STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6298

June 6, 1985

SEARCHES AND SEIZURES:

Body cavity searches of persons Strip searches of persons

WORDS AND PHRASES:

'By order of a court'

A strip search may not be conducted upon a person who is arrested for a misdemeanor or a civil offense unless the person arrested is being lodged in a detention facility pursuant to an authorization contained in an order entered upon the record of a court or there is reasonable cause to believe that the individual is concealing a weapon, a controlled substance, or evidence of a crime on his person, and the strip search is conducted by a person who has obtained prior written authorization from the appropriate law enforcement officer.

A strip search of a person arrested for a misdemeanor or civil offense must be conducted in private by an authorized person of the same sex, pursuant to written authorization by an appropriate law enforcement officer; where assistance is necessary, the assisting person must also be of the same sex as the person being searched. Full details of the strip search must be listed in a written report.

A strip search of a person lodged in a detention facility pursuant to an authorization contained in an order entered upon the record of a court may be conducted without regard to any requirements contained in MCL 764.25a; MSA 28.884(1).

A body cavity search of a detained person charged with but not convicted of an offense may be conducted only pursuant to a valid search warrant.

A body cavity search of a person serving a sentence in a detention facility or a state correctional facility may be conducted without a search warrant if the search is authorized by an appropriate facility officer.

Body cavity searches must be conducted by a licensed professional. If the licensed professional is of the opposite sex of the person being searched, such search must be conducted in the presence of a third person of the same sex as the individual being searched and a full report of the details of the body cavity search shall be made.

In all cases, any search must observe the constitutional standards of reasonableness required by the Fourth Amendment to the United States Constitution.

Honorable Jerome T. Hart

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion with regard to strip searches and body cavity searches of persons in the custody of and/or being detained by law enforcement officials.

Your first question states:

1979 PA 185 amended the Code of Criminal Procedure, MCL 764.1 et seq; MSA 28.860 et seq, by adding three new sections, MCL 764.25a; MSA 28.884(1); MCL 764.25b; MSA 28.884(2); and MCL 764.25c; MSA 28.884(3).

Subsequently, the Legislature enacted 1983 PA 92, which amended MCL 764.25a; MSA 28.884(1), and MCL 764.25b; MSA 28.884(2). It also repealed MCL 764.25c; MSA 28.884(3).

MCL 764.25a; MSA 28.884(1), as last amended by 1983 PA 92, provides:

In MCL 764.25b; MSA 28.884(2), as last amended by 1983 PA 92, the Legislature has provided:

A fundamental rule of statutory construction is to ascertain and give effect to the legislative intent. Attorney General, ex rel McKay v Detroit & Erin Plank Road Co, 2 Mich 139 (1851). Statutes imposing criminal penalties are to be strictly construed. Although subject to strict construction, criminal statutes should 'be construed in light of the evil addressed so as to effectuate the end purpose of the legislation.' People v Lyons, 93 Mich App 35, 43-44; 285 NW2d 788, 792 (1979); Deloria v Atkins, 158 Mich 232; 122 NW 559 (1909); Hightower v Detroit Edison Co, 262 Mich 1; 247 NW 97 (1933).

In Woll v Attorney General, 409 Mich 500, 516; 297 NW2d 578, 584 (1980), the court stated:

Therefore, in determining the scope of a criminal statute, we must give strict construction to the language used in light of the legislative purpose to be achieved.

The Legislature, in enacting MCL 764.25a; MSA 28.884(1), and MCL 764.25b; MSA 28.884(2), placed restrictions upon and set forth procedures to be followed by law enforcement or detention facility personnel when strip and body cavity searches of persons arrested or detained may be conducted.

A strip search may be performed only after written authorization by the appropriate law enforcement officer by a person of the same sex as the person being searched and in a place where it may not be observed by others than the authorized person conducting the search or in the presence of an assisting person of the same sex. MCL 764.25a; MSA 82.884(1), subsection (3). A report of each strip search must be prepared by the arresting officer, listing the name and sex of the person subjected to the strip search, the name and sex of the person conducting the search, the name and sex of the person, if any, assisting in conducting the search, the date, time and place of the search, the justification for conducting the search, a list of the items recovered as a result of the search, and a copy of the written authorization for the strip search. MCL 764.25a; MSA 28.884(1), subsection (4). Any strip search conducted in violation of MCL 764.25a; MSA 28.884(1), is punishable as a misdemeanor.

