THE UNIVERSITY OF

MEMPHIS®
Cecil C. Humphreys School of Law

Research Paper No. 64

STRIP SEARCHES INCIDENT TO ARREST:
CABINING THE AUTHORITY TO HUMILIATE

Eugene L. Shapiro
University of Memphis – School of Law

Electronic copy available at: http://ssrn.com/abstract=1708248

STRIP SEARCHES INCIDENT TO ARREST:
CABINING THE AUTHORITY TO HUMILIATE
EUGENE

I.

L.

SHAPIRO"

INTRODUCTION

One of the more puzzling characteristics of current Fourth Amendment
jurisprudence has been the inadequacy of judicial evaluation of strip
searches that are conducted upon the sole justification that they are incident
to a lawful arrest. At first glance, the issue may seem to arise infrequently
in light of an arrestee's possible incarceration and the well-known latitude
afforded jail administrators when addressing the special requirements of a
prison environment. I But the more-than-occasional case has placed a judicial imprimatur upon the warrantless strip search of an arrestee where no
mingling with a jail population is imminent or even contemplated. 2 With
one exception, federal circuits have approached the matter as if the Fourth
Amendment's preference for warrants is not sufficiently implicated to merit
discussion and the Amendment's mandates are fulfilled solely by inquiry
into the particularized facts possessed by the police.
Part II of this article will address the prevalent trend, exemplified by
the recent en banc opinion of the Court of Appeals for the Eleventh Circuit
in Evans v. Stephens,3 and will evaluate the apparent assumptions upon
which this approach is grounded. Part III will examine a contrary view held
by the Court of Appeals for the Ninth Circuit. 4 Its approach contemplates
the participation of a magistrate only when a search extends into a body
cavity, an approach which insufficiently acknowledges the intrusiveness of
other strip searches. Part IV will then suggest a more focused approach,
which most appropriately comports with the Fourth Amendment's preference for warrants, its constitutional standard of reasonableness, and the
practical realities of arrests.

"Professor of Law, Cecil C. Humphreys School of Law, The University of Memphis.
1. In Bell v. Wolfish, the Supreme Court addressed the constitutionality of visual body cavity
searches of inmates who were examined after contact visits with individuals from outside of the
institution. See infra notes 163-67 and accompanying text (discussing the Supreme Court's
decision in Bell).
2. See infra notes 163-166 and accompanying text.
3. 407 F.3d 1272 (11th Cir. 2005) (en bane).
4. See Fuller v. M.G. Jewelry, 950 F.2d 1441,1437 (9th Cir. 1991).

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Identification of the range of activity that will be included within the
term "strip search" for purposes of this article is necessary. At a minimum,
the term refers to visual examination of the intimate surfaces of the body,
i.e., the genitals, anus, and female breasts. Such examination is, however,
often inseparable from actions of the officer or compelled actions by the
arrestee which are tied to the process. Reported accounts are replete with
often jarring descriptions of the manipulation of the genitals and buttocks
and other compelled bodily movements. 5 Visual examination may also be
accompanied by the physical penetration of the body, by either the officer
or the arrestee upon command. 6 The degree of intrusion has, of course,
been important in the assessment of Fourth Amendment reasonableness.
Moreover, the wide variety of circumstances under which strip searches
have been undertaken has not been a barrier to the emergence among the
circuits of a clear trend in their articulation of constitutional standards.
II.

THE PREVALENT TREND

In several respects, the Eleventh Circuit's opinion in Evans highlighted
a number of significant and frequent aspects of the prevalent treatment of
the subject. Characteristically, while purporting to impose restraints upon
the police with the articulation of its standards, the court assumed that the
issue was adequately addressed by its discussion of requirements which
may be imposed upon permissible warrantless searches of the person. The
warrant requirement was not explored. The allegations before the court
also reflected the types of issues that might arise concerning potential abuse
in the area. Moreover, in the context of a civil rights action and a
defendant's claim of qualified immunity, the court addressed the question
of whether its standard for the initiation of a properly conducted strip search
of an arrestee was clearly established at the time of the search. With Evans
and the other cases discussed in this article, it is important to emphasize that
the courts recounted and evaluated plaintiffs' allegations and not proven
fact.

5. See, e.g., Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1267 Oth Cir. 1983) (involving a strip search policy that required bending and squatting); Way v. County of Ventura, 445
F.3d 1157, 1158-59 (9th Cir. 2006) (discussing a policy allegedly requiring an arrestee's compelled manipulation of genitalia). See generally M. Margaret McKeown, Strip Searches Are Alive
and Well in America, 12 HUM. RTS. 37, 38 (1984-1985) (describing strip searches and what they
entail); John Gibeaut, Markedfor Humiliation, 85 A.B.A. J. 46, 46-47 (1999) (discussing claims
or allegations of strip searches).
6. See, e.g., Amaechi v. West, 237 F.3d 356,361 (4th Cir. 2001) (involving an allegation of
vaginal penetration by an officer); Kennedy v. L.A. Police Dep't, 901 F.2d 702, 711-12 (9th Cir.
1989) (involving an allegation of compelled vaginal and anal penetration by arrestee).

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Peter Evans and Detree Jordan filed an action under 48 U.S.C. § 1983,
charging that their Fourth Amendment rights were violated by strip
searches on January 22, 1999. 7 They alleged the following, which was
discussed in the Eleventh Circuit's en banc opinion 8 and assumed by the
court to be accurate upon its review of the denial of defendant's motion for
summary judgment: 9 Evans and Jordan were male African-American
students or former students at Georgia Southern University in Statesboro. 10
They were both in their early and mid-twenties, and while driving a rental
car at night from Atlanta to Statesboro they became lost and found themselves on Interstate 85 instead of Interstate 75. 11 Attempting to return to
that route, Evans drove through the city of Zebulon, Georgia, where the car
was stopped by a white male officer, Denis Stephens, for driving 72 miles
per hour in a 45 miles per hour zone. 12 The stop was recorded by the
officer's video camera, and as Stephens approached the car an officer from
the City of Concord arrived. 13 Officer Stephens, who believed that Evans
had been driving while intoxicated, ordered him to step out of the car and
searched his pockets. 14 Evans denied committing the offense, and Stephens
claimed that he found a beer bottle top in a pocket, although he did not
show it to the recording camera.t 5 Evans denied the top's existence. 16
While Evans was at the rear of his car, Officer Stephens obtained
Jordan's drivers license and asked him to step out of the vehicle. 17
Stephens then received Evans' permission to search the vehicle, and did so
for about five minutes. 18 While Officer Stephens stated that he discovered

7. Evans, 407 F.3d at 1277; see Evans v. City of Zebulon, 351 F.3d 485, 487 (II th Cir.
2003) (panel opinion), vacated, 364 F.3d 1298 (lith Cir. 2004) (involving an action by the
arrestees in Evans v. Stephens against the City of Zebulon for the same incident). The action had
initially alleged the violation of the Fourth, Fifth and Fourteenth Amendments, as well as Title VII
of the 1965 Civil Rights Act, but the claims were narrowed to those based upon the Fourth
Amendment. Evans, 407 F.3d at 1277.
8. See Zebulon, 351 F.3d at 487-89 (providing additional details of Evans and Jordan's
accounts).
9. The court "accept[s] the nonmovant's version of the events when reviewing a decision on
summary judgment." Evans, 407 F.3d at 1278. Consequently, when the opinion cited allegations
by Evans or Jordan which were contradicted by the defendant officer, the opinion credited the
plaintiffs' versions. [d.
10. [d. at 1275.
I I.
12.
13.
14.
15.
16.
17.
18.

[d.
[d.
[d.
[d.
[d.
/d.
[d.
[d. at 1275-76.

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an open container of alcohol, Evans denied the item's existence. 19 Although the officer usually showed such containers to the video camera, he
did not do so in this instance. 2o A third officer from the county sheriff's
office had by then joined the group,21
Officer Stephens charged Evans with speeding, read him the Georgia
Implied Consent Law, and asked if Evans would consent to a breathalyzer
test,22 When Evans stated that he wanted to call his lawyer, Officer
Stephens placed him under arrest,23 Evans repeated the request and received the same response. 24 Evans was then charged with "D.U.1. refusal"
and speeding and was placed in the patrol car,25 The court noted that at
Officer Stephens' deposition he stated that Evans had "alcohol on his
breath, bloodshot eyes, and an unstable demeanor. "26 By radio, Officer
Stephens then requested a check for outstanding warrants against Jordan. 27
The dispatcher replied that an arrest warrant was outstanding against a
"Detre Jordan" who had Plaintiff Jordan's date of birth,28 Officer Stephens
then placed Jordan under arrest, searched his pockets, and said that he
would release Jordan if the warrant was not for him. 29 During the subsequent litigation, the parties agreed that the warrant was for someone other
than Plaintiff Jordan,3o The officers searched the car and surrounding area
for about seven minutes before a tow truck arrived, and found nothing,31
Evans and Jordan were driven to the Pike County Jail,32 On the way,
Jordan continued to protest that the warrant was not for him and requested a
phone call,33 Both arrestees stated that Officer Stephens said "he is the
judge and jury in Zebulon and that he decides who can make phone calls."34
Evans recalled the officer stating that he would "send you niggers away for
a long time."35 The arrestees were patted down before entering the county

19. Jd. at 1276.
Jd.
Jd. at 1276 n.2.
Jd. at 1276.
Jd.
Jd.
Jd.
Jd.
Jd.

20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.

/d.
Jd.
Jd. at 1276 n.3.
Jd. at 1276.
Jd.
Jd.
Jd.
Jd.

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jail building. 36 The jailer on duty was informed of the charges, and after
reviewing the report about the subject of the arrest warrant, he concluded
that it was not Plaintiff Jordan and encouraged Officer Stephens to release
him,37
It was further alleged that Officer Stephens "became angry and walked
Jordan to a room that appeared to be a supply closet or mop storage
room."38 Plaintiffs alleged the following sequence of events: Officer
Stephens then used "racist language," and required Jordan to place his
hands on the wall, and had him remove his shirt and shoes,39 After Jordan
complied, Officer Stephens ordered him to take off his remaining c1othes.40
When Jordan was asked to remove his underwear, Jordan protested, turned
and stated that Officer Stephens had the wrong person. 41 Jordan stated that
Officer Stephens then placed him in a chokehold and held Jordan against
the wall until he began to gag. 42 Jordan again faced the wall, and stated that
Evans was thrown into the room against him, causing them both to fall. 43
Jordan attempted to stand and was hit on his side by Officer Stephens with
a baton-like, cold, black, cylindrical object. 44
Plaintiffs also alleged that after Evans was in the room, Officer
Stephens again ordered Jordan to remove his underwear. 45 "According to
Jordan, after Officer Stephens-in Evans's presence-pulled Jordan's
underwear to his ankles, Officer Stephens used the same 'cold black' object
to separate Jordan's butt cheeks and 'stuck [it] in [his] anus."'46 Evans
testified that Officer Stephens then turned to him, and told Evans "to
remove his underwear and then-in Jordan's presence-placed 'the [same]
stick in [my] ass. "'47 Evans testified that Stephens then used the same
baton to lift Evans' and Jordan's testicles and did not wipe or clean the
baton during the search. 48

36.
37.
38.
39.
40.

Id.
Id.
Id.
Id.
Id.
41. Id.
42. Id. Evans testified that the chokehold occurred later, after Evans was in the room. Id. at
1276 n.4.
43. Id. at 1276.
44. Id. at 1276-77, 1277 n.5.
45. Id. at 1277.
46. Id.
47. Id.
48. Id. See Evans v. City of Zebulon, 351 F.3d 485, 489 n.7 (11th Cir. 2003) (panel
opinion), vacated, 364 F.3d 1298 (II th Cir. 2004) (providing more details of the plaintiffs'
accounts of the incident).

