April 2, 2007

ATTORNEY GENERAL OPINION NO. 2007- 8

Steven Opat

Geary County Attorney

801 North Washington Street, Suite A

Junction City, Kansas 66441-2590

Re:	Criminal Procedure--Kansas Code of Criminal Procedure; Search and Seizure--Strip and Body Cavity Searches; Strip Searches; Limitations

Criminal Procedure--Kansas Code of Criminal Procedure; Search and Seizure--Strip and Body Cavity Searches; Prison and Jail Inmates, Exceptions

Synopsis:	Courts uniformly find constitutional fault with blanket policies providing for strip searches of all prisoners detained or arrested for violation of statutes, resolutions or ordinances involving only traffic, regulatory or nonviolent misdemeanor offenses. K.S.A. 22-2521(a) codifies this case law. However, pursuant to K.S.A. 22-2524(b), strip searches may be conducted absent reasonable suspicion or probable cause when a person accused of even this type of crime is, out of strict necessity, confined in a general jail population while awaiting appearance before a magistrate judge. This provision has not been struck down as unconstitutional. However, because courts often impose a strict burden of proof when such searches are conducted, we caution against adoption of any blanket policy providing for such searches in all cases and urge every jailer to adopt policies that insure adequate justification is present in each specific situation. Cited herein: U.S. Const., Amend. IV; K.S.A. 22-2521; 22-2522; 22-2524.

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Dear Mr. Opat:

You request our opinion on the legality of "strip-searches" of pre-trial detainees, in light of K.S.A. 22-2521 and 22-2524(b) and recent case law. You are concerned that case law does not support the statutory provisions allowing strip searches in specific situations. You provide citations to several cases1 and ask whether case law or Kansas statutes allow strip searches to be conducted when persons are detained or arrested solely for violation of a statute, resolution or ordinance involving a traffic, regulatory or nonviolent misdemeanor offense if those persons are put into a general county jail population out of necessity while awaiting appearance before a judge or magistrate.

K.S.A. 22-2521 provides in pertinent part:

"(a) No person detained or arrested solely for the violation of a statute, resolution or ordinance involving a traffic, regulatory or nonviolent misdemeanor offense shall be strip searched unless there is probable cause to believe that the individual is concealing a weapon or controlled substance.2

K.S.A. 22-2524 provides:

"(a) None of the provisions of this act other than subsection (b) of K.S.A. 22-2521 and subsection (c) of K.S.A. 22-2522 shall apply when a person is convicted of a crime and committed to a jail or other institution.3

"(b) The provisions of this act relating to strip searches other than subsection (b) of K.S.A. 22-2521 shall not apply when a person accused of a crime is committed to a jail or other institution pursuant to a court order, nor when a person accused of a crime is, of necessity, confined with other prisoners in a jail while awaiting appearance before a magistrate."

Thus, by the very terms of both of these statutes, K.S.A. 22-2524 supercedes the prohibitions set forth in K.S.A. 22-2521(a) and allows strip searches in limited circumstances, including when a person accused of a crime is committed to jail by court order or when "a person accused of a crime is, of necessity, confined with other prisoners in a jail while awaiting appearance before a magistrate."4

The Fourth Amendment of the United States Constitution provides: "The 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 the persons or things to be seized."5 Thus, it is the Fourth Amendment that is cited when persons challenge a governmental search of private persons or their property.

Certain searches incident to an arrest but prior to conviction have been found reasonable by the United States Supreme Court, but these types of searches are less intrusive than a strip search.6 Strip searches are considered a special type of search because "[t]here can be no doubt that a strip search is an invasion of personal rights of the first magnitude."7 Thus, while courts have allowed strip searches to be conducted, many restrictions are placed upon this type of search and many cases have declared specific strip searches in violation of Fourth Amendment rights.8 K.S.A. 22-2521 and 22-2522 appear to codify these constitutional principles and case law concerning strip searches.

