NINTH CIRCUIT TO RECONSIDER CROSS GENDER BODY SEARCHES

Last May the Ninth Circuit ruled that it was not a violation of Charles Byrd’s civil rights to be searched by a female sheriff’s deputy during a pretrial detention at Maricopa County (Phoenix) Durango jail. Apparently the Court is now having second thoughts because a majority of the judges on the Ninth Circuit voted to grant an en banc hearing where eleven of the judges will reconsider the issue.

During a search of his housing area in the jail for contraband, Byrd was ordered to strip to his underwear. Then a female cadet was ordered to search him including his groin area through his underwear even though male officers were nearby and could have performed the search. The opinion states:

When it was Byrd’s turn, the officers ordered Byrd to walk
over to the cadets, stand facing away from them, raise his
arms above his head, and spread his legs. O’Connell
approached Byrd from behind and conducted the search as
follows: She ran her hands across the waistband of Byrd’s
boxer shorts and pulled the waistband out a few inches to
check for anything hidden or taped inside; she did not look
into his boxer shorts. She lightly frisked over his boxer shorts
and down the outside of his thigh, stopping at the bottom of
the shorts. Through the boxer shorts, O’Connell moved
Byrd’s scrotum and penis with the back of her hand in order
to frisk his groin, applying light pressure to feel for contraband.
She then placed her hand at the bottom of his buttocks,
ran it upward over his boxers, and separated the cheeks to
search for any contraband taped, placed, or hidden inside

The original Ninth Circuit panel stated:

We are troubled by the overall circumstances
of the search in question. The scope of the search was
invasive in that it involved contact with Byrd’s genital region,
albeit through his boxer shorts. The embarrassment inherent
in such a pat down and partial strip search was amplified by
several factors: the cross-gender aspect; the fact that it took
place in the presence of many officers and cadets, one third
of whom were female; and that it took place in the presence
of a person with a hand-held camera, notwithstanding the fact
that the record does not give rise to the inference that Byrd’s
search was recorded.

But it found that the search did not violate the Fourth or the Fourteenth Amendments to the Constitution. It found that the search was done for a legitimate security need of the jail and it was done pursuant to jail regulations limiting the cross gender physical connection. Therefore it complied with the reasonableness requirement of the Fourth Amendment.

Judge Fernandez dissented from the panel’s finding that the search complied with the Fourth Amendment’s reasonableness requirement. While he admitted that cross gender searches might in some circumstances be necessary, he found no emergency or particular need for a cross gender search in this case and without an emergency he stated the reasonableness requirement was not met.

Now the Ninth Circuit will have a chance to review and reconsider its decision.