The Supreme Court ruled this week in Florence v. Board of Chosen Freeholders of County of Burlington that a jailor may conduct a visual search of an inmate, involving a strip search and the inmate’s forced manipulation of bodily parts, prior to the inmate entering the general population of the jail regardless of the seriousness of the offense leading to the incarceration.

Albert W. Florence was arrested in 2005 on a warrant that should have been removed from the books in 2003. He spent six days in two jails prior to being released. When he entered each of the jails a strip search was performed. He was observed showering with a lice killing shampoo. As he undressed officers visually searched him for scars, marks, gang tatoos, and contraband. He was required to open his mouth, lift his tongue, raise his arms, and lift his genitals.

The issue of strip searches for minor offenses has caused considerable debate in the lower courts and it should be no surprise that the Supreme Court was quite divided on the subject. The majority, consisting of Chief Justice Roberts and Justices Kennedy, Alito, Thomas, and Scalia held that the necessity to keep contraband out of the jails, to segregate feuding gang members and to prevents the transference of disease are valid penological goals and as a result jails should be allowed to conduct such searches. The minority, consisting of Justices Breyer, Kagan, Ginsburg, and Sotomeyor point to the extremely invasive nature of such searches. Furthermore, they point out that there are very few examples of people charged with minor offenses bringing contraband into the jails and that most of these can be screened out by allowing strip searches when the jailor has a reasonable suspicion that the inmate possesses contraband.

Both sides agree that future litigation might point to certain categories of inmates who should not be searched. These may include, among others, people who are not entered into the general population, individuals picked up for traffic offenses who will be taken before a magistrate shortly after arrested and released.

Overall, the issue of contraband in the jails is a major issues that leads to injury to jailors and inmates. The jails must be kept free of drugs and weapons. But perhaps the question here should be why are people charged with traffic violations and other minor offenses being put into our jails in the first place, particularly in light of the overcrowded nature of most of our jails and the cost of keeping people in jail. Sadly, The Supreme Court ruled in Atwater v. Lago Vista that people charged with infractions who cannot be sentenced to jail can be held in the jail prior to going before a magistrate for the setting of bail or prior to trial.

Joel Rodriguez was arrested on Federal narcotics charges. Shortly after he was arrested and prior to his indictment, while housed in New York City’s Metropolitan Detention Center, he called his sister and asked her to ask their brother to talk to his lawyer to negotiate a pre-indictment deal. The jail taped the conversation, as it does with all inmate calls and gave the tape to the prosecutor who introduced the tape at trial as evidence of his consciousness of guilt.

On appeal Rodriguez challenged the admission of the telephone call on the grounds that 1) it was an attorney-client communication and 2) it was a statement made in plea negotiations.

The Second Circuit confirmed his conviction and upheld the admission of the telephone call. Attorney-client communications are inadmissible if they are: “(1) between a client and his or her attorney (2) . . . intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice.” Conversations with third parties may be inadmissible under the privilege if they are necessary to obtain the confidential advice of an attorney.

The appellate court found that the tape was admissible. Since it was well known that telephones conversations were taped Rodriguez knew that the conversation could not be confidential. Furthermore there was no evidence that Rodriguez could not call the lawyer or that it was necessary to go through his sister to get to the lawyer.

As to statements made during plea bargaining, they are governed by Rule 410 of the Federal Rules of Evidence which only prohibits statements made with opposing counsel and the United States Attorney was not involved in the discussions.

The problem is that attorneys are not easy to get a hold of. Here the matter was urgent in that it needed to be done before the indictment. The attorney may not be in the office. All jail calls have to be collect and if an attorney runs up too many collect calls the phone company terminates further collect calls until the attorney deposits more money in the account. Sometimes there is a language barrier to direct conversations with the lawyer. For any number of reasons it may be easier and more convenient to go through a third party and the admission of these third party calls at trial can be very harmful. More importantly what about direct calls to the attorney. They are still taped. Jails are supposed to have special lines that are not taped for use in calls to the attorney. But access to these lines is often dependent upon the convenience or availability of a guard to provide access and this is often difficult to obtain.

