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Strip Search Jury Instruction Held Invalid; New Trial Ordered

by Bob Williams

Finding the jury instruction definition of strip search" too narrow, the
United States Court of Appeals for the First Circuit reversed a jury's
finding that a state jail prisoner's strip search was not unconstitutional.
Geoffrey Wood was arrested twice on misdemeanor charges in 2001. Each time
he was taken to the Hancock County Jail in Ellsworth, Maine, where he was
processed until he could make bail. This processing included a full strip
down while his clothing was searched followed by a mandatory shower. Wood
also claimed his body was visually searched after the shower as he was
forced to raise his hands over his head, turn around a full 360 degrees,
open his mouth, move his tongue around, and run his fingers through his
hair. The morning after the second arrest Wood was strip searched after a
contact visit with his attorney.

Wood filed a 42 U.S.C. § 1983 suit claiming these strip searches were
unconstitutional violations of his Fourth Amendment right to be free from
unreasonable searches. The case went to jury trial where the jury found
against Wood's claims on all three searches.

On appeal, Wood argued that even though the state calls the first two
searches "clothing searches," they were still strip searches and the
court's jury instruction misled the jury by defining strip search as
involving a deliberate, visual inspection of the naked body of a prisoner
which includes the examination of the mouth and armpits." The state
conceded that an actual strip search incident to the two arrests would
violate the Fourth- Amendment but maintained they were clothing searches-
with only permissible incidental viewing of Wood's body.

The First circuit has maintained that a strip search incident to
misdemeanor charges is lawful only when jailors have a reasonable
suspicion that he is either armed or carrying contraband." It is
undisputed that Wood was not suspected of either. As such, the court's
definition of strip search became crucial to Wood's case.

The district court impermissibly added deliberate" as well
as examination of the mouth and armpits" to the strip search definition
previously held proper in the First Circuit which generally states that a
strip search is an inspection of a naked individual, without any scrutiny
of the subject's body cavities.

The Court found that under the definition of strip search contained in the
jury instruction that even the most deliberate visual inspection of a
naked body" would pass muster as long as, e.g., one or two armpits were
not inspected. Similarly, a guard could have a complete and prolonged
viewing of a naked body" and still survive challenge if a jury found it
was not deliberate" because it was for the purpose of searching clothing.
The Court rejected the use of deliberate" because it unduly directed the
jurors to the officers' subjective intent." It is not important whether
the guards set out to deliberately inspect Woods. Whether the guards
actually performed a search is the important question.

Because the evidence could have supported a finding by the jury, under the
correct jury instruction, that even a brief visual inspection was focused
on detecting contraband and was thus a search, the Court reversed the
finding on the first two searches. They let stand the third search,
incidental to a contact visit, which is under a different standard and had
a proper jury instruction. See: Wood v. Hancock Sheriff's Department, 354
F.3d 57 (1st. Cir. 2003).

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Related legal case

Wood v. Hancock Sheriff's Department

Wood v. Hancock County Sheriff's Dep't, 354 F.3d 57 (1st Cir. 12/31/2003)

[1] United States Court of Appeals For the First Circuit

[2] No. 03-1564

[3] 354 F.3d 57, 2003

[4] December 31, 2003


[6] Sandra Hylander Collier for appellant.

[7] Peter T. Marchesi with whom Wheeler & Arey, P.A., was on brief for appellees.

[8] Before Selya, Circuit Judge, Coffin and Stahl, Senior Circuit Judges.

[9] The opinion of the court was delivered by: Coffin, Senior Circuit Judge.


[11] Appellant Geoffrey Wood claims that he was unconstitutionally strip searched on three separate occasions by correctional officers at the Hancock County Jail in Ellsworth, Maine. He filed a lawsuit seeking damages under 42 U.S.C. § 1983 from the county, the sheriff, and the jail administrator, but a jury found in favor of the defendants. *fn1 On appeal, Wood contends that he is entitled to a new trial because the district court incorrectly instructed the jury on both the definition of a strip search and the law governing routine strip searches of inmates after contact visits. We see no error as to the law applicable to post-contact visits, but have concluded that a sufficiently misleading definition of a strip search warrants a partial new trial.