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Plaintiffs stated that during this period, Stephens "taunted both Plaintiffs with laughter, racist language and threats of prison."49 Plaintiffs also
stated that after the search, they were required to dress quickly, were
handcuffed to the bench in front of the jailer, and were then placed with the
general jail population for the night. 5o Officer Stephens denied the arrestees' account, stating that while he asked them to remove their clothing in a
trustee cell, he did not touch or taunt them. 51 Officer Stephens later testified that the search for drugs was appropriate because "he had reasonable
suspicion that Plaintiffs had drugs based on their demeanor (nervousness at
the roadside stop) and their story of being lost," and he stated that their
possession of a rental car contributed to his suspicion.52
The federal district court denied Officer Stephens' motion for summary
judgment with respect to the claims that the searches had been conducted
without reasonable suspicion and in an unconstitutional manner. 53 It also
held that Officer Stephens was not entitled to qualified immunity on either
claim. 54 On appeal, a panel of the Court of Appeals analyzed the searches
under the standards it perceived to be applicable for arrestees "who are to
be detained in the general jail population,"55 and found that the alleged
searches were unconstitutional, both with respect to the basis for their
initiation and the manner in which they were allegedly conducted. 56 Nevertheless, the panel found that Officer Stephens was entitled to qualified
immunity on both claims, stating that on January 22, 1999, the law was not
clearly established that "reasonable suspicion was required to conduct a
strip search or body cavity search of an arrestee detained in the general jail
population,"57 and there were "no materially similar precedents that

49. Evans, 407 F.3d at 1277. The earlier panel opinion referenced Jordan's statement in his
deposition that Stephens was "saying comments like I am going to send you boys to prison, y'all
are going to get butt fucked up the ass. I am going to send y'all up the road for a long time, boy."
Zebulon, 351 F.3d at 489 n.8. Evans testified that Stephens was "saying you better get used to
this, this is how it is in the big house, this is where you getting ready to go. Somebody is going to
be butt fucking you for the next 20 years, all because you got a smart mouth." !d.
50. Evans, 407 F.3d at 1277.
51. [d. at 1277 n.6.
52. Id at 1277, 1280.
53. [d. at 1277. The district court granted the motion for summary judgment of the other two
defendants, the City of Zebulon and the Chief of the Zebulon Police Department, and granted
Stephens' motion with respect to the claim that there was no probable cause for the arrests.
Zebulon, 351 F.3d at 489-90.
54. Evans, 407 F.3d at 1277.
55. Zebulon, 351 F.3d at 490.
56. [d. at 490-93.
57. !d. at 492.

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provided Stephens fair warning of the unconstitutionality" of the manner in
which the searches were performed. 58
After vacating the panel's decision and rehearing the appeal en banc,
the Eleventh Circuit concluded:
[O]n reflection, this case provides no opportunity to decide the
question of when jailers (for security and safety purposes) may
lawfully conduct strip searches of persons about to become inmates in the general jail population. This case raises no questions
about the necessities of jail administration. This case involves a
different kind of search altogether: a post-arrest investigatory strip
search by the police looking for evidence (and not weapons).
Officer Stephens-who was not a jailer-testified (without
contradiction from others) that he strip-searched Plaintiffs because
he (as the arresting officer) believed them to be in possession of
illegal drugs: the search was part of a criminal investigation
looking for evidence. 59
The court examined plaintiffs' constitutional claims separately. First,
it examined whether the Fourth Amendment required reasonable suspicion
for the initiation of such a "post-arrest investigatory" strip search. 60 Secondly, it discussed whether the manner of the alleged searches was constitutionally reasonable. 61 With regard to the former, the court noted that the
Supreme Court never explicitly addressed the requirements for such a
search away from the context of the nation's borders and jail administration. 62 Succinctly stating that it was balancing "the need for investigative
strip searches for evidence that might be hidden on the arrestee's body

58. Id. at 494. Zebulon observed that Hope v. Pelzer entitled an official to "qualified
immunity for liability arising out of his discretionary actions unless those actions violated a
clearly established federal right of which a reasonable person would have known." Id. at 490.
The court recalled Hope had stated that "the salient question ... is whether the state of the law ...
[at the relevant time] gave the ... [officers] fair warning" that their alleged action was
unconstitutional. Id. (quoting Hope, 536 U.S. at 741). The panel added that in the Eleventh
Circuit "[o]nly decisions of the Supreme Court, the Eleventh Circuit, and the highest court of the
relevant state clearly establish the law for purposes of qualified immunity." Id. at 494 n.15.
Judge Propst dissented on the issue of qualified immunity with respect to the manner in which the
search was conducted. Id. at 497-99 (Probst, J., dissenting).
59. Evans, 407 F.3d at 1279 (internal citations omitted). The court added that the issue here
involved such a search "away from the complicated context of the nation's borders." ld.
60. Id. at 1278.
61. Id.
62. Id. at 1279. The court listed several cases which "provide guidance," briefly discussing
only Bell v. Wolfish. ld. The cases cited were: Maryland v. Buie, 494 U.S. 325 (1990); Bell v.
Wolfish, 441 U.S. 520 (1979); United States v. Edwards, 415 U.S. 800 (1974); United States v.
Robinson, 414 U.S. 218 (1973); and Gustafson v. Florida, 414 U.S. 260 (1973). Id.

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against the intrusiveness inherent in a strip search,"63 the court concluded
that Maryland v. Buie 64 provided "the analytical framework that, at a
minimum, would apply to strip searches for evidence."65 The court
observed that, in Buie, the Supreme Court had permitted "a post-arrest
protective sweep search of the arrestee's house,"66 concluding that
"searches of property incident to arrest must be justified by 'articulable
facts which, taken together with the rational inferences from those facts,
would warrant a reasonably prudent officer in believing' the search was
necessary."67 The Court of Appeals added:
Put differently, we are confident that an officer must have at least
a reasonable suspicion that the strip search is necessary for evidentiary reasons. Perhaps the actual standard is higher than reasonable suspicion, especially where, as here, the search includes
touching genitalia and penetrating anuses. But because Officer
Stephens-in the light of the supposed facts-did not meet even
the minimum possible standard of reasonable suspicion, we need
not decide if the actual standard is something even higher to
decide whether Officer Stephens failed to comply with the
Constitution.68
The court observed that the existence of reasonable suspicion is to be
measured from the view of a reasonable officer under the totality of the
circumstances. 69 In the instant case, Officer Stephens' assertion that the
arrestees' nervousness, their story about being lost, and their use of a rental
car did not constitute a sufficient basis for establishing a reasonable suspicion that they possessed drugs.7 0 The court stated that they had not been

63. Evans, 407 F.3d at 1279.
64. 494 U.S. 325 (1990).
65. Evans, 407 F.3d at 1279 (emphasis in original).
66. ld.
67. ld. (quoting Buie, 494 U.S. at 334). In Buie, to protect arresting officers against assaults
by criminal confederates, the Supreme Court authorized a two-stage sweep of premises incident to
arrest. Buie, 494 U.S. at 336-37. Without probable cause or reasonable suspicion, the area
immediately adjacent to the place of arrest may be subjected to a brief examination of those places
"from which an attack could be immediately launched." ld. at 334. The Court continued, "Beyond that ... we hold that there must be articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably prudent officer in believing that the area
to be swept harbors an individual posing a danger to those on the arrest scene." ld. In Evans. the
court noted that Buie had relied upon Terry v. Ohio, 392 U.S. I (1968). Evans, 407 F.3d at 1279.
68. Evans, 407 F.3d at 1279-80 (internal citations omitted). The court emphasized that this
standard did not apply to strip searches for other purposes, such as searches of arrestees bound for
a jail's general population or a search by officers for weapons which might pose a threat. ld. at
1279 n.8.
69. /d. at 1280.
70. /d.

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arrested for drug-related offenses and added that, even if there had been an
initial suspicion of drugs, "the strength of that suspicion was undermined by
other events before the strip search got started."71 The plaintiffs' car had
been searched for over ten minutes and the surrounding area examined, and
the police found nothing remotely relating to drugs,72 Stephens had
checked plaintiffs' pockets, twice patted them down, and discovered
nothing,73 The plaintiffs were never observed attempting to hide items on
their persons,74 The court therefore concluded that the alleged action
"violated Plaintiffs' right to be free from an unreasonable search when he
performed an investigatory strip search for drugs."75
While it concluded that the alleged initiation of the search violated
Evans' and Jordan's Fourth Amendment rights, the court found that Officer
Stephens was protected by qualified immunity, which "shields public
officers from liability so long as the transgressed right, given the circumstances, was not already clearly established."76 As the panel opinion noted,
the issue was one of notice to a reasonable officer, and the en banc opinion
cited the Eleventh Circuit's formulation of the inquiry as follows: "The
applicable law is clearly established if the 'preexisting law dictates, that is,
truly compel[s],' the conclusion for all reasonable, similarly situated public
officials that what Defendant was doing violated Plaintiffs' federal rights in
the circumstances."77 The court observed that, "[i]n rare circumstances, a
'right may be so clear from the text of the Constitution or federal statute
that no prior decision is necessary to give clear notice of it to an official, "'78
but it added that in 1999, a post-arrest investigatory strip search "did not
obviously violate the Fourth Amendment" or applicable precedents. 79 In
light of the Eleventh Circuit's stringent focus on the clarity of precedent,
the court's reluctance in Evans to explore the precise parameters of the
appropriate constitutional standard for the permissible initiation of a "postarrest investigatory" strip search may have obvious ramifications in future
cases involving qualified immunity claims. Nevertheless, as will be
discussed, the court's conclusion that, "at a minimum," reasonable

71. [d.
72. /d.
73. [d.
74. [d.
75. [d.
76. [d. at 1282.
77. [d. (quoting Marsh v. Butler County, 268 F.3d 1014, 1031 (11th Cir. 2001) (en banc)
(citation omitted)).
.
78. [d. (quoting Rowe v. Ft. Lauderdale, 279 F.3d 1271, 1280 n.1O (II th Cir. 2002)).
79. [d. at 1282-83. Judge Barkett dissented with regard to this finding of qualified immunity.
[d. at 1295-97 (Barkett, J., concurring in part and dissenting in part).

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suspicion is required, parallels the conclusions of a significant number of
other circuits.
With regard to the plaintiffs' second Fourth Amendment claim, the
court found that, upon the plaintiffs' account of the events, their rights were
violated by the manner of the alleged searches, and Officer Stephens had no
protection of qualified immunity on the issue. 8o Once again, "taking the
facts most favorable to Plaintiffs' version,"81 the court characterized the
manner of the alleged searches as "disturbing" and "degrading."82
Reviewing specific aspects of the allegations and recalling the Fourth
Amendment's requirement that a search be performed in a reasonable
manner, the court noted that plaintiffs asserted that with "[l]ittle respect for
privacy" they had been "taken to and searched in an abnormal place (thus,
capable of exciting more fear)" and that each was allegedly "forced to
disrobe, ridiculed, and penetrated by an object in front of the other. "83 The
court characterized the alleged force as unnecessary, and stated that "[i]t
matter[ed] that a body cavity search was undertaken."84 In its review of the
allegations, the court found "highly unsanitary" the claimed insertion of the
same uncleaned baton or club into each arrestee's anus and subsequent use
of the still uncleaned item to lift each man's testicles. 85 It also found the
alleged "terrifying,"86 "threatening and racist language"87 to contribute to
the unreasonableness of the searches. 88 Officer Stephens had no protection
of qualified immunity with regard to the claim concerning the manner of
the searches, because the text of the Fourth Amendment itself, which
prohibits "unreasonable searches," provided him sufficient notice. 89 "Every
objectively reasonable officer would have known that, when conducting a
strip search, it is unreasonable to do so in the manner demonstrated by the
sum of the facts alleged by Plaintiffs."9o
With regard to the initiation of a strip search incident to arrest, the most
basic assumption upon which Evans' analysis rests remained unexplored in
the opinion.
United States v. Robinson,91 the cornerstone for the

80. [d. at
81. [d. at
82. [d. at
83. [d. at
84.
85.
86.
87.
88.
89.
90.
91.

1281, 1283.
1281.
1281, 1283.
1281.

[d.
[d.
[d. at 1282.
[d. at 1281.
[d. at 1282.
[d. at 1283.
[d.
414 U.S. 218 (1973).

