Part II
Constitutional Law of Corrections
Chapter 10 – Fourth Amendment
– Search and Seizure, Privacy
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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
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Is search area protected under constitution
If yes, was search done in a reasonable manner
Chapter Outline
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Searches in Prisons
Hudson v. Palmer
Bell v. Wolfish
Lanza v. New York
United States v. Hearst
Chapter Outline: cont’d
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Strip Searches
Pat Searches and Other Inmate
Searches
Visitor Searches
Searches of Employees
Searches in Prisons
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Two main types of prison searches
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Of cells or inmate living quarters
Of the person – can include
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Pat or frisk
Visual or strip
Digital or simple instrument
Urine testing
X-rays
Blood tests
Searches in Prisons: cont’d
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Other types of searches
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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
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Searches needed because inmates may be:
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looking for ways to escape
assaultive
looking for ways to introduce contraband
Searches in Prisons: cont’d
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Prison officials are looking for ways to
stop these activities. Looking for:
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escape implements
weapons that might be used in assaults
contraband, such as drugs and money
Hudson v. Palmer (1984)
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Two correctional officers in Virginia
prison did “shakedown” search of
inmate’s cell and locker, looking for
contraband
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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
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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
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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
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On main issue – right of privacy in his prison
cell, entitling him to Fourth Amendment
protections, Court held
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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
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Inmate has no protected right of
privacy in prison
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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)
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Case occurred at a federal detention
center; dealt with various constitutional
claims, including two search issues
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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
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Prison staff conducted random,
“unannounced” searches of inmate
living quarters
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Inmates usually would be removed from
the living area during the search
Bell v. Wolfish : cont’d
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Inmates complained cell left in needless
disarray, and on occasion items were
damaged or destroyed
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Asked to be present during search
Bell v. Wolfish : cont’d
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Prison officials opposed
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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
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Supreme Court held an inmate has no
right to be present during cell search
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Room searches represent an appropriate
security measure
Room search rule facilitates safe and
effective performance of the search
Lanza v. New York (1962)
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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
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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
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Court disagreed, upholding the conviction
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“(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 attorneyclient, would have at least as much protection
in jail as in the outside world
United States v. Hearst (1977)
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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
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On appeal, issue was whether making,
and then using, the tape during the trial
was a Fourth Amendment violation
Appeals court upheld process
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Jail officials had a justifiable security
purpose in monitoring and recording
inmate-visitor jail conversations
United States v. Hearst :
cont’d
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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
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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
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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
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In 1977, male officers in a New York
women’s prison were assigned duties in
the prison’s sleeping quarters
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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
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Union representing the corrections officers
joined prison administrators in opposing
the lawsuit
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Officers’ arguments primarily based on their
equal employment opportunity rights
To exclude them from certain jobs
disadvantaged them
Strip Searches: cont’d
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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
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The Supreme Court decision in Bell v. Wolfish
(1979) dealt with body cavity searches during
strip searches
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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
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In Wolfish, the Supreme Court upheld
this practice
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“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
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The Court allowed such searches at
conclusion of visits, without a necessary
finding of probable cause or reasonable
suspicion
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Searches had to be done in a reasonable
manner and not abusively
Strip Searches: cont’d
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In general, the courts have shown
much reluctance to approve strip
searches of persons immediately after
their arrest or on being taken into jail
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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
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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
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Searches must be done professionally
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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
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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
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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
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Cross-gender pat searches are generally
allowed
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Individual courts may place some
restrictions, such as not touching genital
areas or breasts
Pat Searches and Other
Inmate Searches: cont’d
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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
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Simple instrument or X-ray searches
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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
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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
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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
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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
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Visitors to prisons or jails have greater
expectation of privacy than inmates
Once enter prison, however, security
concerns are pervasive
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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
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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
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Other searches, such as strip searches, and
detaining a person to conduct a thorough
search of personal property, require reasonable
suspicion
When time allows
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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
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These are sensitive, ordinarily done only
on finding of reasonable suspicion
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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
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Search determination could be founded
upon confidential information, at times
provided by an inmate
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Requires assessing reliability of the
informant, and
Whether there is corroborating information
or circumstance
Searches of Employees: cont’d
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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
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To collect evidence and to be certain
that allegations or suspicions are wellfounded, it may be necessary to do
searches of employees, their lockers,
cars, clothes, and other areas
Searches of Employees: cont’d
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Law enforcement officials and counsel
should be consulted, and local court
rulings on searches carefully followed
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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