August 6, 2018- State of New Mexico v. Eugene Chacon, No. A-1-CA-34545

OCR transcription for search; preserved printed pages are authoritative

Filed

Court of Appeals of New Mexico
8/6/2018 11:17 AM

Offige of the Clerk

Ahod Ee of

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO atk Reynolds

Opinion Number:

Filing Date: August 6, 2018

NO. A-1-CA-34545

STATE OF NEW MEXICO,

Plaintiff-Appellee,

Vv.

EUGENE CHACON,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

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Sheri A. Raphaelson, District Judge

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for Appellee

Bennett J. Baur, Chief Public Defender

C. David Henderson, Assistant Appellate Defender
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for Appellant

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a; This case involves the constitutionality of a second strip search of Defendant

Detention Facility (SFCADF) discovered heroin on Defendant’s person. We are

required, as a matter of first impression, to determine the appropriate standard

anyone outside of the jail. We hold that such a search requires reasonable suspicion

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and that the strip search of Defendant was supported by reasonable suspicion. We

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i, BACKGROUND

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{2} On the evening of June 5, 2013, Defendant was booked into SFCADF on

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perform a “visual examination of an individual’s naked body tor weapons, drugs or

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other contraband[,]” which we herein refer to as a “strip search,” on all individuals

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arrested for certain charges, including drug tratiicking charges. Pursuant te the

policy, Defendant was strip searched during the booking process. Two officers took

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Defendant into the restroom where Defendant was required to remove his clothing

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rubber glove, but the record does not indicate where the officers found the glove.

Defendant was then taken to a booking intake cell, where he was kept until the next

day.

pod” called the Alpha 300 Pod, where he was to be kept until classified to an

appropriate housing unit according to his status (1.¢., threat level). The Alpha 300 Pod

pod has two floors of cells, with six cells on each floor. The odd numbered cells (301

through 311) are situated on the bottom floor, while the even numbered cells (302

through 312} are on the top floor. The cells all have doors with a narrow window
running vertically in the middle of the door

4} Onthe morming ofJune 7, 2013, Lieutenant Charlie Valdez, a shift commander
at SFCADF, received an anonymous tip that several inmates in the Alpha 300 Pod

had drug paraphernalia. Between 7:12 asm. and 8:48 a.m., several inmates in the

Alpha 300 Pod were moving from their cells to the common area and to other

a brief period of time. They would then briefly return to their awn cells before

repeating this process. On several occasions, an inmate from cell 301—-the cell in

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Officer Joseph Cross, the floor officer, noticed this activity and deemed it unusual

and SUSPICIOUS.

correctional officers to enter the pod and direct the inmates to line up against a wall

inthe common area, Officer Cross entered cell 303 and discovered its two occupants,

the chief of security, noticed Officer Cross escorting inmates and entered the Alpha

300 Pod to assi

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t him. Officer Cross informed Major Abeyta of what had just

unusual and suspicious behavior were in the area of cell 303 and should therefore be

strip searched.

Defendant into a mop closet for privacy and directed him to remove his clothes, lift

his arms and tongue, lean over, hold his testicles, squat, spread his buttocks, and

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Defendant’s anal cavity. Major Abeyta told Defendant to either “give up” what he had

or be sent to a dry cell (Le., a cell with either no plumbing fixtures or plumbing

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ed in plastic from his anal cavity and gave it to Ma

confirmed that the plastic contained heroin.

Th Charged with possession of a controlled substance (heroin), Defendant filed

violated the Fourth Amendment of the United States Constitution and Article UJ,

Section 4 ofthe New Mexico Constitution. Following an evidentiary hearing in which

district court ruled that reasonable suspicion was the standard under which the

constitutionality of the search was to be measured and concluded that the evidence

trial, Defendant was found guilty and appeals.

ii. DISCUSSION

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be BYP L TRRCLLER AER PECPE QC R A ah L EER RAG OL hd dds SD AELEE Wed LIER MERLE CURLER RE. ee
Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 322-23 (2012) (upholding the

constitutionality of a jail’s policy requiring a strip search of every arrestee upon
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fo} Defendant does, however, argue that the second strip search of his person was

unconstitutional under the Fourth Amendment to the United States Constitution and