A body cavity search, except as otherwise provided in subsection (3), may be conducted only pursuant to a valid search warrant, MCL 764.25b; MSA 28.884(2), subsection (2). A valid search warrant is not required in order to conduct a body cavity search of a person serving a sentence for a criminal offense in a detention facility or a correctional facility, but no body cavity search of such person may be conducted without prior written authorization from the appropriate facility officer. MCL 764.25b; MSA 28.884(2), subsection (4).

The body cavity search can only be conducted by a licensed physician, a physician's assistant, a licensed practical nurse, or a registered professional nurse acting with the approval of a licensed physician. If the body cavity search is conducted by a person of the opposite sex of the person being searched, the search shall be conducted in the presence of a third person of the same sex as the person being searched. MCL 764.25b; MSA 28.884(2), subsection (5). Whenever a body cavity search is conducted, a report shall be prepared by the appropriate officer listing the details of the body cavity search as provided in MCL 764.25b; MSA 28.884(2), subsections (6) or (7). Any body cavity search authorized or conducted in violation of MCL 764.25b; MSA 28.884(2), is punishable as a misdemeanor.

The Fourth Amendment prohibits only unreasonable searches and seizures. US v Sharpe, ---- US ----; 105 S Ct 1568; 84 L Ed 2d 605 (1985). The federal courts have held that strip searches are not per se unreasonable. Tinetti v Wittke, 479 F Supp 486 (ED Wis, 1979), aff'd 620 F2d 160 (CA 7, 1980). They have also held that body cavity searches are not per se unreasonable. Lee v Downs, 470 F Supp 188 (ED Va, 1979). Reasonableness, and, therefore, the legal validity of such search, depends on the facts and circumstances in each case. Bell v Wolfish, 441 US 520; 99 S Ct 1861; 60 L Ed 2d 447 (1979); Orosco v US, 526 F Supp 756 (WD Okla, 1981); US v Lilly, 576 F2d 1240 (CA 5, 1978).

As the Supreme Court of the United States stated in Bell v Wolfish, supra, 441 US 520, 559:

Every search and seizure must meet the test of reasonableness. Intrusions upon a person's right to privacy must be judged in light of the circumstances surrounding the search. In Bell v Wolfish, supra, the Court balanced the intrusion upon the individual against the significant and legitimate security interests of the penal institution in upholding the routine practice of strip and body cavity searches of inmates following contact visitations. However, when circumstances are less compelling, such intrusion upon an individual's right to privacy may fail to meet constitutional standards.

In Logan v Shealy, 660 F2d 1007 (CA 4, 1981), cert den, sub nom Clements v Logan, 455 US 942; 102 S Ct 1435; 71 L Ed 2d 653 (1982), the Court of Appeals reviewed a strip search of a person who was detained temporarily after being charged with driving while intoxicated. Applying the standards enunciated in Bell v Wolfish, supra, the court found that the strip search policy involved in Logan v Shealy, supra, was not reasonable, and was, therefore, unconstitutional. ⁽¹⁾

Presented with three cases involving women who were strip searched after arrests for minor traffic violations pursuant to an established policy of the City of Chicago to strip search females upon detention, the Court of Appeals held such policy, as applied, to be unreasonable under the Fourth Amendment. Mary Beth G & Sharon N v City of Chicago, 723 F2d 1263 (CA 7, 1984). Using the balancing test announced in Bell v Wolfish, supra, as its starting point, the court found that 'on the facts here, the strip searches bore an insubstantial relationship to security needs so that, when balanced against plaintiffs-appellee's privacy interests, the searches cannot be considered 'reasonable'.' Mary Beth G & Sharon N, supra, p 1273.

In Giles v Ackerman, 746 F2d 614 (CA 9, 1984), the Court of Appeals held that persons arrested for minor offenses may be subjected to strip searches only if officials possess a reasonable suspicion based upon the nature of the offense, the arrestee's appearance, conduct and prior arrest record that the arrestee is concealing contraband.

Thus, the balancing test enunciated in Bell v Wolfish, supra, does not validate strip searches in detention settings per se, but rather, provides a mechanism by which to determine the reasonableness of such search, depending on the circumstances of a particular case. The standard of reasonableness as set forth in Bell v Wolfish, supra, must be met for a strip or body cavity search to comport with the constitutional requirements of the Fourth Amendment. It is in light of this requirement that the questions regarding the scope of MCL 764.25a; MSA 28.884(1) and MCL 764.25b; MSA 28.884(2), must be answered.

Contained within these statutes are certain exceptions which limit their applicability. MCL 764.25a; MSA 28.884(2), in pertinent part, provides:

In providing an exception for misdemeanor offenses and offenses punishable only by a civil fine but not for felony offenses, it is clear that the Legislature did not intend the protections of MCL 764.25a; MSA 28.884(1), to apply where a person has been arrested or detained for a felony offense.

