United States Court of Appeals

For the First Circuit

No. 03-1564

GEOFFREY WOOD,

Plaintiff, Appellant,

v.

HANCOCK COUNTY SHERIFF'S DEPARTMENT;

SHERIFF, HANCOCK COUNTY; AND LINDA HANNAN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin and Stahl, Senior Circuit Judges.

Sandra Hylander Collier for appellant.

Peter T. Marchesi with whom Wheeler & Arey, P.A., was on brief

for appellees.

December 31, 2003
1 The complaint, whose caption identifies Sheriff William

Clark and Administrator Linda Hannan by their titles, and the

verdict form, which asks for a single judgment against all three

defendants, indicate that the individuals were sued only in their

official capacities. As such, their liability under 42 U.S.C. §

1983 is indistinguishable from the county's, and our analysis

therefore proceeds on the assumption that only governmental

liability is at issue. See Brandon v. Holt, 469 U.S. 464, 472 n.21

(1985); Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705 (lst

Cir. 1993).

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COFFIN, Senior Circuit Judge. Appellant Geoffrey Wood claims

that he was unconstitutionally strip searched on three separate

occasions by correctional officers at the Hancock County Jail in

Ellsworth, Maine. He filed a lawsuit seeking damages under 42

U.S.C. § 1983 from the county, the sheriff, and the jail

administrator, but a jury found in favor of the defendants.1 On

appeal, Wood contends that he is entitled to a new trial because

the district court incorrectly instructed the jury on both the

definition of a strip search and the law governing routine strip

searches of inmates after contact visits. We see no error as to

the law applicable to post-contact visits, but have concluded that

a sufficiently misleading definition of a strip search warrants a

partial new trial. 

I. Factual Background

In mid-2001, appellant Wood was arrested twice on misdemeanor

charges and required to completely disrobe three times in the

presence of correctional officers. The first two episodes occurred

as part of his processing into the Hancock County Jail following
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the arrests. Although Wood characterizes these events as strip

searches, the county defendants maintain that the encounters were

"clothing searches" and that any observation of Wood's naked body

was incidental to the correctional officers' purpose to examine his

clothing. The third search occurred on the morning after Wood's

second arrest, following a contact visit with his attorney. The

parties agree that Wood was subjected to a strip search at that

time, but disagree about its constitutionality.

The details of these three incidents, with the facts largely

depicted in the light most consistent with the jury's verdict, are

described below. Before turning to those details, we briefly

review the jail's relevant search policies.

According to Policy No. C-120, titled "Admissions Procedures

– Inmates Not Bailed," an individual who is being assigned to a

housing unit in the jail – whether charged with a misdemeanor or

felony – is subject to a clothing search and must shower after

disrobing "in the presence of [a] Corrections Officer." Jail

Policy D-220 (Procedure C(1)), titled "Search Procedures," states

that a pre-trial inmate charged with a misdemeanor offense – like

appellant – is subject to a more intrusive strip search only if the

officer "has reasonable suspicion that [the] inmate is concealing

contraband and is about to come into contact with inmates of the

facility."
2 The clothing search process is described by Policy D-220

(Procedure K(4)) as follows:

As the inmate removes each piece of clothing they will

hand it to the officer who will thoroughly check it for

contraband. Once all clothing has been checked the

inmate will be given back the clothing he/she may retain.

The rest of the clothing will be inventoried and placed

in the property box assigned to that inmate.

Jail Policy C-120, which covers admissions procedures, also

addresses clothing searches. It states, in relevant part:

1. In order to ensure the health, safety and security of

the inmates and staff, each inmate being assigned to a

housing unit will be required to shower as part of the

admissions process. Inmates will disrobe and shower

while in the presence of the Corrections Officer (same

sex) in the shower room located in the medical room.

2. The Corrections Officer will conduct a search of the

inmate[']s clothing and personal effects for contraband

and vermin as the inmate prepares to shower. . . . 

3 The strip search process is described by Policy D-220

(Procedure C(5)) as follows:

Once the inmate has removed all their clothing and handed

it to the officer, the officer shall conduct a visual

search of the inmate to include having the inmate shake

out their hair, check inside the mouth, ears, nose, their

arm pits, bottoms of their feet, under the scrotum (where

applicable), lift their breasts (where applicable) and

finally have the inmate bend over, spread their butt

cheeks and cough. In addition, the inmate's clothing and

footwear shall be searched.