But more importantly, the message to be learned from Rodriguez is that inmates must be very careful what they say to other inmates, in telephone calls, and during visitation. There is a very significant risk in saying anything about their case except in conversations with their lawyer and preferably these conversations should be in person.

Casey Anthony has sure done a good job of convicting herself.

Today, we’ve got a quiz. How many violations of the Constitution can Berkeley County, South Carolina Sheriff Wayne DeWitt commit simultaneously? DeWit is responsible for the Berkeley County Detention Center, otherwise known as the county jail.

At least until recently all books except for paperback copies of the Christian Bible were banned.That means the Jewish Torah and the Muslim Koran are banned. Also banned are novels, health books, books on law, etc. This may even exclude the constitution and the Declaration of Independence from the jail. It even includes Christian literature other than the Bible.

I wonder if the reason books are excluded is that the sheriff and his deputies cannot read.

The policy was recently changed but only after the ACLU filed suit. The Federal government has now joined the suit.

My answer to the question is seven. (freedom of speech, the establishment clause, freedom of religion, right to a fair trial, cruel and unusual punishment, due process, and equal protection)

The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) prevents governmental bodies from placing a substantial burden on an individual’s religious activity by its land use policy or in institutions including jails and pretrial detention centers built with Federal money.

The statute reads in pertinent part:

(1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution–
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

Souhair Khatib and her husband plead guilty to misdemeanor welfare fraud in Orange County, California. They were sentenced to three years probation and thirty days of community service. As the period to complete the community service was ending, they went back to court to request an extension of time. For an unstated reason the judge was angry and revoked their probation. They were immediately incarcerated in the Santa Ana Courthouse’s holding facility. Khatib, a practicing Muslim, was forced to remove her hijab. This caused her considerable anxiety, aggravation, and embarrassment. Later in the day the judge called Khatib back into the courtroom, reinstated her probation and extended the time to complete the community service.

She sued in Federal Court. Orange County moved to dismiss the case on the grounds that the holding facility was not an institution under the RLUIPA. The District Court granted the motion and dismissed the case. The three judge appellate panel upheld the dismissal but an en banc decision unanimously reinstated the matter.

The court held that the holding facility was both a pretrial detention center and a jail. Since neither “pretrial detention center” or “jail” is defined in the statute the Court looked to the ordinary and common meanings of the terms. The court held that pretrial detention is simply the “holding of a defendant before trial on criminal charges.” Since the holding facility confines people waiting for court appearance and for trial it meets the definition. The court quotes Webster’s as defining a jail as a “building for the confinement of persons held in lawful custody (as for minor offenses or some future judicial proceeding).” Orange County describes the holding facility as a “secure detention facility . . . for the confinement of persons solely for the purpose of a court appearance.” Using this description there is no question that the facility is a jail.

Finding that the facility is an institution under the RLUIPA the Ninth Circuit remanded the matter to the District Court with orders to reinstate the action. But the next question for the court will be does prohibiting the wearing of the hijab promote a compelling government interest. Among the issues will be does the hijab create a security problem? Can it be used in an assault or a suicide attempt? But we can note that both Federal and state prisons allow women to wear hijabs. The county will argue that the temporary nature confinement in the holding facility creates problems not found in prisons.

Ingmar Guandique is set for trial October 4 for the murder of Chandra Levy, the intern to former Representative Gary Condit in Washington D. C.’s Rock Creek Park on May 1, 2001.

