Part II Constitutional Law of Corrections

1. Part II Constitutional Law of Corrections

2. 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

3. Chapter Outline • Searches in Prisons • Hudson v. Palmer • Bell v. Wolfish • Lanza v. New York • United States v. Hearst

4. Chapter Outline: cont’d • Strip Searches • Pat Searches and Other Inmate Searches • Visitor Searches • Searches of Employees

5. 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

6. 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

7. Searches in Prisons: cont’d • Searches needed because inmates may be: • looking for ways to escape • assaultive • looking for ways to introduce contraband

8. 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

9. 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

10. 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

11. 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

12. 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”

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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”

30. 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

31. 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

32. 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

33. 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)

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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)

44. 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

45. 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

46. 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

47. 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

48. 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