Did jail strip search go too far? Supreme Court lets ruling stand.

The US Supreme Court declined on Monday to examine a federal appeals court ruling that the strip search of a male detainee by a female guard in an Arizona jail was an unreasonable search in violation of the Fourth Amendment.

The action lets stand a 6-to-5 ruling by the full Ninth US Circuit Court of Appeals in San Francisco involving a search conducted by a female cadet at a jail run by the Maricopa County Sheriff’s Department.

The case comes at a time of heightened public awareness of intrusive searches as a condition of air travel, including intimate pat downs and technology capable of simulating a strip search. The case dismissed on Monday, however, took place in the context of a jail.

At issue was a 2004 search of Charles Byrd, a pretrial detainee, at a minimum security jail in Phoenix.

Mr. Byrd was one of 90 detainees ordered to submit to a unit-wide search for contraband and weapons. Byrd was told to remove his clothing except his boxer shorts, which were described as pink and comprised of very thin, revealing material. The searches took place four to six at a time. Some were conducted by cadets from the detention officer training academy. Present during the searches were an estimated 25 cadets, a number of training supervisors, and 10 to 15 uniformed guards. The procedure was also videotaped.

Byrd said in his lawsuit that he should not be subject to such an intrusive search by a female guard. He also charged that the female guard – later identified as Cadet Kathleen O’Connell – squeezed his genitals and kneaded his buttocks during the search.

Unlike a standard strip search, which involves visual inspection of the naked body, Byrd’s search was a cross between a pat-down search and a strip search. Rather than a visual inspection, Byrd’s search relied on the sense of touch to identify concealed weapons or contraband.

The cadet ran her hands over parts of Byrd’s body, including the most private parts of his body. The cadet estimated the search took 10 to 20 seconds; Byrd says it was closer to 60 seconds.

No weapons or contraband were found. But the experience left Byrd feeling humiliated.

A federal judge threw out portions of his lawsuit but allowed a jury to decide whether the incident was an unreasonable and unconstitutional search. The jury ruled against Byrd.

A federal appeals court panel upheld the jury’s conclusion.

The full Ninth Circuit in San Francisco agreed to hear Byrd’s appeal. The court split 6 to 5, ruling that the cross-gender strip search performed on Byrd was unreasonable and violated his Fourth Amendment rights.

“The indignity of the non-emergency strip search conducted by an unidentified female cadet was compounded by the fact that there were onlookers, at least one of whom videotaped the humiliating event,” wrote Judge Johnnie Rawlinson for the court majority.

“Courts throughout the country have universally frowned upon cross-gender strip searches in the absence of an emergency or exigent circumstances,” Judge Rawlinson said.

Judge N. Randy Smith filed a dissent joined by four other judges. “Not lightly do I find reasonable a female officer’s probing search of a male detainee wearing only thin boxer shorts,” Judge Smith said. “Nevertheless, I believe the precedent and the facts compel this result, unsavory to our sensibilities though that result may be.”

Smith said he felt the case was more a pat-down search than strip search, since Byrd wore his boxers throughout the procedure.

The judge said court precedent allows female officers to conduct pat-down searches of the groin area of fully clothed male inmates. He said precedent also allows female officers to observe unclothed male inmates in their cells and in the showers.

Smith said judges should defer to decisions made by corrections officials regarding such searches. With 10,000 prisoners in the Maricopa jail system, there are not enough male guards to conduct all the searches necessary to run the jail, he said.

Restricting the ability of female guards to conduct certain kinds of searches might “perpetuate sexist notions that a female is only useful when a male is not available,” Smith said in his dissent.

The judge added: “Instead of converting Durango Jail into a target for equal opportunity litigation, I defer to the prison officials’ reasoned and sensible judgment on these matters.”

The case is Maricopa County Sheriff’s Department v. Byrd (10-1201).