Another provision limiting the circumstances under which a body cavity search may be conducted is contained in MCL 764.25b; MSA 28.884(2), which, in pertinent part, provides:

In this provision, the Legislature has recognized the much greater degree of intrusiveness involved with a body cavity search than a strip search, and, therefore, a higher standard of reasonableness is required for body cavity searches.

This higher standard for body cavity searches is made evident through a significant distinction and exclusion that is contained in MCL 764.25a; MSA 28.884(1), but which is not included in the section on body cavity searches:

To determine the extent of the exclusion provided in subsection (7) requires an understanding of the phrase 'by an order of a court.' Since research has not disclosed any Michigan cases defining this phrase, we must look to other authorities.

Black's Law Dictionary, 5th ed, defines the term 'order' as 'a mandate; precept; command or direction authoritatively given; . . ..'

In Aetna Casualty & Surety Co v Sampley, 108 Ga App 617; 134 SE2d 71 (1963), the phrase 'by order of the court' was held to mean 'by command' or 'by direction' of the court. It has also been held that the term 'order' is a command entered upon the record of the court. In re LaMarre, 494 F2d 753 (CA 6, 1974).

Thus, the phrase 'person lodged in a detention facility by an order of a court' refers to individuals whose detention or continued custody has been authorized by an order entered upon the record of the court.

A court speaks only through its orders and judgments, not through its opinions. Jones v Hicks, 358 Mich 474; 100 NW2d 243 (1960); Joslin v 14th District Judge, 76 Mich App 90; 255 NW2d 782 (1977). This distinction is important with respect to persons detained pursuant to an arrest warrant. An arrest warrant is a written authorization invoking the procedure by which a court exercises jurisdiction over a person by having the person brought before a magistrate to answer a criminal charge. Pillsbury v State, 31 Wis 2d 87; 142 NW2d 187 (1966); City of St. Paul v Tobler, 278 Minn 269; 153 NW2d 440 (1967). An arrest warrant is not, however, an order of a court authorizing continued custody or detention of a person in a detention facility for the purposes of MCL 764.25a; MSA 28.884(1), subsection (7).

Detention in a facility subsequent to an arrest, but prior to an appearance before a magistrate, is not pursuant to an order of a court requiring the lodging of the person in a detention facility. When an individual is lodged in a facility by an an authorization contained in an order entered upon the record of a court, the protections of MCL 764.25a; MSA 28.884(1), do not apply. However, any search subsequent to an order of the court lodging the person in the detention facility must still comport with the standard of reasonableness in order to meet Fourth and Fourteenth Amendment constitutional requirements.

Your first question involves a person who has been arrested and taken into custody. If such person has been charged with a felony, it is patent that MCL 764.25a; MSA 28.884(1), is not applicable. On the other hand, if a person is arrested or detained for a misdemeanor or an offense punishable only by a civil fine, then MCL 764.25a; MSA 28.884(1), is applicable. MCL 764.25b; MSA 28.884(2), as it relates to body cavity searches, is also relevant in these circumstances.

Your first question also requires the further determination whether MCL 764.25a; MSA 28.884(1), and MCL 764.25b; MSA 28.884(2), apply to searches of a person after he or she is lodged in a county jail. The answer to this inquiry turns upon whether the person involved has been lodged in a detention facility by an authorization contained in an order entered in the record of a court. If the answer is in the affirmative, then, regarding strip searches, MCL 764.25a; MSA 28.884(1), subsection (7), takes effect so as to render MCL 764.25a; MSA 28.884(1), inapplicable. There being no similar exclusion for body cavity searches, the provisions of MCL 764.25b; MSA 28.884(2), apply, regardless. If the person is not lodged in a detention facility by an order of a court, but, rather, is detained while awaiting appearance before a magistrate, then the strip search protection provisions of MCL 764.25a; MSA 28.884(1), and the body cavity search protection provisions of MCL 764.25b; MSA 28.884(2), will apply and will continue to apply to any subsequent searches while such person is in the detention facility awaiting appearance before a magistrate.

