Federal Circuits, Eighth Circuit (March 11, 1982)
Docket number: 81-1354
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U.S. Supreme Court - Bell v. Wolfish, 441 U.S. 520 (1979)
U.S. Supreme Court - Ybarra v. Illinois, 444 U.S. 85 (1979)
U.S. Supreme Court - Adams v. Williams, 407 U.S. 143 (1972)
U.S. Supreme Court - Spinelli v. United States, 393 U.S. 410 (1969)
U.S. Court of Appeals for the Eighth Circuit - Burlis Smothers, Appellant, v. Lt. J. Gibson; Off. J. Stephens; Warden Willis Sargent, Warden of the Cummins Unit of the Arkansas Department of Correction; A.L. Lockhart, Director of the Arkansas Department of Correction; Off. Outlaw; Major Young; Warden Terry; Warden Larry Norris; Jane Doe; Mary Doe, Appellees., 778 F.2d 470 (8th Cir. 1985) Appellant, v. Lt. J. Gibson; Off. J. Stephens; Warden Willis Sargent, Warden of the Cummins Unit of the Arkansas Department of Correction; A.L. Lockhart, Director of the Arkansas Department of Correction; Off. Outlaw; Major Young; Warden Terry; Warden Larry Norris; Jane Doe; Mary Doe, Appellees.
U.S. Court of Appeals for the Federal Circuit - Unpublished Disposition Notice: Federal Circuit Local Rule 47.8(B) States that Opinions and Orders Which Are Designated as Not Citable as Precedent Shall Not Be Employed or Cited as Precedent. this Does Not Preclude Assertion of Issues of Claim Preclusion, Issue Preclusion, Judicial Estoppel, Law of the Case or the Like Based on a Decision of the Court Rendered in a Nonprecedential Opinion or Order. Keith T. Johnson, Petitioner, v. Department of Justice, Respondent., 864 F.2d 149 (Fed. Cir. 1988) Issue Preclusion, Judicial Estoppel, Law of the Case or the Like Based on a Decision of the Court Rendered in a Nonprecedential Opinion or Order. Keith T. Johnson, Petitioner, v. Department of Justice, Respondent.
Gordon E. Allen, Legal Director, Iowa Civil Liberties Union, Des Moines, Iowa, for appellants.
Thomas J. Miller, Atty. Gen. of Iowa, John G. Black, Sp. Asst. Atty. Gen., Craig S. Brenneise, Asst. Atty. Gen., Des Moines, Iowa, for appellees.Before HENLEY and ARNOLD, Circuit Judges, and HARRIS, Senior District Judge.*HENLEY, Circuit Judge.Appellants Beulah Hunter, Jane Honorable, and Sylvia Wiese, visitors to family members confined in Iowa penal institutions, brought an action against correctional officials and employees under 42 U.S.C. § 1983, seeking damages and declaratory and injunctive relief. They alleged, inter alia, violations of their fourth amendment right to be free from strip searches1 during visits at the institutions based on mere unfounded suspicion that they would attempt to smuggle drugs to their incarcerated relatives.2 The case was tried to the district court upon stipulated facts and accompanying exhibits. The court concluded that "neither the strip search policies nor their application to the plaintiffs in this case violated plaintiff's Fourth Amendment rights to be free from unreasonable searches." Hunter v. Auger, No. 79-192-2, slip op. at 5 (S.D.Iowa Feb. 26, 1981). This appeal followed. We reverse the judgment of the district court and remand the case for further proceedings.I. FactsAppellant HonorableOn November 3, 1978 Jane Honorable, a resident of Des Moines, went to the Iowa Men's Penitentiary at Fort Madison to visit her husband Roy,3 who was incarcerated for armed robbery. She had visited him approximately once each week since October, 1976 without incident. When appellant arrived at the facility on November 3, she was given the option of submitting to a strip search or foregoing the visit with her husband. To see her husband, she acquiesced to the search, which was conducted according to the institution's routine procedures and lasted approximately one-half hour. The body search revealed no drugs or other contraband.On the same day, appellant met with prison officials to discuss the reasons for the search. She was informed that they had received an anonymous "kite"4 from an inmate, advising in writing that Roy Honorable and several other inmates were trafficking in drugs. Prison officials attempted to confirm the inmate's anonymous tip by contacting the Narcotics Division of the Iowa Department of Criminal Investigation for a community background check on appellant and her husband.5 The record before us, however, indicates that officials were unable to obtain any corroborative evidence. We also note that the parties stipulated that neither appellant nor her husband has ever been convicted of a drug offense.Appellant WieseIn February, 1979 Sylvia Wiese, accompanied by her three year old son, went to visit her husband Michael, who was confined at the Augusta Unit of the Iowa State Penitentiary, a minimum security prison farm. As a result of an anonymous tip received from a source outside the facility that indicated she would attempt to smuggle drugs, appellant was required to undergo a strip search before being allowed a contact visit with her husband. Correctional officials admitted that she was searched on the basis of the anonymous tip and because of the open atmosphere at the Augusta Unit. No evidence was offered to show an attempt by prison officials to corroborate the information received. Like appellant Honorable, Wiese submitted to the search, which was also conducted in a routine manner. The search did not disclose any drugs or contraband of any sort.Appellant HunterOn March 17, 1979 Beulah Hunter, a resident of Des Moines, Iowa, drove to the Iowa Men's Reformatory at Anamosa to visit her