# United Stat es Court of Appeals For the First C ircuit

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, 20031 The complaint, whose caption identifies She r iff William

Clark and Administra tor Li nda 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 a ssu mption 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). -2- COFFIN, Senior Circuit Judge . Appellant Geoffrey Wood claims that he was unconstitutionally strip searched on three separate

o ccasions by correctional officers at the Hancock County J ail i n Ellsworth, Maine. He filed a lawsuit seeking damages under 42 U.S.C. § 1983 from the county, the sheriff, and the jail admi nistrator, but a jury found in favor of the defendants. 1 O n appeal, Wood conte nds t hat 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 ti mes in the presence of correctional officers. The first two episodes occurred

as part of his processing into the Hancock County Jail following-3-

the arrests. Althou gh 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 secondarrest, following a contact visit with his attorney. The parties agree that Wood was subjected to a s trip searc h at that time, but disagree about its constitutionality. The details of these three incidents, with the facts largely depictedin the light most consistent with the jury's verdict, are desc ribed 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 indi vidual who is being assigned to a housing unit in the jail – whether charged with a mi sdeme anor or felony – is subject to a c loth ing search and must shower after disrobi ng "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 contrabandandis a bout 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 clo thing 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 admissio ns p rocedures, also addresses clothing searches. It states, in relevant part: 1. In order to ensure the health, safety and security of the i nmates and staff, each inmate being assigned to a housing unit will be required to shower as part of the admissions p roces s. Inmates will disrobe and shower while in the presence of the Corrections Officer (sam e 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 sha ll conduct a visual search of the inmate to include having the inmate shake out their hair, check inside the mouth, ears, nose, their armpits, bottoms of their feet, under the scrotum (where applicable), lift their breasts (where applicable) and fina lly have the inmate bend over, spread their butt cheeks andcough. In addition, the inmate's clothing and footwear shall be searched. -4- 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 allclothing, to include a search of the clothes removed." Policy D220. 3 Thus, individuals arrested fo r a broad range of minor-5-

o ffenses classified as misdemeanors, including failure to pa y highway tolls or speeding, could be asked to disrobe completely and shower if they are unable to post bail and must be assig ne d 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 didnot immediately post bail and therefore was required to shower and undergo a clothing search. He was escorted by a correctional officer into a roo m near the booking area known as "the nurse's station" or "medical room" and directed to disrobe, one article of clothing at a ti me, 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 Chr istopher Rivers supervised the search and shower. Office r R ivers 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 andenter the shower. Rivers stated that, during the process, the inmates end up standing nake d f or "[s]econds," and Wilmot noted4 Contrary to the officers' report, Wood testified that, after

he showered and while stil l naked, he was ordered to raise his hands ove r his head and to turn around completely. He further claimedthat he was directed to open his mouth and move his tongue aroundandordered 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." -6- that "[w]e're not physically inspecting them, having them raise their arms or anything like that, and we're also bringing clothes anda towel so that they can dry off and cha nge up when they get out of the shower." 4 The jail's administrator, Linda Hannan, testifie d 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, andshe 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 secondas [they] reach for that last piece of clothing." Hannan's depictio n of t he policy departed somewhat from the two officers' consistent report that they we re tra ined 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 Visiti ng" st ates that "[a]fter any contact visit, all inmates will be strip searched before being returned to their housing unit or work area." -7- Sear ch #2 . Wo od 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. S earch #3 . On the morning of July 11, appellant was twic e visitedby his attorney. Both encounters were "cont act" visits, meaning that counsel and client were face-to-face without a glass partition or other divider separating them. Although jail policy

ca lls 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 b ooking officer statedthat appellant needed to be strip searched pursuant to jail policy. He was taken into the same room where the previou s 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, holdhis hands above his head, turn around, bend over, and manually spread his buttocks.-8-

Appellant contends that all three of these searches violated his Fourth Amendment r ight t o be free from unreasonable searches andthat the jury was led to co nclude otherwise by the trial court's erroneous instructions. With respect to the first two searches, appellant argu es t hat, despite being labeled "clothing searches," they effectively were strip searches. The parties agree that the search constitutes a Fourth Amendment violation if it was indeeda strip search. See infra at 10-11. Appellant asserts that the jury was led astray because the court's instruction improperly limitedthe 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 reaso nabl eness regarding strip searches after contact visits. See infra at 21-23. Defendants assert in respons e th at 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, an d 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 supporta ble 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-9-

supervising officials – were not liable for the officers' conduct because the officers' actions did not represent a wide spre ad practice or custom. See Monell v. New York Dep't of Social Servs. , 43 6 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 Ajury instruction that was object ed 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.3d35, 46 (lst Cir. 2003) (citations omitted). In probing whether the error could have affected the outcome of the jury's delibe rat ions, we consider its impact in light of the entire record. See Tumv. 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: Astrip search includes any exposure or observation of a portion o f 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.

