2013 -- H 5382

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LC01040

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO CRIMINAL PROCEDURE

     Introduced By: Representatives Walsh, Ajello, Williams, Blazejewski, and Handy

     Date Introduced: February 12, 2013

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 12 of the General Laws entitled "Criminal Procedure" is hereby

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amended by adding thereto the following chapter:

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     CHAPTER 7.1

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STRIP SEARCHES OF DETAINEES

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     12-7.1-1. Short title. - This chapter shall be known and may be cited as the “Rhode

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Island Strip Searches of Detainees Act of 2013.”

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     12-7.1-2. Purpose. -- The general assembly recognizes that the use of strip searches and

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body cavity searches of individuals lawfully detained may, under certain circumstances, be

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necessary to protect the safety of law enforcement personnel, members of the public, and other

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detainees; to detect and secure evidence of criminal activity; and to safeguard the security, safety

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and orderly administration of criminal detention and holding facilities. The general assembly

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further recognizes the substantial intrusion on personal privacy and integrity caused by such

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searches and the consequent necessity that these searches be conducted only with proper

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justification and authority and with due recognition of and deference to the human dignity of

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those being searched.

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     12-7.1-3. Definitions. -- (a) “Body cavity search” means any search involving internal

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physical examination of body cavities, with the exception of a visual inspection of the ears, nose,

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and mouth.

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     (b) “Detainee” means any person who is detained, under arrest, or otherwise in the

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custody and control of any state or local law enforcement personnel or agent within the state of

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Rhode Island, but does not include criminal offenders committed to the adult correctional

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institution following conviction or sentencing or to persons confined at the Wyatt Detention

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Center.

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     (c) “Probable cause” means sufficient, objective facts or circumstances to lead a

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reasonable person to believe that a detainee is in possession of a weapon, contraband, or evidence

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of a crime, that cannot be detected and seized pursuant to a thorough frisk or pat search of a

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detainee’s person.

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     (d) “Reasonable suspicion” means sufficient, objective facts or circumstances to lead a

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reasonable person to suspect that a detainee is in possession of a weapon, contraband or evidence

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of a crime, that cannot be detected and seized pursuant to a thorough frisk or pat search of a

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detainee’s person.

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     (e) “Strip search” means any search requiring the removal or rearrangement of some or

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all of the clothing of a detainee to permit the visual inspection of the genitalia, buttocks, anus,

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female breasts or undergarments of the detainee.

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     12-7.1-4. Policy. -- No detainee in the state of Rhode Island shall be subject to a strip

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search or body cavity search except in accordance with the procedures set forth herein. Detainees

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confined at the adult correctional institution on the basis of a criminal conviction or sentence shall

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be subject to search pursuant to regulations promulgated by the department of corrections in

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accordance with applicable law. Detainees confined at the Wyatt Detention Center shall be

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subject to search in accordance with rules and regulations of that facility promulgated in

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accordance with applicable law.

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     12-7.1-5. Search prerequisites. -- (a) Standard of belief. Neither strip searches nor

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body cavity searches shall be conducted as a matter of routine procedure. A strip search may be

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conducted based upon reasonable suspicion. A body cavity search may be conducted only

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pursuant to a warrant based upon probable cause.

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     (b) Basis of belief. Neither reasonable suspicion nor probable cause, as defined herein,

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may be based solely on the nature of the offense charged or on the detainee’s previous criminal

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record. A belief or suspicion sufficient to support either search also may not be based on mere

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speculation, conjecture, or hunch. Facts or circumstances sufficient to establish reasonable

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suspicion or probable cause may include, but are not limited to, the following:

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     (1) The nature of the offense charged;

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     (2) The detainee’s appearance and demeanor;

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     (3) The circumstances surrounding the arrest or detention;

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     (4) The detainee’s criminal record, particularly past crimes of violence and narcotics

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offenses;

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     (5) The discovery of evidence of a major offense in plain view or in the course of a

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search incident to arrest;

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     (6) Detection of suspicious objects beneath the detainee’s clothing during a field search

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incident to arrest;

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     (7) The type of clothing and manner in which it is worn by the detainee.

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     12-7.1-6. Procedure. -- A strip or body cavity search may be performed only in

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accordance with the following procedures:

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     (1) Prior to search.

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     (i) A written request describing the detainee to be searched and the specific facts and/or

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circumstances establishing the requisite reasonable suspicion or probable cause to justify the

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search;

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     (ii) Written approval of the request by a supervisory or other designated official;

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     (iii) Application for and approval of a search warrant for a body cavity search;

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     (iv) The search must be conducted in a secure, private area where it cannot be visually

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monitored by electronic or other means or observed by persons not participating in the search;

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     (v) No more than two (2) persons shall participate in the search unless the participation of

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additional persons is deemed essential to the safety of the detainee and/or those participating in

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the search;

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     (vi) Anyone participating in the search must be of the same gender of the detainee being

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searched, except for a licensed physician performing a body cavity search;

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     (vii) The detainee undergoing a search shall not be touched during a strip search, unless

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the detainee refuses to cooperate with the search procedure or is otherwise unable to comply with

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the search due to his or her mental or physical condition;

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     (viii) Any body cavity search must be performed by a licensed physician or a registered

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nurse under sanitary, clinical conditions.

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     (2) Subsequent to search. The supervisory or other designated official approving the

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search must prepare a written report of the circumstances surrounding the approval and conduct

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of the search which shall include the following information:

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     (i) The specific facts and/or circumstances upon which it was determined that the

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requisite reasonable suspicion or probable cause existed to justify the search. A copy of the

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written request and approval of the search shall be attached to the report. In the case of a body

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cavity search, a copy of the search warrant and application in support thereof shall be attached to

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the report;

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     (ii) The name and address of the detainee and the date, time, and place of the search;

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     (iii) The name, rank or position, and sex of the persons participating in the search;

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     (iv) A description of the results of the search, including a list of any items removed from

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the detainee searched and the precise location on the detainee’s person from where each item was

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seized;

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     (v) A copy of the foregoing report, with attachments, shall be provided to the detainee

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searched.

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     12-7.1-7. Remedies for violations. -- (a) Any detainee aggrieved by a search performed

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without the requisite reasonable suspicion or probable cause mandated by this chapter or without

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substantial compliance with the procedures provided herein shall be entitled to seek relief in a

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civil action against all those participating in or approving such a search, as well as the state or

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local governmental entity by whom they are employed, for compensatory damages of not less

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than one thousand dollars ($1,000), punitive damages, attorneys’ fees, and costs of the suit. Any

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judicial officer approving a warrant and any person acting in good faith based upon a facially

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valid warrant shall be immune from liability under this section.

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     (b) No evidence procured by, through, or as a consequence of a search performed without

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the requisite reasonable suspicion or probable cause mandated by this statute or without

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substantial compliance with the procedures provided herein shall be admissible in the trial of any

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action in any court of this state.

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     (c) The remedies provided herein shall be in addition to any other remedies which an

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aggrieved detainee may have pursuant to applicable law.

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     SECTION 2. This act shall take effect upon passage.

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LC01040

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL PROCEDURE

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     This act would codify the standards necessary to conduct strip searches and body cavity

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searches.

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     This act would take effect upon passage.

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LC01040

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