[12] I. Factual Background

[13] In mid-2001, appellant Wood was arrested twice on misdemeanor charges and required to completely disrobe three times in the presence of correctional officers. The first two episodes occurred as part of his processing into the Hancock County Jail following the arrests. Although Wood characterizes these events as strip searches, the county defendants maintain that the encounters were "clothing searches" and that any observation of Wood's naked body was incidental to the correctional officers' purpose to examine his clothing. The third search occurred on the morning after Wood's second arrest, following a contact visit with his attorney. The parties agree that Wood was subjected to a strip search at that time, but disagree about its constitutionality.

[14] The details of these three incidents, with the facts largely depicted in the light most consistent with the jury's verdict, are described below. Before turning to those details, we briefly review the jail's relevant search policies.

[15] According to Policy No. C-120, titled "Admissions Procedures -Inmates Not Bailed," an individual who is being assigned to a housing unit in the jail - whether charged with a misdemeanor or felony - is subject to a clothing search and must shower after disrobing "in the presence of [a] Corrections Officer." Jail Policy D-220 (Procedure C(1)), titled "Search Procedures," states that a pre-trial inmate charged with a misdemeanor offense - like appellant - is subject to a more intrusive strip search only if the officer "has reasonable suspicion that [the] inmate is concealing contraband and is about to come into contact with inmates of the facility."

[16] A "clothing search" is defined as "[t]he removal and search of all of an inmate's clothing," *fn2 while a "strip search" is defined as "[a] visual search of an inmate which requires the removal of all clothing, to include a search of the clothes removed." Policy D-220. *fn3 Thus, individuals arrested for a broad range of minor offenses classified as misdemeanors, including failure to pay highway tolls or speeding, could be asked to disrobe completely and shower if they are unable to post bail and must be assigned housing. Only felony detainees and those suspected of carrying contraband are subject to the more extensive examination that the policy describes as a "strip search."

[17] Search #1. On May 27, 2001, Wood was arrested on misdemeanor charges of domestic abuse and taken to the Hancock County Jail. He did not immediately post bail and therefore was required to shower and undergo a clothing search. He was escorted by a correctional officer into a room near the booking area known as "the nurse's station" or "medical room" and directed to disrobe, one article of clothing at a time, until he was naked. He was standing four to five feet from the officer. Wood contends that two officers were present, but jail records indicate that only Officer Christopher Rivers supervised the search and shower.

[18] Officer Rivers testified that his standard practice in clothing searches is to instruct the inmates to turn over their underwear last and then to enter the nearby shower stall. Although Rivers said the objective of the search is to detect contraband in the clothing, he and a fellow officer, Chad Wilmot, both testified that they "maintain a visual" on the individuals as they disrobe and enter the shower. Rivers stated that, during the process, the inmates end up standing naked for "[s]econds," and Wilmot noted that "[w]e're not physically inspecting them, having them raise their arms or anything like that, and we're also bringing clothes and a towel so that they can dry off and change up when they get out of the shower." *fn4

[19] The jail's administrator, Linda Hannan, testified that the corrections staff attempts to provide as much privacy as possible in the circumstances. *fn5 She said that the shower curtain, which was admitted into evidence, is black from about shoulder height down, and she further stated that the officers are trained to avert their eyes from the inmate during the clothing search. She acknowledged that officers might observe the inmate's naked body "for a split second as [they] reach for that last piece of clothing." Hannan's depiction of the policy departed somewhat from the two officers' consistent report that they were trained to maintain eye contact with the inmate and that they were not trained to look away because "that would be an officer safety issue."