son Kenneth A. Hunter, who was incarcerated in that facility for armed robbery. Hunter, a woman of about fifty-five years, was accompanied by her boyfriend William Perry; her son Robert Hunter; and her grandchildren Kenneth Oakley, Kenneth Hunter's eleven year old son, and Trene Hunter, the inmate's ten year old niece. During the seven years that Kenneth Hunter had been incarcerated, appellant and her four children had visited him monthly without incident. In addition, the mother and son corresponded frequently.Upon arriving at the institution, appellant and her party were advised that they would have to submit to a strip search before visiting Kenneth because prison officials had received an anonymous tip that the visitors would attempt to smuggle drugs during their visit. Although correctional officials attempted to confirm the information by contacting the Department of Criminal Investigation, all they learned was that the tip came from an unidentified person who called from the Gateway Opportunity Center in Des Moines, a community action program facility for low income families. The parties' stipulation of fact notes that "(n)o corroboration of (the) anonymous tip was made."When Hunter and the other visitors refused to be strip searched, they were denied visiting privileges. In a letter dated March 22 the warden informed appellant and the persons accompanying her on March 17 that as a result of their refusal to submit to the body search, all visits to any adult correctional facility were suspended and could be reinstated only after a satisfactory personal interview. Appellant, however, did not request an interview.We note that none of the individuals suspected of drug smuggling activity on March 17 had ever been arrested or convicted on drug charges. Further, no contraband had ever been found on the person of Kenneth Hunter6 after a visit from his mother or anyone accompanying her to the facility.7Strip Search PolicyA visitor entering the visiting room entryway at Iowa correctional facilities is required to submit a "Request for Visiting Permit," a standard form that the visitor completes with the inmate's name and his name, address, and relation to the inmate.8 After the form is submitted to the visiting room guard, the inmate's visiting card is pulled to determine if the visitor is approved9 and, if approved, whether the visitor should be strip searched. If a strip search notation appears on the visiting card, the correctional officer on duty advises the visitor that he must submit to a strip search before visiting the inmate. Because there are no facilities for non-contact visitation, a visitor to the Iowa Men's Penitentiary is given the alternative of submitting to the search or foregoing the visit. At the Iowa Men's Reformatory, a strip search is also a condition precedent to a contact visit between an inmate and a visitor suspected of carrying contraband, namely drugs. If a visitor to this institution refuses to be strip searched, however, he is in some circumstances allowed a non-contact visit with the inmate since appropriate facilities for such visitation are available there. At the Augusta Unit, inmates are allowed unlimited contact visits, including unsupervised outdoor contact with visitors. The record is unclear whether facilities for non-contact visits are available at this location.After a visitor targeted for a strip search proceeds across the visiting room entryway through the metal detector,10 he is taken to a small room adjacent to the visiting room where he is again informed that he must be strip searched. At this time he is given the opportunity to leave the facility rather than submit to the search. If he consents to the strip search, correctional officials conduct the search pursuant to standard institutional procedures.Any correctional official who is authorized to order a strip search of a visitor11 is required by prison policy, subject to time constraints, to provide the warden of the facility with a memorandum stating the inmate's and visitor's name, the items for which the search was carried out, the reasons for the search, and the time limit on the search order. Each decision to conduct a strip search is recorded in a logbook kept in the warden's office at the particular facility. Although prison policy requires that the log contain a detailed description of the basis for the search order, it appears that this requirement may be easily circumvented by using the ready excuse of insufficient time to provide more than a cursory statement of reasons for the search. Such a built-in means of circumvention frustrates any effective review by the deputy warden, who routinely receives and examines the logbook.We now turn our attention to a correctional policy that presents a particularly troublesome aspect of this case, that is, the placement of a strip search notation by a visitor's name on an inmate's visiting card.12 A strip search designation may result from an anonymous tip from an inmate or a source outside the institution advising that a particular visitor will attempt to smuggle drugs during his visit to the facility. When correctional officials receive such a tip, they attempt to confirm the information by using one or more of the following means: reviewing the particular inmate's file; monitoring correspondence and telephone conversations between the parties specified; and contacting the Narcotics Division of the Iowa Department of Criminal Investigation for a community background