first determine the standard for deciding the constitutional reasonableness of the strip search of a pretrial detainee who was strip searched upon booking, has remained in the sealed correctional facility environment without any contact external to the correctional facility, and is then subjected to a second strip search. This is a question of first impression in New Mexico.
A. The Constitutional Standard
(10} The Fourth Amendment guarantees the right to be free from "unreasonable searches and seizures." U.S. Const. amend. IV. One of the most weighty considerations in determining constitutional reasonableness in the correctional facility context is internal security. See Hudson v. Palmer, 468 U.S. 517, 524 (1984) (concluding that, while correctional facilities are not beyond the reach of the Constitution, "imprisonment carries with it the circumscription or loss of many significant rights" made "necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of correctional facilities, chief among which is internal security" (internal quotation marks and citations omitted)). However, incarcerated individuals do not forfeit all constitutional protections by reason of their confinement. Turner v. Safley, 482 U.S. 78, 84 (1987) ("Prison walls do not form a barrier separating prison inmates from the protections of the Constitution."). Courts therefore recognize that prisoners have a limited Fourth Amendment right to bodily
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searches of inmates and assuming “inmates, both convicted prisoners and pretrial
detainees, retain some Fourth Amendment rights upon commitment to a corrections
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that society is prepared to recognize as reasonable the retention of a limited right of

bodily privacy even in the prison cortext.”).

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administrators in policies and practices they adopt that, in their judgment, are

necessary “to preserve internal order and discipline and to maintain institutional

constitutional rights of prisoners, See Procunier v. Martinez, 416 US. 396, 405-06

(1974) (stating that federal courts will discharge their duty to protect constitutional

guarantees), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401,
413-14 (1989).

{123 We therefo ore require, ¢ nsistent
seizures of prisoners be reasonable under all the facts and circumstances in which

they are performed. In making this determination, we engage in a “balance between

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the public and private interests at stake.” Stare v. Williams, 2011-NMSC-026, © 20,
149 NLM, 729, 255 P.3d 307.

3} The public interests at stake are the necessity for maintaining the institutional

441 U.S. at 547. This necessarily includes detecting and deterring the possession of

contraband such as drugs and weapons within the correctional facility. Florence, 566

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U.S. at328. That public interest justifies policies providing for strip searches at points

of entry into detention facilities without any quantum of suspicion. See id. at 330

(holding that strip searches can be conducted on all new inmates upon admission to

the detention facility): Bell. 441 U.S C22 LEN (haiding that ctrin cearchac can ha
the detention facility); Bell, 441 U.S. at 558, 560 Choiding that strip searches can be

conducted on an inmate after every contact visit with someone from outside the
facility}; Powell v. Barrett, S41 F.3d 1298, 1300, 1314 (11th Cir. 2008) (interpreting
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suspicion when conducted during “the point-of-entry booking process before [the

inmates | were placed into the general jail population”). The policies allowing the strip

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searches in these points-of-entry cases are justified on the basis that they are needed
to prevent contraband from entering the correctional facilities. See Florence, 566 US.
at 333-35 (explaining the purpose of the facility’s policy was to prevent persons from

introducing prohibited items into the facility); Bell, 441 U.S. at 559 (recognizing the

facility's need to deter inmates from smuggling money, drugs, weapons, and other contraband into the facility by concealing them in the inmates' body cavities).
{14} While the need for a detention facility to deter and detect the introduction of contraband is at its peak at points of entry, that institutional need diminishes when a strip search takes place outside a point of entry. See Arruda v. Fair, 710 F.2d 886, 890 (1st Cir. 1983) (Maletz, J., concurring in part and dissenting in part). Searches within the correctional facility to discover the circulation of contraband, while 8 9 certainly important, are not accompanied by the same circumstances that facilitate the smuggling of contraband into a facility. A correctional facility's institutional 10 justification to conduct a second strip search is further reduced when it takes place shortly after a prior strip search and no contraband was discovered. See, e.g., N.G. v. Connecticut, 382 F.3d 225, 234 (2nd Cir. 2004) (holding that a second strip search of a juvenile inmate to search for a missing pencil was unreasonable because the inmate had already been strip searched upon her initial admission to the facility); Hodges v. Stanley, 712 F.2d 34, 35-36 (2d Cir. 1983) (per curiam) (holding that a strip search of an inmate under continuous escort-conducted shortly after a prior strip search-was unnecessary and unconstitutional because there was no possibility that the inmate could have obtained and concealed contraband in the interim); Green v. Martin, 224 F. Supp. 3d 154, 164 (D. Conn. 2016) ("[W]hen two strip searches are
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the first search, then the second strip search may be unreasonable and

unconstitutional because the inmate lacked an opportunity to obtain contraband in the

321, 323 (S.D.N.Y. 2006) (holding that a second strip search of an

inmate-—-conducted after the inmate was previously strip searched, handcuffed, and
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48} The foregoing public interests must be balanced against the private interests

at stake. As we have already noted, inmates have a Fourth Amendment right to the

violate that privacy interest. Our own Supreme Court has declared that no matter how

professionally and courteously a strip search is conducted, it is embarrassing,

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€ 5,116 NLM. 87, 860 P.2d 217. Regardless of whether a strip search is conducted at

a point of entry or inside the secured area of a detention facility, they both invade an

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inmate's personal oodily privacy to an equal extent.