[20] Search #2. Wood was arrested again on July 10 and charged with violating a protection from abuse order. He again was brought to the Hancock County Jail and searched in similar fashion to the May occurrence. *fn6 He remained at the jail overnight.

[21] Search #3. On the morning of July 11, appellant was twice visited by his attorney. Both encounters were "contact" visits, meaning that counsel and client were face-to-face without a glass partition or other divider separating them. Although jail policy calls for inmates to be strip searched after all contact visits, *fn7 appellant was not searched after the first session with his counsel. After the second, longer visit, however, as appellant and his counsel passed through the booking area, the booking officer stated that appellant needed to be strip searched pursuant to jail policy. He was taken into the same room where the previous searches had been conducted, and a full strip search was done. He was asked to fully disrobe, and then was ordered to stick out his tongue, hold his hands above his head, turn around, bend over, and manually spread his buttocks.

[22] Appellant contends that all three of these searches violated his Fourth Amendment right to be free from unreasonable searches and that the jury was led to conclude otherwise by the trial court's erroneous instructions. With respect to the first two searches, appellant argues that, despite being labeled "clothing searches," they effectively were strip searches. The parties agree that the search constitutes a Fourth Amendment violation if it was indeed a strip search. See infra at 10-11. Appellant asserts that the jury was led astray because the court's instruction improperly limited the definition of a strip search. See infra at 10. He claims that the instruction concerning the third search - undisputedly a strip search - erroneously established a presumption of reasonableness regarding strip searches after contact visits. See infra at 21-23.

[23] Defendants assert in response that the court's instructions accurately reflected the law and that the jurors properly found no constitutional violation. They insist that the May 27th and July 10th searches were carefully limited clothing searches, not strip searches, and as such involved permissible incidental viewing of appellant's naked body. In any event, they say, the label given to the first two searches is unimportant because the jury's verdict is supportable even if appellant were subjected to unlawful strip searches. They assert that the verdict form may be interpreted to reflect a judgment that the defendants - the county and its supervising officials - were not liable for the officers' conduct because the officers' actions did not represent a widespread practice or custom. See Monell v. New York Dep't of Social Servs., 436 U.S. 658, 694 (1978); Miller v. Kennebec County, 219 F.3d 8, 12-13 (lst Cir. 2000). Finally, defendants assert that the July 11th strip search was "wholly constitutional" and that the court's instruction correctly set out the law governing routine strip searches following contact visits.

[24] For the reasons discussed below, we conclude that appellant is entitled to a new trial on the claims related to the May 27th and July 10th searches, but we uphold the jury's judgment on the July 11th strip search.

[25] II. Discussion

[26] A jury instruction that was objected to at trial will constitute reversible error "'only if it (i) is "misleading, unduly complicating, or incorrect as a matter of law"; and (ii) cannot be considered harmless . . . .'" Richards v. Relentless, Inc., 341 F.3d 35, 46 (lst Cir. 2003) (citations omitted). In probing whether the error could have affected the outcome of the jury's deliberations, we consider its impact in light of the entire record. See Tum v. Barber Foods, Inc., 331 F.3d 1, 8 (lst Cir. 2003) (citing Federico v. Order of St. Benedict, 64 F.3d 1, 4 (lst Cir. 1995) and Allen v. Chance Mfg. Co., 873 F.2d 465, 469 (lst Cir. 1989)).

[27] With this guidance in mind, we consider in turn each of the challenged instructions.

[28] A. Definition of Strip Search

[29] The district court defined a strip search to the jury as follows:

[30] A strip search involves a deliberate, visual inspection of the naked body of a prisoner which includes the examination of the mouth and armpits. A visual body-cavity search is a strip search that includes visual inspection or visual examination of the anal and genital areas.

