The Fourth Amendment forbids the government from conducting “unreasonable searches and seizures.” Outside of prison, this means that a police officer or F.B.I. agent cannot come into your home or search your body without your consent or a search warrant, unless it is an emergency. However, the Fourth Amendment only protects places or things in which you have a “reasonable expectation of privacy.” In the outside world, this means that if you have your window shades wide open, you can’t expect somebody not to look in, so a cop can too.
In Hudson v. Palmer, 468 U.S. 517, 530 (1984), the Supreme Court held that prisoners don’t have a reasonable expectation of privacy in their cells, so prison officials can search them as a routine matter without any particular justification, and without having to produce anything like a search warrant.
This doesn’t mean that all cell searches are OK. If a prison official searches your cell just to harass you or for some other reason that is not justified by a penological need, this may be a Fourth Amendment violation. However, to get a court to believe that the “purpose” was harassment, you will need some truly shocking facts. For example, in Scher v. Engelke, 943 F.2d 921, 923-24 (8th Cir. 1991) a prison guard searched a prisoner’s cell 10 times in 19 days and left the cell in disarray after three of these searches.
There is more protection against strip searches. While prisoners have no expectation of privacy in their cells, they retain a “limited expectation of privacy” in their bodies. In analyzing body cavity searches, strip searches, or any invasions of bodily privacy, a court will balance the need for the search against the invasion of privacy the search involves. Strip searches are generally allowed but many courts state that the searches must be related to legitimate penological interests and cannot be excessive or used to harass, intimidate, or punish. In Jean-Laurent v. Wilkenson, 540 F. Supp. 2d 501 (S.D.N.Y 2008), for example, one court stated that a second-strip search might be unconstitutional, because the inmate was under the constant supervision of guards since the first search. Another good case to read is Lopez v. Youngblood, 609 F. Supp. 2d 1125 (E.D. Cal. 2009), in which a court held it was unconstitutional to strip search detainees in a group. The jail tried to justify the group strip search as necessary for administrative ease. The court disagreed, stating that administrative burdens and inconvenience do not justify constitutional violations.
Prisoners seem to have had the most success when the searches were conducted by, or in front of, guards of the opposite gender. For example, in Hayes v. Marriott, 70 F.3d 1144, 1147-48 (10th Cir. 1995), the court held that a body cavity search of a male prisoner in front of female guards stated a claim for a Fourth Amendment violation because there was no security need. In Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992), the court recognized a male prisoner’s Fourth Amendment claim based on a strip search done outdoors, in front of several female guards.
This rule is not limited to strip searches. Where a female prisoner had a documented history of sexual abuse but was forced by male guards to endure pat-down searches that sometimes included inappropriate touching and unwarranted sexual advances, a court found that the circumstanc¬es could violate the Fourth Amendment’s prohibition against unreason¬able searches and its more general guarantee of a right to some measure of bodily privacy. Colman v. Vasquez, 142 F. Supp. 2d 226 (D. Conn. 2001). In Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993), the court recognized a claim by male inmates who were observed by female guards while they showered and went to the bathroom. In Kent v. Johnson, 821 F.2d 1220, 1226-27 (6th Cir. 1987), the court refused to dismiss an inmate’s complaint that stated female prison guards routinely saw male prisoners naked, showering, and using the toilet.
Even when the search is not done by or in front of a person of the opposite gender, however, you may be able to show a Fourth Amendment violation if there was no reasonable justification for the invasive search.
Unfortunately, many courts have held that strip searches after contact visits are constitutional. Additionally, courts have held strip searches that are accompanied by officer misconduct (name calling or some inappropriate touching) usually do not violate the prisoner’s constitutional rights if there is no physical injury. This may, however, be actionable under state tort law and should always be reported and investigated. We discuss this more in Section F, Part 2 of this chapter.
The law is slightly better for pretrial detainees, so if you haven’t yet been convicted, read Section J of this Chapter, on the rights of pretrial detainees.