Last week Judge Gerald Green held a hearing on pretrial motions. Evidentiary motions are important since there are no eye witnesses or DNA evidence. At the time of Guandique’s arrest he was serving time in a California prison for the assault of two other women in the same park. Prior to his arrest Guandique was questioned in his cell by Federal Park police. They searched his cell and found inter alia pictures of Levy. Guandique’s attorney’s moved to exclude the pictures but the court ruled that there is only a minimal right to privacy in a jail cell and the pictures could be admitted.

The Fourth Amendment prohibits unreasonable searches without a search warrant. The argument could be made that since Guandique lived in the cell a search warrant should be necessary to search it much like a search warrant is necessary to search a residence. But a search is unreasonable only if there is an expectation of privacy in the area to be searched. Guandique could not have been surprised by the search. There is certainly no reasonable expectation of privacy in a jail cell. Corrections officers regularly search jails and prisons for contraband in order to protect inmates and staff. As a result inmates have been found to have only very minimal privacy rights while institutionalized in jails and prisons.

But at the same time, following long standing policy the Court prohibited the government from using statements made by Guandique to probation officers in relation to the prior conviction for the assault of two other women in the same park. This is done to encourage cooperation with probation officers and to prevent coerced statements.

Wesley Lanham and Shawn Freeman were corrections officers at the Grant County, Kentucky, Detention Center on February 14, 2003 when a deputy brought “J. S” into the jail on a traffic charge. “J. S.” was 18 years old, six foot tall and weighed 125 pounds. He has blond highlights in his hair and on that Valentines Day holiday he wore a bright colored shirt and underwear with red hearts.

Sergeant Shawn Sydnor the supervising officer on duty at the jail told “J. S.” that he was cute and that he would make a good girlfriend for an inmate. He told Lanham and Freeman that “J. S.” needed to be scared. While pretrial arrestees were generally kept in the detox cells Sydnor asked Lanham and Freeman to find a cell in general population with convicted criminal serving their terms for “J. S.” Lanham found him a place in Cell 101 in 26 Hall. Twenty-six Hall was notorious for being a very rough place and for numerous incidents of sexual predatory behavior. Prior to placing “J. S.” in cell 101 Lanham and Freemen went to the cell and spoke with Bobby Wright. Lanham told Wright that they wanted the inmates to f-ck with “J. S.” Lanham and Freeman took “J. S.” to the cell and left hem there all night without checking in on him. Victor Zipp an inmate in the cell with a reputation for walking around nude raped “J. S.” and with help from other inmates roughed him up.

The next day Syndor, Lanham and Freeman agreed to report that they had placed “J. S.” in the general population because they needed to decontaminate the detox cells.

“J. S.” was released the next day and two days later his father took him to a doctor who confirmed the rape.

Lanham, Freeman and Sydnor were indicted. Sydnor plead guilty and cooperated with the prosecution. Lanham and Freeman went to trial and were convicted of conspiring to violate “J. S.’” civil rights and making a false report.

The Sixth Circuit Court of Appeals upheld the conviction. They found that while the judge should have excluded two jurors who could not promise to be impartial the defendants were not prejudiced since they used peremptory challenges to exclude the two. The Court did not find that the lack of two of the defense’s peremptory challenges affected the trial.

The defendants objected to limitations placed on their cross examination of Sydnor. But since they did not complain at trial they were limited to plain error analysis and since various appellate courts are divided on the issue any error is waived under the plain error analysis. “To obtain a conviction for conspiracy to violate civil rights under § 241, the government must prove that defendants knowingly agreed with another person to injure the victim in the exercise of a right guaranteed under the Constitution. . . The government also must prove beyond a reasonable doubt that there was specific intent to commit the deprivation.” The prosecution met the sufficiency of the evidence test. There was sufficient evidence that Syndor, Lapham and Freeman agreed to place “J. S.” in a cell knowing that he was likely to be abused and raped. To meet the sufficiency of the evidence test ir is only necessary that there be sufficient evidence that any rational trier of the fact could find the elements of the offense. Here there was sufficient evidence of both conspiracy and making a false report. As a result the conviction was upheld.