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proposition that the search of the person of an arrestee may proceed without
a warrant, was cited without discussion. 92 The Evans court made no mention of any potential applicability of the warrant requirement to a "postarrest investigatory" strip search, and one can only conclude that the court
found that issue to be sufficiently settled by Robinson and its progeny.93
But was it? Although the opinions addressing such strip searches in some
of the other circuits have also neglected the matter of the warrant
requirement, they have nevertheless often found it appropriate to discuss
the reach of Robinson and its consideration of the interests of an arrestee in
the integrity of his or her person.
In Robinson, the defendant had been arrested for driving after the
revocation of his driver's permit, and, following a frisk which had detected
an unidentifiable object, the arresting officer had retrieved and examined a
crumpled cigarette package from Robinson's left breast pocket. 94 Robinson
was convicted for possession of the heroin found in the package, and the
Court held that the fact of the lawful arrest had authorized a warrantless
"full search" of the arrestee's person without the need for a preliminary
limited frisk.95 Such a search of the person was justified by the need to
protect the police from any concealed weapon, which might pose a threat
during the prolonged personal contact of an arrest, and by the need to
prevent the destruction of evidence. 96 Rather than requiring the case-bycase assessment of the facts that had characterized the doctrine permitting a
limited frisk for weapons under Terry v. Ohio,97 the Court stated that police
needed "no additional justification" apart from the fact of the lawful
arrest. 98 The bright-line character of this approach, designed to provide the
police with a clear rule protecting officer safety, has continued to characterize Robinson searches of the person incident to arrest. 99
In Swain v. Spinney,100 the Court of Appeals for the First Circuit
encountered the issue of strip searches incident to arrest in the context of a
suit under 42 U.S.c. § 1983 and a Massachusetts statute,101 which alleged a

92. See Evans, 407 F.3d at 1279.
93. See id.
94. Robinson, 414 U.S. at 221-23.
95. /d. at 234-35.
96. Id. at 233-34.
97. 392 U.S. I (1968).
98. Robinson, 414 U.S. at 235.
99. See generally Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On
Drawing "Bright Lines" and "Good Faith," 43 U. PITT. L. REV. 307,322-23 (1982) (discussing
the Court's use of a bright-line rule in Robinson).
100. 117 F.3d I (1st Cir. 1997).
101. Swain, 117 F.3d at 5; MASS. GEN. LAWS ch. 12 §§ IIH, III (1979).

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violation of the Fourth Amendment and the Constitution of Massachusetts. 102 Reviewing a grant of summary judgment for the defendants, 103
the court set forth and addressed the following allegations by the plaintiff:
On the morning of May 18, 1993, Kalli Swain and her boyfriend,
Christopher Milbury, had been looking for an apartment around Danvers,
Massachusetts when Milbury told her that he wished to stop at Moynihan
Lumber for some items. 104 Milbury entered the store while Swain remained
in the car, and when he returned he placed a bag behind the seat.1 05 As they
started to leave the parking area, Swain saw store employees pointing at
their car and saw a police car pulling into the 10t. 106 Swain "became very
upset [and] [s]he began questioning Milbury about what was going on."107
The police car followed them and pulled their car over. 108
As Officer Robert Marchionda approached the car, Milbury stepped
out and was soon handcuffed. 109 Swain then left the vehicle, dropping a
bag of marijuana on the grass about three feet away from the car,110 The
officer saw her do so, but at that time could not identify the item. I I I Officer
Marchionda radioed for backup, and another officer arrived. 112 Swain
approached the officers, asking "what was going on," but was stopped and
told that Milbury was suspected of theft from the lumber store. 1I3 Officer
Marchionda then arrested Swain and handcuffed her. 114 While he was
doing so, Officer Marchionda identified the object she had dropped as a
"baggie" containing marijuana and retained it. 115 Swain was frisked and
nothing was found on her. I 16
In the trunk of the car, the officers found $400 worth of hardware
which had been taken from another store, and under the front seat they
discovered $400 worth of sawblades wrapped in a hardware flyer. I 17 Swain

102.
103.
104.
105.
106.
107.
108.
109.
110.

Swain, I I7 F.3d at 3,11-12.

[d. at 2.
[d.
[d.
[d. at 2-3.
[d. at 3.
[d.
[d.
[d.

111. [d.
112. [d.
113.
114.
115.
116.
117.

[d.

[d.
[d.
[d.
[d.

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was surprised to see the sawblades. 118 When the police accused her of
being an accomplice, she reiterated that she knew nothing about the theft,
and Milbury told the police that she was innocent.1 19 The officers did not
ask her about the marijuana, and she did not know if they were aware of
it. 12o After Swain and Milbury were taken to the North Reading police
station, Swain's handcuffs were removed and she was seated at a booking
desk, where she signed a rights card.I 21 The police chief's secretary,
Matron Laura Spinney, was called to the desk because of Swain's gender. 122 Swain asked to go to the bathroom, and Matron Spinney escorted
her but did not enter the room. 123 Spinney remained outside with the door
ajar. 124 When Swain returned to the booking area, she "was told that she
could make a phone call."125 She did so in an office and spoke with her
attomey.126 Swain's pocketbook was searched after her return to the
booking area, and cigarette rolling papers were discovered. 127 While no
one discussed those papers with Swain, she was told that marijuana had
been found earlier and that she would be charged. 128 She denied that the
marijuana was hers. 129 At some point, Milbury claimed its ownership. 130
Plaintiff further alleged the following sequence of events: After Swain
was fingerprinted and photographed, Sergeant Ed Hayes, the detective
department supervisor, ordered Matron Spinney to escort Swain to a cell. 131
Spinney frisked Swain before doing so and found nothing.I 32 Swain was
left alone in the cell, and alleged that after about twenty minutes, Hayes
entered and for another period of about fifteen minutes "attempted to
question [Swain] about Milbury's criminal activities. Hayes yelled at
Swain, telling her that she was lying. . .. Swain, who was crying hysterically, kept repeating that she honestly knew nothing."133 Hayes allegedly

118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.
129.
130.
131.
132.
133.

[d.
[d.
[d.
[d.
/d.
[d.
[d.
[d.
[d.
[d.
[d.
[d.
See id. at 9.
[d.at3.
[d.
/d.

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"walked out in a huff."134 Five to ten minutes later, Spinney returned and
"apologetically informed Swain that Hayes had ordered her to strip search
Swain."135 Spinney did not know whether the strip search was ordered
before or after Hayes spoke with Swain. 136 Swain, who did not understand
why she was being searched, began to cry again. 137 She was told by
Spinney that the video camera in the cell was turned off. 138 Spinney
allegedly ordered Swain "to remove all of her clothing except for her bra.
Spinney shook out each item as Swain took it off. Spinney then made
Swain bend over and spread her buttocks. Swain was very upset and
shaking uncontrollably the entire time."139 Nothing was found during the
fifteen-minute procedure. 140
The court also recounted Hayes's version of the events. He stated that
he ordered Swain's strip search immediately upon his arrival at the booking
desk, and, he believed, before he spoke with her. 141 Spinney had not been
told what to look for, but assumed that she was looking for drugs because
she was aware that marijuana had been found earlier at the scene. 142 Both
Hayes and Spinney stated that they were unaware that the town of North
Reading had a policy with regard to strip searches,143 and Hayes testified
that he ordered the strip searches "whenever narcotics were involved in the
case."l44 Having examined Milbury's record during booking, Hayes had
known that he had a history of drug convictions and was on probation. 145

134. [d. In his testimony, Hayes stated that he only remained with Swain for about a minute
and did not recall what was said. [d. at 3-4. Milbury, who was in another cell, stated that he
heard Hayes talking to Swain and heard her crying and maintaining her innocence. [d. at 4.
135. [d. at 4.
136. [d. Spinney stated that the order came "almost immediately" after she brought Swain to
the cell, rather than a "significant" time later. /d.
137.
138.
139.
140.
141.

[d.
[d. Spinney did not recall discussing the camera with Swain. [d.
[d.
[d.
[d. In addition to testifying that he ordered the search because of his practice con-

cerning drug arrests, Hayes stated that he suspected Swain of carrying a concealed weapon,
"although he acknowledge[d] that this was a generalized suspicion of narcotics suspects, rather
than a suspicion based on any characteristics of Swain." [d.
142. [d.
143. [d. at 5. While the town's written policy stated that a strip search of an arrestee was

warranted "only if the police have probable cause to believe the arrestee is concealing contraband
or weapons on his body," and the Municipal Police Institute's policies (allegedly adhered to by
North Reading) required "reasonable suspicion," the town police chief testified that all arrestees
were strip searched "in any arrest involving drugs." [d. at 4, 5.
144. [d. at 5.
145. /d. at 4.

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Milbury was not strip-searched. 146 Swain had no prior convictions. 147 The
charges against Swain were later nol prossed.t 48
Swain's action was filed against Spinney, Hayes and the town of North
Reading, and on defendants' motion for summary judgment the district
court found no violation of her federal or state constitutional rights and that,
in any event, the individual defendants were entitled to qualified immunity.149 The town's motion was granted on the ground that the standards for
municipal liability under 42 U.S.C. § 1983 had not been met. 150 On appeal,
Swain argued that probable cause was necessary for the strip search of an
arrestee.l 51
The First Circuit held that Swain's allegations had stated a sufficient
claim against the individual defendants, and that "[a] strip and visual body
cavity search of an arrestee must be justified, at the least, by a reasonable
suspicion."152 The court added that, although this standard was clearly
established at the time of the search, it was not possible to resolve the
immunity issue on summary judgment because of significant factual
disputes. 153
The court's discussion of the appropriate standard began with a
quotation of Robinson's observation that "[i]n the case of a lawful custodial
arrest[,] a full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a 'reasonable' search
under that Amendment." 154 As a result, if an arrest is lawful an officer does
not need any additional justification to perform a full body search of an arrestee. 155 The court also observed that, under United States v. Edwards,156
a search incident to arrest need not occur at the arrest scene, but may later

146.
147.
148.
149.
150.
151.
152.
153.

[d.
[d.
/d. at 2.
[d. at 5.
[d. This aspect of the district court's ruling was affirmed on appeal. [d. at II.
[d. at 5.
[d.
See id. at 5. The court stated that factual issues such as the timing of the search must be

resolved by the trier of fact before it could be determined whether the defendants' conduct was
objectively reasonable. [d. at 10. In addition, "further resolution of the facts [was] necessary to
determine whether or not this case falls into the category of 'close cases' in which the police are
accorded 'a fairly wide zone of protection.'" [d. (quoting Roy v. Inhabitants of Lewiston, 42 F.3d
691,695 (1st Cir. 1994».
154. [d. at 5 (quoting United States v. Robinson, 414 U.S. 218, 235 (1973».
155. [d. at 5-6.
156. 415 U.S. 800 (1974).

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be conducted upon the arrestee's arrival "at the place of detention."157 It
added, "[h]owever, Robinson did not hold that all possible searches of an
arrestee's body are automatically permissible as a search incident to arrest.
To the contrary, any such search must still be reasonable ...."158 The court
noted Edwards' observation that "[h]olding the Warrant Clause inapplicable to the circumstances present here does not leave law enforcement
officials subject to no restraints. This type of police conduct 'must [still] be
tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.'''159 Most significantly, the court observed that
in Robinson, the Supreme Court had noted that the search involved "did not
have 'extreme or patently abusive characteristics.'''l60 The First Circuit
therefore observed that '''Robinson simply did not authorize' a strip and
visual body cavity search." 161 Accordingly, such a search requires "independent analysis under the Fourth Amendment." 162
The court then went on to discuss the approach of Bell v. Wolfish,163 in
which the Supreme Court permitted "a prison policy that required arraigned
pre-trial detainees to 'expose their body cavities for visual inspection as a
part of a strip search conducted after every contact visit with a person from
outside the institution.'''l64 The First Circuit noted that in Wolfish, the
Supreme Court had stated that the practice "instinctively [gave] the Court
'the most pause,"'165 and its analysis required "a balancing of the need for
the particular search against the invasion of personal rights that the search
entails. 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."166
157. Swain, 117 F.3d at 6 (quoting Edwards, 415 U.S. at 803). In Edwards, the Court permitted the search of an arrestee's clothing at the stationhouse ten hours after he had been placed
under arrest. Edwards, 415 U.S. at 803-08.
158. Swain, 117 F.3d at 6.
159. [d. (quoting Edwards, 415 U.S. at 808 n.9). The court added that later, in Illinois v.
Lafayette, the Supreme Court explicitly stated that neither Edwards nor Lafayette addressed "the
circumstances in which a strip search of an arrestee mayor may not be appropriate." Swain, 117
F.3d at 6. See Illinois v. Lafayette, 462 U.S. 640,646 n.2 (1983) (permitting the inventory search
of an arrestee's shoulder bag).
160. [d. (quoting United States v. Robinson, 414 U.S. 218, 236 (1973». In Robinson, the
Court observed that "[w]hile thorough, the search partook of none of the extreme or patently
abusive characteristics which were held to violate the Due Process Clause of the Fourteenth
Amendment in Rochin v. California, 342 U.S. 165 (1952)." Robinson, 414 U.S. at 236.
161. Swain, 117 F.3d at 6 (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th CiT.
1991».
162. [d.
163. 441 U.S. 520 (1979).
164. Swain, 117 F.3d at 6 (quoting Wolfish, 441 U.S. at 558).
165. [d. (quoting Wolfish, 441 U.S. at 559).
166. [d. (quoting Wolfish, 441 U.S. at 559).

