U.S. v. Lilly

• Decision Date: 24 July 1978
• Docket Number: Nos. 77-5468,77-5533,s. 77-5468
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sherry Marie LILLY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Merrilyn M. GALLEGOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1240

576 F.2d 1240

UNITED STATES of America, Plaintiff-Appellee, v. Sherry Marie LILLY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Merrilyn M. GALLEGOS, Defendant-Appellant.

Nos. 77-5468, 77-5533.

United States Court of Appeals,

Fifth Circuit.

July 24, 1978.

W. Wallace Brady, Fort Worth, Tex. (Court-appointed), for defendant-appellant in No. 77-5468.

Anne M. Srebro, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee in No. 77-5468.

R. David Broiles, Fort Worth, Tex. (Court-appointed), Grace B. Hopkins, Fort Worth, Tex., for defendant-appellant in No. 77-5533.

Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Shirley Baccus-Lobel, R. H. Wallace, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee in Nos. 77-546 and 77-5533.

Appeals from the United States District Court for the Northern District of Texas.

Before THORNBERRY, RONEY and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

The case on appeal raises the question of the legal validity of body cavity searches conducted on federal inmates when they return to prison after unsupervised absences. Defendants-appellants Merrilyn M. Gallegos and Sherry Marie Lilly were inmates at the federal correctional institution (F.C.I.) at Fort Worth, Texas. In unrelated incidents, prison officials discovered both defendants attempting to smuggle contraband into prison in a body cavity. Each defendant subsequently gave a statement to an FBI agent concerning the attempted smuggling. Before their respective trials, each defendant filed a motion to suppress the contraband seized from her and the statement she had given to the FBI agent. The district court overruled each defendant's motion, and in separate trials, both defendants were convicted of attempting to smuggle contraband into a federal correctional institution, in violation of 18 U.S.C. § 1791. Each defendant appealed the reasonableness of a body cavity search on the facts of her case and the validity of her subsequent statement. ¹ Although the defendants' smuggling attempts were unrelated and the defendants were tried separately, their appeals were consolidated for argument before this court because the issues raised are similar. We reverse defendant Gallegos' conviction on the ground that the seizure in her case was unreasonable, thereby rendering inadmissible the contraband seized from her and her statement to the FBI agent. We affirmed defendant Lilly's conviction.

I. Defendant Gallegos.

At the F.C.I., defendant Gallegos was housed in the Drug Abuse Program Unit, a treatment facility for inmates with past drug problems. After applying for and receiving an educational grant, defendant Gallegos was permitted to attend a local beauty college. While the defendant was attending school and during part of her daily trip to and from the prison, she was neither supervised nor observed by any prison official. Additionally, the defendant had her own room at the prison and a key to her door.

When the defendant returned to prison from school on the evening of December 17, 1976, she was taken to the prison clinic and was told that a body cavity search would be conducted on her. The record does not reflect why the prison officials decided to search the defendant. They apparently had no reason to suspect that she actually was hiding contraband in a body cavity. When the defendant refused to submit to the body cavity search, she was placed in administrative detention. After two days of constant observation of the defendant, she was told that a body cavity search would be performed on her, and she was taken to the prison clinic for that purpose. Before the defendant undressed, the female nurse who was going to conduct the search offered to let the defendant remove the contraband. The defendant then removed from her vagina a plastic bag containing marijuana. She was returned to administrative detention, and on December 22, she gave a statement concerning the attempted smuggling to an FBI agent.

Because the seizure of contraband from the defendant resulted from the threat of the impending body cavity search, the legal validity of the seizure depends on the legal validity of the impending search. Therefore, we must first determine whether a person retains any constitutional rights when he is incarcerated. A prisoner undoubtedly forfeits many of his constitutional rights. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), however, the Supreme Court stated that although a prisoner's "rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime." 418 U.S. at 555, 94 S.Ct. at 2974. It is now settled law, therefore, that a prisoner loses only those rights that must be sacrificed to serve legitimate penological needs. E. g., Newman v. Alabama, 559 F.2d 283, 286-87 (5th Cir. 1977); Sostre v. Preiser, 519 F.2d 763, 764 (2d Cir. 1975); Bonner v. Coughlin, 517 F.2d 1311, 1315 (7th Cir. 1975); United States v. Savage, 482 F.2d 1371, 1372 (9th Cir. 1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1446, 39 L.Ed.2d 491 (1974).