Considerable case law and commentary exists from many jurisdictions and courts, discussing strip searches in the context of traffic stops or other less serious offenses.9 Most, if not all, of this authority concludes that blanket policies providing for strip searches of all persons arrested for traffic or minor infractions violate the Fourth Amendment.

However, there are some cases where courts have not completely rejected the use of strip searches on such persons when they are going to be housed in the general jail population (and not simply detained for release upon completion of the booking process), or if officials have a reasonable suspicion that the arrested person is concealing weapons or contraband.10

While cases from other jurisdictions and general discussions are helpful, we believe that cases from Kansas courts (including the Tenth Circuit) provide the most relevant guidance. We must also narrow the focus of this opinion to circumstances set forth in the exception stated in K.S.A. 22- 2524(b): "[t]he provisions of this act relating to strip searches other than subsection (b) of K.S.A. 22-2521 shall not apply when a person accused of a crime is committed to a jail or other institution pursuant to a court order, nor when a person accused of a crime is, of necessity, confined with other prisoners in a jail while awaiting appearance before a magistrate."11

In Hill v. Brogan,12 the Tenth Circuit Court of Appeals prohibited blanket policies requiring strip searches of everyone who had been arrested for traffic offenses or minor misdemeanors. In this case, the Court stated that a jail's desire to maintain security, to avoid charges of discriminatory treatment and to promote administrative convenience alone do not justify routine strip searches in a public area of persons detained for minor traffic offenses.13 In 1986, the Tenth Circuit again reviewed strip searches of detainees in Levoy v. Mills14 and recognized that under Fourth Amendment principles, "the greater the intrusion, the greater must be the reason for conducting a search."15 The Levoy Court stated that the government must demonstrate a legitimate need to conduct such a search that less intrusive measures would not satisfy.

In 1987 the Federal District Court for the District of Kansas found that the Finney County jail's policy of subjecting all pretrial detainees arrested for traffic offenses or minor misdemeanors to a strip search was unconstitutional.16 In this case, Ms. Cruz had been stopped by a police officer for speeding in a school zone, but was released at the time of the stop. Later that evening, after a search of Cruz's driving record, the officer went to her home, handcuffed and arrested her. She was taken to a law enforcement center, booked, fingerprinted and strip searched. Cruz brought a Section 1983 action against the county, and the Court held that routinely subjecting pretrial detainees arrested for traffic offenses to strip searches was unconstitutional. In reaching its decision, the Court noted that the officer had no reasonable suspicion that Cruz was carrying or concealing contraband and that a strip search of the defendant resulting from a minor traffic violation was patently unreasonable. The Court stated that the security interest of jails was clearly outweighed by the invasion of privacy caused by these offensive procedures.

However, the Cruz court did not review or mention K.S.A. 22-2524(b), nor did it focus upon the necessity factor articulated in subsection (b) of that statute. Nevertheless, the Cruz decision creates a hard line with regard to a policy that allows strip searches of all prisoners simply because they will be put into a general jail population. Likewise, in Chapman v. Nichols,17 the Tenth Circuit considered the constitutionality of a strip search policy that failed to incorporate reasonable suspicion standards and found the jail's policy unconstitutional.

Thus, it appears that the Tenth Circuit Court of Appeals, in reviewing the constitutionality of strip searches conducted on detainees or arrestees held at jails, requires that there be more than a blanket policy providing for such searches.18

In Allen v. Board of Comm'rs of County of Wyandotte, Kansas,19 the Federal District Court for the District of Kansas reviewed the legality of strip searching an arrestee charged with a traffic offense prior to being placed into a county jail's general population and, based upon the facts in that case, concluded that this particular strip search was not legal.20 This case specifically reviewed K.S.A. 22-2524 and thus we consider it particularly relevant.

This case arose after Kansas University police officers charged Ms. Allen with driving on a suspended license and expired tags, whereupon she was arrested and transported to the Wyandotte county jail. The plaintiff alleged that she had been illegally strip searched by the sheriff's department prior to her being jailed with the general population.

