Too Tough?

Tactics in Suburban Policing

STRIPPED OF THEIR RIGHTS

Pennsylvania Jails Have Been Strip-Searching Thousands of People
Detained on Minor Charges, Often Without Legal Justification. It
Could Cost Taxpayers Millions.

Second of Three Parts

Tameka Flythe was arrested by Darby police as she walked home from a
pickup basketball game in Philadelphia. Strip-searched on an
officer's suspicion that she might have drugs, she was released
without any charges being filed. No drugs were found. "It was almost
like being raped," she said.

In Harrisburg, Devon Sheppard, a biophysicist at Johns Hopkins
University, was arrested for attending an outdoor party that didn't
have a city permit. She was jailed and given a body-cavity search
when she couldn't come up with bail money, $1,051 in cash.

"I'm sure there are places where this happens regularly," Sheppard
said. "I just didn't think the United States was one of them."

And in Philadelphia, former schoolteacher George L. Byrd was arrested
when he was on his way home from a party for his niece and charged
with drunken driving. Unable to post the $2,500 bail, he was taken to
a Philadelphia prison and stripped.

Afterward, he said, he went to an empty prison cell, and "I stayed
there and cried."

Sheppard, Byrd and Flythe are among thousands of people arrested on
minor charges and strip-searched in Pennsylvania, though federal
courts across the country have repeatedly ruled that such practices
are unconstitutional.

New Jersey's attorney general restricts strip searches by local
police. New York long ago did the same for county jails. But
Pennsylvania sets no such rules.

The state's silence has produced wild disparities from town to town
and county to county. Citizens who aren't accused of any serious
crimes are being forced to remove their clothing and submit to
invasive searches courts have described as "demeaning,"
"dehumanizing" and "repulsive."

"In a nutshell, blanket strip searches are prohibited," said Robert
Herbst, a former federal prosecutor in Philadelphia who now works as
a civil-rights lawyer in New York.

In Pennsylvania, No Rules

Strip searches are strictly controlled in numerous other states, but
not in Pennsylvania.

An investigation by The Inquirer has found that questionable strip
searches have taken place routinely in some Pennsylvania police
lockups and county jails, using policies that appear to fall short of
long-established federal court standards.

Courts permit strip searches to keep jails safe from drugs and
weapons - so long as they meet legal guidelines.

Until October, though, Philadelphia's prisons were strip-searching
all new inmates, more than 30,000 every year - even people arrested
on charges as minor as disorderly conduct. After a civil-rights
lawsuit, the city adopted stricter regulations.

The Delaware County jail, now run by a private firm, strip-searches
thousands of inmates annually, regardless of charge, according to
three current and former guards. County officials would not talk
about the strip searches; neither would executives from the company,
the Geo Group of Boca Raton, Fla.

The Inquirer found similar practices in some police departments.
Darby, Chester and Erie police routinely strip-searched people
detained in their lockups on minor offenses such as disorderly
conduct or public drunkenness, records and interviews show. And the
Pottstown police chief, Mark Flanders, said blanket strip searches
were still the rule in his jail.

To be sure, there are model towns in Southeastern Pennsylvania.

Swarthmore's nine-member department recently adopted a written policy
forbidding strip-searching "unless there is probable cause to believe
the individual is concealing a weapon," drugs or other contraband. It
also requires officers to report any strip search.

Police Chief Brian H. Craig said there had never been a strip search
in his jail, as far as he knew.

It's difficult to determine the full extent of the problematic strip
searches. In many Pennsylvania towns, police have no written policies
on strip searches and keep no records on them, according to a
national Justice Department survey.

These strip searches are another legally suspect law-enforcement
practice uncovered during a yearlong Inquirer examination of policing
in the suburbs.

This examination also found that some small cities across
Pennsylvania - including Darby, Pottstown and Erie - aggressively
used nuisance laws to clear the streets and curtail drug dealing.

