torrey
05-11-2002, 08:32 AM
Woman sues for unwarranted strip search.
Two and one-half months later, on Christmas Day, 1990, Tina Spear went to NTC to visit Daniel Wade. Upon her arrival, NTC officials informed her that she would not be permitted to visit unless she submitted to a strip and body cavity search and a search of her clothing, purse, pocketbook and car. Spear alleges, and we accept as true for purposes of summary judgment, that NTC officials told her that if she did not consent to the searches, she would be detained while they obtained a warrant, and that she would thereafter be barred from NTC. Wishing to see Wade on Christmas, she consented to the search.
A female NTC nurse conducted the strip and body cavity search with another female officer present. They had her remove her clothing and then visually inspected her body, including her vagina and her anus, and they further searched both those body cavities by inserting their fingers. NTC officials also searched Spear's clothing, purse, and pocketbook. They also searched her car, located in the
NTC parking lot. Spear claims the search embarrassed, humiliated, and demeaned her. None of these searches revealed the presence of any contraband, and Spear proceeded to visit Wade.
Spear states that she has never possessed contraband at NTC, has never attempted to introduce contraband there, and has never given prison officials any cause to believe that she would attempt to introduce contraband. Also, she states that she has no criminal record of any kind.
In this case, when the warden authorized the search of Spear, he filled out a form indicating his justification. His sole written justification was that a confidential informant informed a prison guard that inmate Wade "was receiving drugs every time a young unrelated female visited." J.A. at 61. Since prison records for the year indicated that Spear had been the only non-related visitor that year, the warden authorized her to be searched on her next visit. The uncorroborated confidential informant's statement and the prison's record of visitors, without more, can not create a reasonable suspicion. In fact, a meticulous scrutiny of the record reveals absolutely nothing about this visitor that could appropriately constitute such suspicion.
The majority intimates the fact that Wade had been guilty of previous drug infractions while in prison casts suspicion upon Spear. Maj. Op. at 7-8. This claim is deceptive. Wade had only one drug offense in 1990, and that was for possession of four pills of the prescription drug Darvocet, a pain killer. Upon investigation within the prison, it was determined that a prison dentist prescribed Wade the pills two days before he was found with them, so it was apparent the pills were not smuggled from outside the prison. J.A. at 52. Prison searches had found Wade with small amounts of marijuana on four occasions between February 1987 and March 1989, but the prison had no record of any visit by Spear before 1990. Thus, apart from
the statement that the warden relied upon, there was absolutely no evidence even implicitly connecting Spear with any drugs ever found in Wade's possession, and in fact the last time Wade was found in possession of illegal drugs occurred one year and nine months before prison officials strip searched Spear. Moreover, Spear had not visited the prison during the eight weeks preceding the informant's October 3, 1990, statement to the guard.
An evaluation of all related circumstances as compelled by Cortez, 449 U.S. at 417, makes it even more apparent that the strip search was unreasonable. Northpoint's own regulations required particularized reasonable suspicion for searches of the anal cavity.[4] Further, in his response to interrogatories, the warden stated that all inmates are strip searched at the conclusion of their session with visitors. J.A. at 22; see J.A. at 33 (prison regulations requiring inmates to be strip searched after visits). This fact alone vastly reduces the necessity to invade the privacy of a visitor, and it correspondingly narrows the circumstances in which it is reasonable to subject a visitor to a strip search. Additionally, the prison regulations state that during the visit the inmate sits facing a prison officer. Id. at 33. The prisoner and the visitor are allowed no more contact than holding hands, though they may kiss and embrace briefly at the beginning and end of the visit. Id. At this stage in the litigation, we do not know whether the prison adheres to its regulations, nor what other precautions against smuggling it takes. See Hunter, 672 F.2d at 676 (discussing use of solid partitions under visiting tables and screens above tables). These circumstances, however,
viewed in the light most favorable to Spear, make the transfer of illegal contraband so difficult that any type of strip search would have been inappropriate unless there was a realistic probability that she was able to evade the protections, buttressed by other evidence creating a credible reasonable suspicion that she was carrying contraband.
There simply was not enough information indicating that Spear was carrying drugs to subject her to such an invasive search. The informant's identification of a "young unrelated female" was remarkably vague[5], and it was supported by no additional evidence that Wade had possessed illegal drugs at any time subsequent to any visit by Spear. Other prison protections against drug trafficking further diminished the reasonableness of the search. As there was not reasonable suspicion and because the facts casting suspicion upon Spear were so meager, making it apparent to the officials that they did not have reasonable suspicion to perform the search, the officials violated Spear's Fourth Amendment right to be free from an unreasonable search. I therefore concur in remand for further proceedings, but respectfully dissent from the majority's conclusion that reasonable suspicion was present here.