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A "clothing search" is defined as "[t]he removal and search of

all of an inmate's clothing,"2 while a "strip search" is defined as

"[a] visual search of an inmate which requires the removal of all

clothing, to include a search of the clothes removed." Policy D220.3 Thus, individuals arrested for a broad range of minor
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offenses classified as misdemeanors, including failure to pay

highway tolls or speeding, could be asked to disrobe completely and

shower if they are unable to post bail and must be assigned

housing. Only felony detainees and those suspected of carrying

contraband are subject to the more extensive examination that the

policy describes as a "strip search." 

Search #1. On May 27, 2001, Wood was arrested on misdemeanor

charges of domestic abuse and taken to the Hancock County Jail. He

did not immediately post bail and therefore was required to shower

and undergo a clothing search. He was escorted by a correctional

officer into a room near the booking area known as "the nurse's

station" or "medical room" and directed to disrobe, one article of

clothing at a time, until he was naked. He was standing four to

five feet from the officer. Wood contends that two officers were

present, but jail records indicate that only Officer Christopher

Rivers supervised the search and shower.

Officer Rivers testified that his standard practice in

clothing searches is to instruct the inmates to turn over their

underwear last and then to enter the nearby shower stall. Although

Rivers said the objective of the search is to detect contraband in

the clothing, he and a fellow officer, Chad Wilmot, both testified

that they "maintain a visual" on the individuals as they disrobe

and enter the shower. Rivers stated that, during the process, the

inmates end up standing naked for "[s]econds," and Wilmot noted
4 Contrary to the officers' report, Wood testified that, after

he showered and while still naked, he was ordered to raise his

hands over his head and to turn around completely. He further

claimed that he was directed to open his mouth and move his tongue

around and ordered to bend down, facing away from the officers, and

to touch his toes. 

5 Multiple provisions of Policy D-220 call for sensitivity in

implementing searches. Procedure A states that "[j]ail staff will

conduct searches in the least degrading manner possible," and

Procedures C(4) and K(3) state that strip searches and clothing

searches "shall be conducted in private only by and in the presence

of, the minimum number of officers of the same sex as the inmate,

which are necessary to accomplish the search and to maintain

security and protection."

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that "[w]e're not physically inspecting them, having them raise

their arms or anything like that, and we're also bringing clothes

and a towel so that they can dry off and change up when they get

out of the shower."4

The jail's administrator, Linda Hannan, testified that the

corrections staff attempts to provide as much privacy as possible

in the circumstances.5 She said that the shower curtain, which was

admitted into evidence, is black from about shoulder height down,

and she further stated that the officers are trained to avert their

eyes from the inmate during the clothing search. She acknowledged

that officers might observe the inmate's naked body "for a split

second as [they] reach for that last piece of clothing." Hannan's

depiction of the policy departed somewhat from the two officers'

consistent report that they were trained to maintain eye contact

with the inmate and that they were not trained to look away because

"that would be an officer safety issue."
6 Appellant testified that he again was further searched after

he showered, while naked. He stated that he was told to raise his

hands over his head, turn around 360 degrees, open his mouth and

move his tongue around, and rub his fingers through his hair.

7 Policy F-150 on "Inmate Visiting" states that "[a]fter any

contact visit, all inmates will be strip searched before being

returned to their housing unit or work area." 

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Search #2. Wood was arrested again on July 10 and charged

with violating a protection from abuse order. He again was brought

to the Hancock County Jail and searched in similar fashion to the

May occurrence.6 He remained at the jail overnight.

Search #3. On the morning of July 11, appellant was twice

visited by his attorney. Both encounters were "contact" visits,

meaning that counsel and client were face-to-face without a glass

partition or other divider separating them. Although jail policy

calls for inmates to be strip searched after all contact visits,7

appellant was not searched after the first session with his

counsel. After the second, longer visit, however, as appellant and

his counsel passed through the booking area, the booking officer

stated that appellant needed to be strip searched pursuant to jail

policy. He was taken into the same room where the previous

searches had been conducted, and a full strip search was done. He

was asked to fully disrobe, and then was ordered to stick out his

tongue, hold his hands above his head, turn around, bend over, and

manually spread his buttocks.
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Appellant contends that all three of these searches violated

his Fourth Amendment right to be free from unreasonable searches

and that the jury was led to conclude otherwise by the trial

court's erroneous instructions. With respect to the first two

searches, appellant argues that, despite being labeled "clothing

searches," they effectively were strip searches. The parties agree

that the search constitutes a Fourth Amendment violation if it was

indeed a strip search. See infra at 10-11. Appellant asserts that

the jury was led astray because the court's instruction improperly

limited the definition of a strip search. See infra at 10. He

claims that the instruction concerning the third search –

undisputedly a strip search – erroneously established a presumption

of reasonableness regarding strip searches after contact visits.