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In Swain, the court further observed that Wolfish did not "read out of
the Constitution" the generally applicable requirement "that a search be
justified as reasonable under the circumstances."167 Applying the "Wolfish
balancing test" to the case before it, the court observed that it had judicially
acknowledged that visual body cavity searches "impinge seriously upon the
values that the Fourth Amendment was meant to protect."168 An arrestee is
required "not only to strip naked in front of a stranger, but also to expose
the most private areas of her body to others."169 "This is often ... done
while the person arrested is required to assume degrading and humiliating
positions."170 The court noted that the First Circuit had previously described such interference with a person's privacy as "severe if not gross,"171
and "an offense to the dignity of the individual."172 The court also quoted
the Seventh Circuit's statement in Mary Beth G. v. City of Chicago,173
discussed below,174 where it had cited both the "demeaning" and "dehumanizing" characteristics of visual body cavity searches and the "degradation and submission" they entail. 175 Wolfish's balancing approach also
required that law enforcement's legitimate needs be considered by the
court, as was the imperative of institutional security in that case. 176 The
First Circuit acknowledged that some other courts have held that "the need
to discover and preserve concealed evidence of a crime" may justify a warrantless strip search. 177 In light of these concerns, the court held that a strip
and visual body cavity search of an arrestee "must be justified by at least a
reasonable suspicion that the arrestee is concealing contraband or
weapons." 178
With regard to the allegations before it, viewing them in the light most
favorable to the plaintiff, the court found that Swain brought a "trialworthy
claim under 42 V.S.c. § 1983."179 The court stated that on the facts alleged

167. [d. (quoting Weber v. Dell, 804 F.2d 796, 800 (2d Cir. 1986), cert denied sub nom.
County of Monroe v. Weber, 483 U.S. 1020 (1987».
168. [d.
169. /d.
170. [d.
171. [d. (quoting Arruda v. Fair, 710F.2d 886, 887 (1st Cir. 1983), cert. denied, 464 U.S.
999 (1983».
172. [d. (quoting Wood v. Clemons, 89 F.3d 922, 928 (I st Cir. 1996».
173. 723 F.2d 1263 (7th Cir. 1983).
174. See infra notes 197-252 and accompanying text.
175. Swain. 117 F.3d at 6-7 (quoting Mary Beth G., 723 F.2d at 1272 (internal quotation
marks omitted».
176. [d. at 7.
177. [d.
178. /d.
179. [d. at 8.

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"there appears to be the distinct possibility that Officer Hayes ordered the
strip search in retaliation for his failed interrogation of Swain in her cell,
imposing sexual humiliation on her as a punishment for what he perceived
as her non-cooperation."18o The court said that such an inference was
raised by Hayes's alleged anger after their conversation and by the timing
of the search.'81 It then proceeded to discuss whether "an objective officer
would have had a reasonable suspicion that Swain was concealing drugs or
contraband on her person."182 The court stated that three factors reflected
the inadequacy of any grounds for that conclusion. The first factor was the
timing of the search, which was significant in several respects. The search
was conducted after Swain had been alone in the cell for some time "and no
one thought it important to search her before she angered Hayes."183 The
court added, "[p]erhaps more importantly, she had been allowed to go to the
bathroom by herself, unobserved, prior to being taken to her ce11."184 This
indicated "that no one thought she had secreted drugs in her private
partS."185 If "there was any reason to believe such evidence still existed,
further delay to obtain a warrant would not have significantly increased the
risk of destruction," especially in light of the observation by video camera
in the cell.'86 Second, as there was no risk of contact with other prisoners,
or that Swain would "be able to smuggle contraband into a secure environment," the institutional security justification appeared to be absent. 187 As a
third factor, the court cited the "differential treatment" by the police of
Swain and Milbury.188 The two had been stopped because of the latter's
shoplifting, and Hayes knew of Milbury's probation and drug convictions. 189 Swain, in contrast, had no criminal record, and Milbury "had told
the officers, including Hayes, that the marijuana was his."190 But "Milbury
was not strip searched."191 "If there was an objective basis-apart from
retaliation-for stripping Swain, it would have been objectively reasonable,
and more so, to search Milbury as well."192 While the court did observe

180.
181.
182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.

[d.
[d.
[d.
[d.
[d.
[d.

[d. (This was a rare reference to the warrant process in the opinion.)
[d.
[d.
[d. at 8-9.
[d. at 9.
[d.
[d.

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that Swain had dropped a baggie of marijuana and Hayes had expressed the
view that a strip search was appropriate in all narcotics cases,193 the court
added that the record did not reveal how much marijuana was involved or
whether possession of that quantity constituted a misdemeanor or a felony
under state law. 194 Nothing indicated that Swain was suspected of being a
drug distributor, and her possession of "some unspecified amount of marijuana is not enough to overcome, as a matter of law, the [above] factors ...
under which a jury could find the search of Swain unreasonable."195
Consequently, Swain had "stated a claim for [the] violation of her Fourth
Amendment right[s]."196
In 1983, in Mary Beth G. v. City of Chicago, the Seventh Circuit
addressed a challenge to the city's policy, existing from 1952 to 1980,
which "required a strip search and a visual inspection of the body cavities
of all women arrested and detained in the City lockups, regardless of the
charges." 197 No similar policy applied to men.t 98 The four female plaintiffs had been arrested for misdemeanors and allegedly strip searched in city
lockups "while awaiting the arrival of bail money."199 Three of the
plaintiffs filed a class action lawsuit (the "Jane Does" case),200 seeking to
establish the unconstitutionality of the policy as applied to those "detained . . . for an offense no greater than a traffic violation or a misdemeanor"201 on both Fourth Amendment and equal protection grounds, and
requesting damages and injunctive relief.202 Another, Mary Ann Tikalsky,
had sued for false arrest and excessive force as well as unlawful search. 203
In Jane Does, the parties had entered into an agreement and stipulation
before trial, settling the claims for injunctive relief but admitting no
liability.204 In fact, before that stipulation and agreement, the disclosure of
the city's policy "moved the Illinois legislature to amend the Illinois statute
193. [d. The court found Hayes's statement inconsistent with the town's policy and "belied
by his failure to strip search Milbury." [d.
194. [d.
195. [d.
196. [d. On plaintiff's state law claim, the court concluded that because the Massachusetts

Constitution provided at least the level of protection against strip and visual body cavity searches
as did the Fourth Amendment, her state law claim against the individual defendants should be
reinstated. [d. at 11-12.
197. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1266 (7th Cir. 1983).
198. [d.
199. [d.

200. [d. at 1266, 1267 n.2. See Jane Does v. City of Chicago, No. 79 C 789, 1982 U.S. Dist.
LEXIS 14417, at *1 (N.D. Ill. Jan. 12,1982).
201. Mary Beth G., 723 F.2d at 1267 n.2.
202. [d. at 1266.
203. [d. at 1267.
204. [d. at 1266.

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governing 'Rights on Arrest' to prohibit strip searches of persons arrested
for traffic, regulatory, or misdemeanor offenses" without a reasonable belief that weapons or contraband is concealed on the arrestee's person. 205 In
Jane Does, the district court granted plaintiffs' motion to sever the issues of
liability and constitutionality, and plaintiffs moved for partial summary
judgment, arguing that Chicago's policy was unconstitutional on its face. 206
The district court agreed, finding it violative of the Fourth Amendment and
the Equal Protection Clauses of the federal and Illinois constitutions. 207
The court ordered that "typical cases" be selected for trial on the issue of
damages,208 and it returned damage awards for Mary Beth G., Sharon N.
and Hinda Hoffman. 209 The city appealed both the determination that the
policy was unconstitutional and the damage awards. 210 In the civil rights
action by Mary Ann Tikalsky, a jury trial resulted in the acquittal of the
defendants of the charges of false arrest and use of excessive force, but the
plaintiff's claim of illegal search was successful and compensatory
damages were awarded. 2I I
While the court of appeals acknowledged that the "circumstances
surrounding the arrests and detentions of each of the plaintiffs-appellees ...
are not identical," each woman alleged that she had been subjected to
Chicago's strip search policy after a misdemeanor arrest. 212 Mary Beth G.
and Sharon N. had been arrested because of outstanding parking tickets. 213
Hinda Hoffman was stopped for making an illegal left tum and arrested for
failing to produce a driver's license.2 14 Mary Ann Tikalsky was arrested for
disorderly conduct. 215 The court described Chicago's policy as follows:

205.
206.
207.
208.

[d. at 1266 n.1.
[d. at 1266.
[d.
[d. The damages issue did not proceed as a class action but instead as individual trials,

since the district court found that the proposed class did not meet the requirements under FED. R.
OV. P. 23 (b)(3). [d. at 1267 n.2.
209. [d. at 1266. Mary Beth G. and Sharon N. were awarded $25,000, and Hinda Hoffman
was awarded $60,000. [d.
210. /d.
211. [d. at 1267. Mary Ann Tikalsky had initially been awarded $30,000 against the city and

an individual defendant. The district court granted judgment notwithstanding the verdict in favor
of the individual defendant. While it then ordered a new trial against the city because of the jury
instruction, the Court of Appeals reversed that judgment and ordered the verdict and award
reinstated. Tikalsky v. City of Chicago, 687 F.2d 175, 182 (7th Cir. 1982). In Mary Beth G., the
city appealed the reinstated judgment. Mary Beth G., 723 F.2d at 1267.
212.
213.
214.
215.

[d.
[d. at 1267 n.2.
/d.
/d. at 1267 n.2.

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That policy, as described by the City, required each woman placed
in the detention facilities of the Chicago Police Department and
searched by female police personnel to:
1) lift her blouse or sweater and to unhook and lift her brassiere to
allow a visual inspection of the breast area, to replace these
articles of clothing and then

2) to pull up her skirt or dress or to lower her pants and pull down

any undergarments, to squat two or three time facing the detention
aide and to bend over at the waist to permit visual inspection of the
vaginal and anal area. 216
The policy was not applied to males)l? Instead, males were thoroughly
searched by hand and strip searched only if there was reason to believe that
they had concealed weapons or contraband. 218
The court began its analysis with the terms of the Fourth Amendment
itself, with its guarantee that "[t]he right of the people to be secure in their
persons. .. against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause."219
Viewing its task as the determination of whether the city's policy was
"unreasonable under established [F]ourth [A]mendment principles,"22o the
court began with the observation that "searches of the person are generally
impermissible absent a search warrant."22I It characterized the city's
position as resting upon two "related" exceptions stemming from the arrest
process: the first permitting "warrantless searches incident to custodial
arrest;" and the second permitting "warrantless searches incident to the
detention of persons lawfully arrested."222 With regard to the latter, the
court quoted the Supreme Court's observation in Illinois v. Lafayette223 that
"the factors justifying a search of the person and personal effects of an
arrestee upon reaching a police station but prior to being placed in
confinement are somewhat different from the factors justifying an
immediate search at the time and place of arrest."224 It also observed that
the Lafayette Court considered a search at the place of detention as part of

216.
217.
218.
219.
220.
221.
222.
223.
224.