It is my opinion, therefore, that when the person arrested is charged with a misdemeanor or with an offense punishable by a civil fine, the strip search protections of MCL 764.25a; MSA 28.884(1), and the body cavity search protections of MCL 764.25b; MSA 28.884(2), are applicable. It is my further opinion that when the person arrested is charged with a felony, the strip search protections afforded by MCL 764.25a; MSA 28.884(1), are not applicable. It is my further opinion that with respect to strip searches while a person is lodged in a detention facility pursuant to an authorization contained in an order entered upon the record of a court, the strip search protections of MCL 764.25a; MSA 28.884(1), are inapplicable, but the appropriate body cavity search protection provisions of MCL 764.25b; MSA 28.884(2), apply.

Your second question is:

The inquiry raised by this question focuses on persons arrested, but not as yet arraigned. Where there has been an arrest, but no arraignment on a criminal charge, there has been no authorization contained in an order entered on the record of a court lodging the person in a detention facility. Therefore, the strip search protection provisions of MCL 764.25a; MSA 28.884(1), and the body cavity search protections of MCL 764.25b; MSA 28.884(2), are applicable.

In answer to your second question, it is my opinion that where a person has been arrested, but has not been arraigned, there is no authorization contained in an order entered on the record of a court lodging that person in a detention facility, and, therefore, any strip search conducted upon such person while in such custody must be in accordance with the requirements of MCL 764.25a; MSA 28.884(1), and any body cavity search conducted on such person must be subject to the requirements of MCL 764.25b; MSA 28.884(2).

Your third question is:

If the individual charged and arraigned is ordered released on bail, the provisions of MCL 764.25a; MSA 28.884(1), and MCL 764.25b; MSA 28.884(2), would apply until such time as he or she is no longer detained by law enforcement authorities. However, where an individual is charged and arraigned, any further detention following the arraignment would, perforce, be pursuant to an authorization contained in an order entered on the record of a court lodging the individual in the detention facility, so that MCL 764.25a; MSA 28.884(1), is inapplicable. However, the body cavity search protections of MCL 764.25b; MSA 28.884(2), would apply.

In answer to your third question, it is my opinion that the strip search protection provisions of MCL 764.25a; MSA 28.834(1), and the body cavity search protection provisions of MCL 764.25b; MSA 28.884(2), apply where a person has been charged with and arraigned for, but has not been convicted of, a crime, and would continue to apply in the event that person were to be released on bail, and until such time as he or she was no longer detained by law enforcement authorities. It is my further opinion that should a person charged with and arraigned for a crime, but not yet convicted, be lodged in a detention facility by an authorization contained in an order entered on the record of a court, the strip search protections of MCL 764.25a; MSA 28.884(1), would not apply, but the body cavity search protection provisions of MCL 764.25b; MSA 28.884(2), would continue to apply.

Your fourth question is:

Under the circumstances presented in your question, the individual is clearly lodged in a detention facility by an order entered on the record of a court confining the person to the county jail.

It is my opinion in answer to your fourth question that the person sentenced and confined in a county jail would not be entitled to the strip search protection provisions of MCL 764.25a; MSA 28.884(1).

It is my further opinion that although a search warrant would not be required relative to body cavity searches of persons sentenced for a criminal offense and confined in the county jail, the other body cavity protection provisions of MCL 764.25b; MSA 28.884(2), would apply.

In summary, it is my opinion that:

(1) a strip search may not be conducted upon a person who is arrested for a misdemeanor or a civil offense unless the person arrested is being lodged in a detention facility pursuant to an authorization contained in an order entered upon the record of a court or there is reasonable cause to believe that the individual is concealing a weapon, a controlled substance, or evidence of a crime on his or her person, and the strip search is conducted by a person who has obtained prior written authorization from the appropriate law enforcement officer;

(2) a strip search of a person arrested for a misdemeanor or civil offense must be conducted in private by an authorized person of the same sex, pursuant to written authorization by an appropriate law enforcement officer, and where assistance is necessary, the assisting person must also be of the same sex as the person being searched. Full details of the strip search must be listed in a written report;

(3) a strip search of a person lodged in a detention facility pursuant to an authorization contained in an order entered upon the record of a court may be conducted without regard to any requirements contained in MCL 764.25a; MSA 28.884(1);

(4) a body cavity search of a detained person charged with but not convicted of an offense may be conducted only pursuant to a valid search warrant;

(5) a body cavity search of a person serving a sentence in a detention facility or a state correctional facility may be conducted without a search warrant provided such search is authorized by an appropriate facility officer;

(6) body cavity searches must be conducted by a licensed professional in the presence of a third person of the same sex as the individual searched if the licensed professional is of the opposite sex and a full report of the details of the body cavity search shall be made; and

(7) in all cases, any search must observe the constitutional standards of reasonableness required by the Fourth Amendment to the United States Constitution.

Frank J. Kelley

Attorney General