[31] Appellant objected to this instruction and proposed an alternative to the court that more broadly defined such a search, essentially classifying any required exposure of a private body part as a strip search. *fn8

[32] The definition of a strip search was crucial to appellant's case. Our case law holds that an individual detained on a misdemeanor charge may be strip searched as part of the booking process only if officers have reasonable suspicion that he is either armed or carrying contraband. See Savard v. Rhode Island, 338 F.3d 23, 27 (lst Cir. 2003) (en banc) (opinion of Selya, J.), petition for cert. filed, 72 U.S.L.W. 3348 (U.S. Nov. 3, 2003) (No. 03-683); Roberts v. Rhode Island, 239 F.3d 107, 113 (lst Cir. 2001). In so concluding, we have recognized that "strip searches are intrusive and degrading []and, therefore, should not be unreservedly available to law enforcement officers[]." Savard, 338 F.3d at 27. When such an intrusion is extended to relatively harmless offenders, "a severe incursion on privacy" occurs, Roberts, 239 F.3d at 111.

[33] In Savard, for example, one of the strip-searched plaintiffs had been arrested for a traffic ticket that had been issued to his son six years earlier and never paid; another was arrested in error for failing to appear for a probation review after her probation had ended. See 338 F.3d at 33 (opinion of Bownes, J.). Requiring particularized suspicion to strip search misdemeanant arrestees balances institutional security needs with individual privacy, which includes "a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have [one's] 'private' parts observed or touched by others." Justice v. City of Peachtree City, 961 F.2d 188, 191 (11th Cir. 1992) (citation and internal quotation marks omitted). There is no dispute that Wood was not suspected of carrying a weapon or contraband either time he was arrested and booked. Thus, if he was strip searched, he suffered a constitutional injury.

[34] Having carefully reviewed the relevant precedent, we believe the court's instruction erroneously circumscribed the jury's evaluation of the evidence. Nearly twenty years ago, we defined a strip search as "an inspection of a naked individual, without any scrutiny of the subject's body cavities," Blackburn v. Snow, 771 F.2d 556, 561 (1st Cir. 1985), *fn9 and we repeated substantially that same description in subsequent cases. See Savard, 338 F.3d at 25 (defining strip searches as "visual inspections of the naked body"); Roberts, 239 F.3d at 108 n.1 ("A 'strip search' involves a visual inspection of the naked body of an inmate."). See also Peckham v. Wisconsin Dep't of Corrections, 141 F.3d 694, 695 (7th Cir. 1998) ("strip search" refers to "a visual inspection of a naked inmate without intrusion into the person's body cavities"). *fn10 The district court departed from these formulations by defining a strip search to include an "examination of the mouth and armpits," and by stating that the inspection must be "deliberate." Although strip searches often may involve additional steps, we decline to draw the line so narrowly that standing naked for inspection by officers falls short of being a strip search if unaccompanied by a demand to open one's mouth or lift one's arms. Unquestionably, the serious intrusion stems from exposing one's naked body to official scrutiny; the impact of that forced nudity is undervalued if focused attention on the mouth and underarms is also required to reach the threshold of a strip search.

[35] Under the court's instruction, the most deliberate visual inspection of a naked body, even including a look in the mouth, would pass muster, simply because one or two armpits were not inspected. Alternatively, a complete and prolonged viewing of a naked body could survive challenge if a jury were to find that it was not sufficiently "deliberate" because it was designed to examine clothing rather than the body.

[36] The court's instruction was therefore flawed in two respects. By adding the word "deliberate" to the definition we previously have adopted - stating in the first portion of its instruction that "[a] strip search involves a deliberate, visual inspection of the naked body of a prisoner" - the court unduly directed the jurors to the officers' subjective intent. The word "inspection" sufficiently connotes the need for a focused look. See The Random House Dictionary of the English Language (2d ed. 1987) (unabridged) at 987 (defining "inspection" as "the act of inspecting or viewing, esp. carefully or critically . . . ," and, alternatively, as "formal or official viewing or examination"). *fn11 Whether or not the officers set out deliberately to inspect a prisoner's naked body is not the question; it is, rather, whether the officers did, in fact, perform such a search. The remainder of the instruction then added specific elements to the definition - scrutiny of the mouth and armpits - that are not prerequisites for finding that a strip search took place.

