French v. Heyne, 547 F.2d 994 (7th Cir. 1976) held that a First Amendment violation was stated by plaintiffs' allegation that they were prohibited from soliciting funds for the implementation of educational studies.105 Under the Fourth Amendment, a private citizen may bring a section 1983 action against state or federal officials for an arrest or search without a warrant or without probable cause. cause.106 105. See also Berrigan v. Norton, 451 F.2d 790 (2d Cir. 1971), where the court found the plaintiffs had failed to show any infringement of their First Amendment rights. 106. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L. Ed. 2d 288 (1967); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Gilker v. Baker, 576 F.2d 245 (9th Cir. 1978); Patzig v. O'Neil, 577 F.2d 841 (3d Cir. 1978); Gillard v. Schmidt, 570 F.2d 825 (3d Cir. 1978); Alexanian v. N.Y.S. Urban Development, 554 F.2d 15 (2d Cir. 1977); Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977) (Dellums I); Duriso v. K-Mart No. 4195, Div. of S.S. Kresge Co., 559 F.2d 1274 (5th Cir. 1977); Covington v. Cole, 528 F.2d 1365 (5th Cir. 1976); Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1976); Reeves v. City of Jackson, Mississippi, 532 F.2d 491 (5th Cir. 1976); Fisher v. Volz, 496 F.2d 333 (3d Cir. In There is an increasing number of cases considering the reasonableness of body cavity searches. Generally, the courts are holding that prison officials have the burden of establishing the reasonableness of such searches. Such searches are usually permitted when the prisoner has had an opportunity to receive contraband from other persons, such as when he has left the prison or met inside the prison with visitors. However, such searches are generally prohibited when the prisoner is not shown to have had an opportunity to come into possession of contraband, unless the prison officials have reason to believe the prisoner is concealing contraband in a body cavity. Wolfish v. Levi, 573 F.2d 118, 131 (2d Cir. 1978), cert. granted, U.S. 99 S.Ct. 76, 57 L.Ed.2d (1978), the court of appeals affirmed the district court's order prohibiting prison officials from inspecting the genitals and anus of both convicted prisoners and pre-trial detainees unless they had probable cause to believe that the inmate was concealing contraband. The court noted that the "strip search" was the most humiliating and degrading procedure at the federal prison. Each inmate was subjected to a strip search after receiving a visitor. Males were required to lift their genitals and bend over to spread their buttocks for visual inspection. Vaginal and anal cavities of female inmates were also scrutinized. District Judge Frankel had found that the anal and genital searches were not warranted by the record. The court of appeals noted that the defendants had shown only one instance over a period of several years when contraband was found during a body cavity inspection. The court noted 1974); Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Conner v. Pickett, 552 F.2d 585, 587 (3d Cir. 1977). 107. For cases involving parolees rather than prisoners see Diaz v. Ward, 437 F.Supp. 678 (S.D. N.Y. 1977), where the court held more than a hunch and parole status was required to search residences of parolees and family members; and U.S. v. Bradley, 571 F.2d 787 (5th Cir. 1978) which rejected the theory of Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975) cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L. Ed. 2d 130 (1975) that a parolee is in constructive custody and held that a warrantless search of a parolee's room by a parole officer violates the Fourth Amendment. that other courts had permitted searches of body cavities where a substantial security justification had been demonstrated. However, the court stated: The gross violation of personal 573 F.2d at 131. Frazier v. Ward, 426 F.Supp. 1354 (N.D. N.Y. 1977) was an action by prisoners incarcerated in unit fourteen, described as a prison within a prison, which was used for prisoners who were confined in segregation for disciplinary purposes at the Clinton Correctional Facility in Dannemora, New York. Each inmate in unit fourteen was required to undergo a rectal and testicle examination before and after each personal or legal visit, each medical or educational examination, and each court appearance. The court quoted from the description of the examination by one of the prisoners: Every time I came out, just about every time I came out it And one particular officer directs 426 F.Supp at 1363. The court noted that the prisoner's testimony was corroborated by the testimony of another inmate and was not contradicted by the defendants. The court found that the sexually degrading comments testified to by the inmate were made by correctional officers during the strip search. Plaintiffs called five expert witnesses, each of