Friday, September 24, 2010

Fourth Amendment Friday: Jail Strip Search of Person Arrested for Minor Offense Still Requires Reasonable Suspicion of Weapon or Contraband Possession . . . For Now

Jimenez v. Wood County, Texas, No. 09-40892 (5th Cir. Sept. 22, 2010) (Garza, Benevides, Lynn, D.J.)

"I'll take 'Book 'em Danno' for $200, Alex."

"Strip searches in a prison setting may be performed on less than probable cause."

"What was the holding of Bell v. Wolfish, 441 U.S. 520 (1979)?"

"Correct.  Go again."

"'Book 'em Danno' for $400."

"'[A] strip search of an individual arrested for a minor offense must be premised on reasonable suspicion that the detainee is carrying weapons or contraband.'"

"What's the Fifth Circuit's take on Wolfish?"


"'Book 'em Danno' for $600."

"No.  A panel cannot overrule prior panel precedent, absent intervening Supreme Court authority, of which there is none.  That said, 'Although overruling is not appropriate at this stage, there may be compelling reasons to reconsider these precedents en banc in an appropriate case. Recent en banc panels of the Ninth and Eleventh Circuits have reconsidered similar precedents in their circuits and ultimately agreed with the County’s position.'"

"Will the panel reconsider Fifth Circuit precedent applying Wolfish and join the 'growing trend' of other circuits that have abolished the reasonable suspicion requirement in this setting?"

"Right again.  And the last clue on the board is our Daily Double.  How much would you like to wager in 'Book 'em Danno?'"

"All of it, Alex."

"Here's the answer in 'Book 'em Danno': Yes, because it's a misdemeanor (although the question of whether the felony version qualifies is not at issue here)."

"Hmmm . . . ."

"Time's almost up."

"Is hindering apprehension under Texas Penal Code § 38.05(a) a 'minor' offense for purposes of this rule?"

"Yes!  We'll be right back after the commercial break to play Double Jeopardy."



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