See infra at 21-23.

Defendants assert in response that the court's instructions

accurately reflected the law and that the jurors properly found no

constitutional violation. They insist that the May 27th and July

10th searches were carefully limited clothing searches, not strip

searches, and as such involved permissible incidental viewing of

appellant's naked body. In any event, they say, the label given to

the first two searches is unimportant because the jury's verdict is

supportable even if appellant were subjected to unlawful strip

searches. They assert that the verdict form may be interpreted to

reflect a judgment that the defendants – the county and its
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supervising officials – were not liable for the officers' conduct

because the officers' actions did not represent a widespread

practice or custom. See Monell v. New York Dep't of Social Servs.,

436 U.S. 658, 694 (1978); Miller v. Kennebec County, 219 F.3d 8,

12-13 (lst Cir. 2000). Finally, defendants assert that the July

11th strip search was "wholly constitutional" and that the court's

instruction correctly set out the law governing routine strip

searches following contact visits.

For the reasons discussed below, we conclude that appellant is

entitled to a new trial on the claims related to the May 27th and

July 10th searches, but we uphold the jury's judgment on the July

11th strip search. 

II. Discussion

A jury instruction that was objected to at trial will

constitute reversible error "'only if it (i) is "misleading, unduly

complicating, or incorrect as a matter of law"; and (ii) cannot be

considered harmless . . . .'" Richards v. Relentless, Inc., 341

F.3d 35, 46 (lst Cir. 2003) (citations omitted). In probing

whether the error could have affected the outcome of the jury's

deliberations, we consider its impact in light of the entire

record. See Tum v. Barber Foods, Inc., 331 F.3d 1, 8 (lst Cir.

2003) (citing Federico v. Order of St. Benedict, 64 F.3d 1, 4 (lst

Cir. 1995) and Allen v. Chance Mfg. Co., 873 F.2d 465, 469 (lst

Cir. 1989)).
8 Appellant's requested version was as follows:

A strip search includes any exposure or

observation of a portion of a person's body

where that person has a reasonable expectation

of privacy. This specifically includes

prisoners who are watched by corrections

personnel while they change from personal

clothing into detention clothing.

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With this guidance in mind, we consider in turn each of the

challenged instructions.

A. Definition of Strip Search

The district court defined a strip search to the jury as

follows:

A strip search involves a deliberate,

visual inspection of the naked body of a

prisoner which includes the examination of the

mouth and armpits. A visual body-cavity

search is a strip search that includes visual

inspection or visual examination of the anal

and genital areas.

Appellant objected to this instruction and proposed an alternative

to the court that more broadly defined such a search, essentially

classifying any required exposure of a private body part as a strip

search.8

The definition of a strip search was crucial to appellant's

case. Our case law holds that an individual detained on a

misdemeanor charge may be strip searched as part of the booking

process only if officers have reasonable suspicion that he is

either armed or carrying contraband. See Savard v. Rhode Island,
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338 F.3d 23, 27 (lst Cir. 2003) (en banc) (opinion of Selya, J.),

petition for cert. filed, 72 U.S.L.W. 3348 (U.S. Nov. 3, 2003) (No.

03-683); Roberts v. Rhode Island, 239 F.3d 107, 113 (lst Cir.

2001). In so concluding, we have recognized that "strip searches

are intrusive and degrading []and, therefore, should not be

unreservedly available to law enforcement officers[]." Savard, 338

F.3d at 27. When such an intrusion is extended to relatively

harmless offenders, "a severe incursion on privacy" occurs,

Roberts, 239 F.3d at 111.

In Savard, for example, one of the strip-searched plaintiffs

had been arrested for a traffic ticket that had been issued to his

son six years earlier and never paid; another was arrested in error

for failing to appear for a probation review after her probation

had ended. See 338 F.3d at 33 (opinion of Bownes, J.). Requiring

particularized suspicion to strip search misdemeanant arrestees

balances institutional security needs with individual privacy,

which includes "a reasonable expectation not to be unclothed

involuntarily, to be observed unclothed or to have [one's]

'private' parts observed or touched by others." Justice v. City of

Peachtree City, 961 F.2d 188, 191 (11th Cir. 1992) (citation and

internal quotation marks omitted). There is no dispute that Wood

was not suspected of carrying a weapon or contraband either time he

was arrested and booked. Thus, if he was strip searched, he

suffered a constitutional injury.
9 We recognized in Blackburn that "strip search" is an

"umbrella term" covering several increasingly intrusive procedures.

