PRINTER'S NO. 3854
No. 2581 Session of 2008
INTRODUCED BY BISHOP, JAMES, FRANKEL, HARKINS, PARKER, JOSEPHS,
YOUNGBLOOD, HENNESSEY AND THOMAS, JUNE 4, 2008
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 4, 2008
AN ACT
1 Establishing standards for strip searches and body cavity
2 searches; providing for conduct of strip searches and body
3 cavity searches, for reports, for civil and criminal immunity
4 and for duties of the Secretary of Corrections and the
5 Attorney General.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Legislative intent.
9 It is the intent of the General Assembly to establish
10 standards to govern the conduct of strip searches and body
11 cavity searches of individuals detained at or booked into local
12 correctional facilities. It is the further intent of the General
13 Assembly to restrict the practice of strip searching and body
14 cavity searching of individuals to those situations where such a
15 search may be necessary to prevent bodily harm and to ensure the
16 safety and security of the local correctional facility.
17 Section 2. Definitions.
18 The following words and phrases when used in this act shall
19 have the meanings given to them in this section unless the
1 context clearly indicates otherwise:
2 "Body cavity search." The visual inspection or manual search
3 of an individual's anal or vaginal cavity.
4 "Correctional facility." A local or county jail, prison or
5 detention facility.
6 "Department." The Department of Corrections of the
7 Commonwealth.
8 "Local or county jail or detention facility." A jail, prison
9 or other such detention facility owned, operated or controlled
10 by a borough, township, city or county.
11 "Medical professional." A licensed physician, licensed nurse
12 practitioner or registered nurse.
13 "Secretary." The Secretary of Corrections of the
14 Commonwealth.
15 "Strip search." The removal or rearrangement of an
16 individual's clothing for the purpose of visual inspection of
17 the individual's undergarments, buttocks, anus, genitals or
18 breasts. The term does not include any removal or rearrangement
19 of clothing reasonably required to render medical treatment or
20 assistance or the removal of articles of outer clothing, such as
21 coats, ties, belts or shoelaces.
22 Section 3. Strip searches and body cavity searches;
23 restrictions.
24 (a) Strip searches.--An individual who has been detained or
25 arrested for the commission of an offense other than a crime
26 under 18 Pa.C.S. (relating to crimes and offenses) shall not be
27 subjected to a strip search unless one of the following
28 requirements is met:
29 (1) The search is authorized by a warrant or consent.
30 (2) The search is based on probable cause that a weapon,
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1 controlled substance as defined under the act of April 14,
2 1972 (P.L.233, No.64), known as The Controlled Substance,
3 Drug, Device and Cosmetic Act, contraband, fruits of a crime,
4 things otherwise criminally possessed or other things by
5 means of which a crime has been committed will be found that
6 constitutes a threat to the safety and security of a
7 correctional facility and a recognized exception to the
8 warrant requirement exists.
9 (3) The individual is lawfully confined in a
10 correctional facility and the search is based on a reasonable
11 suspicion that a weapon, controlled substance as defined
12 under The Controlled Substance, Drug, Device and Cosmetic Act
13 or contraband as defined by the department will be found, and
14 the search is authorized pursuant to regulations promulgated
15 by the secretary.
16 (4) There is a reasonable suspicion to believe that a
17 strip search is necessary to discover a health condition
18 requiring immediate medical attention.
19 (b) Body cavity searches.--An individual who has been
20 detained or arrested for commission of an offense other than a
21 crime under 18 Pa.C.S. shall not be subjected to a body cavity
22 search unless:
23 (1) The search is authorized by warrant or consent.
24 (2) The individual is lawfully confined in a
25 correctional facility and the search is based on a reasonable
26 suspicion that a weapon, controlled substance as defined
27 under The Controlled Substance, Drug, Device and Cosmetic Act
28 or contraband as defined by the department will be found, and
29 the search is authorized pursuant to regulations promulgated
30 by the secretary.
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1 (c) Existence, determination of reasonable suspicion.--In
2 the case of a body cavity search subsequent to arrest, a
3 reasonable suspicion shall be deemed to exist when the
4 individual to be searched has been arrested for:
5 (1) An offense involving danger to the person as defined
6 under 18 Pa.C.S.
7 (2) An offense involving escape, burglary or robbery.
8 (3) An offense involving the possession of a drug or
9 controlled substance under The Controlled Substance, Drug,
10 Device and Cosmetic Act.
11 (d) Determination of probable cause, reasonable suspicion,
12 strip searches.--The determination of whether reasonable
13 suspicion or probable cause exists to conduct a strip search
14 shall be made after less intrusive means have been used and
15 shall be based on a consideration of all information available
16 and circumstances known to the law enforcement officer or other
17 person authorizing the strip search, including, but not limited
18 to, the following:
19 (1) The nature of the offense for which the individual
20 to be searched was arrested.
21 (2) The prior criminal record of the individual to be
22 searched.
23 (3) Whether the individual displayed physically violent
24 behavior during or after the arrest.