The arrests stemming from those laws - and the strip searches that
often result - hit blacks at rates far above their numbers in the
population, an analysis shows.

The typical subject of a questionable strip search is "the African
American teenage male brought in on loitering" charges, said attorney
Charles J. LaDuca, one of the lawyers suing Philadelphia. Lawyers for
both sides are discussing a possible settlement.

LaDuca, who recently negotiated a $7.5 million settlement agreement
for inmates strip-searched in Camden County, has filed similar
lawsuits against the jails in Allegheny and Dauphin Counties.
Sheppard, the Johns Hopkins biophysicist strip-searched after the
party, is one of his clients.

For the last several years, class-action lawyers have roamed the
country, filing lawsuits against county jails with unconstitutional
strip-search policies - and have won multimillion dollar settlements
in California, New Mexico, New York, New Jersey and Florida, often
without a trial.

A Pennsylvania official says new rules will be ready by next year. By
then, experts say, more such lawsuits are almost guaranteed.

"It's going to go from one county to another like wildfire," says
Raymond Sabbatine, a former Kentucky jail warden who advises
corrections officials across the country on proper strip-search procedures.

Given Pennsylvania's lack of policies and the inconsistent practices
from county to county, he said, "it's kind of like a duck shoot,
hunting at a baited field."

Harrisburg Strip Search

The Seventh Annual Camp-Out With DJs, a weekend of camping and music
on McCormick's Island in the Susquehanna River in Harrisburg, ended
early for Devon Sheppard and hundreds of other partygoers.

Sheppard, looking for a break from her Johns Hopkins laboratory,
drove up from Baltimore the Friday before Labor Day this year and
pitched her tent with hundreds of others.

But organizers shut down the festival after a man drowned in the
river in the wee hours of Saturday. By 9 a.m., they announced that
boats would begin shuttling the partygoers back to Harrisburg.

When the 31-year-old scientist and her group disembarked, Harrisburg
police charged all of them with violating a city parks ordinance.

Locals were told to expect citations in the mail and released.
Sheppard and dozens of others from out of state were handcuffed, put
in police vans, and taken to the Harrisburg police station to await a
court hearing. Some were shackled together with leg irons.

Hours later, Sheppard said, a district judge ordered each to post
$1,051 bail. Anyone who didn't have that amount - in cash - was going
to Dauphin County Prison.

At 1 a.m. Sunday, shortly after she arrived, a female prison officer
escorted Sheppard into a shower room.

"She asked me to remove all of my clothing," Sheppard said.

Naked, she first faced the guard and then was told to turn around and
bend over.

Sheppard was having her period: "I was asked to remove a tampon," she
said. She could hear male guards talking just around the corner;
mortified, she realized they could hear everything.

Much of the rest is a daze for Sheppard. When the search was over,
the female guard handed her a uniform, and another guard took her to a cell.

Hours later, a friend retrieved Sheppard's belongings, and used her
credit card to get cash for her release. The charges were later dropped.

"This whole thing was very upsetting," Sheppard said. "It was humiliating."

Defining 'Unreasonable'

When is a police order to strip for a search "unreasonable" - and
thus prohibited by the Fourth Amendment?

In deciding this question, federal courts around the country weigh a
number of factors - including the seriousness of the subject's
offense, the length of the jail stay, and the evidence that the
suspects might really have been hiding something underneath their clothes.

The U.S. Supreme Court ruled in 1979 that the federal prison in
Washington did not violate inmates' rights by strip-searching them in
order to keep out drugs and weapons. But the judges shied away from
drawing a clear line between a legal strip search and an illegal one.

"In each case, it requires a balancing of the need for the particular
search against the invasion of personal rights that the search
entails," the court said.

In the 28 years since, state and federal courts have tried, case by
case, to define what is an unreasonable search.