In reviewing the constitutionality of the strip search, the court stated:

"Ordinarily, a person arrested for violation of a traffic offense is not to be strip searched 'unless there is probable cause to believe that the individual is concealing a weapon or controlled substance.' K.S.A. 22-2521(a). Neither the arresting officers nor the guards at the jail possessed probable cause to believe that Allen was harboring any contraband or weapons. Subsection (b) of K.S.A. 22-2524 provides, however, that the foregoing provision shall not apply 'when a person accused of a crime is, of necessity, confined with other prisoners in a jail while awaiting appearance before a magistrate.' K.S.A. 22-2524(b). Defendants note that '[Allen] was, in fact, confined with other prisoners.'"21

The Allen court states that automatic strip searches of any person accused of a traffic offense constitutes an unreasonable search in violation of Fourth and Fourteenth Amendment rights unless there is a showing of probable cause or a necessity to confine that person with other prisoners.22 This court did not find K.S.A. 22-2524 unconstitutional. Rather, while it found that the Wyandotte County Sheriff's Department appeared to have administered Kansas statutory law in such a manner as to violate plaintiff's Fourth Amendment right against unreasonable searches, it specifically declined to hold K.S.A. 22-2524 unconstitutionally overbroad. Thus, while the court's ruling limits when such searches may be conducted, we may presume that it is possible to lawfully conduct a strip-
search in compliance with this statutory authority.

The Allen court appears to suggest that jailers using K.S.A. 22-2524(b) as justification for conducting a strip search of traffic offense arrestees (without probable cause or reasonable suspicion) have proof that it is in fact absolutely necessary to house the prisoner with the general jail population.23 Thus, a lawful strip search of a prisoner arrested for traffic infractions or other minor offenses may be found lawful by a reviewing court if there is a showing of necessity that the person be placed in a general jail population.24

The Kansas Court of Appeals appears to have reached a similar conclusion in State v. Thomas,25 wherein the Court held that under the statutory scheme governing strip and body cavity searches of persons in custody, such searches are permitted without probable cause if the arrestee must, of necessity, be confined with the general prison population. However, the Court also held that the state bears the burden of proving the existence of such necessity.

Finally, on March 26, 2007 the United States Supreme Court denied certiorari on an Eighth Circuit Court of Appeals case wherein a former detainee at a juvenile detention center unsuccessfully challenged the center's policy of strip-searching all juveniles admitted to the facility regardless of the seriousness of the charged offenses or the existence of suspicion.26 The court had noted that to determine whether a "special need" situation justifies a search without individualized suspicion, a court must undertake a fact-specific balancing of the intrusion against the promotion of a legitimate governmental interest.

Reading all of this authority together, the one determinative fact issue in the situation you present is whether there is an actual necessity to place such an arrestee or detainee in a general jail population. If there is such a necessity, pursuant to K.S.A. 22-2524(b) and the Allen and Thomas decisions, it may be lawful to do a properly conducted strip search in order to insure that no contraband will be introduced into that population.27 However, the necessity for such placement of mere detainees or arrestees, as well as the scope of the particular intrusion and the place and manner of conducting the search, will be subject to strict scrutiny by any court asked to review the constitutionality of the search.

In summary, courts uniformly find constitutional fault with blanket policies providing for strip searches of all prisoners detained or arrested for violation of statutes, resolutions or ordinances involving only traffic, regulatory or nonviolent misdemeanor offenses. K.S.A. 22-2521(a) codifies this case law. However, pursuant to K.S.A. 22-2524(b), strip searches may be conducted absent reasonable suspicion or probable cause when a person accused of even this type of crime is, out of strict necessity, confined in a general jail population while awaiting appearance before a magistrate judge. This provision has not been struck down as unconstitutional. However, because courts often impose a strict burden of proof when such searches are conducted, we caution against adoption of any blanket policy

providing for such searches in all cases and urge every jailer to adopt policies that insure adequate justification is present in each specific situation.

Sincerely,

Paul J. Morrison

Attorney General

Theresa Marcel Bush

Assistant Attorney General

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