[d. at 1267.
[d. at 1268.
[d.
[d. (quoting U.S. CONST. amend. IV).
[d.
[d.
[d.

462 U.S. 640 (1983).
Mary Beth G., 723 F.2d at 1269 (quoting Lafayette, 462 U.S. at 645).

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the arrest procedure, "since 'that is no more than a continuation of the
custody inherent in the arrest status. "'225
The Seventh Circuit thus separately addressed both what it termed a
"search incident to arrest" at the scene and the search of an arrestee at the
police station,226 Examining the former, the court recalled that the exception to the warrant requirement arose "because of the need 'to remove any
weapons that [the arrestee] might seek to use in order to resist arrest or
effect his escape' and the need to prevent the concealment or destruction of
evidence. "227 The Court discussed Robinson's statement that an officer
need not assess the likelihood of these possibilities in an individual case,
"but may undertake a 'full search'" of an arrestee. 228 It observed, "[i]t is
worth noting, however, that in reaching this conclusion the Court was
concerned mainly with whether a search calculated to disarm the suspect
and to preserve evidence on the suspect's person could be undertaken, not
with the intensity of the particular search itself."229 The Court added that
Robinson "did not suggest that a person validly arrested may be subject to
any search the arresting officer feels is necessary."230 The court continued:
The majority [in Robinson] merely concluded that because each
arrest brings with it certain factors... the application of a
straightforward rule that always permits a concomitant "full
search" incident to custodial arrest aimed toward the discovery of
weapons and contraband would conclusively be presumed to be a
reasonable one. . .. Under Robinson, a "full search" is the maximum intensity of the search allowable to achieve that end, unless
specific reasons exist that justify intensifying the search. In
characterizing what constitutes a full search incident to arrest, the
Robinson Court quoted with approval language from Terry that
describes a reasonable search incident to arrest as one involving "a
relatively extensive exploration of the person[.]" ... The majority
[in Robinson] specifically noted that it would be willing to find unconstitutional a search that was "extreme or patently abusive."231

225. Id. at 1270 (quoting Lafayette, 462 U.S. at 645).
226. /d. at 1268-69.
227. Id. at 1269 (quoting Chimel v. California, 395 U.S. 752,763 (1969».
228. Id.
229. Id. (emphasis in original).
230. Id. (emphasis in original).
23 I. Id. at 1269-70 (emphasis omitted) (internal citations omitted). With regard to the
court's last statement, the quoted language of Robinson (set forth earlier at note 160), appeared as
follows: "[w]hile thorough, the search partook of none of the extreme or patently abusive
characteristics which were held to violate the Due Process Clause of the Fourteenth Amendment
in Rochin v. California, 342 U.S. 165 (1952)." Robinson, 414 U.S. at 236.

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The court concluded that "the Robinson Court simply did not contemplate
the significantly greater intrusion that occurred here."232
The Seventh Circuit's discussion of an exception to the warrant
requirement when the search of an arrestee is delayed until the stationhouse
brought it to a similar conclusion. It discussed United States v. Edwards,233
in which the Supreme Court permitted the police to exchange, search and
test the clothing of an arrestee for traces of destructible evidence after he
had been in custody for ten hours,234 and it also cited the Court's discussion
in Illinois v. Lafayette,235 in which it had permitted the inventory search of
an arrestee's shoulder bag before incarceration.23 6 The Seventh Circuit
noted that in Lafayette the Supreme Court expressly stated, "[w]e were not
addressing in Edwards, and do not discuss here, the circumstances in which
a strip search of an arrestee mayor may not be appropriate."237 The
Seventh Circuit concluded:
Indeed, the focus in Edwards, as in Robinson, once again seems to
have been on the permissible scope of searches incident to arrest;
the Court accepted the proposition that the scope of the search at
the stationhouse could be at least as broad as that at the time of the
arrest, thus approving the search of items that were on the arrestee
at the time of the arrest. 238
In the court's view, Edwards also reaffirmed "the controlling principle" that searches incident to arrest must be reasonable. 239 Examining that
issue and applying the balancing test of Wolfish,240 the court then
characterized "strip searches involving the visual inspection of the anal and
genital areas as 'demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and
submission. "'241 It continued, "[i]n short, we can think of few exercises of
authority by the state that intrude on the citizen's privacy and dignity as

232. [d. at 1271.
233. 415 U.S. 800 (1974).
234. Edwards, 415 U.S. at 800. The Court later said that it had "made clear" in Edwards that
"the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on
the street." Illinois v. Lafayette, 462 U.S. 640,645 (1983).
235. 462 U.S. 640 (1983).
236. Lafayette, 462 U.S. at 648.
237. [d. at 646 n.2. The court also found Bell v. Wolfish to be inapposite because of its
institutional context. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).
238. Mary Beth G., 723 F.2d at 1270.
239. [d.
240. Bell v. Wolfish, 441 U.S. 520 (1979). See supra notes 163-66 and accompanying text.
241. Mary Beth G., 723 F.2d. at 1272 (quoting Tinetti v. Wittke, 620 F.2d 120 (7th Cir.
1980».

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severely as the visual anal and genital searches practiced here."242 Weighed
against this intrusion was the governmental interest involved.243 The city
had asserted the need to maintain security in the lockup, and the need "was
apparently felt to be so great that women misdemeanants were strip
searched even when there was no reason to believe they were hiding weapons or contraband on their persons."244 The court found that the evidence
belied these concerns.245 The affidavits of lockup personnel, "which
lack[ed] specificity," indicated that "only a few items have been recovered
from the body cavities of women arrested on minor charges over the
years."246 The one analytical study introduced, which was conducted in
1965 and discussed the strip searches of 1800 women over a thirty-five day
period, indicated that items were taken from the body cavities of women
"charged with either prostitution (7 items), assault (l item), or a narcotics
violation (l item)."247 The court added that "[t]hese are the kinds of crimes,
unlike traffic or other minor offenses, that might give rise to a reasonable
belief that the woman arrestee was concealing an item in a body cavity."248
The court found that the evidence did not support the city's assertion "that
those dangers are created by women minor offenders entering the lockups
for short periods while awaiting bail."249 Consequently, because of their
insubstantial relationship to security needs, the searches alleged "[could]
not be considered 'reasonable. "'250 With regard to the appropriate standard
for the initiation of strip searches of arrestees, the court noted that
[t]he more intrusive the search, the closer governmental authorities
must come to demonstrating probable cause for believing that the
search will uncover the objects for which the search is being
conducted.... [W]e agree with the district court in Jane Does that
ensuring the security needs of the City by strip searching
plaintiffs-appellees was unreasonable· without a reasonable

242. Jd. The court also cited the views of Justices Marshall and Stevens in their dissenting
opinions in Wolfish: "see also [Bell v. Wolfish,] 441 U.S. at 576-77 ... (Marshall, J., dissenting)
('the body cavity searches of MCC inmates represent one of the most grievous offenses against
personal dignity, and common decency'); 441 U.S. at 594, ... (Stevens, J., dissenting) ('the bodycavity search -clearly the greatest personal indignity - may be the least justifiable measure of all
[the security practices at the institution]. ')." Jd.
243. Mary Beth G., 723 F.2d at 1272.
244. Jd.
245. Jd.
246. Jd.
247. Jd. at 1272-73.
248. Jd. at 1273.
249. Jd.
250. Jd.

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SUSpiCIOn by the authorities that either of the twin dangers of
concealing weapons or contraband existed.251
The court also found that the city's policy violated the Equal Protection
Clause. 252
The Seventh Circuit's concern about the application of a blanket strip
search policy to those arrested for minor crimes was paralleled by the later
opinion of the Fifth Circuit in Stewart v. Lubbock County.253 In terms
narrower than those employed in the discussion by the Seventh Circuit, the
Stewart court confined its focus to the strip searches of "minor offenders
awaiting bond."254 The Lubbock County jail's policy permitted the strip
search of any arrestee without regard to individualized suspicion or the
severity of the charge. 255 Arrestees for "misdemeanors punishable by fine
only" were therefore included. 256 Lubbock County conducted about 1,000
strip searches per month "before arraignment and before the arrestee had an
opportunity to arrange for bail."257 The two plaintiffs on the consolidated
appeal had sued under 42 U.S.c. § 1983 for alleged strip searches
conducted after their respective arrests for public intoxication and issuing a
bad check after a routine traffic stop.2 58 The court relied upon the analysis
in Mary Beth G. holding:
Because Lubbock County's strip search policy was applied to
minor offenders awaiting bond when no reasonable suspicion
existed that they as a category of offenders or individually might
possess weapons or contraband, under the balancing test of
Wolfish we find such searches unreasonable and the policy to be in
violation of the Fourth Amendment. 259
The Second Circuit· adopted a similar policy with regard to strip
searches of those arrested for minor offenses. A United States District
Court recently observed that the circuit "has firmly held that strip searches
of persons lawfully arrested for minor infractions (misdemeanors and
violations) must be justified by an individualized reasonable suspicion of
251. ld. (internal citations omitted).
252. ld. at 1273-74. The city failed to .demonstrate an "exceedingly persuasive justification"
for its conclusion that a difference in gender "made it necessary to strip search only women ...
and unnecessary to search the body cavities of males, which can be and occasionally are used to
conceal weapons or contraband." {d. at 1274.
253. 767 F.2d 153 (5th CiT. 1985), cert. denied, 475 U.S. 1066 (1986).
254. Lubbock, 767 F.2d at 156.
255. {d. at 154.
256. {d.
257. {d.
258. ld. at 154 n.l, 155 n.2.
259. {d. at 156-57.

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concealed weapons or contraband."26o It also acknowledged that the
Second Circuit has not "spoken directly to the appropriate test for the validity of a strip search incident to a felony arrest."261 The district court found
it appropriate to apply the "particularized reasonable suspicion test" to a
felony arrest as well. 262
The Seventh Circuit's discussion in Mary Beth G. of Chicago's
proffered analytical study, together with the court's observation that there
are "kinds of crimes ... that may give rise to a reasonable belief that [a]
woman arrestee was concealing an item in a body cavity,"263 raises a basic
question about the extent to which the inherent nature of the offense alleged
might in itself be probative. The Tenth Circuit, which has also endorsed the
view that reasonable suspicion is a necessary predicate for a strip search
incident to arrest, has addressed this issue in connection with allegations
surrounding an arrest for driving under the influence of drugs. In Foote v.
Spiegel,264 in the context of denying a defendant qualified immunity in a 42
U.S.c. § 1983 action, the court reviewed its policy.265 It was alleged that
police stopped Plaintiff Foote's car because of a suspected alteration of the
vehicle's paper temporary registration permit, and because she had been
driving slowly in the left lane. 266 While the officer's suspicion concerning
the registration proved to be groundless, his and an expert officer's observations led to their belief that Foote had been driving under the influence of
marijuana. 267 She was arrested, but was not placed in the general jail
population at the stationhouse.268 Foote alleged that she was strip searched
at the request of one of the officers, and asserted that this was pursuant to a
practice under which "[a]ll persons arrested on drug charges [were]
subjected to strip searches."269 The police found no drugs.2 7o Almost a
year earlier, that same jail's blanket policy of conducting such strip
searches had been held unconstitutional by the Tenth Circuit in Cottrell v.

260. Samicola v. County of Westchester, 229 F. Supp. 2d 259, 269 (S.D.N.Y. 2002). See
Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986), cert. denied sub nom., County of Monroe v.
Weber, 483 U.S. 1020 (applying the particularized reasonable suspicion test); Kaufman v. Rivera,
No. 98-7888, 1999 WL 197199, at *2 (2d Cir. Apr. I, 1999).
261. Sarnicola, 229 F. Supp. 2d at 270.
262. Id. at 270-75.
263. Mary Beth G., 723 F.2d at 1273.
264. 118 F.3d 1416 (10th Cir. 1997).
265. Foote, 118 F.3d at 1419.
266. Id. at 1419.
267. /d. at 1420.
268. Id. at 1420-21.
269. Id. at 1421.
270. Id.

