Published on: Thursday, August 04, 2011

By Tom Ryan

In the post-911 era, the issue of electronic scanning of people and their constitutional rights of privacy continue to generate litigation. In addition to screening at airports, such devices are now being used in a variety of locations. How the law treats the use of such devices in prisons was addressed the federal Fourth Circuit Court of Appeals last month in a case called Braun v. Maynard.

The Court’s opinion indicates that the Maryland Correctional Training Center in Hagerstown began a drug prevention program, which included the use of a device called an Ionscan. This equipment is used to detect illegal drugs on an individual’s body, clothing or property. A team set up an Ionscan station at the visitor’s registration area at the prison.  Any positive scan result would be followed up by a vehicle search using a K-9 unit or corrections officer.  The defendant officials allegedly agreed to follow up those searches with a “strip and visual body cavity search,” even if the persons being searched were prison employees.

The plaintiffs who brought suit were employees or contract employees of the Department of Corrections. They claimed that after they allegedly tested positive through the Ionscan, regardless of the amount shown on the test, they were required to be searched by an officer of the same sex. This included stripping off clothing, squatting and coughing, for a visual body and body cavity search.

They then sued various officials of the Department of Corrections, claiming a violation of their Fourth amendment constitutional right to be protected against unreasonable searches and seizures. Suit was brought under 42 USC 1983 for damages for causing violation of their rights. The Court noted that public officials may have qualified immunity from such suits where they act reasonably in the performance of their duties.  The trial court dismissed the case, and the appellate court agreed with that decision.

It noted that a positive Ionscan result can be used to generate a reasonable suspicion sufficient to justify a further search. A person’s expectation of privacy, the Court said, is clearly affected by the fact that the search is in a correctional institution. Clearly there is a recognized problem with drugs in prisons, which influenced the Court’s view that the searches involved were clearly reasonable.

This is another example of how the Courts are dealing with the challenges of balancing rights of privacy with new personal search technology.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.