Given that prisoners retain some measure of those constitutional rights they enjoyed as unincarcerated members of society, the question becomes whether a prisoner retains any measure of his fourth amendment protection. The government needs neither a warrant nor probable cause to conduct a search or seizure in the prison context because of prisoners' decreased expectations of privacy and because of the exigencies inherent in the prison environment. United States v. Stumes, 549 F.2d 831, 832 (8th Cir. 1977); Daughtery v. Harris, 476 F.2d 292, 294 (10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973); United States v. Cristancho-Puerto, 475 F.2d 1025, 1027 n.1 (5th Cir.), cert. denied, 414 U.S. 869, 94 S.Ct. 181, 38 L.Ed.2d 115 (1973). The history and purpose underlying the fourth amendment, however, require that prisoners retain at least some degree of their fourth amendment protection. The fourth amendment was adopted in reaction to the issuance of general warrants that gave government agents unfettered discretion to conduct searches and to seize property, thereby placing " 'the liberty of every man in the hands of every petty officer.' " Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 529, 29 L.Ed. 746 (1886). To protect individuals from illegal invasions of the sanctity of their "persons, houses, papers, and effects," courts broadly construe the fourth amendment to prevent any unjustified encroachment on the fundamental right stated therein. Coolidge v. New Hampshire, 403 U.S. 443, 454 n.4, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Boyd v. United States, supra, 116 U.S. at 635, 6 S.Ct. 524. Denial of any fourth amendment protection to a prisoner potentially would subject him to any form of search and seizure, no matter how abusive or intrusive, conducted at the hands of any prison employee who is so inclined, provided only that the search and seizure do not rise to the level of cruel and unusual punishment. See P. Giannelli & F. Gilligan, Prison Searches and Seizures: "Locking" the Fourth Amendment out of Correctional Facilities, 62 Va.L.R. 1045, 1050-52 (1976). We cannot tolerate this result, which potentially would flow from a holding that prisoners retain no part of their fourth amendment protection. Therefore, as the fourth amendment mandates, searches or seizures conducted on prisoners must be reasonable under all the facts and circumstances in which they are performed. Accord, Sostre v. Preiser, 519 F.2d 763, 764-65 (2d Cir. 1975); Bonner v. Coughlin, 517 F.2d 1311, 1317 (7th Cir. 1975); United States v. Savage, 482 F.2d 1371, 1372-73 (9th Cir. 1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1446, 39 L.Ed.2d 491 (1974).

It has been suggested that because a warrant is not required to conduct a search or seizure in prison, the government should not bear the burden of proving the reasonableness of the search or seizure. Historically, the government has borne the burden of justifying any search or seizure conducted by a government agent. The burden has been thus placed in recognition of the fact that the fourth amendment does not confer the right to be free from unreasonable searches or seizures. The fourth amendment merely restates a fundamental right that was recognized at common law. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). ² Thus, whenever the government has invaded an individual's privacy, the government has been required to justify its invasion by proving that it was reasonable under all the facts and circumstances. In this way, a check is placed on government agents' actions.

The question remains whether an exception to this long-standing rule should be created when the government conducts a search or seizure in the prison context. This court stated in United States v. Edwards, 441 F.2d 749, 753 (5th Cir. 1971), "Of course, any search without a warrant places upon the Government the burden to convince the court that it was reasonable under all of the facts and circumstances." Although Edwards did not involve government action in a prison, the court's statement was unqualified. Additionally, it is settled that the government bears the burden of proving reasonableness in other situations in which neither a warrant nor probable cause are necessary to conduct a search and seizure, such as in border search cases. See, e. g., United States v. Afanador, 567 F.2d 1325 (5th Cir. 1978); United States v. Himmelwright, 551 F.2d 991 (5th Cir. 1977). Indeed, not only does precedent indicate that the government should bear the burden of proving reasonableness in the prison context, but an important practical consideration also militates in favor of this placement of the burden. The prison administration...