2016 -- S 2880

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LC005419

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

RELATING TO CRIMINAL PROCEDURE

     Introduced By: Senators Conley, Goldin, Jabour, Archambault, and Lynch Prata

     Date Introduced: March 31, 2016

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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

amended by adding thereto the following chapter:

CHAPTER 7.1

STRIP SEARCHES OF DETAINEES

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

Island Strip Searches of Detainees Act of 2016."

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

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

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

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

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

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

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

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

those being searched.

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

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

and mouth.

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

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

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

institution or to persons confined at the Wyatt Detention Center.

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

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

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

detainee's person.

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

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

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

detainee’s person.

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

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

female breasts or undergarments of the detainee.

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

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

confined at the adult correctional institution shall be subject to a search pursuant to regulations

promulgated by the department of corrections in accordance with applicable law. Detainees

confined at the Wyatt Detention Center shall be subject to a search in accordance with rules and

regulations of that facility promulgated in accordance with applicable law.

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

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

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

pursuant to a warrant based upon probable cause.

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

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

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

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

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

     (1) The nature of the offense charged;

     (2) The detainee's appearance and demeanor;

     (3) The circumstances surrounding the arrest or detention;

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

offenses;

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

search incident to arrest;

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

incident to arrest; or

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

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

accordance with the following procedures:

     (1) Prior to search.

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

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

search;

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

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

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

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

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

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

the search;

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

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

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

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

the search due to their mental or physical condition; and

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

nurse under sanitary, clinical conditions.

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

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

of the search which shall include the following information:

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

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

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

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

the report;

     (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 gender of the persons participating in the search;

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

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

seized; and

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

searched.

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

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

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

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

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

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

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

valid warrant shall be immune from liability under this section.

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

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

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

action in any court of this state.

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

aggrieved detainee may have pursuant to applicable law.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL PROCEDURE

***

     This act would promulgate standards of probable cause and/or reasonable suspicion

before a detainee, arrestee, or any individual in the custody and control of law enforcement can be

subjected to a strip search or a body cavity search, and would establish procedures to be followed

before any strip search or body cavity search can be conducted. This act would not apply to those

individuals in the custody, care, or control of the adult correctional institution or the Wyatt

detention center.

     This act would take effect upon passage.

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