A state rule that restricts the circumstances under which jail inmates can be subjected to strip searches remains in place, despite a U.S. Supreme Court ruling this week that loosens federal restrictions on the practice, according to the Maine Attorney General’s Office.

Under the state rule, a strip search or manual mouth search may only be performed when a person has been arrested for offenses with a weapon, drug or violence component, or when there is a reasonable suspicion that the person is hiding a weapon, contraband or evidence. The rule applies to people who are in custody but have not yet appeared in court.

“The rule is based on a Maine state statute and the rule is itself a form of law,” Assistant Attorney General Diane Sleek wrote in a letter sent to sheriffs and jail administrators Wednesday. “Unless and until the statute and rule are amended, all Maine jails are required to continue adhering to the Maine Attorney General’s rule.”

On Monday, the Supreme Court ruled in a 5-4 decision that jail inmates arrested for even minor offenses can be strip searched before being admitted to a jail’s general population. The need to screen for weapons and drugs outweighs privacy concerns, even if there is little reason to believe an inmate is carrying contraband, the majority ruled.

The state law and rule were crafted to mirror other federal court decisions interpreting the Fourth Amendment, but that changed dramatically with the Supreme Court ruling, said Peter Marchesi, a lawyer who has represented counties and worked with the Maine Sheriffs Association.

“I think what all of the counties are going to be looking to do is maintain policies and procedures that are consistent with constitutional requirements,” he said. “For a number of years, they have had to restrict the number of strip searches that they perform based upon the law of the First Circuit and the federal courts here in Maine.”

The American Civil Liberties Union Foundation of Maine on Wednesday warned jail officials to continue following the state’s current rule on strip searches, despite the Supreme Court ruling.

“The U.S. Constitution provides the floor — the minimum amount of protection. The U.S. Supreme Court essentially lowered the floor,” said Zachary Heiden, the organization’s legal director. “Officials in Maine still have to follow Maine law.”

Lt. Col. Michael Vitiello of the York County Sheriff’s Office said the Supreme Court ruling may eliminate the “cottage industry” that has sprung up around class-action lawsuits over strip-search policies.

“That may be one thing that may be impacted,” said Vitiello, the jail superintendent. “Even if we don’t end up changing our policy to allow more searches, the Supreme Court’s decision certainly appears to reduce the liability exposure with those searches.”

In 2005, York County settled a class-action lawsuit by paying out $3.3 million to hundreds of people who had been strip searched at the county jail. In 2007, a $3 million settlement was approved for a similar class-action lawsuit over illegal strip searches at the Knox County Jail.

Penobscot County Sheriff Glenn Ross said he has no current plans to change jail policies. Ross, president of the Maine Sheriffs Association, said the court decision will provide welcome guidance.

“Without knowing where we would be liable because of unclear rules, we’ve had to be very restrictive. At times, we’ve had to compromise security,” he said.

 

Staff Writer Ann S. Kim can be contacted at 791-6383 or at akim@pressherald.com

 

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