Legality of Strip Searches After an Arrest

Jail and prison staff regularly perform strip searches on inmates. These searches help prevent drug trafficking, weapon trafficking, or contraband smuggling. Police can also perform a strip search as part of the arrest process, but law enforcement must follow specific protocols to perform a valid strip search.

Strip searches implicate and can intrude upon basic human dignity. Everyone, including detainees, has certain rights related to strip searches. Some state laws require law enforcement to obtain written authorization to conduct a strip search.

A person’s constitutional rights do not end once law enforcement places them under arrest. These rights include a right to privacy and protection against unreasonable searches, but some individuals have less protection from government searches. For example, inmates in correctional facilities may have a reduced expectation of privacy.

In certain situations, corrections officers may intrude more heavily on a prisoner’s rights than on a non-prisoner’s. One such intrusion is a strip search. Law enforcement officers perform these searches to uncover concealed objects. Government officials can generally strip-search someone if it’s related to limited, reasonable objectives.

This article discusses when and how government officials can perform strip searches. It also explains Supreme Court rulings and other case law that have clarified the rules and exceptions governing search and seizure.

A strip search can be both invasive and distressing. Contact a criminal law attorney if you believe your rights (or those of a loved one) have been violated during the arrest process.

Fourth Amendment Protection Against Government Searches

The Fourth Amendment to the U.S. Constitution protects people against unreasonable searches by the government. In criminal law, Fourth Amendment protections apply in the following situations:

• Following a police officer‘s arrest or “seizure” of a person, often during a stop or arrest
• Law enforcement‘s search of places or belongings in which a person has a reasonable expectation of privacy

The degree of protection available depends on the facts of each situation. For example, the following may affect whether a search is lawful or not:

• The nature of the detention or arrest
• The nature of the place searched
• The circumstances surrounding the search

In general, law enforcement officials must have probable cause to conduct a reasonable search. A search is presumptively unlawful if law enforcement does not obtain a valid search warrant. If a person does not have a reasonable expectation of privacy in their person, place, or belongings, law enforcement does not need probable cause to search.

The legal standards for strip searches vary depending on where and when they occur. Strip searches conducted at the roadside or in other public settings are often considered unconstitutional and highly disfavored by courts. When strip searches do occur, they require private settings, such as at a police station, jail, or prison.

What Is a Strip Search?

A police strip search involves law enforcement officials requiring the suspect to undress to reveal concealed objects. Courts distinguish between different types of searches based on their level of intrusion:

• A strip search involves the removal of clothing for visual inspection of the body surfaces
• A visual body cavity search includes visual inspection of body cavities (such as the mouth, nose, or anal cavity) without physical contact
• A manual body cavity search involves physical intrusion into body cavities and requires the highest level of justification

Strip searches fall into two general categories:

• A security strip search is performed in institutions such as jails or prisons. Correctional officers conduct these searches to preserve the safety of the general jail population.
• A strip search incident to arrest is performed to uncover evidence of criminal activity. It is also performed to keep an officer safe during or immediately after an arrest outside of a jail setting.

Federal circuit courts have discussed what actions constitute a strip search. For example, in Doan v. Watson (2001), the court determined that law enforcement‘s observation of inmates showering was a strip search. In Safford Unified School District v. Redding (2009), school officials required a female student to strip her undergarments. The court concluded that the search constituted a strip search.

Strip Searches Outside of Jail or Prison

When police conduct a strip search incident to arrest outside of a jail or prison setting, they need reasonable suspicion that the suspect is concealing a weapon or contraband. Based on the specific circumstances, the officer must have articulable facts suggesting the person is hiding the following under their clothes:

• Weapons
• Drugs
• Another illegal object

Roadside strip searches are disfavored by the courts and usually considered unreasonable violations of the Fourth Amendment. The more public and exposed the location, the less likely a court will find the strip search was constitutional.

Ascertaining when a police officer has “reasonable suspicion” to perform a strip search outside of a detention facility can be complicated. A criminal defense attorney can review the circumstances surrounding the arrest to determine if rights have been violated.

Strip Searches in Jail or Prison

Correctional officers have more leeway to order a strip search in a county jail or prison. They can perform a strip search if it’s related to reasonable objectives, such as safety. The Supreme Court concluded that unique concerns of safety and security in jails allow law enforcement this ability.

These searches sometimes occur when law enforcement charges the arrestee with a minor offense. Correctional officers can perform strip searches without the factors that would give rise to a suspicion that the arrestee possessed concealed contraband.