416} In balancing the competing interests at stake, we agree with the district court

that the appropriate standard for determining the constitutional reasonableness of the

require probable cause as the appropriate standard. See Commonwealth v. Thomas, 708 N.E.2d 669, 673 (Mass. 1999) ("[W]e conclude that probable cause is the appropriate standard to apply to strip and visual body cavity searches."). However, our view is that, given the exigencies inherent in a detention facility's environment, such a threshold tilts the balance too far in favor of the privacy interest and is therefore "an unrealistically high standard of proof" for correctional officials to satisfy. Arruda, 710 F.2d at 890 (Maletz, J., concurring in part and dissenting in part). At the other extreme, requiring no quantum of suspicion gives correctional officials unlimited, unreviewable discretion to conduct inherently degrading body cavity searches of all inmates. This standard fails to take into account the privacy interests at stake. We agree that the middle ground, reasonable suspicion "is flexible enough to afford the full measure of [F]ourth [A]mendment protection without posing an insuperable barrier to the exercise of all search and seizure powers." Williams, 2011- 14 NMSC-026, { 13 (internal quotation marks and citation omitted). Such a standard reasonably accommodates correctional officials' security concerns as well as the privacy right of an inmate who has had no contact outside the jail and has already been subjected to a strip search.
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{17) In balancing the public interests and private interests at stake, we hold that the 19 second strip search of Defendant must be supported by a reasonable suspicion that
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strip search upon being booked into the SFCADF, and no drugs or other contraband

was found. Defendant was then placed in a booking cell where he remained until he

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classification. The institutional need to conduct a strip search was diminished at this

point. Less than forty-eight hours later, and without having had any contact with

Requiring the SFCADF officers to have a reasonable suspicion that Defendant had

contraband on or in his body cavity strikes a proper balance between Defendant’s

to maintain institutional security and preserve the internal order and discipline of the
facility. We now turn to whether the second strip search of Defendant was supported
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B. Reasonable Suspicion Analvsis

418} Reasonable suspicion exists “when the officer becomes aware of specific

criminal activity occurred or was occurring.” State v. Martinez, 2018-NMSC-007,

# 10, 410 P.3d 186 Gnternal quotation marks and citation omitted). “Unsupported

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046, | 43, 147 NM. 134, 217 P.3d 1032 (internal qu

omitted). In determining whether there is reasonable suspicion for a search, we assess

the totality of the circumstances instead of looking at each individual factor in a

fist = Our review of the district court’s ruling on the motion to suppress presents a

of the facts, “we defer to the district court’s findings of fact if substantial evidence

xists to support those findings and view the facts in the manner most favorable to the

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regard, when the evidence is conflicting, we indulge in all reasonable presumptions

in favor of the district court’s ruling, disregarding all evidence and inferences to the
contrary, and when evidence is uncontradicted, we presume the district court believed

the uncontradicted evidence, unless it indicates to the contrary on the record. State

v. Jason L., 2000-NMSC-018, 99 10-11, 129 NM. 119, 2 P.3d 836. Secondly, we

whether the search or seizure was constitutionally reasonable. Martinez, 2018-

NMSC-007, € 8.

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district court’s conclusion that the second strip search of Defendant was supported

by reasonable suspicion. Defendant was booked into SFCADF on charges of

booking intake cell until the next morning, when he was transferred to the orientation

pod. That morning, the shift commander received an anonvmous tip that inmates in
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orientation pod also observed the inmates engaging in what was described as unusual

and suspicious behavior and congregating, and it was decided to search one of the

discovery that its occupants were in possession of drugs, which corroborated the

anonymous tip. These facts and inferences viewed in the light most favorable to the

support the second strip search of Defendant. See Hudson, 468 U.S. at 526 (holding

that the Fourth Amendment does not apply to the search of a prisoner’s cell); Wood
v. Clemons, 89 F.3d 922, 929 (ist Cir. 1996) (Although an anonymous tip, standing

alone, may typically fail to create reasonable suspicion, an anonymous tip that is

corroborated in some measure by actual facts or by other sources may be enough.”).

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CONCLUSION

“MICHAEL £. V¥GIL, Judge

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Staffirmed.

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