Federal Strip Search Case Law and the Remaining Possibility of State Law Liability

Police conduct in Ohio is covered by two different sets of rules: federal law and state law. Generally, these rules agree, but often they do not.  An example of this arises with the United States Supreme Court’s recent decision in Florence v. Board of Chosen Freeholders of the County of Burlington, et al., 132 S.Ct. 1510 (2012).  Under Florence, jail administrators are given wide latitude in deciding whether to conduct strip searches of new jail inmates.  However, far less latitude exists under Ohio law, where strip searches are specifically governed by Ohio Revised Code § 2933.32.  Awareness of the differences between the federal and state rules will assist law enforcement in properly complying with both and reduce both civil and criminal liability exposure for strip searches.

Florence v. Board of Chosen Freeholders of the County of Burlington

On April 2, 2012, the United States Supreme Court issued its decision in Florence.  In its opinion, the U.S. Supreme Court decided that requiring any person who is arrested and put into the general jail or prison population to undergo a procedure wherein they are made to remove all their clothes, squat and cough, turn around and lift their genitals and be subject to visual inspection of their body, ears, nose, mouth, hair, scalp, fingers, arm and armpits, and other body openings, is permissible.  The Court noted that no touching was involved during this inspection.  Additionally, no body cavities themselves were actually inspected.  The Court found such a generalized requirement that all persons about to enter general population of a jail or prison be put through such a visual inspection was a reasonable balancing of the Fourth Amendment interest of the prisoners and the institutional needs of jail administrators.

Further, the Court refused to require jail administrators to go through an analysis of whether an individual arrestee presented a particularized risk that the person was carrying weapons or contraband.  The Court declined to impose any particularized reasonable suspicion requirement on jail administrators.  To the contrary, the Court indicated that prison officials must be left to make those determinations, as to the proper balance between institutional security and the rights of persons entering the jail absent some demonstration of abuse of that authority by prison officials.  The Court did leave open the possibility of exceptions such that under some circumstances such searches would not be reasonable, in where misdemeanant and traffic offenders are held in a separate population.

The rule annunciated by the Supreme Court applies even to persons arrested on minor misdemeanors or traffic offenses.  The Florence decision effectively overrules the Sixth Circuit’s holding in Masters v. Crouch, 872 F.2d. 1248 (6th Cir. 1989), which had required a particularized suspicion prior to any such strip search of a person arrested for a traffic offence or charged with a minor misdemeanor.

Ohio’s Statute Regulating Strip Searches: R.C. § 2933.32

However, in Ohio, Revised Code §2933.32 regulates body cavity and strip searches under Ohio law and imposes both civil and criminal liability on law enforcement officials for strip searches and body cavity searches which violate that statute.  While the Florence decision may protect officers from federal civil claims, it has no bearing on civil or criminal liability imposed under R.C. § 2933.32.

Under R.C. § 2933.32, a strip search of a person arrested or detained for the alleged commission of a misdemeanor or traffic offense can only be conducted upon a determination of probable cause that the person is concealing evidence of the commission of a criminal offense, contraband or deadly weapon or the fruits or tools of a crime.  Also noteworthy is that under the statute a strip search does not mean the visual observation of a person while that person is changing into clothing that is required to worn by inmates in the facility, where such person was afforded a reasonable opportunity to secure release on bail or recognizance, and who fails to secure such release and who is to be integrated into the general population of any detention facility.

A violation of R.C. § 2933.32 provides for a state law civil cause of action, including punitive damages.  The statute also provides for criminal sanctions for violation of the statute.

Revised Code § 2933.32 contains detailed record keeping requirements for strip searches and body cavity searches.  Body cavity searches have yet further restrictions on when such searches are permissible.  The details of the regulations of both strip searches and body cavity searches are beyond the brief nature of this article.

In summary, while the Supreme Court’s recent opinion in Florence v. Board of Chosen Freeholders provides protection against a Fourth Amendment claim for a blanket policy of strip searching misdemeanants and traffic offenders who are about to enter a general population, the requirements of R.C. § 2933.32 still regulate such actions in the State of Ohio, and law enforcement must pay attention to the requirements of R.C. § 2933.32 in exercising their duties.