Let's do a brief quiz.
The question is whether it's okay for a woman to strip search a pretrial (unconvicted) detainee in a minimum security prison who's a man. It's not a cavity search or anything like that, but the guy does have to wear thin boxer shorts (and nothing else) as the woman pulls out his waistband. So less clothing than your typical TSA search, but no junk-touching. No exigent circumstances, either.
(Parenthetically, by the way, I got subjected to a pretty intensive search in week ago when one of my kid car seats tested positive for explosives. A full, heavy, "get to know you on the eleventh date" search. But I gotta say, the TSA agent was not only incredibly nice about the whole thing, but left my actual privates alone. So I was happy about that, and didn't feel violated at all. Now, whether that'd be different in airports other than in Kona, Hawaii -- where I imagine they're pretty mellow -- or with a passenger other a white guy who wasn't obviously on vacation with his four small kids, I can't say. But for me, at least this time, not bad at all.)
Getting back to the main point: Does that violate the Fourth Amendment as an unreasonable search? Or, more quiz-like, what will the en banc court decide?
Here's the panel: Judges Kozinski, Schroeder, Thomas, Graber, Fisher, Gould, Paez, Tallman, Rawlinson, Bea and Randy Smith. What's your thought?
I'll give you another data point. Not that it'll help. It's a 6-5. Who are the 5?
Got your guesses? Here are the answers.