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Kaysville City. 27 I Foote was released on bond shortly after the alleged
search and the charges were dropped after the receipt of the negative results
of a urine test. 272
Denying the officer qualified immunity, the court stated that in May,
1994, it was clearly established that "reasonable suspicion that the arrestee
has drugs or weapons hidden on his or her person" must exist before a strip
search of "a person arrested for driving while under the influence of drugs
but not placed in the general jail population."273 The court noted that,
according to the facts alleged, the police had no particularized reasons to
believe that Foote had drugs on her person. 274 She was not suspected of
smuggling, and a thorough pat-down search revealed nothing.27 5 The court
stated that while it may be reasonable to believe that a person driving under
the influence might have marijuana in a pocket container or elsewhere in
the vehicle, Foote had "no opportunity to hide anything beneath her
clothing."276 It continued, noting "the strip search could be justified only if
it were reasonable to believe persons driving while under the influence of
marijuana, who have no particular reason to expect they will be searched,
routinely carry a personal stash in a body cavity.
That belief is
unreasonable. "277
In a 1987 unpublished opinion, the Fourth Circuit made an arguably
different generalization. The court in DeSantis v. Peregoy278 found that a
strip search was permissible based upon the "sound determination that drug
offenders are very likely to be carrying contraband."279 DeSantis had not
been charged with personal drug use or driving under the influence,
however. He had instead been misidentified and arrested along with thirtyone others as participants in an alleged "drug operation."28o
The leading Fourth Circuit case in the area, Amaechi v. West, 28 I
emphasizes the balancing of interests inherent in the determination of
Fourth Amendment reasonableness, in the context of reviewing allegations

271.
272.
273.
274.
275.
276.

994 F.2d 730, 734 (10th Cir. 1993).
Foote, 118 F.3d at 1421.
[d. at 1425.
[d.

[d. at 1425-26.
[d. at 1426.
277. [d. See also Way v. County of Ventura, 445 F.3d 1157, 1160-62 (9th Cir. 2006)
(determining that a blanket policy authorizing strip searches of all alleged drug offenders upon
booking is unconstitutional).
278. 1987 WL 37310 (4th Cir. May 5, 1987).
279. DeSantis, 1987 WL at * 1.
280. [d.

281. 237 F.3d 356 (4th Cir. 2001).

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in a 42 U.S.C. § 1983 action of both a public strip search and the
penetration of female genitalia by a male officer. 282 As before, upon the
appeal of a denial of the defendant officer's motion for summary judgment
based upon a claim of qualified immunity, the court "accept[ed]" and
examined the following version of events asserted by the plaintiff: Lisa
Amaechi resided with her husband and five young children in a townhouse
in Dumfries, Virginia. 283 The children played music loudly, resulting in a
neighbor's complaint to the police in August of 1997. 284 Officer Stephen
Hargrave of the Dumfries Police Department responded to the complaint,
told Amaechi to lower the volume, and she did SO.285 Officer Hargrave
allegedly said that she would not be arrested unless another complaint about
noise was received. 286 Amaechi believed that Hargrave had been impolite
and complained to the Prince William County Police Department about the
matter. 287 According to her assertions, two days later, without any
additional complaints about noise, Hargrave obtained a misdemeanor arrest
warrant charging Amaechi for the earlier violation of the Dumfries noise
ordinance. 288 At 9:00 p.m. that evening, two other officers, Sergeant
Bernard Pfluger and trainee Matthew West, arrived at the Amaechis'
townhouse to execute the warrant,289
Amaechi's allegations concerning subsequent events, recited by the
court, provided the basis for her constitutional claim: Amaechi stated that
when the police knocked on the door, she was in her upstairs bathroom,
nude, preparing for bed. 29o She covered herself with a housedress and
accompanied her husband downstairs. 291 The housedress, made of light
weight fabric, "had buttonholes all the way down the front."292 All of the
buttons "from immediately below the chest" were missing, however,
"requiring Amaechi to gather the dress with her hand to keep it closed."293
When the couple opened the door, Sergeant Pfluger told Ms. Amaechi that
she was under arrest,294 She cooperated fully, but when she was told that
282. Amaechi, 237 F.3d at 359.
283. [d. at 358-59.
284. [d.
285. [d.
286. [d.
287. [d. Amaechi did not call the Dumfries police because she believed that they would
have been unresponsive. [d. at 359 n.4.
288. [d. at 359.
289. [d.
290. [d.
291. [d.
292. [d. at 359 n.7.
293. [d.
294. [d. at 359.

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she was to be handcuffed, she "pointed out to the officers that she was
completely naked under the dress and requested permission to get dressed
because she would no longer be able to hold her dress closed once
handcuffed."295 She was denied permission to do SO.296 When her hands
were cuffed behind her back, her dress fell open below her chest. 297
Amaechi was then allegedly escorted by West out to the police car, walking
past several other officers. 298 Amaechi stated that before she was permitted
to enter the police car, West informed her that he would have to search
her. 299 She protested that she was wearing no underwear, but West
allegedly stated that the search was necessary.300 According to Amaechi,
West stood in front of her, "squeezed her hips, and inside her opened dress,
'swiped' one ungloved hand, palm up, across her bare vagina, at which time
the tip of his finger slightly penetrated Amaechi's genitals."30I She stated
that she jumped back, exclaiming, "I told you I don't have on any
underwear," and that West did not respond.3 02 West allegedly placed his
hand upon her buttocks, "knead[ing]" them. 303 West then permitted her to
enter the car.304 The search occurred in front of Amaechi's townhouse,
"where the other police officers, Amaechi's husband, her five children, and
all of her neighbors had the opportunity to observe."305 Amaechi was never
convicted of the misdemeanor, and her dispute with the neighbor was
resolved through mediation.3 06
Amaechi sued West, Pfluger and the town of Dumfries under 42
U.S.C. § 1983 and state law, alleging, inter alia, the unconstitutionality of
the search and an assault and battery on West's part.307 The district court
granted summary judgment on. the counts concerning Pfluger and the
town,308 and denied West's motion for summary judgment based upon a

295.
296.
297.
298.
299.
300.
301.
302.
303.
304.
305.
306.
307.

[d.
/d.
[d.
[d.
[d.
[d.
[d.
/d.
[d.
/d.
[d.
[d.
[d.

at 359-60.
at 360.
at 359 n.5.
at 360, 360 n.9. Counts alleging the intentional infliction of emotional distress by
West and the unconstitutionality of the town's policy permitting arrest for violation of the noise
ordinance were voluntarily withdrawn. [d. at 360.
308. [d. Amaechi did not cross-appeal these rulings. [d. at 360 n.8.

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defense of qualified immunity.309 On appeal, the court addressed "whether
Amaechi's complaint has alleged a deprivation of her constitutional right to
be free from an unreasonable search and ... whether that right was clearly
established at the time of her arrest."310
With regard to the former issue, the court was less than receptive to
West's argument that Robinson's policy permitting a search of an arrestee
"includes the right to briefly 'swipe' the arrestee's outer genitalia and
slightly penetrate the genitalia."3Il

Robinson did not, nor could it, rewrite the Fourth Amendment to
exclude the explicit requirement that no search be unreasonable.
Nor did Robinson hold that all searches incident to arrest, no
matter how invasive, are inherently reasonable. To the contrary,
since Robinson, the Supreme Court has continued to emphasize
that Fourth Amendment jurisprudence prohibits unreasonable
searches incident to arrest. . .. Therefore, to determine whether
West's search of Amaechi is constitutional, it is not enough to
conclude that it was a search incident to a valid arrest. Rather, we
must determine whether the search was unreasonable.3l 2
The court turned to the balancing approach of Bell v. Wolfish,
concluding that the highly intrusive search that was alleged had no apparent
justification.313 It noted that Amaechi had peacefully submitted to an arrest
for a two-day-old misdemeanor noise violation, and she had advised the
police that she was wearing no underclothes.3 l4 The court stated that
instead of granting her request to dress before being handcuffed, "the
officers secured [her] hands behind her back and made her walk to the car
and stand in the street with her dress open and lower body exposed."3l5
West's alleged subsequent "touching and penetrating [of] Amaechi's
genitalia and kneading [of] her buttocks with his ungloved hand" was
likewise "subject to viewing by Amaechi's family, the public, and the other
officers."316 No perceived threat to the officers' safety was offered as
justification for the manner of the search, and "[i]n fact, West could not rely
upon any type of security justification ... in that the dress was thin and was

309.
310.
311.
312.
313.

[d. at 360.
[d.
[d. at 361.
[d.

[d. See supra notes 163-66 and accompanying text (explaining the Wolfish balancing
approach).
314. [d.
315. [d. at 361.
316. [d.

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almost completely open, making any weapons immediately apparent."317
There was no possibility that Amaechi would destroy or conceal evidence
relating to the noise misdemeanor, and "the invasiveness of Amaechi's
search far outweighed any potential justification for the scope, manner, and
place under which it was conducted."318 Consequently, the court found the
alleged search unreasonable and unconstitutiona1. 319 Examining the question of "whether Amaechi's right to be free from this sexually invasive
search" was clearly established, the court concluded that it was.3 20 It
observed that it previously "recognized the fact, first established in Bell,
that the intrusive, highly degrading nature of a strip search demands a
reason for conducting such a search that counterbalances the invasion of
personal rights,"321 adding that "[i]t is not a new rule of law that searches
involving the public exposure, touching, and penetration of an arrestee's
genitalia are subject to limitations under the Fourth Amendment. "322
The Eighth Circuit has joined those which have afforded relief to an
arrestee who has been strip searched without a sufficient individualized
factual basis, without judicial discussion of the Fourth Amendment's
preference for warrants. In Jones v. Edwards,323 the court concluded that 42
U.S.c. § 1983 plaintiff Marlin Jones's motion for a judgment notwithstanding the verdict should have been granted.3 24 Jones had been arrested
for refusing to sign a Summons and complaint concerning a leash law
violation. 325 At the time of his early morning arrest at the door of his home,
he became "vulgar and abusive" to the arresting officers and was
accompanied upstairs "for 'security reasons' while he dressed and went to
the bathroom."326 Jones continued his verbal abuse on the way to the jail
and during booking, and "[w]itnesses agreed that although Jones was angry,
he made no attempt to abuse any officer physically."327 According to his
allegations, Jones was strip searched "[a]s a final step in the booking

317. [d. at 362.
318. /d.
319. /d.

320. [d. at 362-65.
321. /d. at 364. See also Logan v. Shealy, 660 F.2d 1007,1013 (4th Cir. 1981), cert. denied
sub nom. Clements v. Logan, 455 U.S. 942 (1982).
322. Amaechi, 237 F.3d at 364.
323. Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985).
324. [d. at 741-42.
325. /d. at 740. When an animal control officer observed Jones's unleashed dog and
recognized it from earlier violations, Jones allegedly refused to sign the complaint, verbally
abused the control officer and a police officer, and "slammed the door ... after threatening them
with suit." /d.
326. [d.
327. [d.

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procedure."328 Then, while nude, he was required to display his anal and
genital areas to a jail official in an alcove of the hallway.3 29 He was then
allowed to dress and wait in a minimum security cell until a friend posted
bai1.3 3o
Applying the balancing approach of Bell v. Wolfish, the court found the
district court's denial of Jones's motion to have been in error.3 31 It noted
that Jones's offense was "hardly the sort of crime to inspire officers with
the fear of introducing weapons or contraband into the holding cell" and
that the officers "had no other reason to suspect Jones was harboring these
items."332 The police had been with him "every moment after they read
him the warrant.. . thereby eliminating any chance that he might have
secreted a weapon on his person."333 While Jones had been uncooperative,
he was not charged with any offense "which might justify a more intrusive
search,"334 and the court observed that "neither the officers nor the jailers
attempted a less intrusive pat-down search, which would have detected the
proscribed items they sought without infringing Jones's constitutional
protections."335 As to the magnitude of the invasion of Jones's rights, the
court found it to be "broad" in scope:
Jones was nude and forced to display himself to the visual
inspection of a stranger. . Although the manner in which the search
was conducted was not brutal, it was intrusive, depersonalizing,
and distasteful for Jones to be peremptorily subjected to this kind
of search by a stranger in the alcove of the hallway. Finally,
although the location of the search did not expose Jones to the
scrutiny of other jailers or passersby, this degree of privacy seems
to have been entirely fortuitous. 336
The court also stated that security concerns cannot justify the "blanket
deprivation of rights of the kind incurred here."33?