In addition to the general term, defined as quoted above, we noted

that a "'visual body cavity search' extends to visual inspection of

the anal and genital areas" and that a "'manual body cavity search'

includes some degree of touching or probing of body cavities." 771

F.2d at 561 n.3; see also Savard, 338 F.3d at 25 (separately

defining "visual body cavity searches" as "inspections of the anal

and genital areas.") 

10 We recognize that a strip search may occur even when an

inmate is not fully disrobed, but this case does not require us to

explore when "something less than full nudity," Stanley v. Henson,

337 F.3d 961, 964 (7th Cir. 2003), would constitute a strip search.

See, e.g., Amaechi v. West, 237 F.3d 356, 365 & n.15 (4th Cir.

2001) (noting that Virginia statutory definition, similar to most

states, provides that "'[s]trip search shall mean having an

arrested person remove or arrange some or all of his clothing so as

to permit a visual inspection of the genitals, buttocks, anus,

female breasts, or undergarments of such person'") (emphasis added

and deleted). 

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Having carefully reviewed the relevant precedent, we believe

the court's instruction erroneously circumscribed the jury's

evaluation of the evidence. Nearly twenty years ago, we defined

a strip search as "an inspection of a naked individual, without any

scrutiny of the subject's body cavities," Blackburn v. Snow, 771

F.2d 556, 561 (1st Cir. 1985),9 and we repeated substantially that

same description in subsequent cases. See Savard, 338 F.3d at 25

(defining strip searches as "visual inspections of the naked

body"); Roberts, 239 F.3d at 108 n.1 ("A 'strip search' involves a

visual inspection of the naked body of an inmate."). See also

Peckham v. Wisconsin Dep't of Corrections, 141 F.3d 694, 695 (7th

Cir. 1998) ("strip search" refers to "a visual inspection of a

naked inmate without intrusion into the person's body cavities").10
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The district court departed from these formulations by defining a

strip search to include an "examination of the mouth and armpits,"

and by stating that the inspection must be "deliberate." Although

strip searches often may involve additional steps, we decline to

draw the line so narrowly that standing naked for inspection by

officers falls short of being a strip search if unaccompanied by a

demand to open one's mouth or lift one's arms. Unquestionably, the

serious intrusion stems from exposing one's naked body to official

scrutiny; the impact of that forced nudity is undervalued if

focused attention on the mouth and underarms is also required to

reach the threshold of a strip search. 

Under the court's instruction, the most deliberate visual

inspection of a naked body, even including a look in the mouth,

would pass muster, simply because one or two armpits were not

inspected. Alternatively, a complete and prolonged viewing of a

naked body could survive challenge if a jury were to find that it

was not sufficiently "deliberate" because it was designed to

examine clothing rather than the body.

The court's instruction was therefore flawed in two respects.

By adding the word "deliberate" to the definition we previously

have adopted – stating in the first portion of its instruction that

"[a] strip search involves a deliberate, visual inspection of the

naked body of a prisoner" – the court unduly directed the jurors to

the officers' subjective intent. The word "inspection"
11 "Inspect" is defined as "to look carefully at or over; view

closely and critically," as well as "to view or examine formally or

officially." See The Random House Dictionary, at 987.

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sufficiently connotes the need for a focused look. See The Random

House Dictionary of the English Language (2d ed. 1987) (unabridged)

at 987 (defining "inspection" as "the act of inspecting or viewing,

esp. carefully or critically . . . ," and, alternatively, as

"formal or official viewing or examination").11 Whether or not the

officers set out deliberately to inspect a prisoner's naked body is

not the question; it is, rather, whether the officers did, in fact,

perform such a search. The remainder of the instruction then added

specific elements to the definition – scrutiny of the mouth and

armpits – that are not prerequisites for finding that a strip

search took place.
12 We note that appellant's proposed alternative also was

flawed. His version, defining a strip search to include any

exposure or observation of private body parts, would seem to extend

our accepted formulation by including incidental viewing of

portions of the body.