25 Section 4. Conduct of strip searches and body cavity searches.
26 (a) Conduct of searches.--Any strip search or body cavity
27 search, as well as presearch undressing and postsearch dressing,
28 conducted pursuant to this act shall be:
29 (1) Performed and observed by individuals of the same
30 sex as the detained or arrested individual.
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1 (2) Performed at locations made private where the search
2 cannot be observed by individuals not physically involved in
3 conducting the search.
4 (3) Conducted in a manner that minimizes excessive
5 touching of the individual being searched except as
6 reasonably necessary to effectuate the search of the
7 individual.
8 (4) Performed under sanitary conditions.
9 (b) Duty of individual conducting search.--In the case of a
10 strip search or body cavity search not authorized by warrant,
11 the law enforcement officer or other individual seeking to
12 conduct a strip search or body cavity search shall obtain
13 permission of the officer in charge or ranking shift supervisor,
14 as the case may be, to conduct the search. Authorization for the
15 body cavity search may be obtained electronically. However, such
16 electronic authorization shall be reduced to writing by the law
17 enforcement officer or individual seeking authorization and
18 signed by the officer in charge or ranking shift supervisor. The
19 law enforcement officer or other individual authorized to
20 conduct a strip search or body cavity search shall report the
21 reason for any such search on the record of arrest.
22 (c) Emergency conditions.--The requirements of this section
23 shall not apply to circumstances where emergency conditions
24 require immediate action to prevent bodily harm to law
25 enforcement officers or others or to ensure the safety and
26 security of the correctional facility except that, in all cases
27 where a strip search is conducted as an exception to the
28 requirements of this section, the officer conducting the search
29 shall file a separate written report that sets forth the
30 emergency conditions that required the immediate action. The
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1 written report shall be filed with and reviewed by the officer
2 in charge or shift supervisor, as the case may be, who
3 authorized the search.
4 (d) Admissibility.--A violation of a provision of this
5 section shall not affect the admissibility of evidence seized
6 pursuant to a strip search or body cavity search.
7 Section 5. Civil and criminal immunity of medical
8 professionals.
9 (a) Body cavity searches; specific requirement.--Whenever it
10 is determined that a body cavity search is necessary, all such
11 searches shall be conducted by a licensed medical professional.
12 (b) Requirements.--The following shall apply to any body
13 cavity search conducted by a medical professional:
14 (1) A medical professional who conducts a body cavity
15 search pursuant to the provisions of this act and in a
16 medically accepted manner shall be immune from civil or
17 criminal liability for such action. Such immunity from civil
18 and criminal liability shall extend to the hospital or other
19 medical facility on whose premises or under whose auspices
20 the body cavity search is conducted.
21 (2) Any person conducting a body cavity search pursuant
22 to this act shall, upon request, furnish to any law
23 enforcement agency a certificate stating that the body cavity
24 search was conducted pursuant to the requirements of this act
25 and performed in a medically acceptable manner. The
26 certificate shall be signed under oath before a notary public
27 or other person empowered to administer oaths and shall be
28 admissible in any proceeding as evidence of the statements
29 contained therein.
30 (3) No individual who is the subject of a strip search
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1 or body cavity search under this act may claim the physician
2 and patient privilege with regard to the conducting of a body
3 search pursuant to this act.
4 Section 6. Regulations.
5 (a) Authority to secretary.--The secretary, after
6 consultation with the Attorney General, shall promulgate
7 regulations to govern strip searches and body cavity searches of
8 individuals detained in local correctional facilities. Such
9 regulations shall give full recognition of the rights of
10 confined individuals under the Constitution of the United States
11 and the Constitution of Pennsylvania.
12 (b) Duty of Attorney General.--The Attorney General shall
13 issue guidelines to govern the performance of strip searches and
14 body cavity searches as he deems necessary to promote compliance
15 with this act, the regulations promulgated by the secretary, the
16 Constitution of the United States and the Constitution of
17 Pennsylvania. The Attorney General may require law enforcement
18 agencies to submit reports that provide data on all strip
19 searches and body cavity searches conducted. The copy of the
20 report shall be retained in the records of the law enforcement
21 agency and shall include, but may not be limited to, the
22 following:
23 (1) A copy of the written authorization required under
24 section 4.
25 (2) A copy of the warrant and any other supporting
26 documentation.
27 (3) The name and sex of all persons conducting or
28 observing the search.
29 (4) The time, date, location and description of the
30 search.
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1 (5) A statement outlining the results of the search and
2 a list of any items found and removed from the individual as
3 a result of the search.
4 Section 7. Applicability.
5 The provisions of this act shall apply to any individual in
6 custody at a local correctional facility, other than a person
7 committed to incarceration by order of a court, regardless of
8 whether an arrest warrant or other court order was issued before
9 the person was arrested or otherwise taken into custody unless
10 the court issuing the warrant has determined that the person
11 shall not be released on personal recognizance, bail or bond. No
12 standard, procedure or requirement set forth in this act shall
13 be construed to supersede any standard, procedure or requirement
14 of State correctional institutions supervised by the secretary.
15 Section 8. Effective date.
16 This act shall take effect in 90 days.
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