Tinetti v. Wittke

• Decision Date: 31 October 1979
• Docket Number: No. 79-C-447.,79-C-447.
• Citation: 479 F. Supp. 486
• Parties: Jill TINETTI, Plaintiff, v. Lee WITTKE, Sheriff Racine County, Jane Doe, a Racine County Matron whose name is unknown, County of Racine, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

479 F. Supp. 486

Jill TINETTI, Plaintiff, v. Lee WITTKE, Sheriff Racine County, Jane Doe, a Racine County Matron whose name is unknown, County of Racine, Defendants.

No. 79-C-447.

United States District Court, E. D. Wisconsin.

October 31, 1979.

Terry W. Rose, Cotton, Rose & Rose, Kenosha, Wis., for plaintiff.

Richard H. Kjeldgaard, Asst. County Corp. Counsel, Racine, Wis., for defendants.

MEMORANDUM AND ORDER

WARREN, District Judge.

Plaintiff brought this civil action on June 19, 1979, for declaratory and injunctive relief restraining defendants from strip searching persons arrested for non-misdemeanor traffic violations absent probable cause to believe the offender is concealing weapons or contraband on his body. The facts are not in dispute and have been stipulated to by the parties.

On August 17, 1978, plaintiff, a resident of Colorado, was driving with her four children north on Highway I-94 in Racine County to her mother's home in New Berlin, Wisconsin. Plaintiff was arrested by a state police officer at about 11:30 p. m. for speeding. Because she did not reside in Wisconsin, plaintiff was informed by the officer that she would have to post a $40.00 cash bond. Plaintiff was unable to post the $40.00 cash bond, and the officer requested that she follow him to the Racine County Jail.

At the Racine County Sheriff's Department, plaintiff was booked, photographed and then taken to a room by defendant Jane Doe. Defendant Doe told plaintiff to remove her clothes, whereupon plaintiff refused, responding that she was not a common criminal but was being held solely due to her inability to post bail for her traffic offense. Defendant Doe then again told plaintiff to "strip," explaining that defendant would be performing a body search for contraband. Plaintiff complied, and when naked, was asked to bend over and spread her buttocks while defendant Doe visually inspected her genital and anal areas. Only plaintiff and defendant Doe were present in the room during the strip search. When defendant Doe had completed her examination, plaintiff was incarcerated in a cell for about two hours until her uncle posted the $40.00 cash bail.

Defendant Doe's strip search of plaintiff was executed pursuant to a written policy of the Racine County Sheriff's Department that all persons detained in the Racine County Jail, regardless of the offense, be subject to a strip search. The policy provided that no touching of detainees would occur, and that the searches would be conducted by guards of the same sex as the detainees. The policy was based on procedures recommended by national and state-wide organizations experienced in problems occurring in jails.

This Court issued a preliminary injunction on August 10, 1979, enjoining the defendants from undertaking, exploring, maintaining or adopting any policies, procedures, practices or acts of strip searching persons charged with non-misdemeanor traffic offenses, except where law enforcement officials have probable cause to believe that contraband or weapons are being concealed on the offender's body. In response to this injunction, the Sheriff of Racine County modified the policy of the Racine County Jail to prohibit strip searching non-misdemeanor traffic violators held in jail before arraignment or trial unless there is probable cause to believe that contraband or weapons are being concealed. The Sheriff approved the same policy as applicable to a new jail facility in Racine County which, when opened in November, 1979, will house non-misdemeanor traffic violators awaiting a court appearance in a holding cell rather than with the general prison population.

Defendants filed a motion for summary judgment on August 28, 1979. Plaintiff had earlier, on August 15, 1979, also filed a motion for summary judgment. Summary judgment is appropriate only if, after viewing all of the pleadings, depositions, admissions, answers to interrogatories and affidavits, this Court finds that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Poller v. Columbia Broadcasting Corp., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962).

Defendants contend, in support of their motion, that this case is moot because the strip-search policy challenged by plaintiff has been stopped and there is no reasonable likelihood of its reoccurrence. While no case or controversy generally exists when allegedly illegal conduct has ceased, a case may be considered as not moot when the issue is "capable of repetition yet evading review." Southern Pacific Terminal Company v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911); see Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). The plaintiff must show, however, that there is some cognizable danger of recurrent violations that is more than a mere possibility. United States v. W. T. Grant Company, 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). Specifically, the challenged action must be too short in duration to be fully litigated prior to its cessation, and there must be a reasonable expectation that the complaining party would be subject to the same action again. Weinstein v. Bradford, supra; Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975).

This Court finds, from the undisputed evidence, that the present situation is one capable of repetition yet evading review. Although the Racine County Sheriff has changed the strip search policy in conformance with this Court's preliminary injunction, the former policy could be reinstated by the Sheriff at any time. Furthermore, if a new Sheriff is elected, nothing would preclude him, absent the present preliminary injunction, from reverting to the routine practice of strip searching detainees. And while the new Racine jail facility purports to segregate traffic violators from the general prison population, economic or spatial limitations could cause such policy to be ignored until further challenge. The resulting mixture of prisoners could cause an inadvertent reversion to the strip searching of all detainees.

The occurrence of citations for traffic violations is certainly not a rarity in this society. Accordingly, the arrest of traffic violators for unpaid fines or other minor offenses will occur frequently. In addition, the possibility of nonresident traffic violators being unable to post the required bond is also high. As such, there is more than a mere possibility that plaintiff, or any other traffic violator, would be subject to a strip search while awaiting an arraignment or the posting of bail.

In addition to being capable of repetition, the present situation is one which may also evade review. While the total time involved in a strip search is minimal, the humiliation and embarrassment experienced by the offender are much more long lasting. If this Court holds the case moot, thus precluding plaintiff from being heard on the merits, there is nothing to prevent defendants from reinstating the strip search policy until another challenge arises. "Where . . . state action or its imminence adversely affects the status of private parties, the courts should be available to render appropriate relief and judgments affecting the parties' rights and interests." Super Tire Engineering Company v. McCorkle, 416 U.S. 115, 125, 94 S.Ct. 1694, 1699, 40 L.Ed.2d 1 (1974).

Furthermore, "the voluntary abandonment of a practice does not relieve a court of adjudicating its legality, particularly where the practice is deeply rooted and long standing." Gray v. Sanders, 372 U.S. 368, 376, 83 S.Ct. 801, 806, 9 L.Ed.2d 821 (1963).

The challenged practice has been in effect for several years. It was based on procedures recommended by reputable organizations, familiar with prison problems, which are based in New York, Washington, D. C., as well as Madison, Wisconsin. Defendants did not alter their policy until a preliminary injunction was issued against its maintenance. Indeed, the defendants argued in their brief opposing the preliminary injunction that the policy was constitutional and should be continued. Because of the long-standing use of the strip search procedure and defendants...