That appellant's request overshot its mark does not nullify

his objection to the court's instruction. Although he was not

entitled to his request, see Estate of Keatinge v. Biddle, 316 F.3d

7, 17 (lst Cir. 2002) ("A refusal to give a particular instruction

constitutes reversible error only if the requested instruction was

. . . correct as a matter of substantive law . . . ."), his

objection – that the court too narrowly defined a strip search –

was stated with sufficient specificity to meet the "distinctness"

requirement of Fed. R. Civ. P. 51. The Rule provides that, to

preserve an objection to an instruction, a party must "stat[e]

distinctly the matter objected to and the grounds of the

objection." Fed. R. Civ. P. 51(c)(1). Counsel made the following

objection:

To the extent that your definition – the court's

definition of a strip search involves a . . . deliberate

. . . visual inspection and continues on to include the

phrase which includes the examination of the mouth and

armpits. The basis for the objection is the First

Circuit seemingly – it seems to have approved a broader

definition of what a strip search might involve.

The court replied, "Any other objections?"

Particularly in light of our longstanding precedent on strip

searches, counsel's objection served as adequate notice of

appellant's claim of error. Cf. Keatinge, 316 F.3d at 15; Parker

v. City of Nashua, 76 F.3d 9, 12 (lst Cir. 1996). 

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These variations cannot be considered harmless in this case.12

Although the jury may not have based its judgment for defendants on

the scope of the searches – an issue we discuss infra at 16 – the

problems with the instruction were sufficiently critical to the

jury's deliberations that appellant is entitled to have the issue

re-submitted to a jury. We begin our explanation of that

conclusion with a brief review of the evidence of what occurred.
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Appellant testified that he was subjected to examinations that

met the district court's definition of a strip search, including

scrutiny of his mouth and armpits, see supra notes 4 & 6, while the

officers testified that the only viewing of appellant's naked body

occurred in the few seconds after he had completely disrobed while

they "maintain[ed] a visual" on him before he entered the shower.

Defendants emphasize that, even if the jurors had accepted

appellant's version, the jury properly may have found no liability

against the county.

As first set forth by the Supreme Court in Monell, a

governmental entity may not be held liable under 42 U.S.C. § 1983

for constitutional violations committed by its employees unless the

plaintiff's injury results from either an officially sanctioned

policy or from a custom or practice that is "so well-settled and

widespread that the policymaking officials . . . can be said to

have either actual or constructive knowledge of it yet did nothing

to end the practice," Bordanaro v. McLeod, 871 F.2d 1151, 1156 (lst

Cir. 1989). In the latter case, "the custom must have been the

cause of and the moving force behind the deprivation of

constitutional rights." Id.; see also Miller, 219 F.3d at 12.

Thus, in rejecting liability, the jury may have believed appellant

but concluded that the officers acted randomly beyond the jail's

policies.
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Another possibility, however, is that the jury believed the

officers' description of what occurred and concluded – consistent

with the jury instruction – that these were not strip searches

because there was no check of appellant's mouth or underarms. Such

a conclusion would have made unnecessary any further discussion

about the specific nature of the search and whether the visual

observation of appellant constituted an "inspection" that would

qualify as a strip search.

In our view, if the jury had had such a discussion, with the

benefit of the correct definition of "strip search," it could have

reached a different result. Both officers testified that appellant

was under constant watch as he disrobed. See supra at 5. Officer

Wilmot stated that the officers are "physically inspecting the

clothes, not the person," but he replied affirmatively when asked

by counsel if the process necessarily included "maintain[ing] a

visual of their body while they're in the process of disrobing."

In addition, while Administrator Hannan stated that the only target

of the search was appellant's clothing, she acknowledged that

officers conducting clothing searches must at least observe inmates

"out of the corner of [their] eye[s]" to be sure the prisoners do

not take contraband from their clothing and hide it on their

persons. She explained that the concern about concealment is why

disrobing for a clothing search must be done in an officer's

presence rather than behind a screen or in another private area.
13 We note that, to the extent that a behind-a-screen disrobing

would be less effective in detecting concealed items, that might

simply be an unavoidable consequence of protecting an individual's

right to privacy. Our case law on misdemeanor arrestees

effectively holds that, even if the only way to be comprehensive in

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Based on this evidence, a properly instructed jury could have

decided that both clothing searches performed on appellant embraced

a visual inspection of his naked body that – albeit brief – was

focused on detecting contraband, and thus amounted to a strip

search. Our precedent does not require that a search be either

prolonged or thorough to be termed a strip search, and we decline

to add such limitations. The critical question is whether viewing

the naked body was an objective of the search, rather than an

unavoidable and incidental by-product. Had appellant been allowed

to disrobe behind a screen, for example, and directed to enter the

shower while officers examined the clothes he left behind, the

momentary exposure as he walked from the screen to the shower

clearly would have been incidental to the search of his clothing.