Some guidelines have emerged. Strip searches are permitted on inmates
who have been convicted of serious felonies and sentenced to prison,
so long as the searches are done in a private setting. Likewise,
courts have found, it is appropriate to strip-search people arrested
for violent felonies - but not those held merely for suspicion of drug use.

Tighter restrictions apply when people have been charged with minor
crimes but not convicted.

Courts say those suspects can be made to strip only when police have
a clear reason to believe they are hiding something that can't be
found any other way.

Although the standards are still evolving, one rule has been clear
for more than a decade: Jails and police departments cannot
strip-search everyone brought into detention regardless of the
offense. Federal appeals courts from New York to California have
affirmed that rule again and again.

Judge Pamela Ryder, of the Ninth U.S. Circuit Court of Appeals in San
Francisco, wrote in a 2006 case that it was wrong to strip-search a
female bartender suspected of using drugs. "Being under the influence
of a drug does not necessarily indicate that the person has concealed
more drugs in a body cavity," Ryder wrote.

The U.S. Supreme Court has let Ryder's ruling stand, as it has done
with similar opinions.

In Pennsylvania, the key federal court decision came in 1993, when a
group of women protesting a Labor Day pigeon shoot were held in the
Schuylkill County jail and strip-searched.

"The feelings of humiliation and degradation associated with being
forced to expose one's nude body to strangers for visual inspection
is beyond dispute," federal judge Franklin Van Antwerpen ruled.

At the time of his ruling, state prison regulations actually required
county jails to strip-search everyone, regardless of the crime.

Seven years later, the state finally rescinded that rule, belatedly
taking notice of Van Antwerpen's decision that the protesters' rights
were violated by "unreasonable and unjustifiable" strip searches.

But it failed to write a new policy. Even today, 14 years after the
pigeon-shoot case, Pennsylvania still has not issued any legally
acceptable rules for how jails should conduct strip searches.

Instead, the state has remained silent, allowing county jails to do
as they see fit.

Pennsylvania Department of Corrections spokeswoman Susan McNaughton
said her department would complete new rules in 2008 but would not
comment further, other than to say the department is still working
with counties on a complex issue.

'I Had to Get Away'

In March 2005, after a late night of visiting his grown nieces and
drinking beer, retired music teacher Byrd was on his way home to
Sewell when he started to feel drowsy.

Byrd, 50, who taught music for 22 years at University City High
School and FitzSimons Middle School, stopped his van beside the road
in the Germantown section of the city and went to sleep.

Police said they found Byrd slumped over the steering wheel, with the
van's door partially open. When they woke him up, Byrd had watery
eyes and spoke incoherently. He refused to take a Breathalyzer test,
they said, and was arrested for drunken driving and having a suspended license.

Byrd - who had two previous drunken-driving arrests - said he was
simply tired, so he pulled over and took a nap.

When Byrd couldn't come up with $2,500 in bail money, he was shipped
to a Philadelphia Corrections Department jail on State Road. There, a
guard took Byrd to a room and ordered him to take off all his clothes.

"He had me bend over, you know, on the bench. And I have no clothes
on. I'm scared. Man, I'm not built for prison," Byrd said in a deposition.

After the search, Byrd told a guard that he needed to use the
bathroom - just so he could be alone for a moment. The guard told him
to use an empty cell.

"I had to get away because I didn't want anyone to see me as being
soft, because I'm getting really scared now," said Byrd, whose case
later was dismissed by a judge. "I'm crying. I stayed there and cried."

He was bailed out the next day, and, after a trial, a judge found him
not guilty. But his wife gave him an ultimatum - leave alcohol alone
or she would leave him - and he entered a treatment program. "She
didn't back down," he said.

'They're Getting Searched'

Flanders, the Pottstown chief, defends his policy of strip-searching
everyone entering the city jail, even the town drunks.

"Without question, they're getting searched," he said during an
interview last year, saying that is the only way to keep jails and
inmates safe. "I'm not going to have somebody hiding a razor blade or
something like that and go in there and commit suicide." He did not
return calls seeking additional comment.

