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Prison Visitors Have Fourth Amendment Right to Refuse Strip Search and Option to Leave Prison

The Ninth Circuit Court of Appeals held that a strip search of a prison visitor without first giving them the option of the leaving the prison was unreasonable under the Fourth Amendment. The court, however, granted the defendants qualified immunity because that right was not clearly established at the time of the violation.

The court’s September 25, 2020, opinion was issued in an appeal brought by Tina Cates. She went to visit her boyfriend on February 17, 2017, at Nevada’s High Desert State Prison. Prison officials received a tip from two confidential informants that Cates was bringing drugs into the prison.

When she arrived at the prison, she signed the standard form that consented to a search of her person, vehicle, and other property. Arthur Emling, Jr. and Myra Laurian approached Cates, confirmed her identity, and instructed her to follow them without further explanation. Cates believed they were “cops” or prison officials and that she was in their custody.

Laurian took Cates to a bathroom and told her to remove all her clothing, including her tampon. She also told Cates to bend over so, and she conducted a visual body cavity search of her genitals and anus. After that search, Emling instructed Laurian to stay with Cates while he searched her car. No drugs or contraband were found on Cates or in her car. After Cates refused a search of her cell phone, her visit privileges were permanently suspended.

The search was a clear violation of Nevada Department of Corrections (NDOC) policy. It requires the visiting person that is subject to a strip searches to be informed they have a right to refuse the search and that they have the option to refuse unless a search warrant has been obtained and a peace officer is present. At no time did Cates consent to the strip search, nor was she informed of the option to refuse and leave. A search warrant had been obtained, but it was never executed.

Cates filed a civil rights action alleging nine causes of action. The district court granted the defendants summary judgment on all claims. Cates appealed.

The only viable issue on appeal was Cates’ claim that the strip search was unreasonable under the Fourth Amendment. The Ninth Circuit found searches involving exploration of body cavities are dehumanizing and humiliating. Reasonable suspicion is required to conduct such a search on a prison visitor.

The Ninth Circuit agreed with other circuits who have been confronted with the question before it. “Even if there was reasonable suspicion that Cates was seeking to bring drugs into the prison (a question we do not reach), Laurian violated her rights under the Fourth Amendment by subjecting her to a strip search without giving her the option of leaving the prison rather than being subjected to a search,” the court held.

It, however, found that right was not clearly established at the time of the violation, so Laurian was entitled to qualified immunity. The district court’s order was affirmed. See: Cates v. Stroud, 976 F.3d 972 (9th Cir. 2020). 

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Related legal case

Cates v. Stroud