By contrast, the procedure utilized by the Hancock County Jail in

this case, as described by the officers, allowed visual inspection

of appellant's body through the progressive stages of his

undressing. Indeed, the combined effect of Administrator Hannan's

and the officers' testimony permits — although it does not compel

— the inference that, during clothing searches, officers routinely

keep watch through the disrobing process, at least in part, to be

sure no items are secreted on the body.13
detecting contraband is to perform a strip search, the government

must bear the risk of missing some items. We emphasize that we are

not holding that "clothing searches" must allow private areas for

undressing; we simply wish to point out that balancing

constitutional rights and institutional needs may require that, in

situations presenting only a remote risk of concealment, we accept

less than perfect law enforcement procedures. 

14 The jury was not asked to consider whether the strip

searches stemmed from an official policy, the other Monell prong.

See supra at 16.

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Although less objectionable than more sustained inspections of

an individual's naked body, and less intrusive than a search that

includes examination of the mouth and underarms, the search that

occurred here unquestionably implicated the "reasonable expectation

not to be unclothed involuntarily," Justice, 961 F.2d at 191

(internal quotation marks and citations omitted). Appellant is

entitled to have a properly instructed jury decide whether it

crossed the line from incidental observation to impermissible

inspection.

Having determined that the erroneous instruction could have

impacted the jury's verdict, we reject defendants' fallback

contention that such error should not lead to a new trial because

the jury's judgment may have signaled a determination that the

searches – lawful or not – did not stem from a widespread practice

or custom attributable to the defendants.14 That possibility is not

enough, however, to avoid retrial. Appellant is entitled to a new

trial unless the error, which was preserved by objection, can be

deemed harmless. On this record, we cannot say that the jurors
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probably would have found the defendants blameless if they found

that a constitutional violation occurred.

The record contains adequate evidence to permit a jury to

conclude that appellant's experience was typical of clothing

searches at the Hancock County Jail. First, appellant testified

that when he asked on May 27th at the outset of the search why he

needed to take off his clothes, he was told it was "routine

procedure." Second, Officer Rivers, after testifying that memos

are generated on searches only when circumstances require multiple

officers to participate, stated that no memo was prepared on the

May 27th search because "[i]t was a routine search to me." Third,

the fact that appellant himself experienced two separate searches

conducted similarly by two different officers, on two different

dates, further suggests a standard practice. Finally, the jurors

could have viewed the standard clothing search as described by

Administrator Hannan to include at least a brief inspection of

inmates' naked bodies. On that basis – and with the correct

definition of a strip search in mind – the jury may have found

official knowledge of a practice of strip searching misdemeanants.

In so concluding, we hasten to add that the defendants'

assertions to the contrary do not indicate an attempt to mislead.

The labels applied to searches do not always reflect a common

understanding of the procedures that will be utilized. Although

the Hancock County Jail officers disclaimed doing strip searches,
15 Indeed, John Hinkley, the Maine Department of Corrections'

jail inspector, testified that the state, through rules set by the

attorney general's office, defines a strip search to include a body

cavity search. 

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for example, their understanding of what such a search entails is

informed by the jail's policy. And, while the strip search

definition contained in Policy D-220 is consistent with our

precedent – "[a] visual search of an inmate which requires the

removal of all clothing, to include a search of the clothes

removed" – the detailed procedures spelled out for a strip search

have the effect of narrowing the scope of the definition by

requiring particularized scrutiny of certain body parts. See note

3 supra.

15 Thus, a jury could find that defendants truthfully

denied conducting strip searches, within their understanding of

what that entailed, but nonetheless committed a constitutional

violation by inspecting appellant's body in a manner that federal

law would deem a strip search.

We therefore conclude that appellant is entitled to a new

trial on his claims of constitutional injury arising from the

searches on May 27th and July 10th.

B. Instruction on Post-Contact Visit Strip Search

Appellant's second complaint centers on the court's

instruction on the July 11th strip search:

I'll now discuss with you the alleged July 11th,

2001 postcontact strip-search issue. I instruct you that

without more strip-searching all prisoners after all

contact visits in order to prevent smuggling of
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contraband is not unreasonable under the Fourth

Amendment.