-10- With this guidance in mind, we consider i n tur n each of the challenged instructions. A. Definition of Strip Search The district court defined a strip search to the jury as follows: Astrip search involves a deliberate,

visual inspection of th e 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 ap pellan t'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 Savardv. Rhode Island ,-11-

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 harml ess offenders, "a severe incursion on privacy" occurs, Roberts , 239 F.3d at 111. In Savard , for example, one of the strip-searched plaintiffs hadbeen arrested for a traffic ticket that had been issued to his

son six years earlier andnever paid; another was arrested in error for failing to appear for a probation review after her probation hadended. See 338 F.3d at 33 (opinion of Bownes, J.). Requiring particularizedsuspicion to strip search misdemeanant arrestees balances institutional security needs with individual privacy, which includes "a reason able 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 sea rched, he suffered a constitutional injury.9 We recognized in Bl ackbur n 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.2dat 561 n.3 ; s ee also Savard , 338 F.3d at 25 (separately defining "visual body cavity searches" as "inspections of the anal and genital areas.")

10 We recognize th at 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), wouldconstitute 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 arrestedperson 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). -12- 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.2d556, 561 (1st Cir. 1985), 9 and we repeated substantially that

same description in subsequent cases. See Savard , 338 F.3d at 25 (defining strip se arch es 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 in mate ."). See also Peckhamv. Wisconsin Dep't of Corrections , 141 F.3d 694, 695 (7th Cir. 1998) ("strip search" refers to "a visual inspection of a nakedinmate without intrusion into the person's body cavities"). 10-13-

The district court departed from these formulations by defining a strip search to include an "examination of the mouth and armpits," andby stating that the inspection must be "deliberate." Although st rip se arches 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 demandto open one's mouth or lift one's arms. Unquestionably, the serious intrusion stems fromexposing one's naked body to official scrutiny; the impact of that forced nudity is underv alu ed if focusedattention on the mouth and underarms is also required to reach the threshold of a strip search. Under the court's instruction, the most del ibera te visual inspe ction of a naked body, even including a look in the mouth, wouldpass muster, simply because one or two armpits were not inspected. Alternatively, a complete and prolonged viewin g of a naked body could survive challenge if a jury were to find that it

was not sufficiently "de libe rate" 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 p rev iously have adopted – stating in the first portion of its instruction that "[a] strip search involves a deliberate, visual inspection of the nakedbody of a prisoner" – the court unduly directed the jurors to the officers' subjective intent. The word"ins pection"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. -14- 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, performsuch 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 propose d al ternative 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 formu lat ion by including incidental viewing of portions of the body. T hat appellant's request overshot its mark does not nul lif y his objection to the court's instruction. Although he was not entitledto 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

. . . corr ect as a matter of substantive law . . . ."), his objection – that the co urt t oo 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 definit ion – the court's definition of a strip search involves a . . . deliberate . . . visual inspection and continues on to include the phrase which includes the examinat ion of the mouth and arm pit s. 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). -15- 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-submittedto a jury. We begin our explanation of that conclusion with a brief review of the evidence of what occurred.-16-

Appellant testified that he was subjected to examinations that met the district court 's def inition 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 occurredin the few seconds after he had completely disrobed while they "maintain[ed] a visual" on him before he entered the shower. Defendants e mpha size 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 plain t iff's injury results from either an officially sanctioned policy or from a custom or pra ctice that is "so well-settled and wid espreadthat the policymaking officials . . . can be said t o 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 M iller , 219 F.3d at 12. Thus, in rejecting liability, the jury may have believed appellant but concluded that t he officers acted randomly beyond the jail's policies.-17-

Another possibility, however, is that the jur y 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 "ins p ection" 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 reacheda different result. Both officers testified that appellant

was under constant watch as he disrobed. See supra at 5. Officer Wilm ot s tated 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

wouldbe less effective in de tectin g 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 -18- Basedon this evidence, a properly instructed jury couldhave decidedthat both clothing searches performed on appellant embraced

a visual inspection of his naked body that – albeit brief – was focusedon detecting contraband , and thus amounted to a strip

searc h. Our precedent does not require that a search be eithe r 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 o f the sea rch, 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. 13detecting 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 undressi ng; 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.

