Tuesday, November 28, 2006
High Court Will Not Review Ruling on County Strip Search Policy
By KENNETH OFGANG, Staff Writer
A Ninth U.S. Circuit Court of Appeals decision holding unconstitutional the Ventura County sheriff’s policy of subjecting all suspects arrested on drug charges to strip searches with visual body cavity inspection was left standing yesterday by the U.S. Supreme Court.
The justices, without comment, left standing the April 20 panel decision in Way v. County of Ventura, 04-55457. The ruling held that the county cannot conduct the intrusive search when a suspect is charged with a misdemeanor offense of being under the influence of drugs, unless there is individualized suspicion that the accused is hiding contraband or the person is going to enter the general jail population.
The court left open the question of whether such searches are permissible when a suspect is booked on other types of drug charges.
Alan Wisotsky, the Oxnard attorney who represented the county, said the case will now return to the U.S. District Court for the Central District of California for trial on damages, “or possibly mediation.” The ruling will also effect a separate class action brought on behalf of suspects who were subjected to the searches, he said.
The plaintiffs in that action are represented by Ventura attorney Ernest Bell, who also represented Noelle Way, the plaintiff in the action that the Supreme Court declined to hear.
Wisotsky told the MetNews that the policy was changed on an interim basis after District Judge Consuelo Marshall rejected it in 2002. “At this juncture we clearly have to revisit it and make appropriate permanent modifications,” he said.
Way was tending bar at the Red Cove Bar in Ventura during the early hours of Sept. 6, 2000 when a Ventura police officer arrested her on suspicion of being under the influence of cocaine or methamphetamine. The officer reported that she had dilated pupils, a rapid pulse rate, a nervous attitude and rapid speech.
The charge was dropped after a blood test proved negative, but not before Way was forced to submit to the body cavity inspection and detained in a holding cell for several hours before posting bail.
The county defended the policy on the basis of public safety needs and Penal Code Sec. 4030(a), which permits strip searches and bodily cavity inspections of misdemeanor suspects held on weapons, drug, or violence charges. But Marshall, who has since taken senior status, held that the policy violated Way’s Fourth Amendment rights and that neither Sheriff Bob Brooks nor the female deputy who conducted the search were entitled to qualified immunity.
In rejecting the immunity claim, Marshall reasoned that the defendants should have known, based on prior Ninth Circuit decisions, that the policy would not pass constitutional muster.
The Ninth Circuit panel, in an opinion by Judge Pamela Ann Rymer, agreed that the policy was unconstitutional as applied, but said the individual defendants acted in good faith and were entitled to qualified immunity, since the court had never specifically ruled as to whether the fact that someone was charged with being under the influence of drugs was enough to justify an intrusive search.
No Showing Made
Prior rulings, Rymer explained, have characterized body cavity searches and “frightening and humiliating,” even when conducted in a private room by a single deputy. To justify such searches by way of blanket policy, the judge wrote, authorities must show a link between the policy and legitimate security concerns.
In the case of suspects like Way, “who are spontaneously arrested and detained temporarily at the facility for being under the influence,” no such showing was made, Rymer said. While Wisotsky asserted at oral argument that there had been problems at the facility since the interim policy was instituted in response to Marshall’s ruling, there was nothing in the record to show what the problems were, the appellate jurist wrote.
“In effect, they ask us to take security implications on faith,” Rymer wrote.
District Judge Edward J. Reed Jr. of Nevada, sitting by designation, concurred in Rymer’s opinion. Judge Kim Wardlaw concurred separately, arguing that the qualified immunity ruling as to the individual defendants was appropriate only because neither the policy nor the statute had been declared unconstitutional prior to the search.
Copyright 2006, Metropolitan News Company