Strip search

A strip search is a search of an individual by a law enforcement officer or other agent of government that requires the rearrangement or—more commonly— removal of some or all of the person’s clothing to permit the visual inspection of the body, especially the private parts—the genitals, anus, and breasts—for weapons, illegal goods (contraband), or evidence of a crime. A body cavity search, a variant of the strip search, involves the internal physical examination of body cavi-ties, including (in unusual circumstances) internal organs. Strip searches constitute the most intrusive and dehumanizing type of search, and thus are among the most serious encroachments on personal privacy. Since most strip searches are con-ducted on people in police custody, it is in such situations that the practice most often comes into conflict with privacy rights.
Although strip searches of arrested individuals have a long history in Anglo-American law and were well established in the American colonies before their independence, the topic gained visibility and widespread public awareness only in the second half of the twentieth century. A number of reasons account for this. One was the enhanced consciousness of privacy rights in an era that first saw the Supreme Court recognize, in Griswold v. Connecticut, 381 U.S. 479 (1965), a constitutional right to privacy. Another was the greater importance given rights of those accused or convicted of crimes as part of the “due process revolution” of the 1960s. This was partly fueled by accusations that strip searches were often used to harass, intimidate, and humiliate prisoners. Also a factor was the greater prominence of the War on Drugs and the awareness that dealers and users could find ingenious ways of secreting controlled substances, money, or weapons within their bodies. A final factor was the sensationalistic media attention given to anything related to nudity.
Constitutional protections and regulation of strip searches are grounded in the Fourth Amendment’s prohibition against unreasonable searches. While much of Fourth Amendment jurisprudence has focused on questions surrounding the searching of areas such as homes and residences, offices, and automobiles, relatively less attention has been given to searches of the body, and many questions await full definition. Generally, the courts have upheld strip searches as searches “incident to arrest,” a major category of exceptions to the requirement of a search warrant.
The key Supreme Court decision involving strip searches was Bell v. Wolfish (1979). This case arose out of the overcrowded conditions and administrative practices, including strip searches, in New York City’s Metropolitan Correctional Center (MCC), particularly those practices affecting pretrial detainees. While acknowledging the offensive character of strip searches, the Court also noted that those in custody, even if not convicted of a crime, have a “diminished” rather than reasonable expectation of privacy. In overturning a lower court decision that found the detainees’ rights had been violated, the Court refrained from laying down detailed rules for prison management and instead stated that a wide-ranging deference should be accorded to the judgment of correctional officials. Ultimately, it put forth a balancing test that pitted the individual prisoner’s reduced privacy interest against the state’s security interest in maintaining order and safety in the facility. In this context, it found the MCC’s use of strip searches was not unreasonable.
After Bell, the Supreme Court offered little guidance as to what might characterize an unreasonable strip search, although the Court left open the possibility that such a circumstance might exist. It fell to the state and lower federal courts to wrestle with the issue. Although not always consistent, a pattern did emerge. While continuing Bell’s deference toward penal authorities and upholding, for example, random strip searches of prison inmates, the courts have generally held that there must be some basis for strip searches of pretrial detainees, and that blanket provisions that all per-sons detained by police be strip searched regardless of the alleged offense or circum-stance of arrest go too far. While some judges have argued in favor of a standard of probable cause that a strip search will uncover contraband or weapons, the most widely accepted standard is that of “reasonable suspicion”: an officer’s ability to articulate grounds for suspecting that a person might be secreting such material would be sufficient to justify a strip search. General circumstances in which strip searches might be justified include the following: when the person has been arrested for a crime that involves weapons, violence, force, or contraband; when the person has a record of a past arrest—even for a minor offense; when the person would be likely to remain in custody for some time; when the person would be likely to mingle freely with other prisoners; or, when the person has been deemed to be a danger to himself or others. A search warrant, of course, can also justify a strip search.
The courts also made it clear that otherwise constitutional searches could be conducted in a manner that would make them illegal. For example, the Chicago Police Department’s practice of strip searching all female suspects taken into custody while only frisking males was ruled unconstitutional in 1983. In other cases, persons arrested for minor offenses and lacking past arrest records of the sort that would arouse reasonable suspicion have been held to have been strip searched illegally.
The courts have established a variety of general rules that should apply to the manner of strip searches. Such searches should be done by officers of the same sex as the person being searched, officers of the opposite sex should not be present in the same space, and the space should itself offer protection from outside observation. Strip searches may be done in the field only in emergency circumstances. Moreover, records of strip searches should be kept, including the reasons for the search.
While the courts have labeled manual body cavity searches to be the most intrusive and invasive type of search, they have not consistently set a higher standard for them than the reasonable suspicion that would allow visual strip searches. How-ever, they are more likely to require a search warrant, and most jurisdictions require that they be done by medical professionals.
As in other searches, one of the major sanctions against the abuse of strip searches is the exclusionary rule barring from court any evidence gained in an illegal search. Another recourse that has become increasingly common in challenging strip searches is to bring suit, sometimes as a class action. A number of well-publicized decisions have found in favor of those who had been subjected to strip searches. In 2004, for example, Sacramento County, California, agreed to pay $15 million to some 16,000 people who had been illegally strip searched by the county sheriff’s department from 2000 through 2003. Such suits have been especially common in challenging blanket strip search policies, and their success has had a significant impact in prompting law enforcement agencies to change their policies in the direction of more individualized criteria based on reasonable suspicion. The courts have generally been less likely, however, to find police or corrections personnel personally liable for illegal strip searches.
Law enforcement personnel continue to make widespread use of strip searches, adjusting their policies and practices to judicial interpretation. In addition to stressing that such searches are necessary to gathering evidence and keeping contraband and weapons out of jails and prisons, law enforcement personnel also hold that strip searches have a deterrent effect.
Although most strip searches and controversies involving them have originated in the criminal justice system, they sometimes occur in other spheres as well. One of these is in schools. School officials generally enjoy greater latitude in conducting searches than do police, and strip searches have sometimes been resorted to, especially in efforts to locate drugs or stolen property. Here, too, the increasing number of lawsuits has had a curbing effect. Some states, such as Iowa, have banned school strip searches entirely. Many districts have either banned them or greatly tightened the circumstances in which they can occur.
Some have predicted that new developments in imaging technology will make strip searches obsolete in the twenty-first century. While less intrusive x-ray devices may reduce the indignity and humiliation inherent in the process, it will not necessarily mean an increase in privacy.