Qualified Immunity for Strip Search of Prison Visitor

Cates v. Stroud, 2020 WL 5742058 (9th Cir. 2020)

Tina Cates went to visit her boyfriend, an inmate in a Nevada prison. A confidential informant had provided information that Cates was smuggling drugs into the prison. Investigators obtained a search warrant for Cates and her car, though the warrant was never presented to Cates and was not executed. Signs alerted visitors that all persons and vehicles on the property were subject to search. Cates signed a standard form, as she had done before, consenting to a search of her person, vehicle and property.

A female officer took Cates to a bathroom and told her to disrobe and remove her tampon. No one informed Cates she had the option to refuse the search. The officer performed a visual body cavity search and another officer searched Cates’ car. When he asked to search Cates’ phone, she refused. No contraband was found on Cates or in her car. Cates was not allowed to visit her boyfriend and her visiting privileges were revoked.

Notwithstanding that prison officials violated Cates’ constitutional rights, the court held the prison officials were entitled to qualified immunity.

Prison policy dictated that “strip searches may only be conducted …he person is notified of the right to refuse to be searched and gives written approval,” and required the search be conducted by two persons of the same gender. Numerous courts have held a strip search of a prison visitor is allowed only if it can be justified by a legitimate security concern. In this decision, the court held, “if the visitor would prefer to leave the prison, the prison’s security needs can be satisfied by simply letting the visitor depart.” The court’s holding is consistent with the prison policy, which provided: “Prior to the search, the visitor will be informed of the type of search to be performed and of the visitor’s option to refuse to be searched.” Cates was never given that option; thus, the search was unconstitutional.

Notwithstanding that prison officials violated Cates’ constitutional rights, the court held the prison officials were entitled to qualified immunity. Though other federal courts had already determined a prison visitor must be given the option to leave rather than submit to a strip search, the 9th Circuit had not spoken sufficiently to clearly establish that right in its jurisdiction. Thus, the prison officials were entitled to have the lawsuit dismissed.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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