I have no criminal record and was very polite with anyone I came in contact with. I was booked on a misdemeanor offense and taken into a room used to store mats and apparently to change clothes in. A female jailer closed the door and directed me to undress one item at a time. When I was naked, I was told to turn and place hands on the wall, spread my feet shoulder width apart and turn my knees outward. I was then told to squat to the floor and cough 3 times. I was told to stand up and turn to face the jailer, wiggle my breasts and then was allowed to get dressed. I have filed a complaint with IAD, but is there anything else I should do? The guard was aware my children's father is a Sr. Sgt. within the same department.
The fact of the search may have been based on what was about to happen. That is, if you were not going to be detained for some brief period of questioning but in fact arrested and held in custody, a strip search is fairly common. Jail does not want you taking weapons, drugs or other contraband into the jail.
The propriety of the search is a pretty fact driven and on a case by case basis, my experience.
The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.
STRIP SEARCHES OF MISDEMEANOR ARRESTEE
Due Process Problems: Balancing the interests involved, it has been held to be a Fourteenth (and Fifth) Amendment due process violation to strip-search a misdemeanor arrestee where the arrestee is not to be intermingled with the general jail population, the offense for which she was arrested is not one commonly associated with the possession of weapons or contraband (i.e., DUI in this case), and there is no cause to believe she may possess either. (Logan v. Shealy (4th Cir. 1981) 660 F.2nd 1007.)
In California, Penal Code § 4030(f) provides the following restriction on strip searches: Unless, and until, a person (or minor, prior to a detention hearing), arrested for an infraction or misdemeanor, is moved into the general jail population (see subd. (g) for the prerequisites for moving a person arrested for an infraction or misdemeanor into the general population), he or she may not be subjected to a "strip search" or a "visual body cavity search" unless:
1. The offense for which he or she was arrested involved weapons, controlled substances, or violence; or
2. A peace officer has a "reasonable suspicion," based upon articulable facts, that the person is concealing a weapon or contraband and a strip search will result in the discovery of the weapon or contraband.
In Texas, see the civil rights case of Oscar Gabriel Jimenez, and Chandra Rae Jimenez vs. Wood County Texas Sheriff Dwaine Daugherty, (US 5th Circuit Court of Appeal - October 13, 2011), No. 09–40892. This court, in upholding a violation of the Ms Jimenez’s civil rights following a strip search after an arrest for a misdemeanor, referenced Roberts v. Rhode Island, 239 F.3d 107, 112-13 (1st Cir.2001), wherein the following was stated: “[W]hen the inmate has been charged with only a misdemeanor involving minor offenses or traffic violations, crimes not generally associated with weapons or contraband, courts have required that officers have a reasonable suspicion that the individual inmate is concealing contraband.” The Roberts court held that mandatory visual strip search policy at a correctional institution intake center was unconstitutional.
The Jimenez court also cited Weber v. Dell, 804 F.2d 796, 802 (2d Cir.1986), which held that mandatory visual strip search policy in county jail was unconstitutional. (Cert. denied, 483 U.S. 1020 (1987). In Weber, 804 F.2d at 804, the court stated the following: “We conclude that a reasonable suspicion that an accused misdemeanant or other minor offender is concealing weapons or other contraband-suspicion based on the particular traits of the offender, the arrest and/or the crime charged-is necessary before subjecting the arrestee to the indignities of a strip/body cavity search.”
The Jimenez court stated that “the classification of a crime as a misdemeanor has been treated by other circuits as a relevant or even determinative factor in ascertaining whether there is a reasonable suspicion requirement.” The Jimenez court upheld the district court’s determination that the strip search was a violation of Ms. Jimenez’s civil rights under 42 U.S.C. 1983, and that the damages and attorney’s fees awarded were appropriate. Thus, the Court of Appeal upheld the district court jury verdict finding the County liable for violating Ms. Jimenez's rights under the Fourth Amendment and imposing actual damages of $55,000, as well as punitive damages of $5,000 against Sheriff Daugherty. The court also granted the plaintiffs $157,394.60 in attorney’s fees and $37,153.95 in expenses.
This should give you some direction as to where you should address your efforts. There are also several class action lawsuits pending in Texas regarding strip searches of misdemeanor arrestees, but, generally, such cases only enrich the attorneys bringing the class action lawsuit. Sorry my brothers, but you know this is the case.
I hope this helps.
Drew Allan Cicconi
Attorney at Law
Disclaimer: This is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. This is not intended to be legal advice in your specific case. It's impossible to give detailed, accurate advice based on a few sentences on a website. You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information in your case.
You should sue them for violating your constitutional rights. Plaintiffs in Texas have been winning these lawsuits. Find an attorney that has already won a case like this. Good luck.
This is not really a criminal defense question. This is a question about whether or not the jail violated your civil rights. If it did, then your remedy is a civil lawsuit against the jailer, etc. I don't think it did, though. Strip searches before being jailed are standard practice. You say you were charged with a reckless driving, which is a class B misdemeanor, a level of offense in Texas which normally results in a person's being arrested and jailed. If you had been strip-searched after you had been stopped for a class C misdemeanor or a violation of a city ordinance, which are fine-only offenses, then your civil rights would have been violated.
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