Delaware County's Chester Township has a similar practice, says its
police chief, Booker T. Wilson. He said about five people a week
enter the jail - 260 a year - and they are strip-searched.

"If you're being arrested, you're subject to a strip search," he said
in a recent interview, adding that no one has ever sued or even complained.

Wilson said he would rather risk a lawsuit than take a chance on
drugs' slipping into his jail.

Few police chiefs will admit to having blanket strip-search policies,
as Flanders and Wilson do. But even when departments have written
tough policies limiting the searches, the actual practices followed
by police officers vary widely from town to town, The Inquirer found.

In Chester City, the written policy is similar to what courts say is
permitted: Police can strip-search a suspect if they believe it is
"necessary to locate and recover a concealed weapon or contraband."

But Chester City Chief John Finnegan says he gives his officers wide
discretion. They have a green light to strip-search everyone detained
in the city lockup, he said, even accused shoplifters held for a few
hours, if officers believe they may be holding drugs.

"It's not just officer safety, it's for [the prisoners] themselves,
also," Finnegan said.

As a result, Finnegan said, his officers strip from 1,000 to 2,000
people each year.

Nor are these catchall strip searches confined to Southeastern Pennsylvania.

Police in Erie, the state's fourth largest city, have no written
strip-search policy - and no plans to write one.

"If we had a strip-search policy that you strip-search everyone,
you're going to get holy hell for that," Police Chief Stephen Franklin said.

He says he simply tells officers that if they believe someone might
be holding drugs, "you can search as far as you want to." Each year,
he said, they conduct "a couple thousand" strip searches.

That's highly unusual: A Justice Department survey of departments
across the nation said 93 percent of cities of Erie's size or larger
had written policies.

Strip-search practices can even vary widely from jail to jail within
the same city.

A case in point: Philadelphia, where radically different practices
are followed in police overnight lockups and in the city's prisons.

For years, until October, city prisons searched everyone. Not so in
the temporary lockups in police headquarters, where police each year
detain 20,000 people arrested on drug and gun charges - but only
strip-search about two dozen of them.

Lt. Francis Healy, a former Philadelphia street cop who now is a
department attorney, said officers, using pat-downs, are able to do
thorough searches, genital areas included, without stripping people.

Healy said a strip search was justified only in limited
circumstances, such as if an officer saw drug dealers hiding
narcotics in their underwear.

"We're getting what we need," Healy said. "We know they are free of
weapons. We don't see it in any way endangering the officers any more
than necessary.

"It's humiliating to be strip-searched, without a doubt," Healy
added. "To say otherwise would be a lie."

Stopped on the Way Home

Tameka Flythe said it was "one of the worst days of my life."The
daughter of a psychologist from Wallingford, she was arrested and
strip-searched on June 1, 2005.

According to sworn testimony in federal court, Flythe, 32, said she
was stopped two blocks after she crossed the Darby Borough line,
walking home from an afternoon shooting hoops in West Philadelphia.

Once a star basketball player at Strath Haven High School, Flythe had
seen a friend, Stacey Brinson, and shot hoops with Brinson's nephews
Ry'shom, 11, and Ty'shom, 12.

Part-time Darby officer Tina Selimis pulled up next to her in an
unmarked car with its light flashing, and began questioning her about
where she was coming from and whom she had been visiting.

Flythe, who has never been in trouble with the law, said she answered
patiently, expecting that would be the end of it. But then, she said,
the officer asked, "'I'm sure you can give me a couple of drug houses
in Darby.'"

"'Ma'am,'" Flythe said she responded, "'I don't know what you're
talking about. I don't do drugs.'"

Flythe said the officer then asked, "'Do you mind if I pat you
down?'" Nothing was found.

Afterward, Selimis handcuffed Flythe and told her she wanted to take
her to the station house to check her further.

At the station, Flythe said, she followed the officer into a harshly
lit, windowless room with no furniture.

