amendment
There was a finding that many women had been physically and sexually abused prior to prison, and a pat search by a male officer would traumatize them
Held to constitute cruel and unusual punishment of the female inmates
Pat Searches and Other Inmate Searches: cont’d
Simple instrument or X-ray searches Occur when staff has reasonable belief
inmate is concealing contraband inside or upon his person, and
A visual search is not possible, or Would not be sufficient to reveal the
hidden contraband
Pat Searches and Other Inmate Searches: cont’d
Medically trained staff would do search
X-ray searches handled by medical staff to be certain that proper procedures are followed, and to avoid excessive exposure to radiation
Pat Searches and Other Inmate Searches: cont’d
Blood or urine tests may also be used to detect drug use
Breathalyzer or other on-the-spot tests may be used to detect alcohol use
Important that staff check with, and receive, legal advice on the position of local courts regarding such searches
Visitor Searches
Most prisons have warning posters, advising visitors that they are not to bring any contraband into the facility and that they may be subject to searches of their person or property
Visitor Searches: cont’d Visitors to prisons or jails have
greater expectation of privacy than inmates
Once enter prison, however, security concerns are pervasive May be constant monitoring, including
camera surveillance May be asked to check their
possessions, such as bags and purses, in lockers at the entrance
Visitor Searches: cont’d May be asked to walk through a metal
detector Could be subject to routine pat
searches, by staff of the same sex, prior to entry
Could be subject to searches of bags and briefcases prior to entry
Visitor who refuses to cooperate can leave
Visitor Searches: cont’d Other searches, such as strip searches, and
detaining a person to conduct a thorough search of personal property, require reasonable suspicion
When time allows Best to contact local law enforcement officials, or Go into court and obtain a search warrant for a
strip search of a visitor, or even a pat search or a search of a visitor’s possessions (including a car)
Searches of Employees
These are sensitive, ordinarily done only on finding of reasonable suspicion Experience has shown that a small
number of staff can be corrupted, and can be used to bring contraband into the prison
Searches of Employees: cont’d
Search determination could be founded upon confidential information, at times provided by an inmate Requires assessing reliability of the
informant, and Whether there is corroborating
information or circumstance
Searches of Employees: cont’d Staff should be advised throughout
training, that they, and anything they bring into the prison, are subject to search
Some systems limit the amount of personal property staff may bring into the prison
Others may subject staff to a routine metal detector and pat search
Searches of Employees: cont’d
To collect evidence and to be certain that allegations or suspicions are well-founded, it may be necessary to do searches of employees, their lockers, cars, clothes, and other areas
Searches of Employees: cont’d
Law enforcement officials and counsel should be consulted, and local court rulings on searches carefully followed As a rule of thumb, reasonable suspicion
the person is carrying contraband is the minimum standard for doing the search
A search warrant is always the safest way to go