328. [d.
329. [d.
330. [d.
331. [d. at 741.
332. [d.
333. [d.
334. [d. at 741-42.
335. [d. at 742.
336. [d.
337. [d. It also found that, as "the [F]ourth [A]mendment's protection against the kind of
search of which Jones complains was well-established at the time his search took place[,]"
defendants were not protected by qualified immunity. [d. at 742 n.4. The court declined to allow
an award of punitive damages, since it found "no suggestion of evil motive or intent nor of
reckless or callous indifferences" to federally protected rights. [d. at 742.

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There can be little doubt that those circuits which have employed a
requirement of particularized and reasonable suspicion in their standard for
assessing the legality of a strip search incident to arrest have done so with
the view that they have augmented the rigor of Robinson's approach. The
methodology of the reasoning in these opinions has been similar. As the
intrusiveness of a search extends beyond that which was contemplated in
Robinson, constitutional reasonableness requires more in the way of facts
bearing upon the existence of concealed evidence or weapons. Robinson's
celebrated "bright line" approach (its green light to search triggered by the
fact of a lawful arrest alone) has been viewed as insufficient to protect the
universally acknowledged interests in privacy, bodily integrity and personal
dignity, which are implicated when strip searches are undertaken. The
heightening of the necessary factual predicate for these warrantless searches
has been regarded as the appropriate judicial response.

III. A CONTRARY VIEW: THE NINTH CIRCUIT'S APPROACH
One circuit, however, has found this trend to be insufficient in meeting
the demands of the Fourth Amendment. The Ninth Circuit called into question a basic assumption of the foregoing cases, doubting that the permissibility of a visual body cavity search incident to arrest may be adequately
addressed without reference to the warrant process. The matter was raised
in 1991 in Fuller v. M.G. Jewelry.338
In Fuller, Annise Fuller and her daughter Roshaun brought a 42 U.S.c.
§ 1983 action seeking damages for their arrests and alleged subsequent strip
searches following the disappearance of a ring from the M.G. Jewelry
store. 339 Their allegations were as follows: In February 1987, plaintiffs and
a friend had examined the ring at the store, and after their departure a store
employee noticed it was missing and believed that they had taken the
ring.3 40 The Fullers had left the store, continued shopping and returned to
the area to eat,341 The employee approached them outside of the store, an
altercation occurred, and a police investigation resulted in the arrest of the
Fullers for grand theft. 342 During the officers' investigation, the women
and their companion were patted down, a restaurant and a restroom Annise

338.
339.
340.
341.
342.

950 F.2d 1437 (9th Cir. 1991).
Fuller, 950 F.2d at 1439-40.
Id. at 1439.
Id.
Id. at 1436-40.

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had entered were thoroughly searched, and witnesses were interviewed.3 43
The officers did not find a ring.3 44
After the Fullers were transported to the Los Angeles Police Department (LAPD) central station, they were allegedly subjected to a strip search
by female Officer Barham.345 Plaintiffs stated that Officer Barham took
each into a bathroom, had her undress, searched her clothing, and visually
inspected her vagina and rectum. 346 Roshaun Fuller also stated, contrary to
the officer's testimony, that she was required to remove a sanitary napkin
for inspection. 347 A toilet was inspected after Roshaun had used it, and
Annise was taken to a hospital for an x-ray. No stolen item, drug or contraband was discovered.3 48 A police department policy had then required strip
and body cavity searches of all felony arrestees, and that blanket policy was
subsequently invalidated by the Ninth Circuit before its opinion in
Fuller.3 49 A second strip search of the Fullers was also allegedly conducted
at the women's jail where they were booked, but as a result of a settlement
the legality of that search did not arise as an issue before the Fuller court.3 50
Fuller filed a civil rights action against the city, the county, the store,
its employee, and the police officers, challenging the legality of both the
arrests and the strip searches under the Fourth and Fourteenth Amendments. 351 Before trial, the district court granted the defendants' motion for
summary judgment and dismissed the action on the merits.3 52 The court
found that the officers "had reasonable cause to arrest plaintiffs" and
"reasonable cause or suspicion to justify a full body cavity search incident
to arrest and booking."353 The Ninth Circuit concluded that the district
court properly granted summary judgment in favor of the defendants on the
issue of the warrantless arrest. 354 The officers adequately investigated the

343. [d.
344. [d. at 1439-40.
345. [d. at 1440.
346. [d.
347. [d. at 1440 n.1.
348. [d. at 1440.
349. [d. See Kennedy v. L.A. Police Dep't, 901 F.2d 702, 705 (9th Cir. 1989) (as amended)
(involving the city of Los Angeles's blanket policy for body cavity searches of arrestees).
350. Fuller, 950 F.2d at 1440 n.3.
351. [d. at 1440.
352. [d.
353. [d. at 1440. The district court also found that, even if the search had been illegal, the
officers were entitled to qualified immunity because its illegality was not clearly established at the
time. [d. It added that the city had incurred no liability because the Fullers' rights had not been
violated. [d. at 1440-41. The action against the private party defendants were dismissed. [d. at
1441.
354. [d. at 1442.

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allegations at the scene, and could have reasonably believed that there was
probable cause to arrest the Fullers.3 55
With regard to the alleged strip searches, defendants argued "that the
searches were legal because they were conducted pursuant to a lawful
arrest, and were justified by the officer's individualized suspicion that the
Fullers were harboring contraband-that is, a stolen ring."356 The court
recognized that this asserted justification was quite independent of the need
for institutional jail security involved in Bell v. Wolfish and its own earlier
examination of the LAPD's blanket strip search policy,357 In detail, it proceeded to examine the implications of the defendants' proffered justifications for the alleged warrantless strip searches incident to arrest.
The court stated at the outset that "[t]he intrusiveness of a body cavity
search cannot be overstated."358 It noted that it had previously characterized such searches as "dehumanizing and humiliating"359 and recalled
Justice Marshall's view, dissenting in Bell v. Wolfish, that "visual body
cavity searches 'represent one of the most grievous offenses against personal dignity and common decency. "'360 The court separately considered
two justifications which it viewed as offerings by the defendants to sustain
the reasonableness of the alleged searches. As characterized by the court,
the first asserted justification was "that the inspection was authorized as a
search incident to arrest."361 A second and seemingly distinct proposed
justification was "that the search was justified by the officer's 'individual
suspicion' that the arrestees were hiding the missing ring in a body
cavity."362
Turning to the language of Robinson in which the Supreme Court
noted that "the scope of a search incident to arrest includes a 'full search of
the person,'''363 the court addressed the defendants' argument that, under
that policy, "the body cavity search of the Fullers, conducted pursuant to
lawful arrest to discover a missing ring, amounted to a 'full search' that was
both reasonable and lawful."364 The court had earlier "rejected this very

355. Id. at 1444-45.
356. Id. at 1445.
357. Id. at 1445-46. See Kennedy v. L.A. Police Dep't, 901 F.2d 702 (9th Cir. 1989) (as
amended) (discussing the constitutionality of the city of Los Angeles' blanket policy).
358. Fuller, 950 F.2d at 1445 (quoting Kennedy, 901 F.2d at 711).
359. Id. (quoting Kennedy, 901 F.2d at 711).
360. Id. (quoting Bell v. Wolfish, 441 U.S. 520,576-77 (1977) (Marshall, J., dissenting».
361. Id. at 1446 (citing United States v. Robinson, 414 U.S. 218,235 (1973».
362. Id.
363. Id. (quoting Robinson, 414 U.S. at 218).
364. Id.

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argument"365 in Giles v. Ackerman,366 holding in that case-involving a
misdemeanor arrest - "that the 'full search' authorized by Robinson was
limited to a pat-down and an examination of the arrestee's pockets, and did
not extend to 'a strip search or bodily intrusion. "'367 The court observed in
Fuller that the distinction between a misdemeanor and a felony arrest was
inconsequentia13 68 and that Robinson "simply did not authorize the kind of
search at issue in this case."369
With regard to a strip and visual body cavity search based upon the
existence of reasonable suspicion, the Ninth Circuit emphasized that it had
acknowledged its appropriateness only in the context of the institutional
security concerns of a jail environment. In the case before it,
[a]ppellees never contended that the search of the Fullers was
necessary to maintain jail security. . .. Instead, Appellees maintain that Officer Barham conducted the body cavity searches "in
order to discover and seize the fruits or evidence of crime" - that
is, the missing ring. Appellees have offered no evidence that the
ring itself posed any threat to the safety of other detainees, or to
the security of the jail.
Moreover, there is no evidence that the Fullers were ever even
incarcerated with the general jail population while being detained
at the LAPD central station.3 7o
As a result, the rationales of both Bell v. Wolfish and Ninth Circuit
precedents were inapplicable to the case, and the court declined "to extend
the reasonable suspicion standard to body cavity searches for ordinary
stolen property."371
The court found that such an extension would contravene "basic
[F]ourth [A]mendment principles."372 The court cited Schmerber v.
California,373 in which, at the direction of the police, a blood sample had
been drawn by a physician over the objection of the donor, who had been
arrested for driving under the influence of intoxicating liquor.3 74 The
Supreme Court there held that requiring the arrestee to submit to the

365.
366.
367.
368.
369.
370.
371.
372.
373.
374.

ld.
746 F.2d 614 (9th Cir. 1984), cert. denied. 471 U.S. 1053 (1985).
Fuller, 950 F.2d at 1446 (quoting Giles, 746 F.2d at 616).
ld.
ld. (citing Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983».
ld. at 1447-48 (internal citations omitted).
ld. at 1448.
ld.
384 U.S. 757 (1966).
Schmerber, 384 U.S. at 758.

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extraction did not violate the Fourth Amendment, since the process was
predicated on probable cause and "the delay necessary to obtain a warrant,
under the circumstances, threatened the 'destruction of evidence"'375
through the body's elimination of alcohol from the blood. 376 In Fuller, the
Ninth Circuit viewed Schmerber as holding that, under those circumstances,
"in order for the police to draw blood. " there must be, at the least,
probable cause to believe that the blood test will reveal the presence of
alcohol."377 Observing that both Schmerber and the Fullers were lawfully
in custody when the searches were conducted, the court continued:
In our view, Schmerber governs all searches that invade the
interior of the body whether by a needle that punctures the skin or
a visual intrusion into a body cavity. "The interests in human dignity and privacy" invaded when a public official peers inside a
person's body cavity are at least as great as those invaded by a
needle piercing the skin. Therefore, a body cavity inspection cannot be justified by a lesser standard than that applied in Schmerber
for a blood test.378
The court acknowledged that in 1975 the First Circuit had held in United
States v. Klein 379 that the body cavity search of an arrestee accused of
cocaine distribution "was not governed by Schmerber because there was
'no piercing or probing of Klein's skin, nor forced entry beyond the surface
of his body. "'380 It nevertheless declined to restrict Schmerber "to cases in
which the skin is pierced or entry is forced."381
The court then added that Schmerber had made it clear that, had it not
been for the exigent circumstance of the arrestee's natural elimination of
blood alcohol, a warrant would have been required.3 82 The court concluded
in Fuller that a warrant was necessary before the initiation of a body cavity
search. 38 3 Based upon the allegations before it, it stated that no exigent
circumstances existed for the failure of the police to seek a warrant.3 84
"There was no risk that the ring, if hidden in a body cavity, would have
been discarded or destroyed[,]" for the custodial setting easily permitted the

375.
376.
377.
378.
379.
380.
381.
382.
383.
384.

Id. at 770 (quoting Preston v. United States, 376 U.S. 364, 367 (1964)).
Id. at 770-7 I.
Fuller, 950 F.2d at 1448.
Id. at 1449.
522 F.2d 296 (I st Cir. 1975).
Fuller, 950 F.2d 1449 n.ll (quoting Klein, 522 F.2d at 300).
Id.
Id. at 1449-50.
Id. at 1450, 1452.
Id. at 1450.

