Searching and Detaining or Arresting Non-Inmates

AGENCY:

Bureau of Prisons, Justice.

ACTION:

Final rule.

SUMMARY:

In this document, the Bureau of Prisons (Bureau) finalizes regulations on searching and detaining or arresting non-inmates. This revision reorganizes current regulations and makes changes that subject non-inmates to pat searches, either as random searches or based upon reasonable suspicion, as a condition of entry to a Bureau facility.

DATES:

This rule is effective July 6, 2007.

FOR FURTHER INFORMATION CONTACT:

Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION:

In this document, the Bureau finalizes regulations on searching and detaining or arresting non-inmates. A proposed rule on this subject was published in the Federal Register on January 31, 2006 (71 FR 5026). We received four comments during the comment period. One was supportive of the rule. We respond to issues raised by the other three commenters below.

Comment: Bureau staff should receive equivalent testing/scanning as the regulation requires for visitors. Two commenters expressed the opinion that Bureau staff should be subject to the same potential searches required for others seeking to enter Bureau facilities.

In fact, Bureau employees are subject to search using the same search devices, methods, and technology employed to search other non-inmates seeking to enter Bureau facilities. Current Bureau policy regarding searching non-inmates states that, in accord with Bureau standards of employee conduct, the Bureau retains the right to conduct searches of employees when such a search is believed necessary to ensure institution security and good order.

Also, at the beginning of their employment, every Bureau employee receives, and signs for, a copy of the Bureau's Program Statement on Standards of Employee Conduct and Responsibility. This policy, along with signs posted at the entrances to each Bureau facility, notifies employees that they may be subject to any of the types of searches described above.

Further, policy states that an employee's refusal to undergo a search (including test) procedure is a basis for disciplinary action, including removal. The range of disciplinary actions that might be taken against an employee determined to be using illegal drugs, or introducing drugs or other forms of contraband, includes dismissal and criminal prosecution.

Comment: There are problems with the Bureau's use of ion spectrometers to perform searches. Two commenters raised issues surrounding the Bureau's use of ion spectrometers. Essentially, both commenters raised issues regarding the accuracy of such devices with regard to detecting illegal substances.

Bureau's response: At the outset, we note that the use of an ion spectrometry device is not the sole method of searching non-inmates, and may not be applied to search all non-inmates entering Bureau facilities. As the regulation explains, many types of searches may be conducted, including electronic searches, visual searches, pat searches, and urine surveillance testing, all with the primary goal of ensuring the safety, security and good order of Bureau facilities by reducing the introduction of contraband.

Ion spectrometry technology is designed to detect the presence of microscopic traces of illegal drugs on non-inmates and their clothing and belongings. Beginning in 1997, the Bureau conducted extensive testing of ion spectrometry technology to scan non-inmates for drugs as they enter Bureau facilities. Based on the results of this program, the Bureau concluded that using ion spectrometry devices contributed to reducing the amount of contraband on Bureau grounds.

Ion spectrometry technology is grounded in the well-established scientific principles of mass spectrometry and gas chromatography. Ion spectrometry devices are a minimally invasive method for screening people, packages, and cargo for traces of illegal substances. Although capable of identifying trace illegal substances within approximately the 1-5 nanogram range (one nanogram equals one billionth of a gram), the Bureau's machines are calibrated to register positive readings only at levels greater than those which may be casually encountered, for example by handling contaminated currency, using a public telephone, or shaking hands. The manufacturer of the Bureau's ion spectrometry devices claims a less than 1% rate of false positive results.

We have found that delivery of illicit substances while visiting is a common method for such substances to be introduced into institutions. Such methods include non-inmates swallowing small balloons full of illicit substances before entering the facility, then excreting and delivering the contents once inside. When done by this method, the ion spectrometry device may indicate handling of the illicit substance, while a further visual search of the individual would fail to disclose its presence. Even if not directly transferred to the inmate while visiting, illicit substances can be secreted within the institution for later retrieval by inmates or others.

With regard to non-inmates who test positive for the presence of illegal substances and are denied admission into a Bureau facility, under current policy on the ion spectrometry testing program, staff are required to give the non-inmate a written notice describing the reasons for denial of admission and the appeal process. All non-inmates may appeal denial of admission using the process set forth in the notice.