check on the inmate and other named individuals. Appellees here freely admitted that even though attempts to corroborate an unidentified informant's tip are unsuccessful, a strip search notation may nevertheless be placed near a visitor's name on an inmate's visiting card.A notation that a particular visitor should be strip searched may remain on a visiting card for three or four months or may be of indefinite duration, depending on the nature of the information used to originally place the visitor on the strip search list and the conduct during a visit. Strip search designations are reviewed every ninety days and may be removed only by the warden or deputy warden.In addition to the practice of strip searching visitors whose names have been noted on inmate visiting cards, a strip search order may result from observation of a visitor in the visiting room entryway even though no strip search notation appears on the visiting card. If the correctional officer believes that a visitor will attempt to smuggle contraband during the visit, the officer will generally detain the visitor by searching other items, for instance, a purse, while approval for the strip search is sought from an authorized official. The parties' stipulation of fact states: "Each individual authorized to order a strip-search may order such a search on the basis of a visual observation of an incoming visitor, if, in the judgment of the observor, (sic) the search is justified."13II. The Legal StandardThe United States Supreme Court has stated:The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of 'reasonableness' upon the exercise of discretion by government officials ... in order to 'safeguard the privacy and security of individuals against arbitrary invasions....' (Citations omitted.)Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). In the context of a search, the test of reasonableness requires that legitimate governmental interests in carrying out the search be balanced against the intrusion on personal rights that the search entails. Id. at 654, 99 S.Ct. at 1396; Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). To assess the reasonableness of a particular government intrusion, "the facts upon which (the) intrusion is based (must) be capable of measurement against 'an objective standard,' whether this be probable cause or a less stringent test." Delaware v. Prouse, 440 U.S. at 654, 99 S.Ct. at 1396.It is clear that certain types of searches based upon less than probable cause are constitutionally permissible. E.g., Bell v. Wolfish, 441 U.S. at 560, 99 S.Ct. at 1885; Delaware v. Prouse, 440 U.S. at 663, 99 S.Ct. at 1401; Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883. In these cases, courts weighing the need for the particular search against the invasion of privacy and personal security have concluded that the fourth amendment reasonableness standard allows such searches to be based on less than probable cause. We apply the same balancing test to determine whether the strip searches at issue in the instant case may be conducted only on the basis of probable cause or on a less rigorous basis.The penal environment is fraught with serious security dangers. Incidents in which inmates have obtained drugs, weapons, and other contraband are well-documented in case law and regularly receive the attention of the news media. Within prison walls, a central objective of prison administrators is to safeguard institutional security. To effectuate this goal prison officials are charged with the duty to intercept and exclude by all reasonable means all contraband smuggled into the facility. Indeed, Iowa correctional officials recognize their duty to constrict the flow of contraband into the prison. They consider both clothed and unclothed body searches an effective means of controlling contraband and "a basic implement of the institutions(') overall security."Although the preservation of security and order within the prison is unquestionably a weighty state interest, prison officials are not unlimited in ferreting out contraband. Certainly, as has been observed, one's anatomy is draped with constitutional protection. United States v. Afanador, 567 F.2d 1325, 1331 (5th Cir. 1978). And the state's interest must be balanced against the significant invasion of privacy occasioned by a strip search. Indeed, a strip search, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience. See United States v. Sandler, 644 F.2d 1163, 1167 (5th Cir. en banc 1981); United States v. Dorsey, 641 F.2d 1213, 1217 (7th Cir. 1981); cf. Terry v. Ohio, 392 U.S. at 24-25, 88 S.Ct. at 1881-1882 (limited search of outer clothing for weapons is likely to be an annoying, frightening, and perhaps humiliating experience).After weighing the interest of correctional officials in preserving institutional security against the extensive intrusion on personal privacy resulting from a strip search, we conclude that the Constitution mandates that a reasonable suspicion standard govern strip searches of visitors to penal institutions. We believe that this standard is flexible enough to afford the full measure of fourth amendment protection without posing an insuperable barrier to the exercise of all search and seizure powers. See United States v. Asbury, 586 F.2d 973 (2d Cir. 1978); United States v. Afanador, 567 F.2d at 1328; United States v. Himmelwright, 551 F.2d 991, 995 (5th Cir.), cert. denied,Try vLex for FREE for 3 days
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