whom testified that under the circumstances present in unit fourteen there was no justification for the routine rectal search. One of the correction officers further testified that nothing had ever been discovered during the rectal searches of inmates leaving or returning to the unit. The court found that the routine anal cavity inspection violated the unreasonable search and seizure provisions of the Fourth Amendment. The court enjoined visual or digital inspection of an inmate's anal cavity except before entering or leaving the institution, after a personal contact visit with a friend or relative, or whenever a prison guard with a rank not lower than sergeant was satisfied there was a reasonably clear indication that the inmate was concealing an item in his anal cavity. Hodges v. Klein, 412 F.Supp. 896 (N.J. 1976) permitted the prison officials to conduct anal inspections of inmates when they entered or left the institution and after personal contact visits with friends and relatives. However, anal inspections were enjoined when an inmate entered or temporarily left disciplinary segregation (solitary confinement), administrative segregation, or the management control unit (M.C.U.), a maximum security area within a maximum security prison unless there was a reasonably clear indication or suggestion that the inmate was concealing something in his anal cavity. The district court had issued a temporary restraining order enjoining anal examinations performed on M.C.U. inmates, except in certain circumstances. The court noted that the order had resulted in a great deal of misunderstanding by both inmates and guards. In Penn El v. Riddle, 399 F.Supp. 1059 (E.D. Va. 1975), a body cavity search of plaintiff, conducted after guards had seized a paper bag containing a quantity of match heads from plaintiff's clothing and a section of a pipe from a nearby tool shack, produced a flashlight bulb, with tape and copper wire attached to it. The court noted that the conduct of body cavity searches lies within the sound discretion of prison officials. Since contraband had been found on plaintiff's clothing and in his work area immediately prior to the search in question, the court would not say that the defendants abused their discretion or that the search was unreasonable. Daugherty v. Harris, 476 F.2d 292 (10th Cir. 1973) refused to enjoin rectal searches which were conducted by officials of the United States Penitentiary at Leavenworth, Kansas, prior to the prisoners being transferred to the custody of the marshal for transportation to a court appearance. These examinations were carried out by trained para-professional medical assistants in a designated area under sanitary conditions. There was no attempt to humiliate or degrade the prisoners. The court noted that Leavenworth is a maximum security institution containing many dangerous inmates. There were many known incidents of concealed contraband being carried by prison inmates in the rectal cavity. There had been several serious episodes, including an incident wherein a court officer was wounded, which were attributable to the ability of inmates to smuggle weapons out of prison. Considering this evidence, together with the need to assure the safety of law enforcement and court officials, the court found that the policy of allowing rectal searches was reasonable unless contradicted by a showing of wanton conduct. court stated: "To hold that known cause comparable to that required for a search warrant in private life must precede such a search would be completely unrealistic. It is usually the totally unexpected that disrupts prison security.' 476 F.2d at 294. The The two defendants in United States v. Lilly, 576 F.2d 1240 (5th Cir. 1978), were subjected to productive body cavity searches when they returned to the prison following unsupervised absences. Defendant Gallegos was subjected to a body cavity search after her return to the prison from classes at a local beauty college. The record revealed no particular reason for the search. The female nurse who was going to conduct the search offered to let plaintiff remove the contraband and plaintiff removed a plastic bag containing marijuana from her vagina. The court found that prisoners are protected from unreasonable searches and seizures by the Fourth Amendment. Although a warrant is not required to conduct a search or seizure in a prison, the government still bears the burden of proving the search was reasonable. "[T]he court must balance the public interest in conducting the search against the individual's Fourth Amendment interests." 576 F.2d 1245. The court declined to hold that body cavity searches are unreasonable, per se. However, the government must show that the search and seizure in question was reasonable under all the facts and circumstances. In that case the government had demonstrated its legitimate |