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Portions of Oakland’s Strip-Search Policy Ruled Unconstitutional

By J. Douglas Allen-Taylor
Tuesday April 08, 2008

A U.S. District Court judge has ruled that the Oakland Police Department’s street strip-search policies are generally constitutional—though portions of it are not—but trials in individual cases must be held before the court can determine whether constitutional rights have actually been violated. 

The March 27 ruling in Darnell Foster v. City of Oakland by Judge Marilyn Hall Patel of the Northern District of California came in response to lawsuits filed in several cases by the law firm of Oakland attorney John Burris. The lawsuits involved on-the-street strip searches of suspects conducted by Oakland police officers.  

One part of the ruling—in which officers must use a higher standard of proof to trigger a search—involves street strip searches only, and does not prevent officers from patting down suspects for weapons. In addition, it does not affect strip searches inside jail facilities, which have a different purpose and standard. The judge also ruled that the more invasive body cavity searches cannot be performed by Oakland police at all, but must be performed by trained medical personnel. 

The Oakland city attorney’s office has not yet decided whether to appeal. 

The Burris law firm says that that at least 32 plaintiffs have filed lawsuits against the City of Oakland and its street strip search policies in recent years. 

Ben Nisenbaum, an attorney with the Burris law firm, said he was pleased with the judge’s ruling, saying that it may lead to representatives of the Burris firm sitting down in negotiations with OPD officials “to develop a policy that will meet constitutional requirements.” 

Randolph Hall, chief assistant to Oakland City Attorney John Russo, said that the city attorney’s office “felt that the decision was a clarification of the city’s strip-search policy. This is a fairly new area, and there was no case law” for the judge to refer to. “We welcomed the judge’s clarification.” 

Hall added that regardless of whether the city decides to appeal, the Oakland Police Department “will apply the standards set forth by the court.” 

At issue in the cases was what circumstances should trigger a strip search by the police department, how much privacy should be afforded the subjects of such a search, and what type of personnel should conduct certain aspects of such searches. In her ruling, Patel said that established case law does not touch the area of strip searches by police on the street. 

The Foster case involves three plaintiffs—Darnell Foster, Rafael Duarte, and Yancie Young—all claiming their constitutional rights were violated during strip searches. 

Foster says he was stopped by Oakland Police Office J. Festag on School Street in the winter of 2004, questioned about his probation or parole status, and that after he was handcuffed, Festag “forced Foster over the hood of the vehicle.”  

Foster said Festag then “pulled [his] pants and underwear down to his knees” and “search[ed] around Foster’s testicles using his [latex] gloved hand. The officer also spread Foster’s buttocks and visually searched Foster’s anus, stating ‘I’m going to do a butt-crack search, see if you got crack in your butt-crack.’”  

Foster says no narcotics were found, and he was issued a citation for “loitering with the intent to sell narcotics.” That charge was dismissed when the arresting officers failed to show up for Foster’s criminal court hearing.” 

Duarte was stopped by unidentified Oakland police officers in March 2005 while he was riding with a friend in North Oakland. According to Duarte’s complaint, he was subject to a search in front of the police car in which “the officers pulled down Duarte’s pants and ordered him to bend over. Duarte’s buttocks were spread, permitting visual inspection of his anus. No contraband was found, but Duarte was placed in the rear of a police vehicle. The officers then performed a strip and visual body cavity search on Duarte’s friend. That search also yielded no contraband. During the searches of the two men, a crowd had begun to gather around the scene, including some people with whom Duarte was acquainted. The individuals witnessed the searches of both men.” 

Duarte says he was cited, but no charges were ever filed against him. 

Young says that he was stopped by OPD Officer William Bergeron while he was driving on West Street in West Oakland in the fall of 2003, and that Bergeron said he smelled marijuana in Young’s car. According to Young’s complaint, “Bergeron then took Young to the back of a police car. While facing Young, he pulled down Young’s pants and underwear, revealing Young’s genitalia. Then Officer Bergeron shined a flashlight directed at Young’s genitalia, visually inspecting Young for up to a minute. Officer Bergeron next performed a pat-search of Young, ordered Young to remove his shoes and felt Young’s private area through his pants.” 

Young said that no drugs were found, even after police did a canine search of his car, and that no charges were filed against him. 

Patel made no ruling on the merits of the claims in individual cases. 

In its 1998 policy on “Strip Searches, Visual Body-Cavity Searches, and Physical Body-Cavity Searches,” the Oakland Police Department defined three types of body searches: strip searches (“any search that requires the officer to remove or arrange some or all of a person’s clothing to permit a visual inspection of the subject’s underclothing, breasts, buttocks, or genitals”), visual body cavity searches (“a search which consists of the visual inspection of the subject’s rectal cavity and, if the subject is a female, vagina,” but not the mouth), and physical body cavity searches (“a search which consists of the physical intrusion into a body cavity for the purpose of discovering a concealed object”). 

In her ruling, Patel denied the plaintiffs’ claims that the 1998 policy was unconstitutional in many of its aspects, but did rule that the policy was “unconstitutional insofar as it allows physical body cavity searches to be performed by someone other than a medical professional.” 

OPD’s 1998 policy was amended in 2004. Patel ruled that the 2004 amendments were in general constitutional, but that the 2004 amended strip-search policy was “unconstitutional to the extent that it allows strip searches of any kind in the field to be performed on less than probable cause.” 

The 2004 OPD strip-search policy said that such searches could be done in the field if the officer had “reasonable suspicion to believe the arrestee is hiding or concealing evidence, a weapon, or contraband.” 

In a telephone interview, Nisenbaum explained that under “reasonable suspicion,” a police officer in Oakland could conduct a strip search under Oakland’s policy “if they observed someone give money to another individual and receive a package in return, that the transaction occurred in an area known for drug activity, and that one of the individuals is known to have been involved in drug transactions in the past.” 

Ni7senbaum said that “probable cause is a more heightened standard,” requiring that a witness such as a police officer actually observe a crime being committed, rather than inferring from an activity that it must have involved a crime. 

Under Patel’s ruling, street strip searches can now only be conducted by Oakland police if a witness actually observes a crime being committed.