Center for Human Rights and Constitutional Law blasts proposed prison visitor strip search policy as unconstitutional

Excerpts from a letter opposing “Emergency Proposed Regulations” regarding “Canine Searches of All Individuals” and “Electronic Drug Detection Equipment” sent to the California Department of Corrections and Rehabilitation on Sept. 23

by Peter Schey, Center for Human Rights and Constitutional Law

Under the Fourth Amendment, every search or seizure by a government agent must be reasonable. Strip searches deeply intrude upon an individual’s privacy interest. (Tinetti v. Wittke, 479 F. Supp. 486, 491 (E.D. Wis. 1979) (“[Searches including] the visual inspection of the anal and genital areas, ha[ve] been characterized by various witnesses here, and by judges in some other cases, as demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.”)

This friendly looking pair began “welcoming” visitors to Deuel Vocational Institution, a California state prison in Tracy, last October. Molly is DVI’s first drug sniffing dog, and correctional officer Robert Willcox is her handler.
This friendly looking pair began “welcoming” visitors to Deuel Vocational Institution, a California state prison in Tracy, last October. Molly is DVI’s first drug sniffing dog, and correctional officer Robert Willcox is her handler.

To perform a strip search, government officials must usually possess a search warrant and demonstrate that there is a clear indication that they will find evidence. (See Schmerber v. California , 384 U.S. 757, 769-70 (1966) (holding that Fourth Amendment forbids intrusions beyond body’s surface on “mere chance that desired evidence might be obtained.”)

When prisoners’ family members and friends visit prisons, they often expect to submit to some routine searches, such as pat downs and metal detectors. However, the proposed regulations expand the scope of the warrantless searches required for entry into prisons beyond what is reasonable because they impose such a personal intrusion upon free citizens who are merely visitors to the institution.

The ultimate intrusion, the strip search, is not justified by the Department’s interests involved. The Department has not demonstrated that its current efforts at prevention and detention of contraband would be seriously hampered if the use of canines (sniffer dogs), scanners and strip searches were not to be implemented. It has not even demonstrated that there is an immediate need or extraordinary circumstance warranting these extreme measures.

Most critically, canine searches and ion scanners are shown to be so lacking in reliability that they could not justify the degree of intrusion which is involved in a strip search of a visitor. A 2011 analysis of three years of data for suburban police departments found that only 44 percent of those alerts by the dogs led to the discovery of drugs or paraphernalia in drivers’ cars. (See Chicago Tribune: “Tribune analysis: Drug-sniffing dogs in traffic stops often wrong.”)

Peter Schey comments: “CDCR just keeps coming up with more and more reactionary, backward, repressive, uninformed, irrational policies. I think they’re reading manuals written for the Soviet Gulags in Siberia in the 1930s or “best prison practices” manuals used in Haiti under the Papa Doc Duvalier dictatorship. Amazing how CDCR’s disregard for the dignity, self-respect and rights of prisoners spreads so easily to their disregard for the dignity, self-respect and rights of prisoners’ family members and loved ones.”
Peter Schey comments: “CDCR just keeps coming up with more and more reactionary, backward, repressive, uninformed, irrational policies. I think they’re reading manuals written for the Soviet Gulags in Siberia in the 1930s or “best prison practices” manuals used in Haiti under the Papa Doc Duvalier dictatorship. Amazing how CDCR’s disregard for the dignity, self-respect and rights of prisoners spreads so easily to their disregard for the dignity, self-respect and rights of prisoners’ family members and loved ones.”

Experts point to inconsistent training standards, lack of certification for canine trainers and mistakes on the part of handlers. A 2011 UC Davis study found that “the performance of drug- and explosives-sniffing dog-handler teams is affected by human handlers’ beliefs, possibly in response to subtle, unintentional handler cues.”

A study showed that one drawback of ion scanner technology is that it measures drug particulates down to the nanogram, identifying “false positives frequently.” (See SCA Inc. “Mailroom Scenario Evaluation Final Report.”)

In examining the practical reliability of detection by ion scanner units in a laboratory and prison setting, one study found that cocaine was the only drug that was reliably detected, while heroin and amphetamine were poorly detected. The research, development and evaluation agency of the U.S. Department of Justice issued a report evaluating contraband drug detectors for law enforcement purposes, cautioning the limitations of the technology.

First, ion scanners detect chemicals that are derived from the building blocks of many substances other than controlled substances. In particular, the Department of Justice reported that the technology cannot distinguish between two different substances that are composed of ions with similar size and mass.

This means that even an innocuous substance can be identified as illegal contraband. Such an event is called a “false positive” and, to date, there are a number of substances that can cause this result, including medicine and painkillers, perfumes, body lotions, poppy seeds and chlorine baby wipes.

The Department’s implementation of canine sniffs and ion scanner technology will result in innocent visitors being denied visitation wrongly, unfairly and unnecessarily. Further, the Department cites to no research or data that shows its proposed measures will be effective in reducing drug and contraband smuggling into state prisons. It assumes that visitors are the source of such contraband but provides no evidence to justify these assumptions.

Nothing does more for rehabilitation than a family visit – and CDCR knows it. – Photo: CDCR
Nothing does more for rehabilitation than a family visit – and CDCR knows it. – Photo: CDCR

We recommend that the Department revoke implementation of these regulations because they infringe on visitors’ constitutional rights and they are humiliating, overly intrusive and entirely unnecessary.

Don’t stop protesting

Peter Schey adds this note to prisoners’ families and supporters: “The Sept. 23 deadline to submit comments is probably illegal. There is NO justifiable ‘emergency’ to avoid regular public comment. We therefore urge you to continue to write letters denouncing these reactionary proposed regulations even though the illegal ‘deadline’ has passed.” Send your letters via email to gail.long@cdcr.ca.gov and staff@oal.ca.gov and via fax to (916) 324-6075.

Peter Schey, president of the Center for Human Rights and Constitutional Law, can be reached at pschey@centerforhumanrighst.org.