Two and one-half months later, on Christmas Day, 1990, Tina Spear went to NTC to visit Daniel Wade. Upon her arrival, NTC officials informed her that she would not be permitted to visit unless she submitted to a strip and body cavity search and a search of her clothing, purse, pocketbook and car. Spear alleges, and we accept as true for purposes of summary judgment, that NTC officials told her that if she did not consent to the searches, she would be detained while they obtained a warrant, and that she would thereafter be barred from NTC. Wishing to see Wade on Christmas, she consented to the search.
A female NTC nurse conducted the strip and body cavity search with another female officer present. They had her remove her clothing and then visually inspected her body, including her vagina and her anus, and they further searched both those body cavities by inserting their fingers. NTC officials also searched Spear's clothing, purse, and pocketbook. They also searched her car, located in the
NTC parking lot. Spear claims the search embarrassed, humiliated, and demeaned her. None of these searches revealed the presence of any contraband, and Spear proceeded to visit Wade.
Spear states that she has never possessed contraband at NTC, has never attempted to introduce contraband there, and has never given prison officials any cause to believe that she would attempt to introduce contraband. Also, she states that she has no criminal record of any kind.
In this case, when the warden authorized the search of Spear, he filled out a form indicating his justification. His sole written justification was that a confidential informant informed a prison guard that inmate Wade "was receiving drugs every time a young unrelated female visited." J.A. at 61. Since prison records for the year indicated that Spear had been the only non-related visitor that year, the warden authorized her to be searched on her next visit. The uncorroborated confidential informant's statement and the prison's record of visitors, without more, can not create a reasonable suspicion. In fact, a meticulous scrutiny of the record reveals absolutely nothing about this visitor that could appropriately constitute such suspicion.
The majority intimates the fact that Wade had been guilty of previous drug infractions while in prison casts suspicion upon Spear. Maj. Op. at 7-8. This claim is deceptive. Wade had only one drug offense in 1990, and that was for possession of four pills of the prescription drug Darvocet, a pain killer. Upon investigation within the prison, it was determined that a prison dentist prescribed Wade the pills two days before he was found with them, so it was apparent the pills were not smuggled from outside the prison. J.A. at 52. Prison searches had found Wade with small amounts of marijuana on four occasions between February 1987 and March 1989, but the prison had no record of any visit by Spear before 1990. Thus, apart from
the statement that the warden relied upon, there was absolutely no evidence even implicitly connecting Spear with any drugs ever found in Wade's possession, and in fact the last time Wade was found in possession of illegal drugs occurred one year and nine months before prison officials strip searched Spear. Moreover, Spear had not visited the prison during the eight weeks preceding the informant's October 3, 1990, statement to the guard.
An evaluation of all related circumstances as compelled by Cortez, 449 U.S. at 417, makes it even more apparent that the strip search was unreasonable. Northpoint's own regulations required particularized reasonable suspicion for searches of the anal cavity.[4] Further, in his response to interrogatories, the warden stated that all inmates are strip searched at the conclusion of their session with visitors. J.A. at 22; see J.A. at 33 (prison regulations requiring inmates to be strip searched after visits). This fact alone vastly reduces the necessity to invade the privacy of a visitor, and it correspondingly narrows the circumstances in which it is reasonable to subject a visitor to a strip search. Additionally, the prison regulations state that during the visit the inmate sits facing a prison officer. Id. at 33. The prisoner and the visitor are allowed no more contact than holding hands, though they may kiss and embrace briefly at the beginning and end of the visit. Id. At this stage in the litigation, we do not know whether the prison adheres to its regulations, nor what other precautions against smuggling it takes. See Hunter, 672 F.2d at 676 (discussing use of solid partitions under visiting tables and screens above tables). These circumstances, however,
viewed in the light most favorable to Spear, make the transfer of illegal contraband so difficult that any type of strip search would have been inappropriate unless there was a realistic probability that she was able to evade the protections, buttressed by other evidence creating a credible reasonable suspicion that she was carrying contraband.
There simply was not enough information indicating that Spear was carrying drugs to subject her to such an invasive search. The informant's identification of a "young unrelated female" was remarkably vague[5], and it was supported by no additional evidence that Wade had possessed illegal drugs at any time subsequent to any visit by Spear. Other prison protections against drug trafficking further diminished the reasonableness of the search. As there was not reasonable suspicion and because the facts casting suspicion upon Spear were so meager, making it apparent to the officials that they did not have reasonable suspicion to perform the search, the officials violated Spear's Fourth Amendment right to be free from an unreasonable search. I therefore concur in remand for further proceedings, but respectfully dissent from the majority's conclusion that reasonable suspicion was present here.