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police to keep the Fullers under observation while a warrant was sought. 385
The ring was also unlikely to present a health problem to a person secreting
it within her body.3 86 As the failure to obtain the warrant was unexcused,
the alleged body cavity searches were unconstitutional. 387
It is, of course, clear that Fuller discusses only those searches which
visually intrude into the body, leaving unaddressed the issue of strip
searches which solely involve the examination of the body's outer surfaces.
Nevertheless, the court's insistence upon the involvement of a magistrate is
a striking contrast to the prevalent trend among the circuits.
IV. A PERSPECTIVE
To the extent that the courts of appeal have been sound in their
conclusion that the intrusiveness of a strip search incident to arrest extends
beyond that which was contemplated and authorized in Robinson, the
Fourth Amendment's preference for the use of warrants requires that such
searches be separately evaluated as potential exceptions to the warrant
requirement.
Such discussion, conspicuously absent from current
discourse,388 must necessarily include an examination of the role that a

385. Id.
386. Id.
387. Id. The court found that the district court was correct in finding that Officer Barham
was entitled to qualified immunity with respect to the searches, since it did "not believe that a
reasonable police officer would have necessarily understood at the time ... that the searches
violated the Fullers' Fourth Amendment rights." Id. at 1451. With regard to the city's liability, it
remanded the case for a determination of whether the searches were conducted in accordance with
LAPD policy. Id. at 1452.
In Fuller. the court noted that similar constitutional standards had been imposed by the
Supreme Courts of Hawaii and Louisiana. Id. at 1450 n.12. See, e.g., State v. Clark, 654 P.2d
355, 359-62 (Haw. 1982) (determining that the warrantless physical vaginal search violated both
state and federal constitutions); State v. Fontenot, 383 So. 2d 365, 367-68 (La. 1980) (finding a
warrrantless physical vaginal search violated Fourth Amendment). Since Fuller, the New York
Court of Appeals has reached a similar conclusion. See People v. More, 764 N.E.2d 967, 969-70
(N.Y. 2002) (indicating that a warrantless visual rectal search and removal of item violated Fourth
Amendment). See also Commonwealth v. Gilmore, 498 S.E.2d 464, 467-71 (Va. 1998) (holding
that a physical vaginal search violated Fourth Amendment).
388. The suggestion that the warrant requirement may be applicable to strip searches is not a
new one. In 1980, addressing both the broad issue and developments in Illinois which later
culminated in Mary Beth G., Paul R. Shuldiner argued that warrants are required under the Fourth
Amendment and that state legislatures should also address the matter. See Paul R. Shuldiner,
Visual Rape: A Look at the Dubious Legality of Strip Searches, 13 J. MARSHALL L. REV. 273,
276-280,304-07 (1980). In 1975, the Model Code of Pre-Arraignment Procedure contemplated
the use of the warrant process for body cavity searches in the following language:
Search of Body Cavities. Search of an arrested individual's blood stream, body
cavities, and subcutaneous tissues may be conducted as incidental to an arrest only if
there is a strong probability that it will disclose things subject to seizure and related to
the offense for which the individual was arrested, and if it reasonably appears that the
delay consequent upon procurement of a search warrant would probably result in the
disappearance or destruction of the objects of the search, and that the search is

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magistrate might be expected to play in this sensitive area of the law, the
circumstances which have had a bearing upon whether the Supreme Court
has been prepared to forego the use of a warrant, and the consequences of
the exceedingly troublesome privacy implications of the strip searches
themselves.
The Supreme Court's "longstanding understanding of the relationship
between the two Clauses of the Fourth Amendment,"389 has reflected itself
in the principle that "searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment-subject to only a few specifically established and well delineated exceptions."39o While those exceptions are arguably more than the "few" contemplated by the Court when this description
of the warrant requirement was reiterated in Thompson v. Louisiana,391 this
characterization of Fourth Amendment methodology remains sound.
Exceptions to the warrant requirement must be both '''specifically established'" and "'well delineated. "'392 Moreover, in the instant context, the
benefits of the constitutional requirement that an impartial judicial determination be interposed between the police and the subject of a search are
especially strong.
The Supreme Court's emphasis upon the warrant requirement's goals
of judicial objectivity and deliberative decision-making has been repeatedly
reaffirmed. 393 "The right of the people to be secure in their persons" is the

otherwise reasonable under the circumstances of the case, including the seriousness of
the offense and the nature of the physical invasion of the individual's person.
MODEL CODE OF PRE-ARRAtGNMENT PROCEDURE § 230.3(2) (emphasis added). A search of "the
surface of(an arrestee's] body" was authorized without regard to these factors. Id. § 230.3(1).
Other commentators have generally focused instead upon the desirability of adopting
particularizing standards for warrantless strip searches. See Gabriel M. Helmer, Note, Strip
Search and the Felony Detainee: A Case for Reasonable Suspicion, 81 B.U. L. REV. 239, 240
(2001); William J. Simonitsch, Comment, Visual Body Cavity Searches Incident to Arrest:
Validity Under the Fourth Amendment, 54 U. MIAMI L. REV. 665, 687-88 (2000) (arguing for a
standard of probable cause).
389. Thompson v. Louisiana, 469 U.S. 17,20 (1984). The Fourth Amendment states:
[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized.
U.S. CONST. amend. IV.
390. Thompson, 469 U.S. at 19-20 (quoting Katz v. United States, 389 U.S. 347, 357
( 1967».
391. 469 U.S. 17 (1984). Justice Scalia has stated that, in his view, by 1985 "the 'warrant
requirement' had become so riddled with exceptions that it was basically unrecognizable."
California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring).
392. Thompson, 469 U.S. at 410.
393. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 622 (1989) ("A
warrant ... provides the detached scrutiny of a neutral magistrate, and thus ensures an objective

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first enumerated concern of the Amendment. In the context of a search of
the person, the value of objectivity is reinforced in several ways. As with
all searches, the judicial role involves review of the sufficiency of the facts
to determine if an intrusion is justified by probable cause. With regard to a
search of the person, the confrontational elements inherent in a face-to-face
encounter between a potential search subject and the police are absent. In
connection with an arrest, at an early date the Court expressed reservations
about the judgment of "officers while acting under the excitement that
attends the capture of persons accused of crime."394 Removed from this
process, the magistrate is in a position to gauge the basis for the search, and
the issuance of a warrant would convey an assurance to the subject of a
strip search that the intrusive procedure was authorized and is not the
"random or arbitrary act" of a governmental agent.3 95 This is, in itself, an
"essential purpose" of the warrant requirement.3 96 Allegations and perceptions of retributive, racial, or other invidious motivations which can accompany strip searches may thus also be addressed in part by the process.3 97
The magistrate's traditional role in determining the reasonable scope
and manner of a search would have a tremendous impact in this area. The
assertion of the police matron in Swain that she had not been told what to
look for but had made assumptions about the object of the search 398 would
not have been possible under a valid warrant. The Fourth Amendment's
requirement that searches be reasonable is as undermined by broad policies
permitting the inspection of all intimate bodily areas, without tailoring the
search to the items sought, as it has been by blanket policies authorizing the
initiation of strip searches for all arrestees without regard to particularized
facts. Overbroad, clumsy directives simply cannot suffice under the Fourth
Amendment.
In addition to the need for an objective determination of the authorized
scope of a strip search, the value of a judicial determination of the manner
in which a search may be executed cannot be overstated. This is a problem
that asserts itself in search after search, extending well beyond the stark
determination whether an intrusion is justified in any given case."); Johnson v. United States, 333
U.S. 10, 14 (1948) ("Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a
warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the
discretion of police officers."); Groh v. Ramirez, 540 U.S. 551,558-59 (2004) ("We are not
dealing with formalities.") (quoting McDonald v. United States, 335 U.S. 451, 455 (1948».
394. United States v. Lefkowitz, 285 U.S. 452,464 (1932).
395. Skinner, 489 U.S. at 621-22.
396. [d.
397. A perception of racial discrimination in the administration of strip searches has been
forcefully expressed in commentary. See Gibeaut, supra note 5, at 46-47.
398. See supra note 141 and accompanying text.

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allegations presented in Evans to the more common issues of locale, overall
privacy, officer gender and sanitation. (One recalls the court's reference in
Amaechi to the male officer's "ungloved hand" which was alleged to have
been used to penetrate the female arrestee's genitalia.3 99 Was this based
upon its concern for hygiene or the exacerbation of the search's sexual
intrusiveness?) Even if courts may not now be prepared to address the
question of clinical requirements for the implementation of a strip search as
a general issue of law,4oo it would be most appropriate for a magistrate to
consider whether a particular contemplated search would be reasonable
without its execution by trained personnel under specific sanitary conditions. The judicial imposition of objective clinical requirements may also
have some ameliorative effect upon an arrestee's perception of the procedure's intrusiveness401 a strong factor in the balancing of interests central
to a determination of Fourth Amendment reasonableness.
Beyond a discussion of the benefits of judicial participation in the
authorization process, it, of course, remains to be seen whether countervailing considerations should permit strip searches to be undertaken without
a warrant. An unfortunate consequence of the courts' examination of
warrantless strip searches incident to arrest as an adjunct of Robinson's
concerns has been an occasional hide-bound focus upon Robinson's dual
goals as seemingly inseparable. 402 Insofar as a strip search incident to
arrest should be viewed as a distinct intrusion beyond Robinson's authorization, each of Robinson's concerns (the discovery of weapons which may
be used against an officer and the prevention of the destruction of evidence)
should be examined separately. These independent analyses yield contrasting results.
The discovery and neutralization of weapons which may be used
against the police is so firmly established as an imperative justifying several
exceptions to the warrant requirement that its importance has virtually
become a postulate of Fourth Amendment law. In the absence of an arrest,

399. See supra note 316 and accompanying text.
400. For a rare holding that visual vaginal searches by nonmedical personnel violated an
arrestee's due process rights, see United States ex rei. Guy v. McCauley, 385 F. Supp. 193, 193
(1974). The arrestee "was seven months pregnant; she was painfully forced to bend over twice;
and the two policewomen who perpetrated the search were not medically trained, nor did they
utilize medical facilities or equipment to aid them in their search." [d. at 198. The court went on
to generalize beyond the arrestee's circumstances: "The magnitude for the intrusion to the
individual's integrity and dignity becomes greater if the search is perpetrated by a police officer
rather than a doctor or nurse." [d.
40 I. See id. at 199.
402. This tendency has not been universal. See Evans v. Stephens, 407 F.3d 1272, 1279
(11th Cir. 2005).

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Terry v. Ohio, Michigan v. Long,403 and their progeny have of course
entitled police to search expeditiously and incrementally, whether by patdown or vehicular sweep, when reasonable inferences from specific, particularized facts indicate the presence of such a potential threat. Robinson's
conclusion that the threat from weapons is intensified by the more extensive
contact inherent in an arrest is sound, and the inappropriateness of the
warrant process in addressing the matter continues to be obvious. It is
entirely in accord with these earlier analyses to conclude that, when an
officer reasonably believes from specific, particularized facts that an arrestee has concealed a weapon under his or her clothing or in a body cavity,
the officer can constitutionally conduct an appropriately tailored warrantless strip search. Such an exception to the warrant requirement comports
with the reasonable prudence contemplated by the Fourth Amendment.
Those strip searches incident to arrest which are motivated instead by a
desire to search for destructible evidence present no parallel concern which
would excuse a failure to comply with the warrant requirement. An
arrestee may be closely monitored while a warrant is sought, and specific
circumstances which threaten the destruction of evidence or health of the
arrestee may be addressed as individual exigencies. Far from being inappropriate, the attributes of the warrant process noted above are particularly
suited to the authorization of evidentiary strip searches.
Despite the thesaurus of adjectives that has been used to describe the
invasive qualities and humiliating aspects of strip searches, the fundamental
question to be faced in determining whether the warrant requirement is applicable to such searches incident to arrest is simply whether the Fourth
Amendment can tolerate the courts' current approach to the basic relationship between the citizen and the police. The most striking characteristic of
a strip search is the utter subjugation of individual dignity to the will of an
individual police officer. Those analyses which have left the finality of
these decisions in the hands of the officer have done so neither out of
necessity nor with due regard to the Constitution's esteem for the right "to
be secure" in one's person. If the Fourth Amendment's warrant requirement still has any meaningful role to play in its protection, it is surely in
this area.

403. 463

u.s.

1032 (1983).

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