However, plaintiff may present to you additional

facts that make the application of a postcontact visit

strip-searching policy unreasonable under the

circumstances of this case. In the postcontact visit

context, a search is reasonable where the need for the

search outweighs the resulting invasion of privacy.

Among those things you should consider when making

this determination are the scope of the search, the

manner in which it was conducted, the justification for

initiating it, and the place where it was conducted.

When balancing these interests, keep in mind that the

central objective of jail administration is safeguarding

institutional security. You should accord deference to

the policies and practices that jail administrators

consider necessary to preserve internal order and

discipline.

Remember, in order to recover, plaintiff must prove

by a preponderance of the evidence that his strip search

following a contact visit on July 11th, 2001, was

unreasonable. . . . 

Appellant argues that this instruction failed to follow the

blueprint for evaluating strip searches that the Supreme Court set

out in Bell v. Wolfish, 441 U.S. 520, 558-60 (1979). In

considering the constitutionality of a prison's blanket policy of

strip searching inmates after contact visits, the Court articulated

a "test of reasonableness" that requires "a balancing of the need

for the particular search against the invasion of personal rights

that the search entails." Id. at 559. Factors to be weighed are

"the scope of the particular intrusion, the manner in which it is

conducted, the justification for initiating it, and the place in

which it is conducted." Id. Applying that test, the Court in Bell

upheld the strip searches at issue.
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Appellant's two-pronged argument is, first, that the district

court improperly preempted the jury's balancing by directing it to

presume the July 11th search was reasonable, and, second, that the

court then unfairly cemented the presumption by advising the jury

to defer to jail policies and practices. We conclude that the

instruction as given fairly presented the relevant law.

We agree with appellant that the Bell balancing test is the

correct starting point for assessing any strip search. But Bell

and other cases lead inevitably to the district court's conclusion

that it is presumptively reasonable for a detention facility to

conduct strip searches after contact visits. In Bell, the Court

recognized that all such facilities are "fraught with serious

security dangers," and that smuggling of drugs, weapons and other

contraband "is all too common an occurrence," id. The Court

further observed that the lack of reported cases of smuggling at

the Metropolitan Correctional Center in New York, the institution

at issue in Bell, "may be more a testament to the effectiveness of

this search technique as a deterrent than to any lack of interest

on the part of the inmates to secrete and import such items when

the opportunity arises," id.

The particular risk posed by contact visits is a theme

repeated in the case law and substantiated by this record. In

Block v. Rutherford, 468 U.S. 576, 586 (1984), the Supreme Court
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made the following observations in deciding that a detention

facility could constitutionally prohibit contact visits:

Contact visits invite a host of security problems. They

open the institution to the introduction of drugs,

weapons, and other contraband. Visitors can easily

conceal guns, knives, drugs, or other contraband in

countless ways and pass them to an inmate unnoticed by

even the most vigilant observers. And these items can

readily be slipped from the clothing of an innocent

child, or transferred by other visitors permitted close

contact with inmates.

See also Goff v. Nix, 803 F.2d 358, 364-65 (8th Cir. 1986) ("The

record in this case reflects what this Court and other courts know

and long have acknowledged, namely that weapons, drugs, and other

items of contraband are serious problems in our nation's prisons.

The director of security at [the facility] testified that a

substantial portion of the contraband at the prison is introduced

through contact visitation.").

In this case, both Administrator Hannan and the county's

expert witness, William Sturgeon, testified that contact visits are

a significant source of contraband in jails, and that seemingly

harmless items – such as pens and paper clips – can be transferred

innocently and used in harmful ways. Paper clips, for example, can

be used to jam and open handcuffs, pick locks, or poke someone.

Hannon stated that she was aware of about a dozen occasions during

her correctional career when a family member or friend had tried to

deliver, or had delivered, contraband to an inmate during a contact

visit. Although the Hancock County Jail had reported in response
16 We note that, in Miller v. Kennebec County, 219 F.3d 8, 12

(1st Cir. 2000), we did not distinguish between a strip search

conducted as part of the intake process and two subsequent strip

searches following the plaintiff's contact visits with family

members. Nor did we analyze the rationale for strip searching

inmates following contact visits. We therefore do not view Miller

as helpful authority on that issue.

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to Sturgeon's inquiry no instances of contraband being found during

a strip search, he – like the Supreme Court – observed that the low

numbers may be attributable to the deterrent effect of strip search

policies.