[37] These variations cannot be considered harmless in this case. *fn12 Although the jury may not have based its judgment for defendants on the scope of the searches - an issue we discuss infra at 16 - the problems with the instruction were sufficiently critical to the jury's deliberations that appellant is entitled to have the issue re-submitted to a jury. We begin our explanation of that conclusion with a brief review of the evidence of what occurred.

[38] Appellant testified that he was subjected to examinations that met the district court's definition of a strip search, including scrutiny of his mouth and armpits, see supra notes 4 & 6, while the officers testified that the only viewing of appellant's naked body occurred in the few seconds after he had completely disrobed while they "maintain[ed] a visual" on him before he entered the shower. Defendants emphasize that, even if the jurors had accepted appellant's version, the jury properly may have found no liability against the county.

[39] As first set forth by the Supreme Court in Monell, a governmental entity may not be held liable under 42 U.S.C. § 1983 for constitutional violations committed by its employees unless the plaintiff's injury results from either an officially sanctioned policy or from a custom or practice that is "so well-settled and widespread that the policymaking officials . . . can be said to have either actual or constructive knowledge of it yet did nothing to end the practice," Bordanaro v. McLeod, 871 F.2d 1151, 1156 (lst Cir. 1989). In the latter case, "the custom must have been the cause of and the moving force behind the deprivation of constitutional rights." Id.; see also Miller, 219 F.3d at 12. Thus, in rejecting liability, the jury may have believed appellant but concluded that the officers acted randomly beyond the jail's policies.

[40] Another possibility, however, is that the jury believed the officers' description of what occurred and concluded - consistent with the jury instruction - that these were not strip searches because there was no check of appellant's mouth or underarms. Such a conclusion would have made unnecessary any further discussion about the specific nature of the search and whether the visual observation of appellant constituted an "inspection" that would qualify as a strip search.

[41] In our view, if the jury had had such a discussion, with the benefit of the correct definition of "strip search," it could have reached a different result. Both officers testified that appellant was under constant watch as he disrobed. See supra at 5. Officer Wilmot stated that the officers are "physically inspecting the clothes, not the person," but he replied affirmatively when asked by counsel if the process necessarily included "maintain[ing] a visual of their body while they're in the process of disrobing." In addition, while Administrator Hannan stated that the only target of the search was appellant's clothing, she acknowledged that officers conducting clothing searches must at least observe inmates "out of the corner of [their] eye[s]" to be sure the prisoners do not take contraband from their clothing and hide it on their persons. She explained that the concern about concealment is why disrobing for a clothing search must be done in an officer's presence rather than behind a screen or in another private area.

[42] Based on this evidence, a properly instructed jury could have decided that both clothing searches performed on appellant embraced a visual inspection of his naked body that - albeit brief - was focused on detecting contraband, and thus amounted to a strip search. Our precedent does not require that a search be either prolonged or thorough to be termed a strip search, and we decline to add such limitations. The critical question is whether viewing the naked body was an objective of the search, rather than an unavoidable and incidental by-product. Had appellant been allowed to disrobe behind a screen, for example, and directed to enter the shower while officers examined the clothes he left behind, the momentary exposure as he walked from the screen to the shower clearly would have been incidental to the search of his clothing. By contrast, the procedure utilized by the Hancock County Jail in this case, as described by the officers, allowed visual inspection of appellant's body through the progressive stages of his undressing. Indeed, the combined effect of Administrator Hannan's and the officers' testimony permits - although it does not compel - the inference that, during clothing searches, officers routinely keep watch through the disrobing process, at least in part, to be sure no items are secreted on the body. *fn13