For example, a person could be arrested on a warrant for a misdemeanor or traffic violation. Upon their arrival at the jailhouse, correctional officers may subject them to a strip or body cavity search. This is allowed, even though nothing about their case would lead police to believe they had anything dangerous or prohibited on their person.

Inmate Strip Searches

The Supreme Court ruled in Florence v. Board of Chosen Freeholders of County of Burlington (2012) that correctional officers can strip-search inmates admitted to the general jail population. They can perform these searches without any individualized suspicion. The severity of the underlying offense is also irrelevant. Such searches do not constitute an unreasonable search and don’t violate the Fourth Amendment.

In Florence, the Court determined that penal institutions have an undeniable need to maintain safe, orderly facilities. The Court determined that any requirement that correctional institutions exclude individuals from searches without a specific reason to suspect they were concealing contraband would undermine the institution’s interest in protecting its staff and inmates.

Because of this decision, jails and prisons can strip-search new inmates upon their arrival at the facility. The strip search is valid as long as the search is related to the facility’s need to maintain safety and order, and the type of criminal offense doesn’t matter. An individual may go through a strip search after an arrest, even if the arrest warrant was issued in error. That was the case for the plaintiff in Florence.

Some jurisdictions had more restrictive policies before Florence. Certain states limited strip searches of misdemeanor arrestees unless there were reasonable grounds to believe they had brought contraband into the facility. The Florence decision established that blanket strip-search policies during jail intake do not violate the Constitution.

Reasonableness of Strip Searches After an Arrest

A search incident to arrest does not require a warrant or probable cause, but a strip search incident to arrest might be an unreasonable violation of a person’s right to privacy. The Supreme Court addressed this issue in Bell v. Wolfish (1979). The case involved pretrial detainees‘ challenge to a New York detention facility’s strip search policy. The policy required every inmate “to expose their body cavities for visual inspection” whenever they made contact with someone from outside the facility.

In Bell, the Supreme Court balanced the interests of facility safety versus inmate privacy. The Court focused on the reasonableness of the searches. The Court discussed the reasonableness of inmate strip and body cavity searches, ruling that “Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.”

Under this reasoning, a jailhouse strip search procedure was allowed. With different circumstances, the same invasive search would have been illegal, such as conducting a strip search during a stop for a speeding ticket.

When Strip Searches Are Not Allowed

In 2009, the Supreme Court ruled that school officials did not have the legal right to strip-search students. In Safford Unified School District v. Redding, a school principal ordered a 13-year-old female student to strip to her underwear and “shake out” her undergarments based on two over-the-counter painkillers found in her school binder. The Court ruled 8-1 that the school’s need for discipline and security did not justify the type of search used against the student.

Redding did not rule out a possible need for intimate searches in school settings where an official could demonstrate a reasonable belief coupled with a totality of the circumstances that would justify such a search. In this case, the principal had no reason to believe the student was carrying illegal drugs in her underpants.

The Prison Rape Elimination Act

The federal Prison Rape Elimination Act (PREA), enacted by Congress in 2003, creates national standards to prevent, detect, and respond to sexual abuse in confinement facilities. Under PREA standards, facilities receiving federal funding must conduct strip searches with same-gender officers. Males can search males, and only females can search females. There are exceptions to this rule, such as exigent circumstances, lack of personnel, or contraband control.

Inmates and arrestees may request a same-gender officer perform a strip search. Opposite-sex pat-downs (over the clothing) are usually permitted by law.

Refusing a Strip Search

In general, once you are formally arrested, you cannot refuse a strip search when you are placed in a detention facility. Your actual rights depend on where and why you are detained.

If you are in jail, you may be able to refuse a strip search in some states prior to your arraignment or before being admitted to the general jail population. However, the Supreme Court‘s decision in Florence has made such protections less common. If you can bond out before you are housed, you may be able to avoid a strip search.

In any jail, correctional officers can use reasonable force if they believe a strip search is necessary to ensure the safety of the inmate and others in the facility. It’s best not to refuse a strip search, even if you believe the officers lack grounds for it.

In prison, inmates have no right to refuse a search. Federal law and case law have established that the prison’s concerns for the safety and security of all inmates and staff override any individual’s right to privacy.

Strip Searched After an Arrest? Speak With a Criminal Defense Attorney

If you are strip-searched in jail despite your protests, it might be time to seek legal advice. Inmates have fewer rights in prison or jail settings, but still have some protections through the Constitution. A qualified criminal defense lawyer can help make the case for bail. They can also argue and negotiate on your behalf, leading up to and including the trial. An experienced criminal defense lawyer or civil rights attorney will examine your case, explain your options, and stand with you through court proceedings.