David Shapiro [Staff Attorney, ACLU National Prison Project]: "In an unfortunate decision, the Ninth Circuit last week reversed its own precedent and rolled back protections against strip searching jail detainees in Bull v. San Francisco [PDF file]. The en banc ruling weighed in on the question – which has divided the circuits – of whether the Fourth Amendment lets jail officials strip search detainees indiscriminately, by approving an overly broad policy of strip searching all detainees admitted to San Francisco's general jail population without regard to the offenses charged, and even without reasonable suspicion.

A similar issue involving the blanket strip search policies of two New Jersey jails is pending in the Third Circuit. Last month, ACLU attorneys filed an amicus brief in the case on behalf of five former New Jersey Attorneys General, asking the court to affirm a district court opinion that required reasonable suspicion.

Strip searches inflict severe humiliation on pretrial detainees, who are presumed innocent. Just last year, the Supreme Court described a strip search of a student as "embarrassing, frightening, and humiliating," and "categorically distinct" from a non-strip search. At the same time, jail can be a dangerous place, and strip searches may be necessary in some cases to prevent contraband — drugs, or even worse, knives and guns — from being smuggled in by detainees.

Courts have balanced these interests by permitting strip searches when there is reason to think a detainee might have contraband. The Supreme Court held in Bell v. Wolfish that jail officials may conduct strip searches after contact visits, which create an opportunity for detainees and their visitors to plan in advance to exchange contraband. Most of the circuits, however, have held that a strip search soon after an arrest requires greater justification because an arrest, unlike a visit, usually comes as a surprise and does not allow for advance planning. Courts have found adequate grounds for a strip search after arrest when there is reasonable suspicion, or when the charges involve contraband or an act of violence, or when a detainee is charged with a felony, as opposed to a misdemeanor. Even when such grounds for a strip search do not exist, the Fourth Amendment still allows jail officials to ferret out contraband through less humiliating means, including metal detectors, pat downs and cell searches.

The Ninth Circuit's decision, however, parts ways with virtually every other circuit by holding that any detainee arrested and admitted to general population can be strip searched without reasonable suspicion. While the court cited instances of contraband discovered by strip searches, the opinion was more notable for what it did not say — that jail officials had ever found contraband in a case where reasonable suspicion did not exist and where the charges themselves did not provide a basis for a strip search. In short, there was no evidence of a law enforcement interest in strip searching the very group of detainees affected by the decision, and the ruling permits extreme invasions of personal privacy even in cases where there is no demonstrated benefit to jail security."