1 4 The jury was not asked to consider whether t he stri p searches stemmed from an official policy, the other Monell prong. See supra at 16. -19- 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 undera rms, t he search that occurredhere unquestionably implicated the "reasonable expectation not to be unclothed involuntarily," Jus tice , 961 F.2d at 191 (internal quotation marks and citations omitted). Appellant is

en titled to have a properly instructed jury decide whether it crossedthe line from incidental ob servation to impermissible inspection. Having determined th at t he erroneous instruction could have im pactedthe jury's verdict, we reject defendants' fallba c k 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 deem ed harmles s. On this record, we cannot say that the jurors-20-

probab ly would have found the defendants blameless if they found that a constitutional violation occurred. The record contains adequate evidence to permit a jury to

co nclude 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 neededto take off his clot hes, he was told it was "routine procedure." Second, Offic er R ivers, 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 couldhave 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 concl udi ng, 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. -21- for example, their understanding of what such a search entails is informedby 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 deniedconducting strip searches, within their understan d ing of what that entai led, 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 con tact visits in order to prevent smuggling o f-22-

contrabandis 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 sea rch 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 i niti ating 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 th is i nstruction failed to follow the blueprint for evaluating strip searches that the Supreme Court set out in Bell v. Wolfish , 4 4 1 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 in itiati ng it, and the place in which it is conducted." Id. Applying that test, the Court in Bell upheld the strip searches at issue.-23-

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 an d pr actices. 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 andother cases lead inevitably to the district court's conclusion that it is presumptively reasonable for a detention faci lit y to conduct strip searches after contact visits. In Bell , the Court recognizedthat 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 repeatedin the case law and substantiated by this record. In Block v. Rutherford , 468 U.S. 576, 586 (1984), the Supreme Court-24-

made the following o bser vations in deciding that a detention facility could constitutionally prohibit contact visits: Contact visits invite a host of security problems. They open the instit ution to the introduction of drugs, weapons, and other contraband . Visitors can easily conceal guns, knives, drugs, or ot he r contraband in countl ess wa ys and pass them to an inmate unnoticed by even the mo st 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 recordin 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 jail s, 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 hadtriedto deliver, or had delivered, contraband to an inmate during a contact visit. Although the Hancock County Jail had reported in response16 We note that, in Miller v. Kennebec County , 219 F.3d 8, 12

(1st Cir. 2000), we did not distinguish between a strip search conductedas part of the intake process and two subsequent strip search es 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. -25- 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. Viewedfrom the perspective of our precedent on stripsearching misdemeanor detainees, Bell 's teaching is that the widely acknowledgedrisk pose d 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 individualizedreasonable suspicion is not necessary t o sea rch 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-26-

contrabandoften is passed."); Michenfelder v. Sumner , 860 F.2d 328, 332 (9th Cir. 198 8) ("V isual body cavity searches conducted after contact visits as a means of preventing prisoners' possession of weapo ns and contraband, even absent probable cause, have been found reasonable by the Supreme Court."). We thu s read Bell to hold that, except in atypical circ umst ances, a blanket policy of strip searching inmates after contact visits is constitutional. The Court ackno wled ged 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 app li cation 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 ur ged jurors to consider that the jail's history showed an ab sence of contraband entering t hrough contact visits, that the risks were low because mi nimum

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andmaximum-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

seeminnocuous 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 "correc t ional pat search" would involve significant phys ical 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 gen der, a nd without physical contact. Also unavailing is a pp ellant's complaint that the jury's consideration of reasonableness was compromised because the court invitedundue deference to jail administrators. In Bell , the Supreme Court explicitly stated that [p ]ris on administrators . . . should be accorded wideranging deference in the adoption and e xecuti on 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-28-

think it would have been prefe rable 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 Re ques ted 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, ade q uately informed the jury of its task, and we therefore affirm the judgment for defendants on the post-contact strip search claim. III. Conclusion The ov erly narrow definition of "strip search" contained in the jury instructions improperly limited the jury's deliberations

on the nature of the May 27th andJuly 10th searches. Appellant is therefore entitled to a new trial on his claims of constitutional injury arising from those searches . Th e jury charge on the July 11th post-contact strip search accuratel y refl ected the law, however, and w e t herefore affirm the jury's judgment that no constitutional injury occurred in connection with that search.-29-

Affirmedin part, vacated in part, and remanded for a partial new trial. No costs.