United States v. Ready, 574 F.2d 1009 (10th Cir. 1978) upheld a conviction in which documents taken during a search of the defendant's room at the Leavenworth Penitentiary Honor Camp were admitted into

evidence. The court, in referring to Lanza, Hitchcock, and Palmateer, supra, stated:

Certainly in a federal

prison the authorities must be able to search the prisoners cells without a warrant, without notice and at any time, for concealed weapons and contraband of the type which threatens the security or legitimate purposes of the institution

It is virtually impossible

for the court to ascertain
motives of prison officials, e.g.,
here whether the transfer back
inside prison was to impede an
escape which the prisoner might
attempt if he would learn of the
investigation, or whether it was
to provide an excuse to look
through his papers. If the
search procedure is routine and
reasonably designed to promote
the discipline of the institution,
we will not require a search

warrant.

574 F.2d at 1014.

One

Saunders v. Packel, 436 F.Supp. 618 (E.D. Pa. 1977) was an action for money damages and injunctive relief by inmates against the commissioner, the bureau of correction and the superintendent of the prison. of plaintiffs' claims related to the manner in which their cells were searched during two separate prisonwide lockups. Referring to Edwards, supra, the court expressed its opinion that prisoners retain a residue of protected privacy interests which are shielded by the Fourth Amendment. The court stated:

We need not decide on this record the precise protection afforded by the Fourth Amendment to an inmate in a maximum security

institution. It is enough to
state that while on the one hand
the prison authorities need not
have probable cause to conduct a
cell search, . . . a prisoner has
a reasonable expectation that
items of personal property which
he legitimately possesses will
not be wantonly destroyed or
seized by prison guards absent
some legitimate state interest
in doing so.
Although
prison authorities are free to
conduct cell searches when they
please and they have much dis-
cretion in determining how to
conduct the searches, we believe
that proof at trial that personal
property lawfully possessed by
plaintiffs was damaged or destroyed
or that their cells were subjected
to purposeful and unnecessary
disruption, would establish a
Fourth Amendment violation.

436 F.Supp. at 626.

The plaintiffs in Thornton v. Redman, 435 F.Supp. 876 (D. Del. 1977) sought return of certain personal property seized from them during shakedown searches at the maximum security prison where they were incarcerated. After conducting a non-jury trial the court determined that plaintiffs' Fourth Amendment rights had not been violated. However, the court commented that there is an emerging body of case law acknowledging that prisoners have at least minimal rights under the Fourth Amendment prohibition against unreasonable searches and seizures, and that the Constitution protects prisoners from arbitrary seizure of their personal property. The court determined that under the circumstances of the shakedown, the procedures the defendants adopted were reasonable and the searches were carried out in a reasonable manner. In reaching this conclusion the court had considered the nature of the institution, the reason for and the scope of the search, the instructions and supervision given to those who carried out the search, and the means provided for the return of any mistakenly seized property.

Unconvicted detainees housed in an administrative segregation unit designed for persons who posed security risks sought declaratory and injunctive relief in addition to money damages in Giampetruzzi v. Malcolm, 406 F.Supp. 836 (S.D. N.Y. 1975). Following a non-jury trial the court determined that the searches of plaintiffs' cells were reasonable with the exception of the requirement that prisoners stand with their backs to the cell while the search was conducted. The court required the prison officials to permit the inmates to watch the searchers during the search. Since the plaintiffs were classified as security risks, it could not be said that the number or circumstances of the searches of their cells were unreasonable, and thus there was no Fourth Amendment violation.

In Hoitt v. Vitek, 361 F.Supp. 1238 (D. N.H. 1973), the plaintiffs complained that their Fourth Amendment rights were violated during a lockup when they were searched and their personal property was seized without a prior hearing. After a non-jury trial the court determined that no constitutional question was raised by the searches and seizures and dismissed the claim. The court stated that the cell block was not a constitutionally protected area, and even if it were, the requirements of prison security during an emergency situation would provide sufficient justification for curtailment of plaintiffs' Fourth Amendment rights.

Wolfish v. Levi, 573 F.2d 118, 131 (2d Cir. 1978) recognized that although prisoners relinquish some of the rights to privacy and protection from unreasonable searches and seizures possessed by unincarcerated members of society, there is a realm in which privacy is safeguarded. The district court ordered that pretrial detainees be permitted to observe the searches of their rooms. The court stated: "We see no reason whatsoever not to permit a detainee to observe the search of his room and belongings from a reasonable distance And, of course, any detainee who becomes obstructive may be removed from the vicinity of his room." 573 F.2d at 132. The court also noted:

Judge Frankel also required that
receipts be given for seized

property, and that certain minimal
procedures be provided for enabling
an inmate to challenge a seizure.
The basic principles of due
process which require the

institution to account for such property are so well-established that we need not dwell long in affirming this aspect of Judge Frankel's order.

573 F.2d at 131 n. 29.

While the authorities seem to agree that prison officials need not obtain a search warrant in order to search a prisoner's cell, they do recognize that prisoners are protected from unreasonable searches by the Fourth Amendment.

Facts constituting state tort claims of false imprisonment and false arrest can be the basis of constitutional claims under section 1983. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L. Ed. 2d 54 (1975) held that an arrestee has the right to a judicial determination of probable cause prior to extended restraint of liberty. The Court recognized that "[A] policeman's on-the-scene assessment of probable cause provides a legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. 420 U.S. at 113-14, 95 S.Ct. at 863, 43 L. Ed. 2d at 65. However, the Fourth Amendment does not require an adversary hearing.

Plaintiffs in Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977) (Dellums I) alleged that they were arrested without probable cause and were imprisoned for periods ranging from several hours to several days without being afforded due process of law as a result of their participation in a protest on the steps of the United States Capitol against the war in Vietnam. jury's verdict for the plaintiffs as to their claims for false arrest and false imprisonment was affirmed:

A plaintiff suing at common

law must show that he has suffered an imprisonment and that the imprisonment was unlawful. The former issue is one of fact, potentially for the jury. Under the law of the District of Columbia, the unlawfulness of a

The

566 F.2d at 175-76. The court noted that in the instant case since plaintiffs were arrested without a warrant, the unlawfulness of the imprisonment would be presumed as a matter of law, without the necessity of showing that the police chief acted without probable

cause.

An arrest for drunken driving at 4:30 a.m. on a Saturday, followed by five hours confinement before arraignment, without more, does not constitute a