State v. Martinez

• Decision Date: 21 July 1978
• Docket Number: No. 6003,6003
• Citation: 59 Haw. 366,580 P.2d 1282
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Diana K. MARTINEZ, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1282

580 P.2d 1282

59 Haw. 366

STATE of Hawaii, Plaintiff-Appellee, v. Diana K. MARTINEZ, Defendant-Appellant.

No. 6003.

Supreme Court of Hawai'i.

July 21, 1978.

Syllabus by the Court

1. Where visitor who applied for admission to prison was aware of practice of strip search from prior admissions, consent to a strip search will be implied.

2. Strip search with consent of a visitor applying for admission to a prison, not carried out in an oppressive or discriminatory manner, was not violative of constitutional guarantee against unreasonable searches and seizures.

3. Condition upon which defendant is granted probation may not be challenged as facially invalid for overbreadth because in terms broad enough to suppress speech protected by the First Amendment, where the condition may also be applied constitutionally in other factual situations.

4. Where probation was granted upon condition that defendant "refrain from the company of people of questionable character" , the condition was not facially invalid for vagueness.

Renee M. L. Yuen, Deputy Public Defender, Honolulu, for defendant-appellant.

Kendall Wong, Deputy Pros. Atty., Honolulu (Roy K. S. Chang, Deputy Pros. Atty., Honolulu, on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

Appellant was convicted of possession of marijuana on the basis of evidence obtained when she was searched by prison officials as a condition of entry to the prison. The appeal challenges, on constitutional grounds, both the admissibility of the evidence obtained by the search and the validity of a condition upon which appellant was granted probation. We affirm.

I

Appellant sought entry to Hawaii State Prison ("the prison") to visit a prisoner. After she entered the prison, appellant was taken to a room where she was left alone with a prison matron. The matron patted down appellant's upper body, including inserting her hands into appellant's bra. Without first patting appellant down between the legs, the matron pulled down appellant's panties and saw between her legs a plastic packet in which vegetable matter was visible. The packet was seized and subsequently found to contain marijuana. ¹

The matron testified that although she noticed signs of drug intoxication in appellant's appearance and behavior, her decision to subject appellant to a strip search was non-discretionary and was based on "rules and regulations" of the prison. No formal rule of the prison requiring such a search has been brought to our attention. Prior to the search in question, however, the matron had thoroughly searched forty or more women, removing the panties of those who, like appellant, were wearing loose clothing. There is also uncontradicted evidence in the record, contained in the testimony of the matron, that the matron had strip searched appellant in a manner similar to the present case on several previous visits by appellant to the prison.

We recently stressed the importance of institutional order and security at the prison in Holdman v. Olim, 581 P.2d 1164 (1978). In Holdman, citing a line of decisions by the United States Supreme Court, we found that maintenance of order at the prison is a vital State goal, that institutional security is central to all other prison goals, and that such security considerations justify restrictions on visitation. We also there recognized that wide-ranging deference is given to prison administrators in exercising their discretion to maintain institutional order and security. Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).

The standards by which any governmental search is to be judged is always its reasonableness, in light of the constitutional guarantee of freedom from unreasonable searches and seizures. Reasonableness, of course, varies with the circumstances. What is reasonable restraint and search "depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975), quoted in State v. Bonds, 59 Haw. 130, 134, 577 P.2d 781, 784 (1978). Thus the search of an individual in connection with a temporary investigative stop may ordinarily not go beyond a patting down of the detainee's outer clothing to discover the presence of a weapon, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and then only where particular facts support an inference that the detainee is armed and dangerous. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). But where the weight of the public interest is greater, as in the enforcement of laws against smuggling of contraband at border entry points, mere suspicion or less will sustain such a pat-down search. United States v. Rivera-Marquez, 519 F.2d 1227 (9th Cir. 1975). Yet for a strip search of the body of a traveller to be reasonable, it has been held that there must be "subjective suspicion supported by objective, articulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it into the United States contrary to law." United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir. 1970). And a search that extends into body cavities has been held to require more, in that there must be a clear indication or plain suggestion that contraband may be located in a body cavity. Henderson v. United States, 390 F.2d 805 (9th Cir. 1967); United States v. Sosa, 469 F.2d 271 (9th Cir. 1972).

Appellant seeks to apply here the standards developed by the Ninth Circuit Court of Appeals for judging the reasonableness of border searches. They are not automatically transferable to the situation before us. Comparing standards developed for persons crossing streets with those to be applied to persons crossing borders, the court said in United States v. Guadalupe-Garza, supra:

"In either context, official action must meet the standard of reasonableness. The scope of the particular intrusion, the manner of its conduct, and the justification for initiating it must all be considered. The test of reasonableness is incapable of comprehensive definition or of mechanical application; in each case the need for the particular search is balanced against the invasion that the search entails." 421 F.2d at 878.

A similar balancing is necessary to arrive at an appropriate measure of the search which may reasonably be imposed upon a prison visitor. Authority is scanty. The extreme step of body cavity search has been held to lie within the sound discretion of prison officials and not necessarily to be unreasonable as applied to convicted prisoners entering or leaving the prison. Daugherty v. Harris, 476 F.2d 292 (10th Cir. 1973); Hodges v. Klein, 412 F.Supp. 896 (D.N.J.1976); Penn El v. Riddle, 399 F.Supp. 1059 (E.D.Va.1975). Even pretrial detainees, who may be treated as prisoners only to the extent the security, internal order, health and discipline of the prison demand, have been held subject to strip search upon return from court appearances, Bell v. Manson, 427 F.Supp. 450 (D.Conn.1976), or after personal visits, Giampetruzzi v. Malcolm, 406 F.Supp. 836 (S.D.N.Y.1975), although we have said that the pre-incarceration search of an arrestee should be no broader than necessary in light of the reasons for the search. State v. Kaluna, 55 Haw. 361, 373, 520 P.2d 51, 61 (1974). In Gettleman v. Werner, 377 F.Supp. 445 (W.D.Pa.1974), a strip search of a former prison employee was upheld where he had recently transferred contraband to an inmate. None of these cases involved strictly a prison visitor. In Black v. Amico, 387 F.Supp. 88 (W.D.N.Y.1974), a strip search of a prison visitor was enjoined, in the absence of real suspicion, where the visitor was viewed as exercising a right to confer with codefendants and witnesses in the preparation of his defense to a criminal charge. And in People v. Thompson, 185 Colo. 208, 523 P.2d 128 (1974), bottles of whiskey found in the search of a prison visitor were suppressed in the absence of a showing of probable cause or of consent to search obtained pursuant to posted rules as a condition of exercising the privilege of entering the prison.

We consider that a fundamental difference exists between the detention and search of an individual engaged in the exercise of a constitutional or statutory right, such as travel on city streets or across the border, and search without detention imposed as a condition of admission of the individual into a prison. In the first case, the liberty interest and expectation of privacy of the individual are substantially unaffected by the activity engaged in, and the burden is heavy upon government to justify the invasion. But appellant has not suggested that she possessed a constitutional or statutory right to enter the prison. The implication is strong from the record that she applied for entry with awareness that she would be routinely subjected to a strip search. To have avoided the search appellant need only have refrained from seeking admission, a situation far different from being, in the course of otherwise lawful travel, intercepted and forced to undergo search as a condition to continuing that travel.

In United States v. Sihler, 562 F.2d 349 (5th Cir. 1977), a prison employee was found to have consented to a search by entering the prison in the face of a sign which advised that all who entered were subject to routine search. Appellant's consent to her search is equally established in the present case, and the reasonableness of the search must be...