Viewed from the perspective of our precedent on stripsearching misdemeanor detainees, Bell's teaching is that the widely

acknowledged risk posed by contact visits furnishes sufficient

suspicion to justify a blanket policy. And, guided by Bell, other

courts evaluating the constitutionality of strip searches,

including our own, have noted the distinctive need to search that

arises from contact visits. See, e.g., Roberts, 239 F.3d at 111

("Courts have given prisons far more leeway in conducting searches

of inmates with outside contact than in searching everyone, simply

because such visits often allow smuggling of contraband."); id. at

113 ("Both the Supreme Court in Bell and this court in Arruda [v.

Fair, 710 F.2d 886 (lst Cir. 1983)] have suggested that an

individualized reasonable suspicion is not necessary to search

certain groups of inmates, such as those who receive visitors . .

. .");16 Shain v. Ellison, 273 F.3d 56, 64 (2d Cir. 2001) (". . .

Bell authorized strip searches after contact visits, where
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contraband often is passed."); Michenfelder v. Sumner, 860 F.2d

328, 332 (9th Cir. 1988) ("Visual body cavity searches conducted

after contact visits as a means of preventing prisoners' possession

of weapons and contraband, even absent probable cause, have been

found reasonable by the Supreme Court.").

We thus read Bell to hold that, except in atypical

circumstances, a blanket policy of strip searching inmates after

contact visits is constitutional. The Court acknowledged that

circumstances may occur to render such a search unreasonable – "on

occasion a security guard may conduct the search in an abusive

fashion" – and its opinion emphasizes that such treatment will not

be tolerated. 441 U.S. at 560 ("The searches must be conducted in

a reasonable manner.").

 The challenged instruction accurately reflected this state of

the law, advising the jury that strip searching appellant following

contact visits was permissible unless "additional facts . . . make

the application of a postcontact visit strip-searching policy

unreasonable under the circumstances of this case." Appellant had

the opportunity to argue that the search at issue here was

unreasonable, and did so. Counsel's argument highlighted that the

visitor with whom appellant had contact was his lawyer, an unlikely

source of contraband. Counsel further urged jurors to consider

that the jail's history showed an absence of contraband entering

through contact visits, that the risks were low because minimum-
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and maximum-security inmates were housed separately, that appellant

was never offered the option of a non-contact visit, and that other

alternatives were available for detecting contraband.

The jury, however, heard testimony that even professionals

such as lawyers and counselors may innocently transfer items that

seem innocuous but can be used as tools or weapons. The county

also responded to appellant's other suggestions of

unreasonableness; Sturgeon testified, for example, that the

alternative of a "correctional pat search" would involve

significant physical contact that inmates may view as more

distasteful than a quick visual search. Appellant did not contend

that the search procedure itself was unreasonable, and the record

reveals no unusual elements. It was done in a private area, by a

single officer of the same gender, and without physical contact.

Also unavailing is appellant's complaint that the jury's

consideration of reasonableness was compromised because the court

invited undue deference to jail administrators. In Bell, the

Supreme Court explicitly stated that

[p]rison administrators . . . should be accorded wideranging deference in the adoption and execution of

policies and practices that in their judgment are needed

to preserve internal order and discipline and to maintain

institutional security.

441 U.S. at 547. The instruction largely mirrored this language.

To be sure, a more ideal charge could have been crafted.

Rather than beginning with the presumption of constitutionality, we
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think it would have been preferable for the court to start with

the general balancing test articulated in Bell before going on to

say that the Supreme Court has sanctioned strip searches following

contact visits so long as they are reasonable. Likewise, to fully

inform the jury on the nature of the "wide-ranging deference" due

to jail administrators, we think an instruction specifically noting

its limits would be helpful. Appellant's Requested Jury

Instruction #12, drawn from our decision in Roberts, see 239 F.3d

at 113, is one possible example: "A blanket strip search policy

cannot be justified simply on the basis of administrative ease in

addressing security considerations."

The instruction as given, however, adequately informed the

jury of its task, and we therefore affirm the judgment for

defendants on the post-contact strip search claim.

III. Conclusion

The overly narrow definition of "strip search" contained in

the jury instructions improperly limited the jury's deliberations

on the nature of the May 27th and July 10th searches. Appellant is

therefore entitled to a new trial on his claims of constitutional

injury arising from those searches. The jury charge on the July

11th post-contact strip search accurately reflected the law,

however, and we therefore affirm the jury's judgment that no

constitutional injury occurred in connection with that search.
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Affirmed in part, vacated in part, and remanded for a partial

new trial. No costs.