Comment: Searches/random searches are intrusive and unfair. Two commenters expressed similar sentiments regarding the general concept of searching non-inmates wishing to enter Bureau facilities. One commenter stated that searches were unfair, and therefore discriminatory against non-inmates. The other commenter indicated that random searches were intrusive for non-inmates, and expressed particular concern regarding children.

Bureau's response: First, we note that both commenters referred to random searches, and not searches based upon reasonable suspicion. Section 511.15(a)(1) requires that random searches be impartial and not discriminate among non-inmates on the basis of age, race, religion, national origin, or sex. Further, Bureau staff are held to the highest standards of professionalism and discretion when conducting searches. With regard to the commenter's concern regarding children, staff would exercise caution and compassion if it becomes necessary to search a child, to ensure that none of the child's rights are violated.

However, instituting procedures requiring searches of non-inmates seeking to enter Bureau facilities is a necessity, originating from the need to prevent the introduction of contraband. The possibility of being searched (and the obvious notices so stating) acts as a minimally invasive deterrent to non-inmates seeking to introduce contraband, without unnecessarily or extremely burdening staff resources.

Non-inmates are a significant source of contraband introduction into Bureau facilities. 18 U.S.C. 1791 prohibits providing an inmate a prohibited object in violation of a statute or rule issued under statute. Although other search methods, such as visual searches and electronic detection devices, enable us to search non-inmates before they enter Bureau facilities, a 2003 report by the Office of Inspector General found that non-inmates often found unique ways of introducing contraband that may have easily been detected or prevented by random pat searches of non-inmates entering Bureau facilities.

We therefore must tighten security measures by instituting a system of random pat searches of non-inmates entering Bureau facilities. This will serve the dual purpose of preventing the introduction of contraband by its detection, and deterring non-inmates who may attempt to introduce contraband. The Bureau's overriding need to prevent introduction of contraband and/or confiscate contraband necessitates searches.

In particular, random searches, (without reasonable suspicion) are permissible, especially if the non-inmate is given prior notice of the search, which therefore lowers the non-inmate's reasonable expectation of privacy when seeking entry to the prison facility, and consents to the search. See Spear v. Sowders, 71 F.3d 626 (6th Cir. 1995); U.S. v. Johnson, 27 F.3d 564 (unpublished) (4th Cir. 1994); El v. Williams, 1990 WL 65717 (unpublished) (E.D.Pa. 1990).

In addition, we note that the more detailed searches, such as visual searches of the person, would only be performed based on the Warden's reasonable suspicion, as noted in § 511.16(c)(1)(B). Random visual searches of the person are prohibited.

Comment: It is not always possible to provide same-sex pat searches or visual searches, as indicated in the proposed rule. One commenter was concerned that “although common law enforcement practice is to provide for same sex searches, in some cases this is not possible * * * [Requiring same sex searches] places the public at risk and undermines the professionalism of the Bureau of Prisons.” The commenter also expressed concern regarding situations where a staff member of the same sex cannot be located quickly enough to do a pat search or visual search, or when exigent circumstances necessitate searches by staff who are not the same sex as the non-inmate.

Bureau's response: We agree with the commenter, and therefore clarify that pat searches, visual searches, and urine surveillance testing will be conducted by staff members of the same sex as the non-inmate being searched whenever possible. This concept is carried forth from the previous rule, § 511.12(f), which states that “[a] pat search, visual search, or urine surveillance test is to be conducted by a person of the same sex as the visitor.” We further strengthen this provision by also requiring that pat searches, visual searches, and urine surveillance testing will only be conducted by staff members of the opposite sex in emergency situations with the Warden's authorization.

Executive Order 12866

This rule falls within a category of actions that the Office of Management and Budget (OMB) has determined to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was reviewed by OMB.

Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

The Director of the Bureau of Prisons, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact upon a substantial number of small entities for the following reasons: This regulation pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

This regulation will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This regulation is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This regulation will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

List of Subjects in 28 CFR Part 511

• Prisoners

Under rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons in 28 CFR 0.96, we amend 28 CFR part 511 as follows.

Subchapter A—General Management and Administration

PART 511—GENERAL MANAGEMENT POLICY

1. Revise the authority citation for 28 CFR part 511 to read as follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 751, 752, 1791, 1792, 1793, 3050, 3621, 3622, 3624, 4001, 4012, 4042, 4081, 4082 (Repealed as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510.

2. Subpart B is revised as follows:

Subpart B—Searching and Detaining or Arresting Non-Inmates