Case: N.G. ex rel. S.G. v. Connecticut
382 F.2d 3rd 225 ( 2d Cir. 2004)
Civil Liberties and Civil Rights, Juvenile Justice :
Second Circuit Court of Appeals
September 7, 2004

The second circuit court of appeals recently held that the Connecticut Judicial Branch's repetitive strip search policy at the state's juvenile detention centers ("JDC") violates the fourth amendment's guarantee against unreasonable searches. In N.G. ex rel. S.G. v. Conn., the three judge panel found that although strip searches conducted upon a juvenile's initial entry into the JDC's are lawful, repetitive strip searches performed upon JDC residents, conducted in the absence of reasonable suspicion, are unconstitutional.

The case arose out of questions pertaining to the legality of strip searches [1] performed on two teenage girls, S.C. and T.W., at JDC's in Connecticut. The girls claimed that the state violated the their civil rights pursuant to 42 U.S.C. § 1983, alleging that the strip searches violated their Fourth Amendment rights prohibiting unreasonable searches and seizures.

At trial, the court held that while the strip search policy employed by all JDCs violated the 4th amendment, the strip searches performed on S.C. and T.W. were reasonable because the two girls "suggested prospective behavior which would predispose them to bringing various contraband into a JDC."

In determining whether the strip searches violated the girls' Fourth Amendment rights, the Second Circuit considered the nature of the searches conducted upon each girl. S.C., a habitual runaway with a history of mental illness, suicide attempts, self-mutilation, sexual activity with older men and drug abuse, was originally confined to a JDC for violating a court order pursuant to a Family With Service Needs petition ("FWSN"), and was committed twice more for violating that order. JDC personnel strip searched her eight times: three times upon admission; once after being transferred from one JDC to another; twice upon returning to a JDC after being transported to court; and twice when institutional searches were conducted due to a concern over a missing pencil. T.W., a persistent truant, was originally confined for violating a FWSN court order to attend school She was strip searched twice: once upon admission, and another upon transfer to another JDC. No contraband was found in any of the searches.

The Fourth Amendment prohibits "unreasonable" searches. The test of reasonableness requires balancing the state's interests in the search against the intrusion of privacy. The Second Circuit raised a number of possible interests both for and against strip searches of children. It cited the Supreme Court's, acknowledgement that a state's interest in acting in loco parentis and promoting the welfare of a child may outweigh the child's interest. On the other hand, it noted that a strip search could have adverse psychological effects on children, particularly if they have been victims of sexual abuse. The court also discussed persuasive case law from other circuits that ruled strip searches of juveniles in state custody unreasonable without a showing of reasonable suspicion.

Because the strip searches arose under different circumstances, the Second Circuit considered them separately. The court concluded that with regard to the searches that occurred after the girls' transfer to another facility, the strip searches were unreasonable because there was no indication the girls had been unsupervised or had the opportunity to obtain contraband; therefore, the state interest was insufficient to justify the repeated searches. These searches were unlawful and violated the Fourth Amendment.

Regarding the searches prompted by the missing pencil, the Second Circuit deferred to its holding in Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001), where it ruled that strip searches of those arrested for misdemeanors require reasonable suspicion of contraband and held that the State required reasonable suspicion that the girl had taken the pencil. The court remanded the case so the district court could make findings as to the existence of reasonable suspicion.

The court, however, found the constitutionality of the searches performed upon the girls' admission to state custody to be a closer question. The state argued that its strip search policy comports with the "special needs" test the Supreme Court articulated in Bd. Of Educ. v. Earls, 536 U.S. 822 (2002), which held that "in certain limited circumstances, the Government's need to discover…latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion." [2] Alternatively, the state argued that the Supreme Court's test in Turner v. Safley was satisfied because the strip search policy was reasonably related to "legitimate penological interests." [3]

In this case, the girls had not been convicted of a crime, and were not confined awaiting criminal charges. Therefore, the State did not have a valid penalogical interest. Consequently, it was reluctant to apply the Turner standard to this case. However, the court was persuaded by the State's argument based on Earls. It determined that the State's non-law-enforcement reasons for conducting strip searches of juveniles – to protect children from themselves and fellow inmates – and the additional purpose of disclosing evidence of abuse, together comprise the "special needs" that confront a State when a juvenile is admitted to a detention facility. As a result, the court held that the strip searches upon initial admission did not violate the Fourth Amendment.

This case may be accessed on-line via Lexis at 2004 US App Lexis 18834, on Westlaw at 2004 WL 1968301, or by going to the Second Circuit's website at http://www.ca2.uscourts.gov/.

By Michelle Freidberg, CCA Legal Intern