"The door shut behind us, and she asked me to start removing my
clothes," Flythe said. "I'm thinking, this must be what she means by
the more thorough search."

When Flythe was naked, she says, "She told me to bend over and
cough." Selimis again found nothing. Flythe said the officer then
handed back her clothes and told her she was free to go.

In a sworn court statement, Selimis, a 26-year-old part-time officer,
gave a different account. She said she stopped Flythe because she was
staggering. "Her eyes were red and glassy, bloodshot, and she had a
hyper-fidgety demeanor. She stated that she was coming from the
Paschall projects and she had just smoked crack with her children."

Selimis said she picked up Flythe for "public drunkenness," and
strip-searched her on the possibility that she might be concealing contraband.

She ultimately released Flythe without charging her with anything
because she had "calmed down, she didn't appear intoxicated to me at all."

"I'm going to tell you honestly, [Flythe was] one of the nicest
people I've encountered in Darby," Selimis testified.

Flythe's friend, Brinson, said in a recent interview that she spoke
with Flythe immediately after the basketball game and saw no red
eyes, fidgety demeanor or stumbling.

Likewise, her nephews, both honor students in Philadelphia middle
schools, said they had never used drugs of any kind, with Flythe or
anyone else.

Flythe said Selimis' assertion that she smoked crack with boys who
were 8 and 10 at the time was absurd and outrageous. "First of all, I
don't do drugs," she said.

Several months after the encounter, Flythe contacted a lawyer through
an aunt's friend - former Philadelphia Housing Authority counsel
Michael Pileggi, who now specializes in civil-rights litigation.

In October 2005, Pileggi filed a federal lawsuit on Flythe's behalf,
alleging that Darby's police force had a pattern and practice of
strip-search abuses.

Pileggi's arguments went to U.S. District Judge Jan E. DuBois, who
was not impressed.

Significantly, the judge said Pileggi presented no evidence that
Darby had such a blanket strip-search policy. As a result, he ruled
that Flythe could not sue the town itself. Only Selimis' conduct
would be on trial.

The ruling placed Flythe at a considerable disadvantage; courts
usually grant police officers a lot of leeway for decisions made on
the street, even when mistakes are made.

During a brief trial before U.S. Magistrate Judge Thomas J. Rueter,
Selimis told the jury that she did not single out Flythe for special
treatment. In fact, she testified, she had strip-searched more than
100 people in just two years.

She and her bosses argued strenuously that strip searches were an
essential part of the war against drugs.

"We've brought people in that have two bags of marijuana in their
pocket and 10 bags of marijuana in their rectum," Lt. Richard Gibney,
Selimis' supervisor, testified.

Because of the limits on the case, the jury never learned that many
municipalities strictly control strip searches.

Darby Chief Robert F. Smythe did not appear as a witness in the case
and did not responded to requests for comments for this article.

Pileggi also said he was blocked from calling former Darby Mayor
Paula M. Brown, who says she was regularly asked to help strip-search
women prisoners when she was in office from 1998 to 2006.

Frequently, she said, police requested searches that were clearly
unconstitutional. "I refused more than I conducted," she said in an interview.

The jury quickly ruled against Flythe.

In interviews afterward, jurors said they believed police could
strip-search anyone entering jails, even people arrested for minor offenses.

Foreman Roger Ruggles, 53, an engineering professor at Lafayette
College in Easton, Pa., said jurors were swayed by arguments about
jail safety. Jurors also didn't think Flythe's search sounded that terrible.

"If they conducted the strip search in the lobby, now, that's wrong,"
said Ruggles.

As for Flythe, she was determined to appeal, but another lawyer
declined the case. Even if she won, he said, Darby was too
impoverished to pay much in damages.

Flythe knows there is little more she can do. But she still holds out
hope that her fight will make a difference.

"It may be justice for someone else," she said, "a step toward some
type of justice for good citizens."